Harris Travel Agency Limited v. Leadway Assurance Company Limited (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, JCA (Delivering the leading judgment)

This appeal emanated from the judgment of Kano State High Court in suit No. K/20/2015, delivered on 29th January, 2018, wherein the learned trial court entered judgment for the plaintiff as per its claims, against the defendants (now appellants).

At the lower court, the plaintiff (now respondent) had sought the following reliefs:

(a) The sum of N29,117,531.18k (Twenty-nine million, one hundred and seventeen thousand, five hundred and thirty-one naira eighty-one kobo) being money due and payable to the plaintiff by the defendants on a default insurance protection programmed (sic) with International Air Transport Association (IATA) in which the plaintiff insured the 1st defendant and the 2nd and 3rd defendants stood as guarantor and surety to the 1st defendant to pay to the plaintiff any unpaid (sic) of the 1st defendant which IATA may call on the plaintiff to pay.

(b) The sum N2,911,753.12k, being Solicitors fees paid and payable by the plaintiff to his Solicitor, Messrs Gbenga Ogunniran & Co. on the contest of guarantorship and suretyship between the 1st, 2nd and 3rd defendants and the plaintiff for the recovery of the unpaid defaults to IATA on demand.

(c) 10% interest per annum post-judgment is liquidated.

(d) Cost of action.

It was an action placed on the undefended list procedure. The defendants did not file notice of intention to defend the suit, but filed notice of preliminary objection on the ground that the writ was not filed in accordance with the current Rules of Court, 2014. In reaction, the plaintiff filed further affidavit, without a reply against the preliminary objection. When the case came up on 1/6/2015, counsel on both sides said they were exploring amicable settlement and sought adjournment to report back. The settlement broke down. The defendants filed notice of Intention to defend and the trial court, finally, entered judgment for plaintiff (now respondent).

Appellants notice of appeal was filed on 4/4/2018 (Pages 311 to 315 of the records) and they formulated 3 grounds of appeal. They filed brief of argument on 29/6/2022, which was deemed duly filed on 21st November, 2022. They formulated 3 issues for the determination of the appeal, as follows:

(1) Whether the suit before the trial court qualified to be heard under the undefended list procedure?

(2) Whether the court was right to speculate that the undefended list procedure is proper before the court, despite the fact that it was filed almost six months after the commencement of the new Kano State High Court Rules, 2014, which was assented on the 1st September, 2014 and commences operation on the 20th November, 2014.

(3) Whether failure of the respondents counsel to file a reply to the appellants notice of preliminary objection before the trial court amounts to conceding to the ground therein?

The respondent filed a preliminary objection to the appeal, and a brief on 15/12/2022 and also raised the preliminary objection in the brief, to the competence of the appeal. In the alternative, the respondent formulated a lone Issue for the determination of the appeal, namely:

Whether the learned trial Judge was right, in the light of the facts presented by the respondent and the appellants before the court, in their respective affidavit evidence to have granted the reliefs 1, 2 and 3 claimed by the respondent, in spite of whether it was under the 1988 Kano State High Court (Civil Procedures) Rules or 2014 Kano State Civil High (Courts Procedure) Rules, that the matter is taken or not (Grounds 1, 2 & 3).