Alhaji Sule Haruna Tahir & Anor. V. Bank of the North Limited (2006)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the Kano State High Court, holden at the Kano Judicial Division, delivered on 30/7/2001 in Suit No.K/324/2001 filed by the appellants who were the defendants at the trial Court. The respondent was the plaintiff before the trial court where it commenced an action against the appellants by an endorsed writ of summons dated 18/5/2001 brought under the undefended list procedure pursuant to Order 23 of the Kano State High Court (Civil Procedure) Rules, 1987. The respondent’s claim contained at page 2 of the printed record, reads:

“The plaintiff’s claim against the defendants jointly and severally is for the sum of N43,276,507.31 (Forty three Million Two Hundred and seventy-six Thousand, five Hundred and seven Naira Thirty-one Kobo) being the amount due and outstanding against the defendants as at 30th March, 2001 on the overdraft and Produce Loan credit facilities obtained and utilized by the defendants which has remained unpaid and outstanding till date inspite of repeated demands.

The plaintiff also claim 21% Bank interest rate on this amount from 30th March, 2001 until full liquidation of the debt.”

The respondent as the plaintiff filed a motion exparte dated 17/5/2001, praying the court for the following orders:-

“a. An order granting leave to issue mark and place this suit on the undefended list for hearing.

b. An order granting leave to serve the 1st defendant with the writ of summons and other Court processes by leaving same at the 2nd defendant’s address at 185 Club Road, Kano and same to be deemed good and effective service on the 1st defendant, and

c. For such further order or orders.”

The application was supported by a four paragraph affidavit. The trial court in its ruling delivered on 30/5/2001, contained at page 6 of the printed record, held:

“It appears that this application may be made and granted ex-parte. Leave is therefore granted to issue, mark and place this suit under undefended list.

The writ is to be marked and served accordingly. Leave is also granted to serve the 1st defendant with the Writ by leaving same at the 2nd defendant’s address at 185 Club Road Kano. Same shall be deemed good and effective service on the 1st defendant.”

The respondent as plaintiff filed a four paragraph affidavit in support of the suit brought under the undefended list procedure contained at pages 4 – 5 of the printed record. In my view, the most relevant paragraphs are paragraphs 2 and 3. The affidavit in support was deposed to by one Anselem Obaraeze, of No.37, Murtala Mohammed Way Kano a litigation officer in the firm of Kayode Olatunji & Co. Solicitors to the plaintiff. Paragraphs 2 and 3 of the affidavit are as follows:

“2. That by virtue of my position as aforesaid, I am fully conversant with the facts of this case.

3. That I am informed by Mr. Steve Ameh the plaintiff Bank Secretary/Legal Adviser on Friday the 11th May 2001 at 5.30p.m. of the following facts which I verily believe to be true as follows:-

(a) That the 2nd defendant is a credit customer of the plaintiff at its Sabon -Gari Branch, Kano.