Brigadier-general Remawa (Rtd) V. Nacb Consultancy & Finance Company Limited & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the ruling of the Kaduna State High court holden at Kaduna Judicial Division in suit No. KDH/KAD/423/93 delivered on 15/5/98, filed on behalf of the 3rd defendant/applicant Brigadier General Remawa, now appellant, before this court.

By a writ of summons dated 22/9/93, the plaintiff, now 1st respondent, initially instituted an action against, Princess Rabi Ado Ibrahim, 1st defendant now 2nd respondent, in this appeal, claiming as per the writ of summons as follows:

“(a) The sum of N2,624,000.00 being the outstanding unrepaid balance as at 20/8/93, including interest thereon on a short term loan finance granted by the plaintiff to the defendant as defendant’s request.

(b) Monthly interest on the said sum of N2,624,000.00 calculated at the rate of 13.5% per month from the 20/8/95 untill the entire debt is liquidated.

Whereof the plaintiff’s claims against the defendant the sum of N2,624,000.00 plus monthly interest calculated at 13.5% per month payable from 20/9/93 till the entire debt is fully satisfied.”

The writ of summons was brought in accordance with Order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the undefended list procedure, supported by a nineteen paragraph affidavit deposed to by one Mainasara I.K.P. Umar, Esq, a legal officer in the legal department of the plaintiff. The most relevant of the paragraphs are as follows:

“2. That by virtue of my position aforesaid I am conversant and familiar with the facts of this case.

3. That I have the authority of my employers to depose to this affidavit from facts within my personal knowledge.
4. That the plaintiff is a Registered Company, engaged in the business of Finance and Financial Consultancy Services with its Head office at 2 Dendo Road Kaduna.
5. That the defendant is a customer of the plaintiff who enjoys the services of the plaintiff and resides at No.1 Brig. Magoro Street Nasi Jaji – Kaduna.
6. That on the 23rd July 1992, the defendant applied for a short term credit facility of N1 million from the plaintiff, for the purpose of importing computer softwares from Germany. Copy of the application form is annexed and marked exhibit MU 1.
7. That by it’s letter of 24th July 1992, the plaintiff informed the defendant of the approval of his application referred to in paragraph 6 above, containing the terms and conditions attached to the short Term Credit facility and which the defendant accepted by endorsing the statement of acceptance, accepting the facility on those terms and conditions. Copies of the plaintiff’s letter of offer/approval and defendant’s statement of acceptance are annexed and marked exhibit MU II and III respectively.
8. That in addition to the acceptance of the loan offer, the defendant executed a loan agreement in favour of the plaintiff. Copy of the executed loan agreement and duly stamped is hereby annexed and marked exhibit MU IV.
9. That the plaintiff by it’s Trade Bank Plc. Kaduna Branch cheque No.156090 of 24/7/92 disbursed the sum of N1million to the defendant less the agreed charges. The said cheque is hereby annexed and marked exhibit MU IIIB.
10. That one of the conditions attached to the grant of the short term loan facility, and which was understood and agreed to by the parties to this suit was that, the facility shall be fully repaid inclusive of interest on the 21/9/92.
11. That it was also agreed that the facility shall attract monthly interest of 13.5% per month until same is fully repaid.
12. That the defendant defaulted in meeting her repayment obligation under the facility and by her of 30/9/92 requested for an extension of time of payment, to which the plaintiff reply to by it’s letter of 26/10/92. Copies of the letters dated 30/9/99 and 26/10/92 respectively are annexed and marked exhibits MU V and VI.
13. That the defendant further defaulted on the extended and the plaintiff’s by its letter 18/11/92, 10/12/92 and 25/5/93 called on the outstanding short term facility. Copies of the aforesaid letters are annexed and marked exhibits MU VII and IX respectively.
14. That the defendant by her of 10/6/93 handwritten submitted a repayment proposal of N200,000 monthly repayment of the facility and the plaintiff by its letter of 11/6/93 granted same. Copies of the letters are annexed and marked exhibits MU X and XI respectively.
15. That upon the further default of the defendant, the plaintiff instructed its solicitors Messrs Igunbor, Sule & Co. to recover the amount outstanding.
16. That the plaintiff solicitors thereafter wrote letter of demand dated 22/6/93 to the defendant. A copy of the letter if annexed and marked exhibit MU XII.
17. That as at 20/8/93 the defendant’s total indebtedness to the plaintiff stood at N2,624,000.00 only and she has refused, neglected to liquidate this indebtedness despite several demands and in breach of her letter of 10/6/93.
18. That I am informed by the plaintiff’s solicitor Charles Sule of counsel and I verily believe him that the defendant has no defence to this suit.”

The 1st respondent as plaintiff/applicant by a motion dated 6/2/96, filed on 8/2/96, in the trial court prayed for the following orders:

“1. Leave and order of court to join Ibrahim Muhammed, Brigadier General Remawa and Mohammed Buhari of A2 Kabala Costain, Kaduna 14 Galadimawa Road, Kaduna and 4 NEPA Close Kaduna, respectively as defendants in this suit.

2. Leave of court to amend the writ of summons.
3. Order of court to amend the writ of summons on the undefended list as follows: Whereof the plaintiff’s claims jointly and severally against defendants the sum of N2,624,000 plus monthly interest calculated at 13.5% per annum from the 20th September, 1993, till the entire debt is fully liquidated.
4. An order that all processes hereinbefore settled be served on the three defendant.”

The motion was supported by a three paragraph affidavit deposed to by one Joke Saliu of No. XX II Ibadan Street/Daura Road, Kaduna, a litigation secretary in the law company of plaintiff’s solicitors. The relevant paragraphs of the affidavit are as follows:

“2. That by virtue of my aforesaid position, I am conversant with the facts of this case and I have the authority of my employers and the plaintiff’s to depose to this affidavit.

3. That I am informed by Mainasara I.K.F. legal officer in the employment of the plaintiff, information which I verily believe to be true and correct as follows:

(a) That Ibrahim Muhammed, Brigadier M. Remawa and Mohammed Buhari, respectively guaranteed the facility granted to the first defendant Xerox copies of the Deed of Guarantee are shown to me, read by me and herewith annexed and marked as exhibits JS 1A-C respectively.

(b) That the delay in joining them as defendants was premised on the understanding existing between the plaintiff’s and the first defendant.