Major Akpang Obi Odu & Anor V. Mrs. Tina Agbor-hemeson (2002)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J,C.A,

By their writ of summons dated 21/6/99, in Suit No. HJ/24UD/99, filed in the Registry of the Ogoja Division of the Cross River State High Court, the appellants on record as plaintiffs commenced an action, under the undefended list procedure against the respondent, claiming against her jointly and severally –

“The sum of N1,000,000 (One Million Naira) being money had and received for the supply of fresh fruits bunches of oil palm, a consideration that has wholly failed.

And interest thereon at the rate of 21% per annum till the date of judgment and thereafter, at the court rate of 10% per annum.”

The application to place the suit on the undefended list was supported by an affidavit of 12 paragraphs, deposed to by the 1st appellant exhibiting a photocopy of a cheque of N800,000 as exh. A and explaining the circumstances under which the respondent was paid, the cheque for N800,000 and another sum of N200,000 for the supply of fresh fruit bunches, which the latter failed to supply. Upon being served with the writ of summons and the said affidavit, the respondent through her counsel filed a “notice of intention to defend’ dated 9-7- 99 raising as part of the grounds of her defence the capacity of the 2nd appellant as a juristic person with an affidavit of 16 paragraphs denying liability for the claim. In reaction to the respondent’s affidavit, the 1st appellant swore to and filed a “further affidavit in reply to defendants’ affidavit” controverting the facts deposed to in the respondent’s affidavit and annexing the certificate of incorporation of the 2nd appellant as exh. A in proof of the juristic capacity of the 2nd appellant to sue.

On 7th December, 1999, when the matter came up for hearing, learned Counsel to the respondent drew attention of the court to the further affidavit of the appellant and urged the court to strike same out as it is not provided for under the Rules of Court, vide Order 23 of the Cross River State High Court (Civil Procedure) Rules. In a reserved ruling delivered on 5/4/2000, the learned trial Judge Ilok, J., in acceding to the request struck out the first appellant’s further affidavit. After comparing the 1st appellant’s affidavit in support of the application to place the suit in the undefended list and the respondent’s affidavit in support of the “notice of intention to defend”, he concluded thus:

“These depositions from both sides when looked at closely, clearly reveal that the main issues between the parties are contentious and will be better appreciated and determined at full hearing of this suit.

Accordingly, this suit is transferred from the undefended cause list to the ordinary cause list for hearing and determination and pleadings are hereby ordered…”

Dissatisfied by that ruling, the appellants lodged the instant appeal by a notice of appeal to which were subjoined the following five grounds of appeal:

Grounds of Appeal:

1. The learned trial Judge erred in law, when he held that the undefended list procedure does not admit of further affidavit and proceeded to strike out same.

Particulars of Error

(i) There is not (sic) part of Order 23 High Court (Civil Procedure) Rules of Cross River State expressly precluding any party from filing a further affidavit.

(ii) The plaintiff was entitled to file a further affidavit.

(iii) The rule of substantial justice applies in undefended list procedure.