Alhaji M. K. Aliyu V. Alhaji Al-hassan Mohammed (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH O. AKEJU, J.C.A. (Delivering the Leading Judgment)

The Respondent was the plaintiff in suit No. KDH/KAD/804/2000 before the Kaduna State High Court sitting at Kaduna wherein by an action under the undefended list procedure he had claimed the sum of N3,000,050.00 (Three Million, Fifty Thousand Naira) from the Appellant as the defendant being the amount he paid to the appellant for a plot of land that belonged to the appellant with 10% interest per annum from the date of judgment until the entire amount is liquidated, and the cost of filing the action.

The writ of Summons was filed with an affidavit in support showing the facts relied upon, and to which documents marked exhibits A1, A2, A3 and A4 were attached.

The Appellant filed a Notice of Intention to defend the action and filed exhibits A and B with the supporting affidavit, and in the decision of 16/11/2001, the High Court of Kaduna State (now called the trial Court) granted the Respondent’s claim as undefended and gave judgment against the appellant for the sum claimed by the Respondent with interest of 10% thereon until full liquidation and costs of N1,500.00.

The Appellant filed Notice of Appeal against the judgment, and in this Court, Briefs of Argument were filed and exchanged by the parties. In the Appellant’s Brief of Argument prepared by E.B.O. Ibitope Esq., and filed on 11/11/2002, the following issues were distilled for determination;

1. Whether from the totality of the affidavit evidence before the court, is this matter not a proper case for a transfer to the ordinary cause for trial?
2. Did the learned trial judge properly evaluate the affidavit evidence of the parties before arriving at a decision to enter judgment in favour of the Plaintiff/Respondent?
3. Was the trial High Court right in awarding costs more than what was asked for?

In the Respondent’s Brief of Argument settled by Bilkisu Mohammed of Counsel and deemed filed on 6/10/2009 the issues formulated for determination are;

1. Whether the learned trial judge was right to have declined to transfer the matter/suit to the general cause list and entered judgment in favour of the Respondent as per his Writ of Summons.
2. Whether the learned trial judge was right in awarding the cost of N1,500.00 (One Thousand Five Hundred Naira) only as against the total sum of N2,124 applied for by the Respondent’s Counsel.

When the appeal was heard by this Court, Elohozino Ulebe as the learned Counsel for the appellant adopted the Appellant’s Brief and urged that the appeal be allowed while Christopher Ikpa Esq. for the Respondent urged that the appeal be dismissed based on the Respondent’s Brief which he too adopted.

I have considered the issues raised by both parties and I find no difference of substance therein. Except that the Appellant raised three issues while the Respondent has raised two. I will therefore consider and determine the appeal upon those three issues as formulated by the appellant.

On the first issue the appellant’s Counsel argued that the Appellant has in his affidavit evidence before the Court issues of facts which required oral evidence for clarification and the trial Court should have transferred the action for hearing under the undefended list. According to the learned Counsel, the Respondent who failed to file any further affidavit must be deemed in law to have admitted the facts in the appellant’s affidavit which remained undisputed or unchallenged.

The cases of BADEJI V. FEDERAL MINISTRY OF EDUCATION & ORS (1996) 9 – 10 SCNJ 51; CHIEF ADESINA VS. THE COMMISSIONER, IFON/ILOBU BOUNDARY COMMISSION OSHOGBO, (1996) 4 SCNJ 111; and A.G. ANAMBRA STATE V. OKEKE (2002) 5 SCNJ 318 were cited in support of this submission.

It was also argued by learned Counsel that the trial Court had before it affidavit evidence that were irreconcilably in conflict and the proper step was to have taken the suit under the general cause list, so as to resolve the conflict in evidence rather than speculate; ORHUE V. NEPA (1998) 5 SCNJ 126.

The learned Counsel for the Respondent on his part submitted that the undefended list procedure is a special one designed to expedite the hearing of a claim for liquidated money demand and for avoidance of sham defences, citing IKPONG VS. UDOBONG (2007) 2 NWLR (Pt. 1017) 184; UBA VS. DARGUBA (2007) 4 NWLR (Pt. 1045) 270.

It was the argument of the learned Counsel that the appellant had no defence to the Respondent’s action on the merit but actually confirmed that he collected N3,050,000.00 the money claimed by appellant. Part of which he had paid. On the exercise of the discretion of the Court in the determination of what amounts to a defence on the merit, the case of BAWA VS. PHENIAS (2007) 4 NWLR (Pt. 1024) 251 was cited.

Also on the conditions to be satisfied by a defendant before a Court will transfer a case to the general cause list, the learned counsel cited UNBEN V. KT ORG. LTD (2007) 14 NWLR (Pt. 1055) 47; and AGBABIAKA V. FBN PLC. (2007) 16 NWLR (Pt. 1027) 47.