Samabey International Communications Ltd. V. Celtel Nigeria Ltd. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment)

This is an appeal against the decisions contained in the Ruling and Judgment of the High Court of Kano state in Suit No.K/359/2009 delivered by Honorable Justice A. M. Haliru on the 31st of March, 2010. The Respondent, as plaintiff, commenced an action in suit No.K/359/2009 in the Kano State High Court under the Undefended List Procedure and the original defendants were the Appellant and Zenith Bank Plc. By a writ of summons marked under the undefended List and dated the 25th of August, 2009, the Respondent claimed against the Appellant and Zenith Bank Plc. thus:

a. N51,992,562.32 (Fifty one Million Nine Hundred and Ninety Two Thousand Five Hundred and sixty Two Naira Thirty Two Kobo) being the balance unpaid on the price of the Plaintiff’s products collected by the 1st Defendant and guaranteed by the 2nd Defendant.

b. Alternatively, the Respondent claimed thus:

i. From the 1st Defendant, the sum of N41,992,562.32 (Forty One Million Nine Hundred and Ninety Two Thousand Five Hundred and Sixty Two Naira Thirty Two Kobo) being the principal balance (without prejudice to the amount guaranteed by the 2nd Defendant) unpaid on the price of the Plaintiff’s products collected by the 1st Defendant.

ii. From the 2nd Defendant, the sum of N10,000,000.00 being the amount guaranteed by the 2nd Defendant as primary obligor in respect of the plaintiff’s products collected by the 1st Defendant, which products have not been paid for by the 1st Defendant despite being the debt due for payment and despite demand.

c. Interest on the aforesaid sums at the rate of 10% per annum from the date of judgment until final liquidation.

The writ of summons was supported by an affidavit of facts with several exhibits attached. The Appellant, as first Defendant, filed a notice of intention to defend dated in 2nd of November, 2009 and it was supported by an affidavit of facts with exhibits attached. Zenith Bank Plc, as second Defendant, paid the Respondent the sum of N10 Million in full and final settlement of its obligation and whereupon the lower Court struck out its name as a party in the suit on the application of the Respondent, leaving the Appellant as the only defendant.

The lower Court heard the case of the Respondent under the Undefended List and in a considered Ruling delivered on the 31st of March, 2010, the lower Court refused the Appellant leave to defend and it entered judgment in favour of the Respondent in the sum of N41,992,562.32 (Forty One Million Nine Hundred and Ninety Two Thousand Five Hundred and Six Two Naira Thirty Two Kobo) being the principal balance unpaid on the price of the Respondent’s products collected by the Appellant together with interest at the rate of 10% from 31st of March, 2010 until full satisfaction of the judgment sum. The Appellant was dissatisfied with the judgment and it caused to be filed a notice of appeal dated the 12th of April, 2010 and it contained four grounds of appeal.

Counsel to the Appellant filed an appellant brief of arguments dated the 21st of May, 2010. Counsel to the Respondent filed a respondent brief of arguments dated the 27th of September, 2011 and this was sequel to an order for extension of time to file brief of argument made in favour of the Respondent by this Court on the 20th of September, 2011. At the hearing of the appeal on the 6th of March, 2013, Counsel to the parties relied on and adopted their respective briefs of arguments.

In his brief of arguments, Counsel to the Appellant identified two issues for determination in this appeal and these were:

i. Whether the Appellant by its notice of intention to defend together with the affidavit in support disclosed a defence on the merit to the Respondent’s claim to have warranted a transfer of the suit to the general cause list for full inter-party hearing.

ii. Whether the contents of Exhibit H attached to the Respondent’s affidavit and paragraphs 2 (i) to (q) of the Appellant’s affidavit in support of the notice of intention to defend and other documents attached to the Respondent’s claim constituted sufficient admission of the Respondent’s claim by the Appellant to have warranted judgment being entered in its favour by the trial Court.

Counsel to the Respondent adopted the two issues formulated by the Appellant in his brief of arguments. Reading through the records of appeal and the briefs of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal and it is the first issue formulated by the Appellant. The second issue for determination can be conveniently dealt with under the said first issue for determination.