Dr. Basil Ejidike V. Lionel Oguejiofor (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The plaintiff/respondent instituted this Suit in Onitsha High Court under the undefended list against the Defendant/Appellant for the s urn of N750,000.00 being money paid to the Defendant/Appellant for five plots of land at the Akpaka Layout, Onitsha and also 20% interest per annum on the said sum from January 2002 until judgment is delivered in the Suit and 5% interest per annum from judgment until the entire sum is liquidated.

On 22/12/2003, the defendant/appellant filed a Notice of Intention to defend with a 37 paragraph affidavit setting out his grounds of defence. The court entertained arguments from both parties on 12/5/2004, 26/5/2004 and 27/7/2004 and thereafter reserved for ruling.

On 29/9/2004, the court delivered its judgment and found as a fact that the defendant had not satisfied the court that there was a triable issue raised by his Notice of Intention to defend and accordingly entered judgment in favour of the plaintiff as per his claim.

The appellant being dissatisfied with the said judgment had appealed to this court.

The learned counsel for the appellant filed a brief on his behalf and formulated 3 issues for determination as follows:

“1. In view of the affidavit in support of the Defendant/Appellants Notice of Intention to defend was the learned trial Judge right in refusing to transfer the suit (which was placed on the Undefended List) to the General Cause List.

2. In view of the fact that the Defendant/Appellant is a disclosed agent of Anambra State Government, is Anambra State Government not a necessary party to this suit for the fact that it is the disclosed principal of the Defendant/Appellant.
3. Was the order of the learned trial Judge right when he entered judgment for the plaintiff/respondent appropriate in view of the conflicts of affidavit evidence of both parties before the learned trial Judge.”

The learned counsel for the respondent also filed a brief and formulated one issue for determination as follows:

“Was the learned trial Judge right in holding that the Defendant’s Notice of Intention to defend has failed to raise any triable issue and accordingly refused to transfer the suit to the general cause list.”

The sole issue formulated by the respondent is the only issue that arises for the disposal of this appeal.

The learned counsel for the appellant in a lengthy submission tried to argue that the appellant in his affidavit of his intention to defend the suit raised a triable issue namely that he collected the disputed amount for Anambra State Government as its agent, and he should not be held personally responsible.

The learned counsel for the respondent on the other hand submitted that the appellant raised no triable issue in his affidavit in support of his Notice of Intention to defend the suit. There was clear evidence that the appellant received the disputed sum from the respondent and failed to allocate him the plots of land requested.

The learned counsel also argued that there, was nothing to show that the money was paid into the account of Anambra State Government, rather it was paid into a private account operated by the appellant and two others.

The facts of this case are relatively simple. The appellant collected the sum of N750,000.00 (Seven hundred and fifty thousand Naira only) from the respondent to help him secure 5 plots of land at Akpata Layout Onitsha.