Ben Nwankwo V. Kay-kay Construction Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering The Leading Judgment)

The High court of Enugu State, Enugu tried suit No. E/249/2012 on the undefended list on the basis of the plaintiff’s writ of summons supported by an affidavit of 16 paragraphs accompanied by documentary exhibits A to H, the defendant’s notice of intention to defend supported by an affidavit of 27 paragraphs accompanied by documentary exhibits 1 to 8.

After the conclusion of the addresses of Learned Counsel to both sides on 16-11-2012 rendered judgment holding thus- “I am, therefore, satisfied upon my evaluation of the evidence presented, that the plaintiff is entitled to judgment for the sum of N200, 000,000.00(two hundred million naira) only. There is nothing in the defendant’s notice of intention lodged before the court to warrant a postponement of the judgment day by shifting the case to the general cause list.

The N10,000,000.00 (ten million naira) claimed by the plaintiff as solicitor’s fees, is in my view misconceived and inappropriate under the undefended list. That arm of the claim is hereby denied and dismissed. However the suit succeeds substantially and the court decrees as follows “that the defendant shall pay the plaintiff the sum of N200,000,000.00(two hundred million naira) being liquidated money demand in respect of a friendly loan granted to the defendant at his request.

I make no order as to costs.”

Dissatisfied with this judgment, the defendant on 16-11-2012 commenced this appeal No CA/E/56/2013 by filing a notice of appeal containing eight grounds for this appeal.

The parties herein have filed, exchanged and adopted their respective briefs of argument as follows – the appellant’s brief of argument, the amended respondent’s brief of argument, the amended appellant’s reply brief. The respondent filed a separate notice of preliminary objection which it reproduced and argued in pages 5 to 14 of its brief of argument. The appellants reply to the respondent’s preliminary objection is contained in pages 1 to 4 of the amended appellant’s reply brief. The respective arguments in respect of the preliminary objection were adopted by both parties herein before their argument of the merit of this appeal.

The appellant’s brief of argument raised the following issues for determination:

1. Whether the learned trial Chief Judge was right or justified in holding that the Notice of Intention to defend the suit filed by the appellant did not evince or disclose any defence to warrant the transfer of the suit to the general cause list and order pleadings Ground 1
2. Whether the learned trial Chief judge was right or justified in holding that the defence put forward by the appellant in her affidavit in support of Notice of Intention to defend with the exhibits attached, were posterior or extrinsic to Exhibits A, B, C and D such as to pronounce the said defence irrelevant in the consideration of the suit. Grounds II, III, IV & V.
3. Whether, having regard to the entire defence put forward by the appellant in her affidavit in support of the Notice of Intention to defend, the learned trial Chief Judge was right to hold that the appellant did not deny the respondent’s Exhibits A, B, C and D. Ground VI.
4. Whether the learned trial Chief Judge was right to hold that the civil suit instituted by the appellant in the High Court of Enugu State to set aside Exhibits A, B, C and D, was inchoate. Ground VII.
5. Whether the learned trial Chief Judge was right when he failed to evaluate the evidence led before him by the appellant but instead relied on purported evaluation of evidence led in suit No. E/246/2012 which was not consolidated with the appellant’s case. Ground VIII.

The respondent’s brief of argument adopted and argued replicando the above issues raised in the appellant’s brief of argument. All the issues are in substance the same. I will therefore determine the said issues together. I will for now put on hold the determination of these issues and consider the respondent’s preliminary objection. I may not return to the merit of this appeal, if I find the objection entirely meritorious.

The grounds for the objection are that-

A. Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal being questions of mixed law and fact raised without the leave of court are incompetent and liable to be struck out.

B. Ground 4 of the Notice of Appeal having not arisen from the judgment of the trial court is incompetent and liable to be struck out.

C. The notice of appeal filed on 16-11-2012 is incompetent for non compliance with section 242 of the 1999 Constitution ( as amended), and liable to be struck out/dismissed.

Grounds 1, 2, 3, 4, 5, 6 and 7 of this appeal are complains against the judgment of the trial court on the facts and law. As rightly submitted by the Learned SAN for the appellant, a judgment following the trial of a suit on the undefended list is a final judgment on the merits of the case. See MARK & ANOR V. EKE (2004) 1 SC (PT. 11) 1, DUKE V. AKPABUYO LOCAL GOVERNMENT (2005)19 NWLR (PT 959) 130 (SC), BANK OF THE NORTH LTD V. INTRA BANK SA (1969) 1 ALL NLR 91 AND F.M.F LTD V. RIVERS POLY, BORI (2005)9 NWLR (PT 930)257 AT 272-273since the said judgment of the trial court is a final one, the appeal against it on those grounds can be validly maintained without the leave of the court first obtained to so appeal.