Masseken Nigeria Limited & Ors V. Mr. Ambile Amoaka & Anor (2007)

LawGlobal-Hub Lead Judgment Report

OLUFUNMILOLA OYELOLA ADEKEYE, J.C.A.

In the endorsement in the writ filed under the undefended list procedure the plaintiffs Mr. Ambile Amoaka and Mr. Tonab Dugwe claimed against the defendants Massken Nigeria Limited, Mrs. Alex Ononye and Surveyor Alex Ononye as follows –

“Whereof the plaintiffs claim from the defendants jointly and severally the sum of three million six hundred and fifty-five thousand naira plus 21% interest from January 2002 to date of judgment and thereafter same rate until judgment sum is finally liquidated.”

The plaintiff filed an eleven paragraph affidavit in support of the writ. The writ was deposed to by Abubakar Mohammed a litigation clerk in the law firm of the counsel appearing for the plaintiffs – Mr. M. P. Ibrahim Esq. The affidavit evidence revealed that the amount of indebtedness arose from an outstanding friendly loan of three million naira and various other sums of money collected by the defendants to the tune of six hundred and fifty-five thousand naira (N655, 000,00). The two documents attached as Exhibits A and B are a cheque for a sum of N3, 000,000 and a letter of demand.

The suit was placed on the undefended list while notice was served on the defendants to whom they reacted by filing notice of intention to defend and attached a 40 paragraph affidavit disclosing a defence on the merit. On the return date for hearing of this application, the court heard the submission of both parties.

The learned trial judge in her findings in the ruling delivered on 29/1/03 held that the defendants have not disclosed sufficient defence on the merits to persuade the court to send this suit to the General cause list. The defendants failed to lead evidence to disclose the source or essence of the cheque Exh. A with the plaintiffs. The court relied on this cheque as a proof of the transaction between the parties. The court thereafter gave judgment to the plaintiffs for the sum of N3million which according to her was the amount proved by the plaintiffs. She did not grant the interests requested for.

Dissatisfied with the judgment of the lower court the defendant now to be referred to as appellants appealed to this court.

Notice of Appeal with four grounds of appeal was filed.

At the hearing of the appeal the appellants adopted and relied on the appellants’ joint brief filed on 27/11/03. The appellants distilled three issues for determination from the four grounds of appeal which are:-

(1) Whether the learned trial judge was right when she decided the suit under, the undefended list by awarding the sum of three million naira to the plaintiffs

(2) Whether the defendants’ affidavit in support of Notice of Intention to defend the suit did not disclose a defence on the merit.

(3) Whether the trial court was right by considering the averments in paragraphs 3(c), (d), (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the undefended list procedure which are hearsay evidence by M. P. Ibrahim Esq.

The Respondents in their joint brief deemed filed on 18/5/06 settled issues for determination which are:-

(a) Whether the learned trial judge was right when he decided the suit under the undefended list by awarding the sum of three million Naira to the plaintiffs/ respondents.