Chief B. C. Morah V. Mrs. P. N. C. Okoye (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the judgment delivered on 7/12/2006 by Hon. Justice C.J. Okoli, then Chief Judge of Anambra State of Nigeria.

The Respondent herein as Plaintiff filed a suit under the Undefended List against the Appellant as Defendant at the High Court of Justice, Awka Judicial Division. The claims of the Respondent against the Appellant are for (i) Refund of the sum of N2,860,000.00 being money received and used to the benefit of the defendant for a consideration that failed completely; and (ii) 10% interest per annum from the date of judgment till liquidation of judgment sum. The Respondent’s claims were supported by a 30 paragraph “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE” to which Exhibits marked A, B, C and D respectively were attached.

The Appellant duly filed a Notice of Intention to Defend the suit and an Affidavit in support of the Notice of Intention to Defend.

The Respondent reacted to the Appellant’s Affidavit in support of Notice of Intention to Defend the suit, by deposing to a Further Affidavit on 20/11/2006. The said Further Affidavit was filed on the same day. See pages 37-40 of the Record. The Appellant equally reacted to the Respondent’s Further Affidavit by deposing on 21/11/2006 to a Further Affidavit in support of Notice of Intention to Defend the suit. The process was filed on the same day. See pages 41-43 of the Record.

The suit was heard by the lower court on 21/11/2006 and judgment delivered on 7/12/2006. In its judgment the lower court having first held that “the affidavit of the defendant in support of the notice of defence” did not disclose facts which will throw some doubt on the case of the plaintiff requiring further investigation and that it was not satisfied that the defendant has made out any bona fide triable issue duly entered judgment for the plaintiff in the sum claimed. The lower court also ordered that the judgment sum shall bear interest at the rate of 5 per centum per annum until the full amount of the judgment debt is paid.

The Appellant being dissatisfied with the judgment of the lower court lodged an appeal against the same by a Notice of Appeal dated 22/2/2007 and filed on 5/3/2007. The Notice of Appeal contains three (3) grounds of appeal. The grounds of appeal without their particulars read thus: –

“Ground 1: – Error in Law

The learned Trial Chief Judge erred in law when he held as follows: –

“The law is now well settled that before the defendant’s application for transfer of the action from the undefended list to the general court list could succeed, he must show that he made a (sic) triable issue in his affidavit in support (sic) the notice of defence as required by Order 24 Rule 9(2) of the High Court Rules, 1988. In view of the admission by the plaintiff in paragraph 36 of his said affidavit in support of notice of defence that he issued two Guarantee Trust Bank Cheques for the total sum of N2,800,000.00 to the plaintiff, the story of N360,000.00 being money deposited with him by the plaintiff for providing security to the land sold to her, which the defendant did spend for that purpose can only be seen as a sham defence.

Ground 2: – Error in Law.

The Learned Trial Chief Judge erred in law when he held that there was no averment or deposition by the appellant that he obtained the statutory right of occupancy over the five plots of land allegedly sold to the respondent or that he obtained the consent of the Governor of Anambra State to effect the transfer or sell of (sic) the said plots of land to the plaintiff.

Ground 3: Error in Fact:-

The judgment of the lower court is against the weight of evidence.”