Francis Nyiam Bisong V. Okokon Ekpenyong (2001)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A.

In an action filed by the appellant as plaintiff at the High Court of Cross-River State holden at Calabar, the appellant claimed against the defendant/respondent as follows;

“i. The sum of N130,000.00 (one hundred and thirty thousand Naira) only being the balance of N630,000.00 (Six hundred and thirty thousand Naira) only, which the Defendant bought the plaintiff’s 55KVA RA Lister Generator; which the defendant has bluntly refused to liquidate inspite of repeated demands.

ii. A 10% interest on the said N130,000.00 from the day judgment is delivered in the suit until final liquidation of the judgment sum.

iii. The sum of N5,000.00 (Five thousand Naira) only being out of pocket expenses.”

In accordance with the provisions of Order 23 Rule 1 of the Cross-River State High Court (Civil Procedure) Rules 1987, the appellant also filed an affidavit seeking leave of the court to place the suit under the Undefended list and the “Writ of Summons” be marked accordingly and this was granted by the court.

The defendant/respondent was duly served with all the court processes where upon he filed his Notice of Intention to defend and affidavit disclosing a defence on the merit. The matter was then adjourned for ruling on whether or not the respondent should be given leave to defend or judgment entered for the appellant.

On 6/12/99,the learned trial Judge, Odu J., gave his ruling refusing to grant leave to the respondent to defend the suit on the ground that he had no defence on the merit and thereupon entered judgment for the appellant for the sum of N100,000.00 and not the sum of N130,000.00 claimed by the appellant in the writ of summons.

Dissatisfied with the judgment, the appellant has appealed to this court.

The appellant filed his brief of argument in which he formulated one issue which is:

(1) Whether, it was proper for the learned trial Judge to enter judgment for the appellant in the sum of N100,000.00 instead of the sum of N130,000.00 claimed by him after finding and holding that the respondent had no defence to the action?

The respondent was duly served with all the court processes and also the appellant’s brief of argument, but he did not file any respondent’s brief. It was at this stage that the appellant filed a motion praying for an order that the appeal be heard only on the appellant’s brief of argument. The respondent was also served with the said motion which was fixed for hearing on 21\2\2001 and on that day the respondent did not also appear and motion was then argued and the prayer granted.

It is therefore only the appellant’s brief of argument that is before this court.

In the appellant’s writ of summons he had claimed the sum of N130,000.00 as debt owed him by the respondent and the learned trial Judge refused to grant the respondent leave to defend on the ground that he had no defence on the merit; the only issue raised in this appeal is whether he could reduce the appellant’s claim of N130,000.00 to the sum of N100,000.00 after holding that the respondent has no defence to the action.