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Before Their Lordships
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
UNION BANK OF NIGERIA PLC – Appellants
AND
AWMAR PROPERTIES LTD – Respondents
…………………….A…………………….
OLABODE RHODES-VIVOUR, J.S.C. (Delivering the Leading Judgment): The respondent as plaintiff filed a suit under the undefended list at a High Court of the Federal Capital Territory, Holden at Abuja, claiming the following reliefs:
1. An Order of Court directing the defendant to pay to the plaintiff the sum of N300,000,000 (Three hundred Million Naira) only being the amount paid by the plaintiff, to the defendant, as consideration for the auction sale of Yaman Fuel Filling Station and which sale is voided for want of title cum physical possession to the plaintiff.
2. 20% as interest thereon per annum from the date of judgment until final liquidation.
The Writ of Summons under the undefended list was supported by a 24 paragraph affidavit deposed to by Alhaji Abdulazeez Yakubo Sambo, a Director in the plaintiffs company. Annexed to the affidavit are seven exhibits.
On 28th January, 2016, the High Court granted the plaintiff leave to issue and serve the Writ of Summons and other processes on the appellant/defendant, outside the jurisdiction of the trial High Court.
On receipt of the Writ of Summons, the appellant/defendant entered conditional appearance on 3 March, 2016 and filed a Notice of Intention to defend the suit with a 31 paragraph affidavit showing cause deposed to by Adepoju Oginni, an employee in the commercial Department of the defendant bank. A further affidavit showing cause for leave to defend was filed on 14th March, 2016.
The Notice of intention to defend the action was brought under Order 22 Rule 3(1) of the Federal Capital Territory Abuja High Court Civil Procedure Rules, 2004 and it reads:
“Take Notice that the defendant intends to defend the action filed by the plaintiff under the undefended list Procedure and that the defendant has a good and reasonable defence to the suit.”
The above shows that the entry of conditional appearance was moonshine.
The defendant entered conditional appearance.
This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case.
After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court’s jurisdiction. Proceedings proceeded.
The appearance of the defendant to the proceeding in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.
The learned trial judge considered the affidavit before him and in a well-considered judgment delivered on 12th May, 2010 entered judgment for the plaintiff/respondent. This is what the learned trial judge had to say:
“Cases heard on the undefended list are for the plain and straightforward and not for the devious and crafty who engage in the unhelpful game of baseless and worthless denials fishing and browsing all over the place for a defence that does not exist. This Court will not lend its effort in aid of such reprehensible and ignoble conduct. Banks should be instruments of growth and progression and not machinery of oppression and exploitation. I find the depositions in the affidavit of defence to be absurd, puzzling and totally empty of merit. For all the foregoing reasons this action succeeds.
Leave to defend is refused. Final Judgment is hereby entered for the Plaintiff on the following terms;
(i) The defendant Bank, Union Bank PLC, is hereby ordered to pay to the plaintiff the sum ofN300,000,000 (Three hundred Million Naira only) being refund of money had and received from the plaintiff under a contract of sale of landed property to the plaintiff by the defendant, to wit, Yaman Fuel Filing Station, located at Plot 499, Tafawa Balewa Way Area 5 Garki, Abuja, the consideration for which has totally failed.
(ii) The defendant shall pay post judgment interest on the above judgment debt at the rate of 10% per annum from the date of judgment until final liquidation.
(iii) Plaintiff shall, upon payment of the judgment debt, release to the defendant all the title documents received from it in regard to the subject matter of action.”
Dissatisfied with the judgment. The appellant filed an appeal. It was heard by the Court of Appeal, Abuja Division. That Court affirmed the decision of the trial High Court when it said in the concluding paragraph of the judgment:
“In the result, I hold that this appeal is devoid of any merit and was only brought to delay and to continue to keep and trade with the N300 Million purchase price paid by the respondent, whilst the appellant suffers no less in that
2. 20% as interest thereon per annum from the date of judgment until final liquidation.
The Writ of Summons under the undefended list was supported by a 24 paragraph affidavit deposed to by Alhaji Abdulazeez Yakubo Sambo, a Director in the plaintiffs company. Annexed to the affidavit are seven exhibits.
On 28th January, 2016, the High Court granted the plaintiff leave to issue and serve the Writ of Summons and other processes on the appellant/defendant, outside the jurisdiction of the trial High Court.
On receipt of the Writ of Summons, the appellant/defendant entered conditional appearance on 3 March, 2016 and filed a Notice of Intention to defend the suit with a 31 paragraph affidavit showing cause deposed to by Adepoju Oginni, an employee in the commercial Department of the defendant bank. A further affidavit showing cause for leave to defend was filed on 14th March, 2016.
The Notice of intention to defend the action was brought under Order 22 Rule 3(1) of the Federal Capital Territory Abuja High Court Civil Procedure Rules, 2004 and it reads:
“Take Notice that the defendant intends to defend the action filed by the plaintiff under the undefended list Procedure and that the defendant has a good and reasonable defence to the suit.”
The above shows that the entry of conditional appearance was moonshine.
The defendant entered conditional appearance.
This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case.
After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court’s jurisdiction. Proceedings proceeded.
The appearance of the defendant to the proceeding in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.
The learned trial judge considered the affidavit before him and in a well-considered judgment delivered on 12th May, 2010 entered judgment for the plaintiff/respondent. This is what the learned trial judge had to say:
“Cases heard on the undefended list are for the plain and straightforward and not for the devious and crafty who engage in the unhelpful game of baseless and worthless denials fishing and browsing all over the place for a defence that does not exist. This Court will not lend its effort in aid of such reprehensible and ignoble conduct. Banks should be instruments of growth and progression and not machinery of oppression and exploitation. I find the depositions in the affidavit of defence to be absurd, puzzling and totally empty of merit. For all the foregoing reasons this action succeeds.
Leave to defend is refused. Final Judgment is hereby entered for the Plaintiff on the following terms;
(i) The defendant Bank, Union Bank PLC, is hereby ordered to pay to the plaintiff the sum ofN300,000,000 (Three hundred Million Naira only) being refund of money had and received from the plaintiff under a contract of sale of landed property to the plaintiff by the defendant, to wit, Yaman Fuel Filing Station, located at Plot 499, Tafawa Balewa Way Area 5 Garki, Abuja, the consideration for which has totally failed.
(ii) The defendant shall pay post judgment interest on the above judgment debt at the rate of 10% per annum from the date of judgment until final liquidation.
(iii) Plaintiff shall, upon payment of the judgment debt, release to the defendant all the title documents received from it in regard to the subject matter of action.”
Dissatisfied with the judgment. The appellant filed an appeal. It was heard by the Court of Appeal, Abuja Division. That Court affirmed the decision of the trial High Court when it said in the concluding paragraph of the judgment:
“In the result, I hold that this appeal is devoid of any merit and was only brought to delay and to continue to keep and trade with the N300 Million purchase price paid by the respondent, whilst the appellant suffers no less in that
…………………….B…………………….
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