Chief B.E.C. Okafor & Anor. V. Geoffery Ejiogu (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 28/1/2005 by Hon. Justice P.A.C. Obidigwe of the Onitsha Judicial Division of the Anambra State High Court of Justice (hereafter simply referred to as “the lower court”). The judgment appealed against was given in favour of the plaintiff.

By a “Claim brought under the undefended list: Order 5 Rule 14” of the then Civil Procedure Rules of the lower court, and filed on 25/11/1996, the Respondent as Plaintiff claimed jointly and severally from the Appellants as Defendants, the sum of N385,555.00 being the amount the Appellants owed the Respondent. An affidavit in support of “Claim” was duly filed by the Respondent. After the “Claim” and the affidavit in support of “Claim” were eventually served on the Appellants, they filed a Notice of Intention to defend the suit. It is dated 23/10/1998 and was filed on 28/10/1998. An Affidavit in support of Notice of Intention to Defend was duly filed by the Appellants.

Consequent to the filing of the Notice of Intention to Defend and the affidavit in support of the Notice, the Respondent on 26/5/1999 filed a Statement of Claim equally dated 26/5/1999 in the case. Therein the Respondent who claims to be a businessman who deals in paints and allied materials, alleged that he sold various types of paint worth N385,555.00 to the Appellants. The 1st Appellant is a building contractor and Managing Director of the 2nd Appellant. It is the case of the Respondent that the Appellants used the paints in finishing the house of one Mrs. Maduabum. That the 1st Appellant promised to pay for the paints out of the fees due to him from Mrs. Maduabum who was then in the USA but was due to come home on Christmas vacation when she would take over the building. The Respondent said that all the paints supplied to the Appellants were collected and signed for by one “Jonas” who was at all material times a driver in the employment of the Appellants. That “Jonas” conveyed the consignments of paints in a pick-up van painted in the logo of the 2nd Appellant and which belonged to the Appellants. The Respondent narrated the ordeals he passed through due to the non-payment by the Appellants of the money for the paints supplied to them. The Respondent also alleged that the 1st Appellant issued him with two post dated cheques against 26/6/1995 in the name of an Estate Agent, Emma Ezeh only to request for the cheques before the maturity date, in order to advance cash payment but that the 1st Appellant failed to do this. Having narrated other events that transpired between him and the Appellants, including the report he made to one O.C. lgwealor, the Respondent further said to the effect that he instituted the instant action when it dawned on him that the Appellants did not want to pay for the paints supplied them. Given the case set up in the Statement of Claim, the Respondent claimed the following reliefs from the Appellants jointly and severally: –

(a) The sum of N385,555.00 only being debt owed the Respondent by the Appellants.

(b) 21% interest from 1st January, 1995 until judgment is delivered.

(c) Interest at the rate of 5% from date of judgment until liquidation of the debt.

The Appellants’ Statement of Defence is dated 8/10/1999 and filed on 22/10/1999. Therein the Appellants not only denied ever buying paints from the Respondent in the circumstances narrated in the Statement of Claim but also denied mandating “Jonas” or anybody by whatever name called to negotiate any credit facilities for them. Indeed, the Appellants denied ever having any person that goes by the name “Jonas” in their employment. The Appellants disclosed that the only transactions in connection w1h paints which they had on credit with the Respondent were in the total sum of N23,600.00 and further narrated how the monies owed the Respondent in respect of the transactions were paid. The Appellants alleged that the 1st Appellant paid the Respondent a sum of N26,000.00 because the Respondent approached the 1st Appellant for financial assistance to enable him settle the rent for his shop. The Appellants gave a Notice of Counter-Claim in the Statement of Defence. The Appellants basically relied on the averments in the Statement of Defence in respect of the Counter-Claim and claimed from the Respondent the following reliefs:-

(a) The sum of N2,4000.00 being the sum owed the Defendants (Appellants) by the plaintiff (Respondent).

(b) Interest on the said sum at the rate of 21% per annum until judgment, thereafter interest at the rate of 5% per annum until the entire sum is liquidated.

The Respondent gave evidence in his own behalf and called one other witness (his wife), in the proof of his case; while the 1st Appellant only, gave evidence on behalf of himself and the 2nd Appellant. The learned trial Judge after evaluating the evidence adduced by the parties, and having also had the benefit of the addresses of learned counsel for the parties, found the Respondent to have established his case on the preponderance of evidence and therefore entitled to judgment. Consequently judgment was entered in favour of the Respondent against the Appellants jointly and severally as follows: –

“(a) Three hundred and eighty-five thousand, five hundred and fifty-five naira (N385,555.00) being debt owed to the plaintiff (Respondent) by the defendants (Appellants);

(b) 21%/o pet annum interest on N385,555.00 from the 1st day of January, 1995 until the 28th day (sic) January, 2005;

(c) 5% per annum interest on (a) and (b) above from the 1st day of February, 2005 until the entire amount is fully liquidated;