Dala Air Services Limited V. Sudan Airways Limited (2004)

LawGlobal-Hub Lead Judgment Report

JEGA, J.C.A.

This is an appeal against the judgment of the Kano State High Court of Justice sitting at Kano in suit No.K/57/2001 delivered on the 13th day of June, 2001 by Haliru, J. The facts of this case as can be gathered from the record of proceedings are as follows:-

The respondent commenced this action under the undefended list procedure against the appellant. The respondent claim before the lower court as endorsed on the writ of summons are as follows:

“1. The sum of N14,931,900.00 (fourteen million, nine hundred and thirty one thousand, nine hundred naira) being the unremittted sales proceeds of the plaintiff’s air tickets entrusted to the defendants.

2. The court rate interest of 10% per annum on the judgment sum from the day of judgment until full and final liquidation of the same.
3. The cost of filing and prosecuting this action as well as legal costs.”

Before the matter went to court, the plaintiff in the lower court who is an airline maintained a contractual relationship with the defendant by way of commission agent whereby the plaintiff who is the respondent in this appeal would entrust several of its air tickets to the defendant who is the appellant in this appeal to sell and remit the sales proceeds to the plaintiff for a commission and this has continued for several years. The appellant would always make good the said sale proceeds through cheques some of which were returned unpaid and were represented at the instance of the appellant but were still not honored, hence the accumulated indebtedness that gave rise to the action before the lower court. When the respondent counsel sent a demand notice to the appellant, several meetings were held between the parties sequel to which the appellant had pleaded for time to make good its indebtedness and proceed to issue three cheques in part settlement thereof in the sum of N2,000,000.00 thus totaling N6,000,000.00 with a pledge to settle the balance after a purported Hajj contract between the appellant and the Federal Government of Nigeria. Out of the said three cheques issued to the appellant’s counsel by the respondent, only one went through while the other two were returned unpaid, thus prompting the plaintiff to go to court and after the service of writ on the appellant, it issued to the respondent’s counsel yet another cheque in the sum of N2,000,000.00 which was returned unpaid again.

In answer to the respondent’s claim, the appellant filed a notice of intention to defend with several affidavits and even after the matter had been duly heard on the undefended list and same reserved for judgment the appellant filed in a motion to arrest the judgment and was accordingly indulged by the trial court and allowed to re-open its argument. In all the correspondence between the parties and even in all the affidavits filed by the appellant before the lower court, the appellant never outright denied its indebtedness to the respondent but had merely alleged that the plaintiff was indebted to it in respect of a charter agreement as well as some refunds expected by it from the respondent in respect of some unused air tickets, thus indicating an intention to counter-claim against the respondent. All the allegations of indebtedness alleged against the respondent by the appellant were promptly and vehemently denied by the respondent and in all the affidavits filed by the appellant, not even a single document/exhibit was exhibited to buttress the allegation of indebtedness against the respondent. It was apparent that the appellant merely fabricated all those allegations with intention to buying time by trying to create triable issues between the parties with the hope of frustrating the respondent’s claim, at least on the undefended list.

By his judgment delivered on 13th June, 2001, the learned trial Judge entered judgment in favour of the respondent in the sum of N12,331,900.00 (twelve million, three hundred and thirty one thousand, nine hundred naira). The appellant being dissatisfied with the judgment of the trial High Court appealed to this Honorable Court on five grounds of appeal.

We took the appeal on 18th May, 2004, the learned counsel to the appellant adopted and rely on his brief of argument filed on the 19th September, 2001 and urged us to allow the appeal. The respondent’s counsel was not in court and his brief of argument filed on the 17th January, 2003 was deemed adopted.

This appeal is predicated upon five grounds of appeal and from the five grounds of appeal, learned counsel to the appellant formulated two issues for determination. The two issues are as follows:

“1. Whether or not the appellant’s affidavit in support of the notice of intention to defend the suit disclosed sufficient facts which entitled the defendant to interrogate or cross examine his witnesses?.

2. Whether or not the trial Judge properly evaluated the affidavit evidence before him?.”

Learned counsel for the respondent formulated four issues for determination which reads thus:

“1. Whether or not in an action brought under the undefended list procedure as provided for under Order 23 of the Kano State High Court Civil Procedure Rules, 1988, an alleged counter-claim by the defendant amount to a defence on the merit?

2. Whether or not, a mere and general declaration that there is/was a need to reconcile the accounts between the appellant and the respondent before the lower court amounted to a triable issue or a defence on the merit to warrant the transfer of a matter from the undefended list to the general cause list?
3. Whether or not the defendant’s affidavit before the lower court disclosed sufficient facts, which entitled the defendant to interrogate or cross-examine the plaintiff’s witnesses?
4. Whether or not the learned trial Judge properly evaluated the affidavit evidence placed before him?.”

From the facts and circumstances of this appeal, issues 1 and 2 formulated by the appellant can effectively determine the appeal, accordingly issues 1 and 2 formulated by the appellant would serve in the treatment of this appeal.

Issue No.1: whether or not the appellant’s affidavit in support of the notice of intention to defend the suit disclosed sufficient facts which entitled the defendant to interrogate or cross-examine his witnesses. Learned counsel to the appellant in his submissions as contained in his brief of argument referred to Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 which states thus: