L. O. Yemos Nigeria Limited & Anor V. Unity Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice of Kwara State Ilorin Judicial Division in Suit No: KWS/46/2014 delivered on 11th June 2014 wherein the learned trial judge entered judgment against the appellants under the undefended list procedure.

On the 4th day of March, 2014, the respondent commenced an action under the undefended list procedure pursuant to Order 23 of the Kwara State High Court (Civil Procedure) Rules 2005, which ultimately culminated into this appeal. The originating processes were served on the 1st appellant L. O. YEMOS NIG. LTD through its secretary on behalf of both appellants as the 2nd Appellant had then traveled.

Consequently, on the 1st April when the matter first come up before the Court below, the respondent reported her inability to serve the 2nd appellant personally with the originating processes. The respondent, through its counsel one A. M. Mohammed, Esq. asked for an adjournment to ensure service on the 2nd appellant.

The Appellants subsequent filed an application for extension of time to defend the suit and attached

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their proposed notice of intention to defend to the suit and their reasons for late filing being that the 2nd appellant had traveled when the service of the initiating processes was effected through the 1st Appellant. There was no counter affidavit filed against the application for extension of time to file the Notice of Intention to Defend.

The Learned trial judge, however, refused the application and proceeded under the Undefended List procedure to enter judgment for the respondent for the principal sum and the cumulative interest, which computation was vehemently disputed by the Appellants. The appellants, therefore, felt disgruntled with that decision and proceeded to file a Notice of Appeal against it on the 11th day of June 2014, which was subsequently amended with leave.

The Appellants were ordered to pay a total sum of N56,038,570.63 representing the principal and accrued interest over two loans granted them. The sum of N500,000 was paid to the Respondent by the Appellants while judgment was pending. Another sum of N600,000 was further paid by the Appellants to the Respondent on the 6th June 2015 to further reduce the appellants’

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indebtedness to N55,438,570.63 as calculated by the appellants.

The appeal is predicated upon the followings even grounds:

GROUND 1

The lower Court erred in low by entering judgment against the defendants under the undefended list.