John Akalonu V. Mr. S. O. Omokaro (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an interesting, as well as intriguing appeal. It questions, indirectly though, the right of counsel to announce his appearance for a party and the right of the other party, to challenge his authority for doing so.

The plaintiff brought an action against the defendant, in suit No. KDH/KAD/340/2001 claiming the sum of N425,000.00 which represents the total loans collected by the defendant from the plaintiff, through one O. G. H. Anaele and after judgment, interest on the said sum at the rate of 10% per annum, from date of judgment, until the final liquidation of the entire sum.

The action was brought under the provisions of Order 22 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State, 1991. The respondent’s application for writ of summons was supported by affidavit to which was exhibited ten documents, which are marked as exhibits 1, 2, 3, 4a, 5, 6, 7, 8 and 9, while the defendant’s notice of intention to defend, found by the learned trial Judge to be filed within time, was also backed by affidavit to which there were two annexture marked exhibits AA and BB.

At the date fixed for hearing of the suit, learned Counsel for the defendant submitted that the notice of intention to defend disclosed a defence on the merit and urged the learned trial Judge to transfer the action from the undefended to the general cause list. In response, the learned Counsel for appellant drew attention of the trial Judge to the signatures of both parties at the back of exhibit 8 and invited him to compare them with the signature on exhibit AA, attached to the defendant’s notice of intention to defend, and contended that the undisputed signature of the plaintiff on exhibit 8 is not the same as the one imputed to him in exhibit AA. The learned trial Judge agreed with him and found that there is no defence disclosed on the merit in the notice of intention to defend put in by the defendant.

Thereafter, learned trial Judge entered judgment for the plaintiff (i) in the sum of N425,000.00 and (ii) “claim for 10% interest is reserved until the mode of payment is determined”. The defendant was dissatisfied and appealed to this court on 3 grounds of appeal.

Parties, pursuance of the provisions of Order 6 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990, filed and exchanged briefs of argument which were exchanged at appellant’s and respondent’s brief. There is no appellant’s reply brief.

On the day fixed for hearing of the appeal, briefs of argument were adopted and relied upon. In the brief for the defendant (hereinafter referred to as the appellant) two issues were framed from the grounds of appeal. Appellant’s formulations read as follows:-

“(i) Whether the issues of impersonation, and the liquidation of the amount claimed in this suit as raised by the appellant, without any denial by way of counter affidavit by the respondent were not sufficient to constitute defence on the merit in this case – Ground 1.

(ii) Whether the lower court can resolve an allegation of forgery of the signature in exhibit B, and/or difference in signatures as alleged in the respondent’s oral submission, by an affidavit evidence, without calling oral evidence. Grounds II & III.”

The respondent, in his brief of argument, framed the following 2 issues for determination:

“1. Whether the issue of impersonation raised by the appellant in his notice of intention to defend amounts to a defence on the merit.

2. Whether the lower court was wrong in making a finding of facts after making a comparison between the

appellant signature at the back of exhibit 8 in support of the respondent writ of summons, and that on the face of exhibit BB which was not properly marked and referred to by the lower court as exhibit A in support of appellant notice of intention to defend.”

The two formulations are very similar if not identical. But I think both issues may be taken together.