Intercontinental Bank Ltd Vs Brifina Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

The Appellant as plaintiff filed a suit under the undefended list at the High Court of Justice Onitsha, Anambra State of Nigeria claiming the following reliefs:

“a. The sum of N168,077,485.40 (One Hundred and Sixty Eight Million Seventy Seven Thousand, Four Hundred and Eighty-Five Naira, Forty Kobo) being outstanding sum/balance owed the Plaintiff by the Defendant as at 25th April, 2000.

b. 28% interest on the sum of N168,077,485,40 (One Hundred and Sixty Eight Million Seventy Seven Thousand Four Hundred and Eighty-Five Naira, Forty kobo) from 6th May, 2000 till judgment is delivered in this Suit and thereafter sum is liquidated.

c. The sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) comprising professional fees for hiring a Solicitor and also legal expenses for prosecuting this matter”.

The Respondent, herein, as the Defendant at the trial Court filed a Memorandum of Conditional Appearance instead of the Notice of Intention to defend. The trial High Court considered the defence stated in the said Memorandum of Conditional Appearance to the effect that the Respondent was under Receivership and that a document attesting to the fact was attached to the Memorandum of Conditional Appearance. In actual fact, no such document was attached and for that reason the court found that no triable issue was raised in the defence and entered judgment for the Appellant. Being dissatisfied with the judgment, the Respondent appealed to the Court of appeal Enugu Division, which allowed the Appeal in favour of the Respondent herein.

Dissatisfied with the judgment of the Court of Appeal the Appellant has now appealed to this Court.

On 9/11/2005, the Appellant brought an application for enlargement of time to file its Brief of Argument and to deem same as validly filed and served on the Respondent. The application was granted.

On 28/11/2007 similar application was made by the Respondent for extension of time to file its brief and to deem same as properly filed and served on the Appellant. It was granted and the Respondents’ brief of argument was deemed as properly filed and served on the Appellant.

The Briefs of argument of the respective parties having been filed and exchanged, the appeal was heard on 2/2/20/2. On that day Emeka Okoye Esq, the learned counsel for the Appellant having duly identified his brief urged this court to allow the appeal. The learned Counsel for the Respondent, Cameron Eze Esq, identified his brief and urged the court to dismiss the appeal and to affirm the decision of the court below.

The two issues raised for determination of this appeal by the Appellant are as follows:-

“1. Was the court below right when it held that the plaintiffs/Respondents/Appellants action was unsuitable to be placed under the undefended list and which unsuitability.

a. Rendered the said action incompetent.

b. Denied the Defendant/Appellant/Respondent fair hearing.