Imoniyame Holdings Ltd. V Oneb Enterprises Ltd (2010)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

On the 13th day of January 2000, the respondents, as plaintiff, instituted Suit No. HK/3/2000 at the Akamkpa Division of the High Court of Cross River State under the Undefended List, claiming the following reliefs against the present appellants, who were the defendants therein:-

“The Plaintiff claim against the Defendants jointly and severally is for the sum of Eight Million, One Hundred and Twenty Five Thousand Naira only (N8,125,000.00) being money owed and due from the supply of rubber lumps/lease rentals at Oban Rubber Estate Limited in Akamkpa Local Government Area with interest at the rate of 21% from January, 1999 till judgment and 10% from judgment until liquidation of the entire judgment debt.”

The writ of summons is supported by an affidavit of 24 paragraphs to which certain documents are exhibited. By an order of the trial court made on the 24th day of January, 2000, the matter was entered for hearing under the undefended list procedure.

Upon service of the processes, the present appellants entered a conditional appearance and filed the necessary processes to indicate intention to defend the action.

The trial court thereafter considered the facts disclosed in the affidavits filed by both parties in a ruling delivered on the 28th day of March, 2000 and held, inter alia, as follows at page 84 of the record:

“In the result, I hold that the affidavit in support of the defendant’s notice of intention to defend has not disclosed any real defence or indeed as defence on the merit. The affidavit is merely intended to dribble everyone and frustrate the plaintiffs and cheat them out of the judgment they are legitimately entitled to when they (the defendants) have no real defence to the action. I will therefore not give the defendants leave to defend this action.

Accordingly, I will and hereby enter judgment in favour of the plaintiffs and against the defendants jointly and severally in the N8,125,000.00 (Eight million, one hundred and twenty five thousand naira.) only being money owed and due from the supply of rubber lumps) lease rentals at Oban Rubber Estate Limited in Akamkpa Local Government Area with interest thereon at the rate of 21% from January, 1999 till today plus interest on the judgment debt at the rate of 10% per annum from tomorrow (29/3/2000) until the judgment debt is completely liquidated….”

The present appellants, then defendants, were dissatisfied with that judgment and appealed to the Court of Appeal, Holden at Calabar in appeal No. CA/C/42/2000. The Court of Appeal in a judgment delivered on the 11th day of July, 2001, allowed the appeal, holding at apge 118 of record, inter alia as follows:-

“It appears to me that the major defences of the appellants are contained in paragraphs 16, 17, 19, 20, 21, 23 and 26 of their said affidavit. It cannot be easily argued that those paragraphs of the affidavit contain fanciful defences. In my view, they contain contentious matters which can only be resolved by allowing oral evidence and cross-examination of witnesses. For this reason, it becomes mandatory that the suit should be transferred to the general Cause List for hearing. It is clear that the purport of the Undefended List procedure is to obtain a quick judgment for the plaintiff is clear cases where the defendant has no defence to the plaintiff’s claim, and not where there are contentious matters in the defendant’s affidavit which will throw some doubt on the plaintiff’s claim…..

From the foregoing therefore, it is my considered view that in the instant case the Learned Trial Judge was in a serious error when he entered judgment for the respondents under the Undefended List. In the result, therefore, I hold that the appeal has merit and it is hereby ALLOWED by me… It is hereby ordered that the suit be remitted to the court below for trial de novo by another judge upon pleadings to be filed by the parties….”

It is against the above judgment that the appellants, who were successful in the lower court, have now further appealed to this Court.

In the appellants’ brief of argument filed on the 27th day of September, 2002, learned counsel for the appellants, DAFE DIEGBE ESQ. identified the following issues for the determination of the appeal.

“2.1 Whether or not there existed sufficient materials upon which the Court of Appeal could have relied upon to strike out the names of the Appellants from Suit NO. HK/3/2000 instead of ordering a retrial involving them