Ilorin South Local Government V. Samad Paper Converting Co. Ltd (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the judgment of Hon. Justice J. F. Gbadeyan sitting at Ilorin High Court Kwara State delivered on 16/11/2005. The facts which led to this appeal are stated as follows:

The Respondent as Plaintiff/Claimant instituted the action culminating into this appeal under the undefended list procedure. By the endorsement on the writ of summons, the Respondent claimed the following reliefs against the Appellant:

a) The Plaintiff claim is for the sum of one million, three hundred and thirty five thousand, four hundred naira – (N1,335,400) only, being the unpaid balance of one Million, Nine Hundred and Thirty Thousand, Four Hundred Naira (N1,930,400) only of the contract sum for the supply of various books to the Defendant

b) 21% interest per annum from 23rd of August, 2000 till the date of judgment.

c) 10% interest from the date of judgment until the whole money is finally liquidated.

The Appellant filed her Notice of intention to defend and supported same with a nine paragraph affidavit in which she admitted owing the Respondent only to the tune of N635,400 as against N1,335,400. See pages 19-25 of the Record.

The Respondent also filed a counter affidavit of 8 paragraphs. See Pg. 26 of the Record.

The trial court, based on the admission of the Appellant as regards the sum of N635,400, in its ruling delivered on 13th July, 2005 entered judgment for the Respondent for the sum of N635,400 and adjourned the case to 21st July 2005 for hearing on the balance claimed, as contained at pages 73-74 of the Record of proceedings.

On 21st July, 2005, the Defendant/Appellant canvassed argument in support of her notice of intention to defend dated 13th June 2005 and the trial court ruled that in view of the dispute in respect of the claimed balance and interest, same should be transferred to the General Cause List or ordinary cause list. The matter was adjourned to 27th September 2005 for hearing.

On 27/9/2005 Appellant’s Counsel was not in court, but Respondent’s Counsel was in court and the case was adjourned to 27/10/2005. On 27/10/2005, the Appellants Counsel was also not in court and the Respondent’s Counsel applied for Fresh Hearing Notice to issue and the said Hearing Notice was served on the Appellant’s Counsel and the case adjourned to 9/11/2005. On 9/11/2005 neither the Appellant nor his Counsel were in court and Fresh Hearing Notice was ordered to be served on the Appellant and the case adjourned to 16/11/2005 at the instance of the learned trial judge.

On 16/11/2005, despite proof of service, the Appellant was not in court and the court proceeded to hearing. One S.B. Adebayo Managing Director of the Respondent testified as CW1 and the Respondent’s counsel asked that the case be closed and judgment given.

Judgment was given in favour of the Respondent the same day. Thereafter, the Appellant brought a motion to set aside the judgment on the ground that it was a judgment in default. The application was refused, hence this appeal.

Learned Respondent’s Counsel in his brief of argument for the first time raised a preliminary objection to the appeal on the ground that the Appellant’s grounds of appeal involves questions of mixed law and facts and that the Appellant should have sought and obtained leave of the court below or this court before filing the said grounds of appeal.