Zahkem International V. Ndu C. Ofoma (2000)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

Th

is is an appeal against the judgment of Abiriyi. J. sitting at the High Court, Kaduna State. The plaintiff, now the Respondent in the appeal, instituted an action against the defendant/appellant under the ‘Undefended List’ in the High Court, Kaduna State on the 19th of November, 1996 for the sum of (N189,800.00) one hundred and eighty-nine thousand, eight hundred naira, being the unpaid prices of items of goods supplied to the defendant/appellant by the plaintiff/respondent. Prior to the issuance of the ‘Undefended List’ summons on the defendant/appellant, the plaintiff/respondent filed a motion ex-parte praying for the following Orders:-

“(1) Leave to issue and serve the defendant respondent the ‘Undefended List’ summons outside the jurisdiction of this Honourable Court.

(2) An Order that the ‘Undefended List’ summons and all Court processes in the suit be served on the defendant/respondent by way of expedited mail service at the following address: Suleja, Niger

State and to deem same as proper service.

(3) Such further or other incidental orders as this Honourable Court may deem fit and just to make in the circumstances.”

The motion dated 19th November, 1996, was heard and all the prayers granted on the 12/2/97. – See pages 11 and 20 of the record of appeal.

Consequent upon the orders of 12/2/97 aforesaid, the writ of summons was issued under ‘Undefended List’, on the same day, the 12th of February, 1997. The defendant/appellant was served and it filed a notice of intention to defend, with an affidavit in support thereof. The plaintiff/respondent filed a further and better affidavit. The Appellant further filed a reply to the further and better affidavit filed by the Respondent.

The summons was moved under ‘Undefended List’. After hearing counsel on both sides, the court entered judgment for the plaintiff/respondent in terms of the writ against the defendant/appellant. Aggrieved by the said judgment, the appellant has appealed to this Court.

The Appellant filed three (3) grounds of appeal, from which it formulated two (2) issues for determination, namely:-

“(1) Was the suit competent to be treated under the Undefended List jurisdiction of the court?

(2) Even if the suit was competent under the Undefended List (not conceded) was learned trial Judge right to treat the suit under the Undefended List instead of transferring same to the general Cause List in view of the defence disclosed by the appellant in their Notice of intention to defend.”

On receipt of the appellant’s brief of argument, the Respondent filed a respondent’s brief wherein a notice of preliminary objection was given against ground 1 of the appeal. The notice reads: