Alhaji Hassan Khalid V. Al-nasim Travels & Tours Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

The Respondents, as plaintiffs, caused the Registrar of the High Court of Kano State to issue a writ of summons in Suit No K/95/2012 under the Undefended List on the 22nd of March, 2012 against the Appellant, as defendant, pursuant to the leave granted to the Respondents to so issue the writ of summons on the said 22nd of March, 2012 by the High Court of Kano State. The claims of the Respondents were for:

i. The sum of N87,688,561.60 being money due and payable to the Respondents by the Appellant for issuing tickets in the Respondents’ name via online BSP link for the months of October to November, 2011.

ii. Court interest at the rate of 10% till the whole judgment sum is liquidated.

iii. Cost of filing and prosecuting this suit.

The writ of summons was supported by an affidavit of facts and the case of the Respondents was that their main line of business was the procurement and processing of visas and airline tickets for Hajji and Umrah travels to the Holy lands of Mecca and Medina in Saudi Arabia and they had an online BSP links to the different airlines which they used for their business.

It was their case that they were approached by the Appellant sometime in January 2011 with a request that he be allowed to use their online BSP link for the purpose of making reservations and booking tickets with five airlines – Egypt Airlines, Ethiopian Airlines, Kenyan Airlines, Qatar Airlines and Turkish Airlines.

It was their case that they consented to the request of the Appellant on the understanding that the Appellant shall remit all the monies due to them to their Corporate Account at Sterling Bank within three days after each ticket sale and that the said account shall be fully funded three working days before each BSP link; the terms of agreement were embodied in a Memorandum of Understanding attached as Exhibit A.

It was the case of the Respondents that the Appellant commenced the use of their BSP link for the sale of airline tickets and made a total sale of N768,415,568.10 between the months of January and October 2011 using their Sterling Bank Account and that as at November, 2011, they notice a default in the sale remittances totaling N87,688,561.60 and as a result of which their BSP link was blocked. It was their case that they invited the Appellant for a meeting and whereat the Appellant admitted that he diverted the monies to fund a contract he got with the Jigawa State Government and promised to repay the monies as soon as possible and this undertaking was embodied in another Memorandum of Understanding dated 10th of Decembe4 2011, Exhibit B.

It was their case that when the Appellant was not forthcoming on the repayment of the monies, they caused their Solicitors to write a letter of demand and in response to which the Solicitors to the Appellant wrote a letter pleading for more time to repay the money; the letter of demand and the response were Exhibits C and D. It was their case that the Appellant refused to repay the money till date and had no defence to the suit.

The writ of summons with the affidavit of facts were apparently served on the Appellant and he, in response, filed a notice of intention to defend dated the 2nd of April, 2012 along with an affidavit of facts in support.

The case of the Appellant was that it was indeed true that he approached the Respondent for the use of their BSP link for the sale, reservation and issue of tickets on the five mentioned airlines and that it was agreed that the payment for each ticket less his commission shall be paid into a dedicated account at Sterling Bank Plc. It was his case that he was an illiterate with very little knowledge of Western education and cannot properly read and write in English language without an interpreter and that he was not informed of the contents of two Memorandums of Understanding attached as Exhibits A and B and their contents were not interpreted to him before he appended his signature and he denied the contents of the documents.

It was his case that he performed his undertaking with the Respondents to the best of his ability and was not owing the Respondents the sum of N87,688,561.60 and that he did not know how his alleged liability to the Respondents arose. The Appellant admitted receiving the letter of demand, Exhibit C, and it was his case that he gave the letter to his Solicitors to respond to but he never gave his Solicitors instruction to admit any form of liability.

The lower Court took the arguments on the matter and it, in a considered Ruling delivered on the 23rd of April, 2012, entered judgment in favour of the Respondents on the terms of the claims on the writ on summons. On the 24th of April, 2012, the very next day after the judgment, the Appellant filed an application before the lower Court praying for an order setting aside the judgment entered on the 23rd of April, 2012. The Appellant predicated the application on the grounds that the originating processes were not filed in accordance with the Rules of Court and that the annexures attached to the affidavit of facts in support of the writ of summons were misleading and contradictory and were not admissible in law and that as such the lower Court was misled into entering judgment in favour of the Respondents. The Respondents opposed the application. The lower Court entertained the application on the merits and dismissed same in a considered Ruling delivered on the 17th of July, 2012. This present appeal is against both the judgment delivered on the 23rd of April, 2012 and the Ruling delivered on the 17th of July, 2012.