MR. Soji Fagbohun V. Major Ajayi Ogunleye (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)

This Appeal is against the judgment of Hon. Justice M. A. Agbelusi, J. of the High Court, Ekiti State sitting at Ado-Ekiti, delivered on the 21st day of June, 2011. In the said decision, the learned trial judge entered judgment in favour of the Plaintiff/Respondent, hereinafter called the Respondent for a liquidated sum of N1,000,000.00 (One Million Naira). He also awarded 10% interest rate from the said 21st June, 2011 until the total judgment sum is paid.

The facts of the case as garnered from the Record of Appeal placed before us are as follows:

The Respondent commenced his action against the Defendant/Appellant, hereinafter called the Appellant vide an Ex Parte Application filed on 7th November, 2010 wherein he prayed the lower court for the following orders:

“1. An order for the issuance of a Writ of Summons against the Defendant in respect of a claim for a liquidated sum of N1,000,000.00 (One Million Naira only).

2. An order entering the suit for hearing in the Undefended List and marking the Writ accordingly and
3. An order entering a date thereon for hearing.”

The Application has a 26 paragraph Affidavit in support with various documents attached thereto and marked as ‘Exhibits’. In the endorsed Writ, the claims made by the Respondent against the Appellant are reproduced below:

“The Plaintiff claims against the Defendant are as follow:

a. A sum of N1,000,000.00 (One Million Nain) being the total sum of money which the Defendant collected from the Plaintiff for the purchase of 2 plots of land from the Plaintiff at Fagbohun Estate, Ado/Ikere Road Ikere-Ekiti, which he has failed to do.

b.10% interest on the said sum of N1,000,000.00 (One Million Naira) from the date of judgment till the total sum is paid.”

On 21st December, 2010 the said Respondent’s Application by way of Motion Ex Parte for the issuance of Summons, placement of the action on the Undefended List and fixture of a date thereon for hearing was duly heard and adjourned to 11th January, 2011 for Ruling. However, the Ruling was delivered on 14th January, 2011, wherein the reliefs sought in the Ex Parte Application were granted.

On 20th January, 2011 both the learned Respondent’s counsel, Mrs. T. Ajibulu, and Mr. R. M. Anyanwu, learned counsel for the Appellant were present before the lower court. The matter was then adjourned at the instance of Appellant’s counsel to 28th January, 2011 for hearing.

On 31st January, 2011 while Mr. R. M. Anyanwu, learned counsel for the Appellant was present in court, the learned counsel for the Respondent was absent. The lower court ordered that Hearing Notice shall be served on the Respondent. The pending Application was adjourned to 8th February, 2011 for hearing.

On the said 8th February, 2011, the matter came up for hearing as previously fixed. The Appellant’s counsel informed the lower court that he has filed a Motion on Notice which has not been served on the Respondent. The learned trial judge observed that “the motion paper is not even in the court file nor is it served yet on the Plaintiff. Mr. Anyanwu says he has violated no law in delay. .” The learned trial judge then awarded N6, 000.00 costs against the Appellant and the Motion was adjourned to 14th February, 2011 for hearing (p. 61 of the Record of Appeal.)

On 14th February, 2011 R. M. Anyanwu Esq., learned counsel for the Appellant again informed the lower court that he has filed a Motion for Joinder. However, the learned trial judge observed that, “there is no Motion for Joinder or any Motion at all in the case file.” Nevertheless, the matter was again adjourned to 14th February, 2011 for hearing. It was further adjourned to 16th February, 2011.