Asuquo V. Udoaka (2021)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Calabar Division, Coram Victor Aimepomo O. Omage, JCA, Nwali Sylverter Ngwuta, JCA (as he then was) and Mojeed Adekunle Owoade, JCA, delivered on 22nd November, 2007 which set aside the decision of the trial Court delivered on 23rd September, 2005. Aggrieved by that decision, the Appellant has now appealed to this Court.

The facts of the case leading to this appeal are that on 24th June, 2005, the Respondent as Plaintiff, filed a Writ of Summons at the High Court of Cross River State wherein he claimed against this Appellant as defendant, the sum of N420,000.00 being money paid for supply of 60 metric tons of palm kernel fruits which he failed to perform and also failed to refund despite repeated demands. He also claimed 10% interest on the said sum from the date of judgment till payment. With leave of Court granted on 12th July, 2005 the suit was placed under the undefended list and marked accordingly. It was adjourned to 26th July, 2005 for hearing.

Upon being served with the processes, the Appellant filed a notice of intention to defend together with a counter-affidavit on 13th September, 2005. The counter affidavit filed by the Appellant disclosed triable issues. Indeed, in paragraph 24 of the counter-affidavit the Appellant stated as follows:-

“The defendant states that the plaintiff from Exhibit L has been supplied with a total of 50 metric tons of fresh fruit bunches between the 3rd of April, 2004 and 25th November, 2004 contrary to his false and fraudulent claims that nothing has been supplied to him since he paid N420,000.00 to Ayip Eku Oil Palm Estate.”

The learned trial judge in a considered judgment found that the money claimed by the Respondent cannot be extracted from the Appellant as he was acting for his principal, Ayip-Eku Oil Palm Ltd. The learned trial judge held as follows:-

“Having held as above, no use shall be served in transferring this matter to the general cause list as the present claims cannot be extracted from the defendant on record. The plaintiff’s claims herein are accordingly dismissed against the defendant on record.”

Dissatisfied with that judgment, this Respondent appealed to the Court below which in a unanimous judgment delivered on 22/11/2007 allowed the appeal as follows:-

“For these reasons, I am in agreement with the learned counsel for the Appellant that the learned trial judge erred in this case for failing to transfer the suit from the undefended list to the ordinary cause list as provided for in Rule 3(2) of Order 23 of the High Court (Civil Procedure) Rules of Cross River State.

Consequently, this appeal is meritorious and it is allowed. The judgment of Eyo E. Ita J, in Suit No. HC/271/2005 dated 23rd September, 2005 is hereby set aside. It is hereby ordered that Suit No. HC/271/2005 be remitted for trial before another judge of the High Court of Cross River State. There shall be no order as to costs.”

Equally dissatisfied with that judgment, the Respondent in that appeal who is now the Appellant before this Court filed a Notice of Appeal on 21st January, 2008.

At the hearing of the appeal, counsel for the Appellant adopted and relied on their brief of argument filed on 12th September, 2008 in urging the Court to allow the appeal. On their part also, counsel to the Respondent adopted and relied on the Respondent’s brief of argument filed on 23rd December, 2008 in urging the Court to dismiss the appeal.

The appellant nominated a sole issue for determination thus:-

“Whether there was any triable issue in the suit justifying the learned trial Judge’s dismissal of it.”