Honourable Adebayo David V. Alfa Abdul-ganiuyu Jolayemi (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment)

This appeal challenges the decision/judgment of the Honourable Justice M. A. Akoja of the High Court of Justice of Kwara State sitting at Omu-Aran Judicial Division which judgment was delivered on the 1st day of June, 2005 granting the Plaintiff/Respondent all the reliefs sought. It would be recalled that the said Plaintiff/Respondent had beseeched the Lower Court supplicating for the following reliefs as per his writ of summons dated and filed on the 20th December, 2004 as follows:-

1. The sum of N388,000.00 (Three Hundred and Eighty Eight Thousand Naira) only being the balance of the loan advanced on 19th April, 2002 by the Plaintiff to the Defendant.
2. Interest at the rate of 10% per annum on the Judgment sum from the date of Judgment until the final liquidation.

The Plaintiff/Appellant had earlier on the 19th November, 2004, in a motion Exparte brought pursuant to Order 23 Rule I of the Kwara State, High Court (Civil Procedure) Rules, 1989, sought for orders entering the suit for hearing under the undefended list and marking the Writ of Summons accordingly and for such order or further orders as the Court might deem fit to make in the circumstances of the case.

The motion was supported by a seven paragraph affidavit deposed to by the Plaintiff/Respondent in person. On the 20th day of December, 2004 the Plaintiff/Applicant through his Counsel, Olu Adeshina Esq., moved the motion ex-parte and drew the lower Court’s attention to the affidavit in support and the Writ of Summons which according to him, was supported by an affidavit of Seventeen Paragraphs with an attached annexure – a letter of demand from his chambers dated the 25th day of October, 2004. He related further that the case was that of a simple debt which he urged the learned trial judge to hold that the Defendant/Appellant, had no defence to and would not be prejudiced nor embarrassed if the said application was granted.

Ruling on the motion, the learned trial Judge held the considered view that the application was reasonable in the circumstance and the prayers were granted. The suit was accordingly entered for hearing under the undefended list and the Writ of Summons so marked and ordered to be served on the Defendant with all its attachments.

Having been duly served with the originating processes, the Defendant/Appellant swore to a counter affidavit of eight paragraphs dated and filed on the 1st day of February, 2005. On the 4th day of February, 2005, the Defendant followed same up with a motion on Notice for leave to file his Memorandum of Appearance out of time. The said application was supported by an affidavit of nine paragraphs deposed to by the said Defendant/Appellant.

When the case resumed for hearing on the 7th day of February, 2005, O. A. Babaniyi Esq. appeared for the Plaintiff/Respondent while the Defendant appeared personally and sought for an adjournment to enable him properly prepare for the case.

He also drew the attention of the Court to the fact that he had just filed a counter-affidavit indicating his intention to defend the suit.

Upon the objection by Babaniyi Esq. to the adjournment sought, on the ground that the Defendant/Appellant ought to have filed his Notice of Intention to Defend, five days before the date of hearing, the court nevertheless held after considering all the processes filed by the Defendant/Appellant, thus:-

“From all the facts and circumstances of this case, I am of the considered view that the defendant has substantially complied with the requirements of the law even though he was ignorant of same. This is because, the counter-affidavit which could in the circumstance be titled notice of intention to defend, ought to have been filed along with his motion on Notice of intention to defend. What the court is saying is that the Defendant has shown some interest in defending the suit and has taken some steps towards this.

In the interest of justice therefore, the court would want to oblige the Defendant by granting him an adjournment. He is however advised in his own interest, to consult a counsel for his defence as he may not be able to handle this technical issue properly by himself.”

The case was then adjourned to the 2nd day of March, 2005, for hearing but on that day Mr. Adeshina on behalf of the Plaintiff/Respondent sought for an adjournment to enable the Plaintiff/Respondent be contacted to file further documents in response to the Defendant/Appellants Counter-Affidavit. Hearing of the case was further adjourned to the 13th of April, 2005 for the motion on notice.

On that 13th day of April, 2005, the Defendant was however absent and no Lawyer represented him. Adeshina Esq. then urged the Court to strike out the Defendant’s motion and Counter-Affidavit filed on the 1st February, 2005. The learned trial judge having noted that the Defendant had intimated the Court on the last adjourned date that he had briefed one Mr. Balogun as his Counsel, more so, when the said Defendant was a party to the adjournment, was of considered opinion that the Defendant had not shown any seriousness to his case as neither himself nor Counsel was present in Court. He therefore struck out the motion on Notice which was originally scheduled for hearing on that day.

On the issue of the striking out of the Counter-Affidavit, the learned trial judge took the view that the learned counsel to the Plaintiff/Respondent failed to give any reason for his application as the Court below was also not sure that the counter-affidavit had offended any law. The application to strike out the counter-affidavit was accordingly refused.