MR Sunny Nnamdi Omokey V. MR Abia Antigha (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Summary Judgment of the Kano State High Court delivered on the 31st March, 2011 by Nura S. Umar J.

The Respondent was the Plaintiff at the Lower Court while the Appellant was the Defendant.

The facts of the case leading to this appeal are as follows:

Respondent commenced action against the Appellant by writ of summons dated 17/12/2010 brought under Order 23 Rules 1 (undefended list) of the Kano State High Court (Civil procedure) Rules 1988, wherein the Respondent claims from the Appellant as follows;

1. “The sum of N300,000.00 (Three Hundred Thousand naira) only being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the principal sum of N2,000,000.00 (Two million naira) as per joint business agreement between the Plaintiff and the Defendant dated 10th November 2008.
2. The sum of N2,700,000.00 (Two Million Seven Hundred Thousand Naira) only being the being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the accrued guaranteed profit as per the joint business agreement between the Plaintiff and the Defendant dated 10th November 2008.
3. The Plaintiff claim interest on the sum of N3,000,000.00 (Three Million naira) only being the outstanding indebtedness of the Defendant to the Plaintiff with regard to the joint business agreement at 10% per annum Court rate from the date of judgment until final liquidation of the judgment debt by the Defendant
4. The Plaintiff also claims the cost of this action which the Defendant is making the Plaintiff to incur as expenses on account of the suit”.

The writ placed and marked undefended list was supported by an affidavit of 4 paragraphs and 8 exhibits marked S.A1 to S.A 8. Having been served with the writ the Appellant as Defendant filed his notice of intention to defend supported by a 26 paragraph affidavit attached to which were 7 annexure.

At the hearing of the matter, counsel for the Plaintiff asked for judgment while the Defendants counsel urged the Court to transfer the suit to the general cause list. The trial judge on 31/03/2011 ruled against the Defendant. He Stated in his ruling inter alia that:-

“….to my mind this as cannot and should not be transferred to the general cause list as to do so would defeat the import of order 23 of the Kano High Court (Civil procedure) Rules 1988. Having said that I hereby enter judgment in favour of the Plaintiff against the Defendant in the sum of N3,000,000.00 per the provision of order 23 rule 4 of the Kano State High Court (Civil Procedure) Rules 1988.

The Defendant shall pay 10% Court rate interest per annum on the judgment sum from 31/03/2011 until the whole judgment sum is liquidated by the Defendant.”

Dissatisfied with the said Judgment of the Lower Court, the Appellant filed a notice of appeal dated 1lth April, 2011 containing 3 (three) grounds. Parties in accordance with the rules of this Court filed their respective briefs of argument. The Appellant also filed a reply brief dated 23rd April, 2013.

The Appellant distilled two issues for determination from his three Grounds of appeal as follows;

1. Whether the Appellant has made out a defence on the merit as shown by affidavit in support of the notice of intention to defend (Distilled from Ground one and two of the Notice of Appeal).
2. Whether the learned trial Judge made any evaluation for assessment or proper evaluation or proper assessment of the affidavit evidence placed before him by the parties. (Distilled from Grounds two, three, four and five of the Notice of Appeal).

The Respondent in his brief also distilled two issues for the determination of this appeal as follows;

1. Whether the affidavit in support of the notice of intention to defend disclosed a defence on the merit warranting the Plaintiffs suit to be transferred to the general cause list.

(Ground 1)

2. Whether this honourable Court can evaluate or re-evaluate the instance case and deliver a judgment there upon. (Ground 2, 3, 4 and 5).

It is observed from paragraph 3 of the Notice of Appeal dated 11th April, 2011 that the Appellant filed only three grounds of appeal. See pages 155 to 157 of the printed record. But in their respective briefs of arguments both the Appellant and the Respondent distilled their second issue for determination from grounds 2, 3,4 and 5 of the said notice of appeal.