Castles & Cubicles Ltd. V. Altimate Investments Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

SIMEON OSUJI EKPE, J.C.A.

The claim of the plaintiff as endorsed on the writ of summons against the defendant is as follows:-

“(1) The plaintiff’s claim against the defendant is in the sum of N517,877.57k (five hundred and seventeen thousand, eight hundred and seventy-seven Naira and fifty-seven kobo only), being sum/sums due to the plaintiff as facilitation fees, for procuring a contract for the completion of the religious building, at the University of Calabar, from the Education Tax Fund, for the defendant.

(2) As consideration for their services, it was agreed that the plaintiff be paid the sum of N1,730,000.99 (one million, seven hundred and thirty thousand, ninety-nine kobo only) in the same percentage proportion as the defendant is paid by the Education Tax Fund.

(3) It was an express term of the agreement executed between the parties on the 3rd day of August, 1999, that the plaintiff would be entitled to the same percentage proportion of the amount paid to the defendant on account of the said contract until the amount due to the plaintiff is liquidated.”

By a motion ex parte and a supporting affidavit filed by the plaintiff’s counsel, and granted by the learned trial Judge, the suit was placed on the undefended list for service on the defendant with all other processes of the court in the suit, and was adjourned to 5/10/2000 for mention. Upon the service of the writ of summons on the defendant, a memorandum of appearance was filed for the defendant. Also a notice of intention to defend the action together with an affidavit of 20 paragraphs disclosing a defence on the merit, were filed for the defendant, pursuant to Order 23 rule 3(1) of Cross River State High Court (Civil Procedure) Rules, 1987. Annexed to the said affidavit are exhibits ‘A’ to ‘C’.

The suit came up again on the 9th of April, 2001, before Edem, J. who adjourned the same to 21st May, 2001 for hearing or ruling. On 21st May, 2001, the learned trial Judge delivered his ruling and entered judgment for the plaintiff as per the writ of summons, on the ground that the affidavit accompanying the notice of intention to defend the action was not subscribed to or sworn to before a Commissioner for Oaths as the same did not carry the signature of the Commissioner for Oaths. He alluded to section 84 of the Evidence Act, 1990 and held that both the affidavit of the defendant disclosing the defence on the merit and the exhibits annexed thereto were incompetent as none of them carried the signature of the Commissioner for Oaths. He therefore, refused to consider the said affidavit of the defendant and consequently entered judgment for the plaintiff as per the writ of summons.

Being dissatisfied with the ruling of the learned trial Judge, the defendant now appellant appealed to this court on two grounds of appeal. The two grounds of appeal, shorn of their particulars read thus:

“Grounds of appeal

Ground One: The learned trial Judge erred in law, when he held in an undefended list suit that, the affidavit attached to the notice of intention to defend not being signed by the appropriate authority was a capital omission justifying his refusal to look at or consider the said affidavit on the merits.

Ground Two: The learned trial Judge erred in law, when he neglected to do substantial justice in the circumstance by refusing to consider appellant’s affidavit disclosing his defence merely on the ground that it was not signed.”

For the appellant, three issues were formulated in the appellant’s brief for the determination of the appeal. They read:

“1. Whether in the circumstance, it would not have been proper for the learned trial Judge to invoke either section 84 or 85 of the Evidence Act?

2. Whether the learned trial Judge was right to have regarded the error or defect in the affidavit as a “capital omission”?
3. Whether in view of the nature of the suit (undefended) there was an overriding need for the learned trial Judge to insist on doing substantial justice than succumb perilously to a technical requirement.”

For the respondent, only one issue was formulated in the respondent’s brief of argument as arising for the determination of the appeal, namely: