Evangelist Patrick Essien Effanga V. Mr. Rowland Nsefik Rogers (2002)

LawGlobal-Hub Lead Judgment Report

SIMEON OSUJI EKPE, J.C.A.

This appeal emanates from the judgment of Edem J. delivered at Calabar High Court of Cross River State on the 25th of June, 2001 in suit No. HC/195/2001. In that suit, the Plaintiff claimed in the writ of summons against the Defendant as follow.

“The Plaintiff’s claim is for N850, 000.00 (Eight Hundred and Fifty Thousand Naira) being 5% agency/commission fee due and owing to the Plaintiff following a Power of Attorney donated by the defendant to the Plaintiff to sell the defendant’s property lying and situate at No. 2 Ibom Layout, off Marian Extension. The Plaintiff as Attorney/Agent of the defendant did fulfil his obligations as demanded of him and the said property was eventually sold in the sum of N17 million during the subsistence of the Power of Attorney.

And the Plaintiff claim (sic) the said sum with 21% interest from 26th March, 2001 until the principal sum is fully liquidated and cost of this action.”

The Suit was on the 23rd of May 2001 placed under the Undefended List by the trial Court for hearing pursuant to an Ex-parte application filed by the plaintiff with an affidavit in support. Among the documents annexed to that affidavit are – Exhibit “A”, a revocable Power of Attorney donated to the plaintiff by the defendant for the sale of the defendant’s said property, Exhibit “B” is a letter dated 11/1/2000 written by the defendant and addressed to the Plaintiff appointing him (the plaintiff) as Sales Agent in respect of the said defendant’s property with agency commission of negotiable 5% of the sale price. Exhibits C, C1 are copies of the photographs of the different views of the property to be sold, taken by the plaintiff pursuant to his mandate, together with Exhibits E, E1 as copies of the Newspaper Publications advertising the said property for sale. Exhibit G is a copy of the letter by the Plaintiff’s Solicitor to the defendant demanding the payment of the plaintiff’s agency commission or fee.

The Suit having thus been placed on the Undefended List on 23/5/2001 was adjourned to 11th June, 2001 as the return date. On that date (11/6/2001) the learned trial Judge recorded at page 25 of the record of proceedings thus:-

“Plaintiff present. Defendant not yet served.

Clerk: Eric Utang for the Plaintiff. He was here and rushed to the Registry to see the proof of service.

Court: This matter is adjourned to 20th June, 2001 for proof of service on the defendant.

On 20th June, 2001, the Suit came up as previously adjourned and the learned trial Judge recorded at page 26 of the record of proceedings as follows:

“Plaintiff present. Defendant absent but served. Barrister Eric Utang for the plaintiff.

Clerk: No representation for the defendant. The defendant was served on the 13th of June.

Court: Between 13th June and today 20th June is 7 days.

Normally a period of 5 days is prescribed. However, I shall give the defendant uptil Monday the 25th of June, 2001 to take steps if he so elect otherwise I shall proceed to Judgment. This matter is adjourned to that date accordingly”