God’s Little Tannery V. Christopher Nwaigbo (2004)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

This is an appeal against the decision of the Kano State High Court, sitting at Kano, in suit No. K/238/96 delivered on 27/6/97. The plaintiff, who is the present respondent claimed against the defendant who is the present appellant under the undefended list as follows:

“The plaintiff’s claim against the defendant is for the sum of N882,569.00 (Eight hundred and eighty-two thousand, five hundred and sixty-nine Naira) being the outstanding balance of the sum of N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira) being the value of the various electrical equipments and spare parts supplied to the defendant on credit at its request between 14th June, 1995, and the 10th October, 1995, by the plaintiff. The plaintiff also claims interest on the said sum of N882,569.00 at the rate of 21% per annum from 10th October, 1995, till judgment and 10% till judgment debt is liquidated wholly.”

In support of the writ of summons, the plaintiff filed a 13-paragraph affidavit with 56 annexures marked CN1-CN56. The annexures consist of credit sales invoices and delivery notes in respect of sundry electrical items supplied to the defendant by the plaintiff.

Upon being served with the writ of summons and accompanying affidavit the defendant filed a notice of intention to defend supported by a 5-paragraph affidavit. He subsequently filed a 5-paragraph further and better affidavit in support of the notice of intention to defend with one annexure marked A. In response to the further and better affidavit, the plaintiff filed a 9-paragraph further and better affidavit in support of the writ of summons.

The suit was initially fixed for hearing on 23/5/96. However, after several adjournments it was eventually heard on 27/6/96. On that day, learned Counsel to the plaintiff addressed the court on why the suit should be heard on the undefended list, while learned Counsel to the defendant submitted that based on the affidavits before the court, the suit ought to be transferred to the general cause list for hearing. In the course of his submissions, learned Counsel to the defendant sought an adjournment in order to prepare a “proper affidavit” in respect of discrepancies, which he alleged he had just noticed in the accounts. The application was refused.

Thereafter, learned Counsel to the defendant concluded his submissions. The learned trial Judge at page 77 of the record entered judgment in favour of the plaintiff as follows:

“The court therefore gives judgment in favour of the plaintiff for the sum of N882,569.00 against the defendant.

The defendant will also pay 10% interest on the amount per annum as from today until the whole judgment debt is liquidated.

The defendant will also pay N3,000.00 as costs for filing fees, out of pocket appearance and expenses.”

The defendant/appellant being dissatisfied with the judgment appealed to this court by his notice of appeal dated 3/7/96, containing three grounds of appeal. By a motion on notice dated 27/4/98, the appellant sought leave to file and argue two additional grounds of appeal and an order deeming as properly filed and served the additional grounds of appeal attached to the affidavit in support of the motion. The application was granted as prayed on 24/9/98.

In accordance with the rules of this court the appellant filed a brief of argument on 21/1/99 and identified 5 issues for determination as follows:

“1. Whether the appellant (sic) notice of intention to defend and supporting affidavit of the 23rd day of May, 1996, and the further and better affidavit of the 30th May, 1996, disclosed a defence on the merit to justify a transfer of the suit to the general cause list.

2. Whether the trial Judge scrutinised or considered the affidavit evidence adduced by both parties, before arriving at its judgment on the 27th day of June, 1996.
3. Whether the learned trial Judge exercised its discretion judiciously and judicially in refusing the oral application of the plaintiff counsel for an adjournment on the 27th day of June, 1997, to enable him file a further and better affidavit.
4. Whilst from the additional ground of appeal filed with the leave of this Honourable Court on 24th day of September, 1998, a further issue could be crystallised. Whether there was a conflict in the affidavit evidence of the parties and if there is an answer in the affirmative, could the Honourable trial Judge still proceed to enter judgment on the undefended list?
5. Whether the Honourable Court had the requisite jurisdiction to entertain this suit, when the respondent has filed (sic) to pay the appropriate filing fees, which is condition precedent to the vesting of jurisdiction on the Honourable Court.”

The respondent also filed a brief of argument on 2/7/01 and adopted the 5 issues formulated by the appellant. He also gave notice of preliminary objection to the grounds of appeal. He argued the preliminary objection in his brief of argument and in his oral argument before the court. The grounds of the objection as stated at pages 2-3 of the respondents brief are as follows: