G. Cappa Plc V. Francis Nnaegbuna And Sons Ltd & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The Appellant contracted the Respondents to supply it with white wood in 2002 which the Respondents complied at five installments worth N5,279,650.00 (Five Million, Two Hundred and Seventy-Nine Thousand, Six Hundred and Fifty Naira) which sum the appellant failed to pay to the Respondents. In 2004, the Respondents sought and obtained leave of the Kaduna State High Court to file an action against the Appellant under the undefended list.

On receipt of the Respondent’s writ, the Appellant filed Notice of intention to defend, wherein it filed an affidavit of six paragraphs and averred as follows in paragraphs 4 (a) – (d) thereof:-

(a) That the defendant is not indebted to the plaintiffs as alleged or at all.

(b) That the Defendant never gave the plaintiffs contracts as alleged because the only site the Defendant had was building contract with Ministry of Foreign Affairs and work had since 2002 stopped at the site.

(c) Consequent upon the above, the defendant’s workers have been on redundancy till date.

(d) That no job order was issued in favour of the Plaintiffs and as far as I know they did not execute any job order.”

In his judgment delivered on 6th July, 2004, the learned trial judge, H.A.L. Balogun J. held as follows on page 29 of the record of appeal:-

“I have perused the affidavit attached to the said notice and I fail to see any bona fide defence on the merit as required by law.

All the Defendants did was to make a mere denial. Nothing was said about the over whelming documentary evidence the plaintiffs provided to support their case.

In the circumstance, I am satisfied that the Defendants have (sic) no bona fide defence to the offer while the plaintiffs have proved their claims through abundant evidence.

Judgment is accordingly entered for the Plaintiffs as per their writ of summons.”

Dissatisfied with the stance of the learned trial judge, the Appellant appealed to this Court with a notice of appeal dated 6th July, 2004 containing two Grounds of Appeal that –

(1) The learned trial judge erred in law when he held that the Appellant’s Notice of intention to defend the suit does not disclose any defence on the merit.