Mr. Venatius Ikem V. Waymaker Properties Ltd (2007)

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MARY U. PETER-ODILI, JCA

The appellant as Plaintiff at the High Court 9 sitting at Abuja and presided over by Han. Justice Salisu Garba, brought an action against the Defendants therein through the undefended list by writ of summons filed on the 20th March 2003 seeking the determination of the following claims:-

(a) The sum of N600, 000. 00 (Six Hundred Thousand Naira) only being the outstanding debt due from the Defendant to the Plaintiff for the sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) only representing two years rent plus 10% agency fee for 1 unit 3 Bedroom Flat with Boys Quarters at Garki Abuja (vide pages 1- 5 & 11- 12 of the record).

The 1st Defendant/Respondent on the 25th February 2003 filed a Notice of Intention to Defend together with an Affidavit and an Annexure “A” (An affidavit of the 200 Defendant who was at all material times not being represented by the 1st Defendant’s counsel).

The said motion was taken and granted. The suit was transferred to the general cause list.

The Plaintiff/Appellant also brought a motion dated 5th March 2003 praying for leave to join the 2nd and 3rd Defendants in the suit.

The motion was taken and granted. The 1st Defendant/Respondent filed a memorandum of conditional appearance dated 6th March 2003; Motion on Notice for an order of striking out its name with affidavit dated 6th March 2003 and an Annexure “A” (Purported Affidavit of the 2nd Defendant).

After taking arguments on both sided, the Court refused the 1st Defendant’s Motion together with the supporting affidavit and annexure thereto. The court processes in the suit were served on the 1st Defendant and service of same was acknowledged by the 2nd Defendant on behalf of the 1st Defendant at its office.

The Plaintiff/Appellant’s counsel in an oral application urged the court to cause the 2nd Defendant to be remanded or handed over to the police for investigation and/or prosecution in view of the fact that the 200 Defendant’s purported affidavit of 25th February 2003 and 6th March 2003, disclosed criminal charges of forgery and false personation; for the purpose of securing the presence or attendance of the 2nd Defendant in court as and when required and for proper determination of the matter on merit. But the trial court did not act on the said oral submission.

At the trial, the Plaintiff as PW1 and Mr. Monday Abua as PW2 were led in evidence. The Defence also led Mr. Okechukwu Aleke as DW1. The trial court ordered that written addresses be filed and exchanged and same written addresses already filed were struck out on the 30th July, 2001 for want of procedure. After taking oral arguments/addresses on both sides, the court delivered its judgment while holding the 2nd and 3rd Defendants liable and exonerating the 1st Defendant for want of express agency relationship. Dissatisfied with the judgment, the Plaintiff/appellant filed a Notice of Appeal dated 1st January 2005 containing three grounds of appeal.

The Appellant filed an Amended Appellant’s Brief on 10/11/06 in which he formulated three issues which are:-

1. Whether a general traverse is sufficient denial of statement of facts and whether the trial court property evaluated the pleadings before it in arriving at its decision.
2. Whether a documentary evidence (in the absence of any seeming conflict) can be varied, or altered or modified by subsequent oral evidence and whether the trial court was right in relying on oral testimony of DW1 without placing reliance on the affidavit evidence of DW1 dated 2sn February 2003 and 6th March 2003 respectively in holding that Exhibit A is not the receipt of the 1st Defendant.
3. Whether agency relation can be created otherwise than by written appointment or by deeds; if answered in the affirmative, whether the trial court was correct when it held that the 2nd Defendant was not an agent of the Respondent, when intact the Respondent by its conduct had held out the Defendant as having its authority given the facts and surrounding circumstance of the cause of action.

The Respondent filed a Brief of argument on the 13/12/05 but did not frame separate issues. Respondent seemed to have the impression that Appellant framed 4 issues instead of 3, which are what this court would utilize while not discarding any questions or arguments proffered by the Respondent.

ISSUE NO. ONE:

Learned counsel for the Appellant stated that the enabling Rules of court laid down is clear terms the proper way of traversing or denying a Statement of facts in a pleading. He referred to Order 23 Rules 9, 13, 14 of the High Court FCT Rules.