Joseph Mangtup Din V. Innocent Okose (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Plateau State High Court sitting in Jos, delivered on the 14th of October, 2008, in Suit No.PLD/J/185/2008 between Innocent Okose then the Plaintiff and Joseph Mangtup Din then defendant. The facts of the case before the lower court as could be assembled from the affidavit filed by the parties are simple and straight forward.

The Respondent (then Plaintiff) sued the appellant (then defendant) claiming the sum of (Five Hundred and Fifty Four Thousand Naira (N554,000.00) being outstanding sum of money for the supply of Plaster of Paris (POP) to the appellant; and 20% interest from 5th May, 2005, until date of final judgment.

The suit was, upon application, placed on the Undefended List on 4th June, 2007. After being served with the Writ of Summons together with the affidavit in support, the appellant filed a Notice of Intention to defend supported by an affidavit. In the affidavit filed in support of the Notice of Intention to defend, the appellant averred that he paid the sum of Three Hundred thousand Naira (N300,000.00) to the Respondent in the presence of witnesses though no receipt for such payment was issued to him.

He was therefore not indebted to the respondent. The lower court, after considering the Notice of Intention to defend together with the affidavit in support came to conclusion that there was no defence on the merit disclosed, it therefore applied the provisions of Order 23 Rule 3(1) of the Plateau State High Court (Civil Procedure) Rules 1987, (as amended) and entered judgment in the sum of Three Hundred Thousand Naira (N300,000.00) in favour of the respondent.

Dissatisfied with that judgment, the appellant appealed to this court vide Notice of Appeal dated 16th and filed on 17th of October, 2008. There are two (2) grounds of appeal which are as follows:

GROUND ONE (1)

The decision of the lower court is against the weight of evidence.

GROUND TWO (2)

The lower court erred in law when it decided that the appellant’s notice of intention to defend and accompanying affidavit did not disclose defence on the merit.

PARTICULARS OF ERROR

(a) The appellant in paragraphs 17 and 18 of the affidavit in support of Notice of Intention to defend deposed that he paid the sum of Three Hundred Thousand Naira (N300,000.00) to the respondent in the presence of witnesses.

(b) The dispositions in paragraphs 17 and 18 of the appellant’s Notice of Intention to defend creates a dispute between the parties.

(c) It is trite law that once there is a dispute in an affidavit in a case on Undefended List, same ought to be transferred to the General Cause List.