Alh. Umaru Mohammed Mai Biredi Azare V. Alh. Shehu Abdulahi Mai Flour (2005)

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MUHAMMAD LADAN TSAMIYA, J.C.A.

The respondent (herein) was the plaintiff at the trial Court. He sued the appellant (who was the defendant at the trial Court), claiming the sum of N136, 810.00, and 10% interest on the judgment sum from December, 1998, to the final satisfaction of the judgment and the costs of this action.

The claim was brought under the undefended list procedure. The appellant filed a Notice of Intention to defend, which was supported by an affidavit. After taking submissions by counsel to both parties, the learned trial Chief Judge refused to transfer the matter to the general cause list, but entered judgment in favour of the respondent. In his Ruling, the Chief Judge stated:-

“The justice of the matter, therefore, dictates that the Notice which is a denial devoid of any particular…mere general denial of the plaintiffs claim is not sufficient to warrant a defendant being given leave to defend…

The defendant is hereby ordered to pay to the plaintiff the sum of N136,810.00 and N550.00 cost of the action. The amount shall attract 10% interest p.a. from today, until final settlement of the entire sum pursuant to Order 23 Rule 4 of the Rules of Bauchi State High Court, 1987.

The appellant herein not satisfied with the decision, appealed to this court. His Notice of Appeal contained two grounds of appeal. His grounds of appeal with their particulars are as follows:-

1. The learned Trial Chief Judge erred in law, when he relied on Exhibits ‘A’ and ‘A1’, ‘B’ and B1 of the plaintiff claim to enter judgment for the plaintiff.

(a) It is in the Court record that Exhibits A and A1, B and B1, have been quashed by Order of Court under the hand of Hon. Justice Bala Umar on 25/7/99, i.e. Exhibit A attached to the defendant’s Notice of Intention to defend.

(b) The consequence of quashing an Order is in law to make it legally in effective and can therefore, not to be relied upon for any purpose.

(c) Once an Order is quashed, it is assumed not to be existing and what is not existing cannot be relied upon.

2. The learned Trial Chief Judge erred in law, when he held that the defence of the defendant is mere general deniel.

PARTICULARS

(a) The plaintiffs claim was only supported by Exhibits A and A1, B and B1 which were quashed by Exhibit A of the defendant affidavit.

(b) Since Exhibits A and A1, B and B1 of the respondent are not existing there is nothing left in the respondent’s affidavit for the appellant to attack unless the respondent’s affidavit.

(c) The appellant has adequately responded to the respondent’s affidavit.

In compliance with the rules of this Court, Brief of Argument were filed and exchanged by both parties. The appellant formulated Two issues for determination in his Brief of Argument, viz: –