Alhaji Uba Kano V. Bauchi Meat Products Company Limited (1978)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

On the 26th of June 1978, when this matter came before us, we allowed the appeal and indicated that we would give our reasons later. We now set out our reasons for allowing the appeal.

The plaintiffs, in the High Court of the North Eastern State, sitting in Bauchi, took out a writ of summons in the undefended list against the defendant. The particulars of the claim with supporting affidavit and to which a statement of account of the defendant with the plaintiffs was attached are as follows:

The plaintiffs claim against the defendant is for the sum of N8496.31 being the balance of the cost of goods sold and delivered to the defendant at the request of the defendant which said amount the defendant has refused and or neglected to pay to the plaintiffs together with the costs of this action.”

In an affidavit, sworn to by the Chief Clerk of plaintiffs’ solicitor, it was stated that the claim arose as a result of purchases made on credit basis by the defendant from the plaintiffs which the defendant failed to pay off after repeated demands. The affidavit also indicated that the plaintiffs have a good cause of action and that the defendant had no defence to the action. The writ was served, following an order of the court, by substituted service and having regard to the fact that the defendant filed the Statement of Defence on the 25th of February 1973, he must have been served not only the writ but also the Statement of claim which was dated 7th of December, 1972. What followed could be seen from the record which reads:

“Odoma for plaintiff.

defendant absent. Not served.

Odoma: I will apply for adjournment to come with a notice for substituted service. I ask for Friday 20/9/74.”

Court: Adjourned for ‘M’ to 20/9/74.”

Obviously, there was a hearing notice issued for the 7th of September, 1974 and this was not served on the defendant. On the 20th of November, 1974, the plaintiffs applied for a motion to have the defendant served by way of substitution. The court granted the application and the case was adjourned for mention to the 10th of January, 1975. Nothing happened till the 13th of January 1975 however. On that day, both parties were represented by counsel. The court record shows-

“On 20/4/74 there was an order for substituted service. Court Clerk states there’s an affidavit of service to the effect that defendant was served personally on 25/10/74. Makanjuola and Odoma both agree that defendant in this case (NEB/8/74) has sued the plaintiff in another case NEB/11/74. Odoma states has been served with writ on NEB/11/74.”

The court record also shows that Odoma, who appeared for the plaintiffs then addressed the court as follows:-

“Since defendant has been shown to have been served in this suit and he has not filed a notice of intention I ask for judgment under O.3 R. 13 SCR.”

In reply to Mr. Odoma’s submission, Mr. Makanjuola stated that the hearing notice which he got in respect of the case was for the 3rd of February, 1975. Mr. Odoma then confirmed this and the case was adjourned for mention till the 3rd of February, 1975.