Ekpedeme Ekong Ufford V. Pastor Ubong Johnson Udoh (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A:(Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Akwa Ibom State contained in the judgment delivered on the 11/7/07 in suit No. HC/UND/192/2007 filed by the Respondent herein against the Appellant. The writ of summons was issued, marked and entered under the undefended list pursuant to the Rules of the High Court. In the affidavit in support of the application to issue the writ of summons under the undefended list, the Respondent had personally deposed as follows in paragraphs 3 – 10:-

1. That I am the plaintiff/Applicant in this suit.

2. That by virtue of the above position I am conversant with the facts deposed herein.

3. That the Defendant/Respondent sought for financial assistance for a friendly loan from me and I agreed to lend to him the sum of N2,450,000.00 (Two Million, Four Hundred & Fifty Thousand Naira) on the 10th August 2006. A copy of the agreement dated 10th August 2006 evidencing the loan is attached herein and marked as Exhibit A.

4. That the Defendant/Respondent agreed to refund the friendly loan of N2,450,000,00 (Two Million, Four Hundred & Fifty Thousand Naira) with interest of N450,000.00 (Four Hundred and Fifty Naira) on the 21st November, 2006.

5. That on the due pay back date being 21st November 2006 I demanded for the amount owed me but the Defendant/Respondent failed to pay the debt and interest as embodied in the terms of the agreement between me and the Defendant/(Respondent.

6. That I have made several oral demands and representation for the Defendant/Respondent to pay up but he has refused to pay the loan.

The endorsement on the writ of summons itself was in the following terms:-

Wherefore The Plaintiff Claims Against The Defendant As Follows:-

1. The sum of N2,000,000.00 (Two Million Naira) being money due and owing from the Defendant to the Plaintiff since 10th August, 2006.

2. Interest of N450,000.00 (Four Hundred and Fifty Thousand Naira) due and owing from the Defendant to the Plaintiff as at 21st September, 2006.

3. Cost of the action assessed at N100,000.00 (One Hundred Thousand Naira)

After the service of the writ on the Appellant, a notice of intention to defend the action was filed on the 10/7/07 accompanied by an affidavit which I find expedient to set out in full for a clear understanding and appreciation of the facts giving rise to both the case at the High Court and this appeal. The 18- paragraphs affidavit are thus: