Informatics Company & Telematics Ltd. V. Alhaji Abdullahi Olaribigbe Nurudeen (2002)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the Kwara State High Court of Justice in suit No. KWS/20/2001 delivered by Hon. Justice A.S. Adebara of the Ilorin Division of that court on 6th July, 2001 in which the court entered judgment in favour of the respondent in an action under the Undefended List Procedure.

The facts of the case are that sometime in August, 1999 the respondent was offered and he accepted to buy the appellant’s interest in a landed property situate at 6 Catchment Road, Dorin at the price of N2.5 million, which sum he paid in two instalments and was issued with exhibits B and C. He later paid a further sum of N82,500.00 after which he was given a copy of the resolution of the appellant to sell the said property and a letter also from the appellant to the former owners that the appellant had transferred its interests in the property to the respondent as evidenced in exhibits D and E.

That the Managing Director of the appellant informed the respondent that he would be put in possession before the end of December, 1999 which promise was never fulfilled resulting in his being issued with exhibits F and G being cheques for refund of the money paid for the property which cheques were eventually returned unpaid.

So on 2/2/2001, the respondent through counsel filed an ex parte motion for an Order that “the writ of summons and the supporting affidavit filed, herein may be entered for hearing in the undefended list and the writ of summons be marked accordingly”. On the same day i.e. 2/2/01, the respondent paid the sum of N1,029.00 for a writ of summons etc as can be found endorsed at page 14 of the record.

On the 1st day of March, 2001 the learned trial Judge granted the ex parte application filed on 2/2/01 in the following terms:

“It is hereby ordered that the writ of summons in this suit should be placed under the ‘Undefended List’ and same shall be so marked accordingly.”

and adjourned the case to 19th April, 2001 for hearing – see page 12 of the record. As can be gathered from the affidavit at page 16 of the record filed on 2/5/01 in support of a notice of preliminary objection the appellant was as at that date not served with the writ of summons in the action but was rather served with a copy of the Order entering the suit under the undefended list and a hearing notice which fixed the case for hearing on 31/5/01. However, on 15/5/01 the appellant was served with the writ of summons dated 14/5/2001 along with the affidavit filed on 2/2/01. On the 21/5/01, the appellant filed an unconditional memorandum of appearance, affidavit disclosing a defence as well as a proposed statement of defence which was attached to the affidavit of defence as exhibit B.

On the 31/5/01, the respondent’s counsel moved the court for judgment and the appellant’s counsel replied on 6/6/01 as a result of which the learned trial Judge delivered his ruling on 6/7/01 in which he entered judgment for the respondent. The appellant is dissatisfied with that ruling and therefore appealed to this court on thirteen (13) grounds of appeal out of which learned counsel for the appellant I. J. Nnah, Esq. has formulated 3 issues for determination in the appellant’s brief of argument deemed filed on 15/4/02 and which he adopted and relied upon on argument on 29/10/02. The issues are as follows:

“1. Whether the respondent case was properly constituted on 31st May, 2001 when respondent’s counsel argued his motion?. (Grounds 1-5 and 10)

2. Whether the respondent’s claim being based on frustration of contract was one that could be properly brought under the Undefended List Procedure?. (Grounds 7 and 8)
3. Whether the lower court was right in holding that the appellant had not disclosed sufficient defence to warrant transferring the suit to the general cause list. (Grounds 6 and 9, 11 – 13)”.

On the other hand, learned counsel for the respondent, AKIN AKINTOYE JNR in the respondent’s brief of argument filed on 10/5/02 and adopted in argument on 29/10/02 formulated two issues for determination viz:

“1. Whether the respondent’s case was properly constituted under the undefended list procedure?.

2. Whether the lower court was right in holding that the appellant had not disclosed sufficient defence to warrant transferring the suit to the general cause list?.”

It is my view that the issues formulated by learned counsel for the respondent be preferred to those of the counsel for the appellant particularly as the 2nd issue formulated by the appellant can be properly subsumed in the respondent’s issue No.2 and the appellant issue No.3 where it really belongs.

In arguing issue No.1, learned counsel for the appellant submitted that since the writ of summons served on the appellant is dated 14/5/01 while the order entering the suit under the undefended list was made on 1/3/01, the lower court had no jurisdiction when it made the order of 1/3/01 since at that date there was not writ of summons in existence to confer that jurisdiction on the court. That the defect is so fundamental that it cannot be waived or cured by the unconditional appearance entered by the appellant to the writ dated 14/5/01.