Echo-scan Services Ltd. V. Dr. Zikroo A. Shittu (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BABA ALKALI BA’ABA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Justice, Kaduna, Kaduna State, sitting in the Zaria Judicial Division, delivered on the 8th day of November, 2006 by Hon. Justice Dogara Madam of the Kaduna State High Court.

The respondent who was the plaintiff took out a writ of summon under the undefended list procedure, claiming against the defendant now appellant, the sum of N500,000.00 (Five Hundred Thousand Naira only) being the unpaid balance of the purchase price of X-Ray machine he sold to the defendant/appellant on or about the 4th day of April, 2006.

The writ of summons in support of the undefended list procedure was supported by a five paragraph affidavit to which annextures were attached.

The appellant who was the defendant before the trial court filed a notice of intention to defend the suit which he wrongly titled motion on notice.

The learned trial Judge after hearing counsel to the parties and taking into consideration the affidavit in support of the ex-parte motion brought under the undefended list procedure and the affidavit in support of the notice of intention to defend as well as the further affidavit held at page 51 of the record as follows:-

‘The defendant listed a host of other materials which it said are components of the X’Ray machine without which the machine cannot be test run namely;

(1) Darkroom accessories.

(2) Bucky table.

(3) X-Ray film processing tank.

(4) X-Ray cassettes.

(5) X-Ray Firm dryer.

(6) Safe Height.

With exception of the bucky table all the other items listed above are not containable in Exhibit A the sale agreement did not provide for text running of the machine and if the intention of the parties for providing in the agreement that the payment of the last instalment of N500,000.00 shall be within 6 weeks was to enable the Defendant to test run the machine it should have been expressly provided so: The goods sold by the Plaintiff to the Defendant is an X-Ray machine with its accessories both the X-Ray machine and the accessories have been named in Exhibit. The sale agreement and the price for which they were sold indicated and lastly the mode of payment was also stipulated. The plaintiffs claim is a liquidated demand. The affidavit in support of the notice of intention to defend which the Defendant wrongly titled Motion on Notice has not or does not disclose any defence on the merit to the Plaintiffs to warrant the transfer of the matter to the general cause list for a full trial.