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Before Their Lordships
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
1. MASSKEN NIGERIA LIMITED
2. MRS. ALEX ONONYE
3. SURVEYOR ALEX ONONYE- Appellants
AND
1. MR. AMBILE AMAKA
2. JOHN DUGWE –Respondent
…………………….A…………………….
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.(Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal Holden in Abuja, in appeal No. CA/A/184/2003 delivered on the 16th day of January, 2007 in which the Court dismissed the appeal by the appellants against the decision of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/234/2012 delivered on the 29th day of January, 2003.
The action was commenced under the undefended list procedure in which the present respondents claimed against the appellants as follows:
”Whereas the plaintiffs claim from the defendants jointly and severally the sum of three million six hundred and fifty-five thousand naira plus 21% interest from January 2002 to date of judgment and thereafter same rate until judgment sum is finally liquidated.
The respondents filed an affidavit of eleven (11) paragraphs in support of the writ of summons which it was deposed that the amount of indebtedness arose from an outstanding friendly loan of three million naira and various other sums of money collected by the defendants/appellants. Exhibited to the affidavit in support are Exhibits A and B being a cheque for a sum of N3,000,000 and a letter of demand respectively.
The processes were duly served on the appellants who filed a notice of intention to defend and a 40 (forty)paragraphed affidavit of defence. On the return date the learned trial judge heard from Counsel to the parties and in a ruling delivered on the 29th day of January, 2003 held that appellants had not disclosed sufficient defence on the merit to make the Court send the suit for hearing under the General Cause List. The Court relied on Exhibit A the cheque as evidence of the transaction between the parties in giving judgment in favour of the respondents. The claim for interest was however refused by the Court
As stated earlier in this judgment, appellants were dissatisfied with the said judgment and consequently appealed to the lower Court which appeal was dismissed resulting in the instant further appeal, the issues for the determination of which have been formulated by learned Counsel for appellants, JIBO IBRAHIM ESQ in the appellants brief filed on 2/10/09 as follows:-
1. Whether the learned justices of the Court of Appeal were right by delving into proof at this stage and stated that there was no satisfactory explanation as to why 3rd appellant issued the cheque Exhibit A and wrongly acceded by not transferring the suit to the General Cause List and affirmed the judgment of the trial Court.
2. Whether the learned justices of the Court of Appeal were right by holding that the learned trial Judge exercised her discretion judiciously and judicially by failing to transfer the suit to the General Cause List when there was no basis for the exercise of that discretion.
3. Whether the learned justices of the Court of Appeal were right in holding that the averments in Paragraphs 3(c), (d) (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the Undefended List are not hearsay evidence and competent and dismissed the appeal.
4. Whether the learned justices of the Court of Appeal were right in holding that the reply brief properly filed by the appellants is superfluous in this case and failed to consider it.
Learned Counsel for respondents, IKHIDE EHIGHELUA ESQ. in the respondents brief filed on 22/10/09 also identified four issues as arising from the grounds of appeal for the determination of the appeal. These are as follows:-
1. Whether a defendant who has no real defence to a suit under the Undefended List should be allowed to dribble, cheat and frustrate a plaintiff out of a judgment to which the plaintiff is legitimately entitled.
2. Whether the learned justices of the Court of Appeal were right in holding that the learned trial judge exercised her discretion judiciously and judicially in entering judgment under the Undefended List in favour of the plaintiff/respondent.
3. Whether the learned justices of the Court of Appeal were right in holding that Paragraphs 3(c), (d), (e), 4,5 and 8 of the affidavit in support placing the suit on the undefended list are tenable in law and therefore admissible in evidence.
4. Whether thee learned justices of the Court of appeal were right in not countenancing the reply brief of the appellants before the Court of Appeal.
It should be pointed out that but for respondents issue No.1 all the other three (3) issues are very similar to the issues formulated by
”Whereas the plaintiffs claim from the defendants jointly and severally the sum of three million six hundred and fifty-five thousand naira plus 21% interest from January 2002 to date of judgment and thereafter same rate until judgment sum is finally liquidated.
The respondents filed an affidavit of eleven (11) paragraphs in support of the writ of summons which it was deposed that the amount of indebtedness arose from an outstanding friendly loan of three million naira and various other sums of money collected by the defendants/appellants. Exhibited to the affidavit in support are Exhibits A and B being a cheque for a sum of N3,000,000 and a letter of demand respectively.
The processes were duly served on the appellants who filed a notice of intention to defend and a 40 (forty)paragraphed affidavit of defence. On the return date the learned trial judge heard from Counsel to the parties and in a ruling delivered on the 29th day of January, 2003 held that appellants had not disclosed sufficient defence on the merit to make the Court send the suit for hearing under the General Cause List. The Court relied on Exhibit A the cheque as evidence of the transaction between the parties in giving judgment in favour of the respondents. The claim for interest was however refused by the Court
As stated earlier in this judgment, appellants were dissatisfied with the said judgment and consequently appealed to the lower Court which appeal was dismissed resulting in the instant further appeal, the issues for the determination of which have been formulated by learned Counsel for appellants, JIBO IBRAHIM ESQ in the appellants brief filed on 2/10/09 as follows:-
1. Whether the learned justices of the Court of Appeal were right by delving into proof at this stage and stated that there was no satisfactory explanation as to why 3rd appellant issued the cheque Exhibit A and wrongly acceded by not transferring the suit to the General Cause List and affirmed the judgment of the trial Court.
2. Whether the learned justices of the Court of Appeal were right by holding that the learned trial Judge exercised her discretion judiciously and judicially by failing to transfer the suit to the General Cause List when there was no basis for the exercise of that discretion.
3. Whether the learned justices of the Court of Appeal were right in holding that the averments in Paragraphs 3(c), (d) (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the Undefended List are not hearsay evidence and competent and dismissed the appeal.
4. Whether the learned justices of the Court of Appeal were right in holding that the reply brief properly filed by the appellants is superfluous in this case and failed to consider it.
Learned Counsel for respondents, IKHIDE EHIGHELUA ESQ. in the respondents brief filed on 22/10/09 also identified four issues as arising from the grounds of appeal for the determination of the appeal. These are as follows:-
1. Whether a defendant who has no real defence to a suit under the Undefended List should be allowed to dribble, cheat and frustrate a plaintiff out of a judgment to which the plaintiff is legitimately entitled.
2. Whether the learned justices of the Court of Appeal were right in holding that the learned trial judge exercised her discretion judiciously and judicially in entering judgment under the Undefended List in favour of the plaintiff/respondent.
3. Whether the learned justices of the Court of Appeal were right in holding that Paragraphs 3(c), (d), (e), 4,5 and 8 of the affidavit in support placing the suit on the undefended list are tenable in law and therefore admissible in evidence.
4. Whether thee learned justices of the Court of appeal were right in not countenancing the reply brief of the appellants before the Court of Appeal.
It should be pointed out that but for respondents issue No.1 all the other three (3) issues are very similar to the issues formulated by
…………………….B…………………….
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