Engr. S. U. Adejo & Anor V. Mr. Walter N. Ubesie (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of the Plateau State High Court sitting in Jos delivered on the 11th day of June, 2007 in suit No.PLD/J/490/2006. The Appellants were the Defendants in the case while the Respondent was the Plaintiff in the case. The Plaintiff brought the matter under the undefended list and his claims were as follows:

1. The sum of N2,113,000.00 being the value of electrical items the plaintiff supplied to the defendants on credit at No.45 Church Street, Jos at various dates between May 2004 to June 2005 at the defendants’ request but which the defendants have failed to pay despite repeated demands.
2. 25% interest on the said sum of N2,113,000.00 from 20th November, 2005 until judgment.
3. 10th interest on the said sum from the date of judgment till final liquidation.

On the 29th day of November, 2006, and in compliance with the Rules of Court, the Defendants filed a notice of intention to defend the suit and same was accompanied by an affidavit as required by the Rules.

But on the 25th January, 2007, one Sylvester Uheine Adejo filed yet another affidavit in support of the same notice of intention to defend after the matter had been slated for hearing on the 29tn day of November, 2006 and further adjourned to the 15th day of December, 2006. After hearing the case under the undefended list, the learned trial Judge entered judgment for the Plaintiff in respect of relief I and Post judgment interest of 10%, as per relief 3 but declined to award the prejudgment interest of 25% on the judgment sum of N2,113,000.00. Being dissatisfied with the judgment, the Appellants filed a notice of appeal containing two grounds of appeal and thereafter by leave of Court amended the notice and grounds of appeal, thus filing 8 grounds of appeal in all.

When the case came up on the 10th day of April, 2011, Respondents Counsel urged the Court to dismiss the appeal in the absence of Counsel for the Appellant even though the brief had been filed.

In the circumstance the Court deemed the Appellants brief and reply brief as having been argued. The Appellant’s brief was however filed on the 29th day of June, 2011 and the reply brief was filed on the 20th day of December, 2011. The Respondent’s brief was filed on the 4th day of November, 2011 by order of this Court pursuant to a motion on notice on the 10th day of November, 2011.

The brief facts of this case are that the Plaintiff/Respondent is a dealer in electrical materials at No. 45 Church Street, Jos. That at various dates between 2004 and 2005, the Respondent on the request of the Appellant, supplied the Appellant with electrical materials to the tune of N2,113,000.00 on credit and the Appellants failed to defray the debts at the material tune. Subsequently the Appellants issued cheques to the Respondent in satisfaction of the debts but all the cheques were dishonored.

Counsel to the Respondent then on Respondent’s instructions wrote a demand notice to the 1st Appellant to settle the debt but the Appellant instead made an undertaking in writing to the Respondent’s solicitors to pay same on or before the 31st day of September, 2006. The Appellants however failed to pay the debt hence the Respondent brought an action under the undefended list. The learned trial Judge upon consideration of the defence found in favour of the Plaintiff/Respondent and granted only reliefs one and three, which judgment culminated in this action by the Defendant/Appellant.

The appeal was duly entered in this Court vide the transmission of the record on the 4th day of May, 2009 and in compliance with the rules of Court parties exchanged their briefs of arguments.

The Appellant’s brief was dated the 4th day of June, 2011 while the Respondent’s brief was filed on the 4th day of November, 2011.

Both parties however formulated issues for determination. The Appellants issues for determination are thus:

1. WHETHER THIS MATTER WAS ONE THAT SHOULD HAVE BEEN PLACED ON THE UNDEFENDED LIST WHEN IT WAS NOT CLEAR BETWEEN THE 1ST AND SECOND APPELLANTS WHO THE RESPONDENT DEALT WTTH.
2. WHETHER IT WAS PROPER FOR THE COURT BELOW TO HAVE SEPARATED THE CLAIM.
3. WHETHER IT WAS PROPER FOR THE COURT BELOW TO HAVE ENTERED JUDGMENT AGAINST THE APPLICANTS WHEN THEIR AFFIDAVITS DISCLOSED A DEFENSE ON THE MERIT.
4. WHETHER IT WAS PROPER FOR THE COURT TO HAVE DISCOUNTENANCED THE AFFIDAVIT FILED ON BEHALF OF THE 2ND DEFENDANT.

The Respondents also formulated issues for determination to wit:

1. Whether the appellants’ affidavit disclosed a defence on the merit in the case.
2. Whether it was proper for the High Court to enter judgment in the claim as he did and refuse the pre judgment interest.
3. Whether this matter was one that should have been heard under the undefended list.
4. Whether it was proper for the Court to have discountenanced the affidavit of Sylvester Uheine Adejo which was filed after the matter was slated for hearing and who is shown not to be a party in the case.

I have noted herein that the parties formulated the same issues for determination though couched differently. I shall however adopt the issues couched by the Respondent in his brief of argument.

ISSUE NO. 1