Catherine Okon V. Peter Ibom (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling delivered by Anjor J. on 27/10/08. The Plaintiff in the Court below said he paid the sum of N800.000 to the Defendant for a plot of land at Ekorinim town in Calabar but when he took steps to develop the land he discovered that the Defendant who sold to him had no title to the land.

His attempts to recover the N800.000 from the Defendant failed whereupon he instituted an action to recover his money. On his ex-parte application before the High Court of Justice, Calabar Judicial Division the matter was placed in the undefended list and the defendant served.

The defendant filed a notice of intention to defend along with a 21 paragraph affidavit supposedly disclosing a defence on the merit.

In the ruling delivered on 27/10/08 the learned trial judge considered the averments in the affidavit accompanying the notice of intention to defend and came to the conclusion”

“…That the defendant’s notice of intention to defend and the supporting affidavit had failed to disclose a defence on the merit.”

See page 22 of the records.

Based on the above finding the trial court entered judgment for the plaintiff as follows:

“1. The defendant is hereby ordered to pay to plaintiff the sum of N800,000 being money paid by the plaintiff to defendant for a plot of land at Ikot Erim which transaction turned out to be false.

2. Cost of 5,000 is hereby awareded in favour of the plaintiff against defendant.”

See page 22 of the records.

The Defendant now Appellant appealed the Judgment on three grounds from which the following issue was distilled:

“Whether the learned trial Judge properly applied the provision of order 10 of the High Court (Civil Procedure) Rules of Cross River State 2008 to the case before him.”

The Plaintiff now Respondent filed a notice of preliminary objection on the ground that:

“The Appellant did not comply with the provision of order 6 r. 2 of the Court of Appeal Rules 2007 and the annex form 3 thereto in commencing this appeal.”