Chief (Dr.) Felix Modebelo V. Hajedoc Nigeria Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice Salisu Garba of the High Court of the F.C.T., Abuja, delivered on the 26th of November, 2007, wherein the learned trial Judge held that the Defendant/Appellant’s Affidavit in support of the Notice of Intention to defend the suit did not disclose any defence on the merit and entered judgment for the Plaintiff/Respondent.

The facts of the case as can be deduced from the records before this court is that on the 1st of August, 2006, the lower court granted the Plaintiff, the Respondent on this appeal, leave to issue, mark and place this suit, which was brought before the lower court, by a motion, ex-parte dated 30th March, 2006 and filed on the 5th of April, 2006, under the Undefended List, where the Plaintiff claimed against the Defendant as follows:

(a) The sum of N1,881,000.00 (One million, eight hundred and eighty one thousand naira) only, being debt owed by the Defendant to the Plaintiff for goods supplied to him.

(b) Interest on the said sum of N1,881,000.00 (One million, eight hundred and eighty one thousand naira) at the rate of 10% from the date of judgment till final liquidation.

(c) Cost of this suit.

Upon service of the Writ of Summons and the accompanying affidavit on the Appellant, the Defendant at the trial court, the Appellant filed a Memorandum of Conditional Appearance, a Notice of Intention to Defend with accompanying affidavit and exhibits as well as a Preliminary Objection all dated and filed on the 3rd of October, 2006.

In the Preliminary Objection the Appellant prayed the trial court to set aside the Writ of Summons in the suit and discharge the Ex-parte Orders earlier granted or strike out and/or dismiss the Plaintiff/Respondent’s suit in its entirety, on the grounds, inter alia, that the Writ is incompetent, fundamentally defective and smacks of procedural irregularities alien to the Rules of Court.

The Respondent responded by a Counter-Affidavit and thereupon Written Addresses were filed and exchanged. The trial Court on the 23rd April, 2007, dismissed the Preliminary Objection for lack of merit. Consequent upon the above, the trial Court on the 26th of November, 2007 entered judgment in favour of the Plaintiff and held that there is nothing in the affidavit in support of the Notice of Intention to Defend, disclosing a defence on merit as contemplated by the provisions of Order 21 Rule 3(1) of the High Court of the F.C.T. (Civil Procedure) Rules, 2004.

The Appellant is aggrieved by this ruling and has appealed to this Honourable Court, vide a Notice of Appeal dated 16th January, 2008 and filed on the 18th of January, 2008, containing two (2) Grounds of Appeal. The Grounds of Appeal without their particulars are hereby reproduced:-

GROUNDS OF APPEAL

Ground One:

The learned trial Judge erred in law when he held that there is nothing in the affidavit in support of the Notice of Intention to Defend, disclosing a defence on the merit as contemplated by the provisions of Order 21 Rule 3(1) of the F.C.T. High Court (Civil Procedure) Rules, 2004.

Ground Two: