Calhorie Limited & Anor V. Intercontinental Bank Plc (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an appeal, at the instance of the 1st and 2nd Judgment Debtors (hereinafter referred to as “the Appellants”) against the ruling of Honourable Justice A.R. Mohammed, of the Federal High Court Lagos, in Suit No.FHC/L/683/2005, delivered on the 9th of July 2008, whereby he entered Judgment in favour of the plaintiff (Respondent in the present Appeal) as gleaned from the orders made in the said Ruling reflected at page 344 of the Record of Appeal.

FACTS CULMINATING IN THIS APPEAL

The Respondent (then Applicant), via an undefended List Procedure” had brought a motion ex parte before the Federal High Court supported by Affidavit seeking leave that Suit No. PHC/L/CS/683/05 be placed on the undefended List and that the Appellants (then Defendants) have no defence to the claim. Pages 34-63 of the Record of Appeal. The Application was granted vide enrolled Order of Court of 27/7/05. The Respondent (as Plaintiff) had before then filed Writ of Summons on the 7th of July 2005 against the Appellants (then Defendants) jointly and severally claiming inter alia the following:

(a) “judgment in the sum of N30,783,415.51k (Thirty Million, Seven Hundred and Eighty Three Thousand, Four Hundred and Fifteen Naira, Fifty-One Kobo) being the outstanding balance as at the 30th day of April, 2005 on various credit facilities granted to the Defendants by the Plaintiff.

(b) “Interest on the above stated sum at the rate of 30% per annum from the 1st day of May, 2005 till judgment and thereafter at the rate of 10% per annum until final liquidation of the judgment sum.

(c) “…………”

From records, no Notice of Intention to Defend was filed by the Appellants. Rather he filed, on the 25th of May 2006, a Motion on Notice seeking the following orders:-

(1) “An order of this Honourable Court vacating the exparte order dated 27th day of July 2005, granting leave to the Plaintiff/Respondent to file and serve this suit on the Defendant/Applicants under the undefended list, the said application being obtained by fraud and an Abuse of Court Process in that:-

i. The Application for leave was filed and obtained fraudulently based on hidden facts and suppressed truth

ii. The avenue for arbitration which parties agreement provided for, has not been first exploited before the Plaintiff/Respondent rushed to this Honourable Court.

(2) An order setting aside the service of the Writ of Summons and the Statement of Claim as a suit brought under the undefended list on the ground that the required supporting Affidavit “setting forth the grounds upon which the claim is based and stating that in the Plaintiffs belief there is no defence thereto”…. was not served on the defendants along with the Writ of Summons and Statement of Claim.

An order of this Honourable Court striking out this suit in its entirety for want of JURISDICTION in that:-

i. The Suit as presently constituted is incompetent, not joining necessary parties to the suit