Question

You have been engaged as a counsel by unity bank plc. For the recovery of an
ounstanding over draft facility in the sum of #2 0,000,000 granted to MAI GARI
NIG LTD of no 30 zulum road, maiduguri barno state. The facility became over
due for repayment since 16th march,2023.
Despite several demand by the kano branch manager of the bank, the
customer/debtor has failed to liquidate its indebtedness to the bank.
The facility is secured by a tripartite legal mortgage over a building lying and
situated at no 20 maje road hadejia jigawa state belonging to mallam gana a
director of the company in favour of the bank.

REQUIRED
a. Take all necessary step including instuting a court action to recorver this
oustanding debt.
b. If after exaushting all pre action major/step the company/debtor refuses to
settle it is indebtedness, institute an action to recover the said debt.
c. Carefully outline and draft the pre action steps to be taken in the
circumstance.
d. Prepare the relevant court processes for the recovery of this oustanding
debt, if the pre action step failed to yield positive result.

Answer

The following matters will be considered before commencing an action

a. Cause of action:
In this, we are going to look at whether their is a cause of action or not. By a cause
of action, we mean the fact that will warrant whether the plaintiff has a remedy or
not. The incidents that happen between the parties that if my client approach the
court, he will get remedy. Cause of action is very crucial in every civil proceeding,
therefore, as in this case, my client has cause of action, this is because the
company/debtor DAN GARI NIG LTD fails to honor their obligation of not paying
their debt to my client for the sum of #20m after the due date agreed by the parties.
therefore, my client has a cause of action.
b. jurisdiction:
Which court should the case be taken to? In this case, the court that has jurisdiction
to entertain this matter is the federal high court. This is because federal high court
is a federal court which falls under the exlusive legistlative list, with unlimited
jurisdiction on civil matter. So the profer court to entertain this matter is the federal
high court of either maiduguri borno state or federal high court of kano state.
c. Limitation of action
From this, we are to determine from the day the cause of action arises till the
moment the case is being instituted, whether it has become statute bar. In
essence,we are to check the statute of limitation to know if the case is within the
time frame to file such an action.
d. Pre action notice
We are to ensure that every condition precedent to litigation has been complied
with including pre action notice,since the debtor in this case is a statutory body,
(legal entity) sometimes, the law establishing some statutory bodies makes it a
condition to give a pre action notice which is mostly to be given 30 days before
the main action.
Therefore, a pre action notice is a written statement of your grievances to the
prospective defendant. In the written statement you state your grievances the
grounds you are relying on, your demands and a time frame which you want such
demands to be fulfilled.
e. Cost of litigation:
On this we are going to weigh the expected gain from a successiful litigation, and
compare it with the cost implication of the litigation before advising our client on
whether to proceed with the action.
f. Enforcement and Realisation of judgement:
We are going to consider the legal and practical problem of enforcement. And also
consider the possibilities and difficulties involved in the realisation of judgement
that could be obtained in the case.
g. Alternative Dispute Resolution:
Before we proceeds to litigation,we are to look if there is any alternative means of
resolving the dispute outside litigation.
h. Pre Action Counselling:
We are to advice our client on the general relative strengths and weakness of his
case. Apart from the general cost of litigation, the client could also be exposed to
punitive cost for frivolous suits. And we can also be held responsible for any case
that amount to abuse of process.
i. Exhaustion of Available Remedies:
We are to make sure that we have exhauted the available remedies first before
litigation.