Midas Bank Plc V. Commerce Progetti (Nig) Limited (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

The Respondent as plaintiff, had taken out a writ of summons against the Appellants as defendants, by the order of the Rivers State High Court, was entered under the undefended list pursuant to order 23 Rule of the Civil Procedure Rules of that Court, 1986 (hereafter be named 1987 Rules). The claims of the Respondent, as endorsed on the writ were as follows:-

“The plaintiff claims against the defendants jointly and severally the following reliefs:

1. The sum of N41, 993, 790. 22 (forty-one million nine hundred and ninety-three thousand seven hundred and ninety- naira twenty-two kobo) being the unpaid outstanding Import finance facility inclusive of the accrued interest as at 2/5/2003 which the plaintiff granted to the 1st defendant as at “its request and guaranteed by the 2nd defendant.
2. Interest on the said sum of N41, 993, 790.22 at the rate of 35% per annum with effect from 3/5/2003 till the date of judgment and thereafter at the 10% per annum from the date of judgment until full payment of the entire debt.

An affidavit of verification of the above claims consisting of 33 paragraphs to which were annexed several documents marked as Exhibits ‘A’ – ‘K’ was filed along with the writ. The affidavits along with the Exhibits run from the back of page 3 – 47 of the record of appeal

After the service of the writ and other processes of the case on them, the Appellants filed a notice of intention to defend the action accompanied by an affidavit of 41 paragraphs in supporting the notice of intention to defend as required by the 1987 Rules of the High Court. The notice of intention to defend the action was dated and filed on 29/7/2003 as shown at page 92 of the record of the appeal.

There is no record that the suit was heard on the return date of 31/7/2003 but on 12/2/2004, the matter was mentioned and adjourned to the 19/4/2004 for ruling/judgment as shown at page 125 of the record of appeal. On the 19/4/2004, judgment was entered under the undefended list in all the terms of the Respondents’ claims as set above, thereby refusing the Appellants leave to defend the action. The High Court held that the affidavit of the Appellants which accompanied the notice of intention to defend did not disclose a defence on the merit as required by Order 23 Rule 3 [1] of the 1987 Rules to warrant the granting leave to defend and transfer of the case to the general cause list for determination.

Being very dissatisfied with that decision, the Appellants’ learned counsel filed two [2] notices of appeal against it. The first of the Notice of Appeal was dated and filed on the 21/4/2004 and is at pages 100 – 102 of the record of appeal. The second Notice of Appeal was dated and filed on the 10/5/2004 and appears at pages 128 – 135 of the record of appeal.

In line with the requirements of Order 6, Rules 2, 3 [i] and 4 [1] of the CAR 2002 [now Order 17, Rule 2, 3 [1] and 4 [1] of CAR 07], briefs of argument were filed by learned counsel for the parties to the appeal. The Appellants’ brief was filed on the 1/7/2005 which was the same date the records of the appeal were transmitted from the High Court to the Court. The Respondents’ brief was filed on the 28/3/2006 but deemed properly filed and served on the 26/9/2006 when the application for enlargement of time within to file same was granted by the court. In response or reaction to the Respondents’ brief, the Appellant filed an Appellants’ Reply brief on the 10/10/2006. On the 16/2/2009 when the appeal came up for hearing, the briefs were adopted by learned counsel as their respective submissions in support of their different positions in the appeal. We were urged by them to allow or dismiss the appeal as the case may be for the reasons set out in their respective briefs. In addition, Mr. B.E.I. Nwofor, SAN who appeared for the Respondent informed the Court that he wished to withdraw/abandon the preliminary objection raised and argued at pages 8 – 11 of the Respondents’ brief. He urged us to strike out the said objection. For being withdrawn or abandon by the learned senior counsel, the said preliminary objection raised at the 2nd paragraph of page 8 and argued at paragraph C2 to page 11 of the Respondents’ brief is hereby struck out. All submissions of the learned counsel for the parties on the preliminary objection are therefore no longer of relevance in the consideration of the appeal and would be discountenanced.

From the eleven [11] grounds of appeal contained on the Notice of Appeal on 10/5/2004, the learned counsel for the Appellants formulated and submitted that the following issues arise for determination in the appeal:-

i. whether the learned trial court was right when it held that the defendants/appellants did not disclose any defence on the merit to transfer the matter to the general cause list;

ii. whether the learned trial court was right when it placed on the Defendants/Appellants a burden to prove by evidence their defence on the merit before the matter could be transferred to the general cause list;

iii. Whether a counter-claim is a pre-condition in law for raising triable issues under the undefended list procedure,’

iv. Whether the 35% interest per annum awarded by the learned trial court In favour of the Respondent is permissible in law,

For the Respondent, it was submitted that two [2] issues as follows, require determination in the appeal:-