Chief & Mrs. Benson Anoka V. Miss Felicia Reforgor Ikpo (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is a suit brought under the Undefended List procedure. The Respondent as Claimant had paid a total of N1.6m to the Appellants as defendants for the delivery of a Mack 30 tons Truck within a month. The truck was not delivered and the deposit of N1.6m was not refunded.

Upon the institution of the suit under, the Undefended List procedure, the Appellants filed a memo of conditional appearance and an intention to defend this suit.

On the 25th day of June, 2010 this suit was heard by another judge. The defendants were unrepresented. The plaintiff asked for extension of time to enable the proceedings to continue under the Undefended List. The plaintiff also informed the Court that he had filed a further affidavit. This application was granted and the suit was adjourned for judgment.

Judgment was entered in favour of the Plaintiff/Respondent against the defendants/Appellants. The trial judge held inter alia as follows:

“1. Defendants are hereby ordered to pay to Claimant the sum of N1,480,000.00 being balance of money paid by Claimant to Defendants (sic) supply of 30 tons made (sic) truck vehicle which defendants defaulted.

2. Interest at the rate of GOPA is hereby awarded in the Principal sum from today until the liquidation of the judgment sum.”

Being dissatisfied, the Appellants filed their notice and three grounds of Appeal on 12th day of July, 2010 The Appellants filed their Appellants’ brief on 11th day of February, 2011. The Appellants articulated two issues for determination as follows:

“1. Whether the proceedings of 25th day of June, 2010 were not a violation of the right of fair hearing of the Appellants when the suit was heard without the appellants and no hearing notice was issued and served.

2. Whether the “Mr & Mrs” can confer legal status on married couples to sue and be sued.”

The Respondent filed his brief on 10th day of March, 2011 and articulated two issues also as follows:

“1. Whether the appellants who failed to take advantage of fair hearing process can claim that the court has denied them of their right to fair hearing.

2. Whether the defendants/appellant can be jointly sued in law.”

On the day slated for hearing the appeal, the Appellants’ counsel was absent in court though served. However the Appellants’ brief was already in the file and the court took it as having been argued. The Respondent also adopted his brief and urged the court to dismiss this appeal and affirm the judgment of the trial judge.

ISSUE 1:

Counsel to the Appellants submitted that this suit was placed under the Undefended List by Hon.Justice Emilia Ibok and fixed for hearing on 16th day of April, 2010. The Appellants filed their Memorandum of Appearance, a preliminary Objection and a notice of intention to defend. Nothing was heard again until 9th day of July,2010 the date the judgment was delivered by another Judge,Hon.Justice Anjor.

From the record, Justice Anjor had presided over the proceedings of 25th day of June, 2010 without the defendants/Appellants. The Respondent also filed a further affidavit which was not served on the Appellants but relied on by the trial judge.