Amos Motors Nigeria Limited & Anor V. MR. Idowu Agboola (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Respondent (then Plaintiff) in the High Court of Justice Kwara State, in the Ilorin Judicial Division Holden at Ilorin, by way of Ex-parte Motion brought pursuant to Order 23 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 1989, in suit Number KWS/2/2005, applied for leave of the Honourable Court to enter the action under the Undefended List and to mark the writ of Summons and the Affidavit in support thereof as “UNDEFENDED-LIST” and for such further Order(s) as the Court might deem fit to make in the circumstances of the case. That Application was filed on the 10th day of January, 2005.

In the five-paragraph affidavit deposed to by Idowu Agboola, male, Christian, Company Worker, Nigerian of No. 31, Western Avenue, Surulere Lagos, who incidentally was the Plaintiff/Applicant he had sworn to the following facts:-

1. That he was conversant with the facts of the case by virtue of being the Plaintiff/Applicant.
2. That his solicitors Messrs Temidayo Eseyin & Co. informed him and he verily believed that he needed the leave of the Honourable Court to bring the action under the “Undefended List”.
3. That his claims were as stated in the Writ of Summons and the grounds upon which the reliefs were predicated were as stated in the affidavit in support of the Writ of Summons also annexed to the Motion Ex-parte.
4. That the Writ of Summons and the Supporting Affidavits were marked Exhibits “A1” and “A2”: respectively.

By the endorsement on the Writ of Summons which was also filed on the 10th day of January, 2005;

“The Plaintiff’s Claim is for:-

1. The sum of Five Hundred Thousand Naira (N500,000.00) being the money collected from the Plaintiff by Defendants for the supply of a Nissan Hiace Bus to the Plaintiff by the Defendants but which the Defendants refused to supply despite repeated demands.
2. 10% interest per annum from judgment until final liquidation.”

In the Affidavit in support of the Writ of Summons, the Plaintiff/Applicant averred to the following facts:-

“1. That I am the Plaintiff in this case.

2. That the first Defendant was introduced to us as being a Limited Liability Company carrying on the Sales and supplies of Motor Vehicles.
3. That the second Defendant is the alter ego and Managing Director of the first Defendant.

“4. That on the 16th of December, 2003, the Plaintiff approached the defendants for the sales and supplies of a Toyota Hiace Bus.

“5. That after negotiations, the Defendants agreed to sell and supply to the Plaintiff the said Toyota Hiace Bus at Five Hundred Thousand Naira, (500,000.00).

“6. That the second Defendant then told the Plaintiff and his friend that he would need to travel to either Benin Republic of Togo to bring the vehicle.

7. That the Defendants also promised to deliver to the Plaintiff the said Vehicle after two (2) weeks from 16/02/2004 whereupon the plaintiff made a deposit of Four Hundred and Forty Thousand Naira (N440,000.00) and the Plaintiff was issued the defendant receipt dated 16/12/03. The said Receipt is herewith attached and marked Exhibit “AA”.

“8. That the Defendants failed to supply to the Plaintiff the said Toyota Hiace Bus after the agreed two (2) weeks and till now.

“9. That after a lot of pressure and over eight months after, the 2nd Defendant demanded that the Plaintiff should pay the-balance of Sixty Thousand Naira (N60,000.00) to enable him supply the said Vehicle and the plaintiff obliged him. The 1st Defendant’s receipt for the sum of (N60,000,00) dated 18th July, 2004 is herewith attached and marked Exhibit “AB”.

“10. That even after the payment of the said sum of N60,000,00 as balance, the Defendants still refused to, failed and/or neglected to supply to the plaintiff the said Toyota Hiace Bus.

“11. That the Defendants made several promises to supply the vehicle and failed.