Charles Ekeiloanya V. Hon. Chike Anyaonu (2002)

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FABIYI, J.C.A.

This is an appeal against the judgment of Izuako, J, sitting at the High Court of Justice, Ogidi, in Anambra State of Nigeria, on 14th November, 2000.

As filed at the trial court, the plaintiff/respondent’s claims can be found in paragraph 12 of the ‘CLAIM’ which accompanied the writ of summons specifically, placed under the undefended list procedure. The claims read thus:-

“12. WHEREFORE the plaintiff claims against the defendant as follows:-

(a) The amount of N500,000.00 (five hundred thousand naira only) being the sum covenanted by the defendant as representing the value of the said car.

(b) Interest at the rate of 21% per annum on the said sum of N500,000.00 from 1st October, 1999, until judgment is delivered and thereafter, until the entire sum is paid up.”

The plaintiff deposed to an affidavit of 14 paragraphs in support of the writ of summons. It is apt to reproduce paragraphs 2-11 of the affidavit as they have direct impact on the matter. They read as follows:-

“2. That the defendant, who is a businessman and whose business includes the sale of used/imported cars sometime in 1999, represented himself to me as being capable to sell to me a Mercedez Benz Car.

3. That consequent on the herein above stated fact the defendant offered to sell a ‘High/Quality 1984, Model

of Mercedez Benz flat Engine/Boot Car’ to me at the cost of N406,000.00(four hundred and six thousand naira).

4. That consequent on the herein above stated sales transaction, I paid to the defendant the agreed sum of

N406,000.00 and the defendant in turn covenanted to deliver the said car latest by March, 1999.

5. That the defendant did not deliver the said car in March, 1999 and up till now, have (sic) not delivered same nor returned my money to me. 6. That the defendant in September, 1999, made out a Memorandum of Authority and Understanding to me, covenanting to deliver the said car soon thereafter, or in the alternative refund to me in full the sum of FIVE HUNDRED THOUSAND NAIRA representing the value of the said car. Find attached a photocopy of the said Memorandum of the defendant dated 14th September, 1999, marked exhibit A.

7 That the defendant has up till now not delivered the said car to me nor refunded the covenanted sum of five Hundred Thousand Naira (N500, 000.00) representing the value of the said car by September, 1999.

8. That the defendant has since then failed, refused and neglected to pay the said sum of N500,000.00, despite several and repeated demands by me for payment of same.
9. That this act of the defendant has caused me grave hardship, inconvenience, set back and embarrassment because this money he is holding onto, is money I borrowed from the Bank and Finance House for which I pay huge interest. 10. That it is only by an ORDER of this Honourable Court, shall the defendant refund me this money.
10. That the defendant has no defence whatsoever to this suit.”

The suit came up for hearing for the first time on 28/6/2000. A notice of entry of appearance was earlier filed on behalf of the defendant on 23/6/2000. The defendant failed to file the requisite notice of intention to defend supported by an affidavit on 23/6/2000, as prescribed by the Rules of court. The learned trial Judge, instead of entering judgment for the plaintiff without much ado on 28/6/2000, adjourned the matter to 18/7/2000 ‘for the defence to sort itself out’. On 17/10/2000, the defendant had not taken the proper step. The learned trial Judge again pampered the defendant and adjourned to 8/11/2000. Eventually, the defendant filed his notice of intention to defend on 6/11/2000. He deposed to an affidavit of 22 paragraphs in support of same.

Paragraphs 6-17, both inclusive, and 19 of the defendant’s affidavit are relevant. I reproduce them as follows:-

“6. That I know one Mrs. Lizy Anyaonu, who was the branch Manager of Orient Bank (Main Market Branch) Onitsha and that I am a customer of that Bank. (a) That sometimes in 1999, Mrs Lizy Anyaonu, who knew me as customer of the bank and as an importer of used cars approached me to buy one 1984 Model Mercedez Benz Car for her from abroad and at an agreed price of N300,000.00 (Three hundred thousand naira) which excludes the cost of clearing the car from the wharf. (b) That consequently, she made a part payment of N100,000.00 (One hundred thousand naira) to me promising to shoulder the cost and responsibility of clearing the car on arrival.