Intermarkets Nigeria Limited & Anor V. Unity Bank Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BABA ALKALI BA’ABA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the ruling and Judgment of the Kano State High Court Holden at Kano State Judicial Division delivered on 25/6/2003 and 24/7/2003 respectively in Suit No. k/556/2002, 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 concurrent writ dated the 26th day of September, 2002 brought under the undefended list procedure pursuant to order 23 of the Kano State High Court (Civil Procedure Rules 1988). The respondent’s claim is contained at pages 10-11 of the printed record, it reads:

“1. The plaintiff’s case against the Defendant is for the sum of N35,445,071.89k being the outstanding balance together with the interest and other Banking Charges which accrued as at 31/6/2002 on overdraft and warehousing loan granted to the Defendants. The Defendants have refused to and/or neglected to settle their indebtedness despite repeated demand.

2. Compound interest on the said sum of N35,445,071.89k at the rate of 21% per annum from 31/6/2002 until judgment and thereafter interest rate of 10% until the entire judgment debt is liquidated.
3. Cost of this action.

WHEREOF the plaintiff claims the said sum of N35,445,071.89k with interest and cost of the action.”

The respondent as the plaintiff filed a motion ex-parte dated the 25th day of September, 2002 praying the court for the following orders:-

“(a) Leave of the Court to issue a concurrent writ of summons.

(b) Leave of this court to serve this concurrent writ of summons on the 1st Defendant who resides at No.33B Bourdillon Road Ikoyi, Lagos or at Otta Efun, Old Ikirun Road Osogbo, Osun State which is outside the jurisdiction of this Court.

(c) Leave to enter the suit under the undefended list AND for such order or further order (s) as this Honourable court may deem fit to make in the circumstance.

DATED THIS 25TH DAY OF SEPTEMBER 2002.”

The application was supported by a fourteen paragraph affidavit.

The defendant now appellants filed a notice of intention to defend supported by a forty paragraph affidavit contained at pages 89-94 of the printed record.

The trial court first heard and determined the three filed by the defendants/appellants and in its ruling at pages 29-34 of the printed record, dismissed all three motions and held that all the three motions were not brought in good faith as they lack merit. The trial court at pages 42-43 of the record inter alia further held:-

“The defendants having failed to disclose any defence on the merit, the court has no alternative but to refuse the transfer of the matter into the general cause list enter judgment for the plaintiff.