Halilco Nigeria Limited V. Equity Bank Of Nigeria Limited (2013)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal is against the judgment of Kaduna Division of the Court of Appeal delivered on 21/2/2006.

The appellant, as plaintiff, filed a Summon s ex-parte, before the Kaduna Judicial Division of the High Court of Justice, Kaduna State, on 15/12/2000 in which he prayed the trial Court for:

“An order listing under the Undefended List the Writ of Summons to be issued against the defendant.”

The respondent was the defendant in the trial High Court.

On 26/2/2001, the trial Court, having considered the summons ex-parte and the accompanying affidavit ordered that:

‘The suit is marked under Undefended List.”

Upon service on it of the Writ of Summons filed on 15/12/2000, the Respondent, as defendant, filed a Notice of Intention to Defend with Supporting Affidavit raising defences to the action. The trial Court took learned Counsel’s submissions and considered the affidavit evidence and held thus:

“As there is no defence on the merit discharged by the defendant, judgment is entered for the plaintiff against the defendant in the liquidated sum of N500,000.00 (Five Hundred Thousand Naira only) being deposited money due and payable by the defendant to the plaintiff on demand. The defendant is to pay the plaintiff 21% interest per annum being the Bank’s rate of interest from the 1st of January, 1999 to date of judgment.”

Dissatisfied with the judgment, the defendant (now respondent), appealed to the Kaduna Division of the Court of Appeal. In its judgment dated 21/2/2006, the lower Court concluded:

“In conclusion, the judgment of the lower Court delivered on 2nd April, 2001 in Suit No. K/750/2000 by Yusuf Hassan, J. When there was no Writ of Summons with claim is a nullity. Accordingly, it is hereby so declared.”

Aggrieved by the judgment, appellant who was the plaintiff in the trial Court, appealed to this Court on three grounds in a Notice of Appeal filed on the 5th of May, 2006.

Learned Counsel for the parties filed and exchanged briefs of argument. Learned Counsel for the appellant distilled the following two issues from his three grounds of appeal:

“1. Whether the Court of Appeal was not in error which occasioned a miscarriage of justice when it raised the issue of the competence of Suit No. K/750/2000 suo motu and decided some without giving the parties a hearing. (Distilled from Grounds 1 & 2 of the Grounds of Appeal).