Mrs. Celina Monye V. Alhaji Suleiman Abdullahi (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is a double barrel Appeal. There is a main Appeal as well as an interlocutory appeal. The initial or main appeal was filed on 2nd August, 1999. It was lodged against the decision of the Plateau State High Court, delivered by Hon. Justice J. S. Atsi on 30th July, 1999.

Upon due application made by the Defendant/Applicant, this Court on 10th July, 2003 extended time within which the applicant is to apply for leave to appeal against the ruling of the Plateau State High Court, delivered on 29th June, 1999 in Suit No. PLD/J/34/99, leave to appeal against the said ruling with the grant of extension of time for the applicant to appeal against the said ruling. This Court further ordered the consolidation of that Notice of Appeal with the Notice of Appeal in Appeal No. CA/J/90/2002.

Now, to how it all began. The Respondent in this appeal was the Plaintiff at the lower Court. On 1st February, 1999 he instituted an action against the Appellant who was then the Defendant, under the Undefended List Procedure, pursuant to Order 23 Rules 1- 5 of the Plateau State High Court (Civil Procedure) Rules, 1987 (hereinafter referred to as the Rules of Court). This was done vide his Writ of Summons which was issued or taken out by his Counsel – David M. Mando Esq. of No. 1A Kashim Ibrahim Street, Jos coupled with his particulars of claim which was addressed to, “The Registrar, High Court of Justice, Jos.” Also, an “Affidavit in support of Claim”, containing 7 paragraphs was filed alongside with the said court processes. The endorsement on the aforesaid Writ of Summons indicates that the Plaintiff/Respondent was claiming the following reliefs:

“THE PLAINTIFF’S CLAIMS

1. The sum of N125, 000.00 (One Hundred and Twenty-Five Thousand Naira) only being rent owed by the defendant to the plaintiff from January, 1995 to May 1999 on the plaintiff’s property at H2 Monedo Street, Jos Plateau State.
2. 10% interest of the judgment seem until final liquidation.” (sic)

It would then be seen that upon being served with the Writ of Summons, particulars of claim together with the affidavit in support of the claim by the Plaintiff/Respondent, the Appellant who was then the Defendant, through her Counsel, filed a Notice of Preliminary Objection to the entire action. The notice has an affidavit in support of the same, sworn to on 23rd March, 1999. The said Notice of Preliminary Objection at page 7 of the record is reproduced below:

“NOTICE OF PRELIMANARY OBJECTION

TAKE NOTICE that at the Hearing of this suit, the Defendant/Objector herein shall raise a preliminary objection to the hearing of same on the ground that this Honourable Court has no jurisdiction to hear this case as presently constituted. (sic)

AND further take Notice that the ground for this objection is that there was no prior application made by the Plaintiff/Respondent for this cause to be placed under the undefended list.

Dated at Jos this 22nd day of March, 1999.”

Thereafter, on 29th June, 1999 the Defendant/Appellant filed what she claimed to be a Notice of Intention to Defend the action as commenced by the Plaintiff/Respondent. The previously filed Notice of Preliminary Objection to the competence of the Plaintiff/Respondent’s suit was heard by the lower Court on 29th June, 1999. The learned trial Judge took addresses/submissions from the learned Counsel for the parties on the preliminary objection. The learned trial Judge in his ruling delivered on the same day, that is 29th June, 1999, dismissed the objection as lacking in substance and upheld the competence of the Plaintiff/Respondent’s suit.

Upon the evinced intention and application by the learned Counsel for the Plaintiff/Respondent who moved for Judgment in the sum claimed, the learned Counsel for the Defendant/Appellant drew the attention of the lower Court to the Notice of Intention to Defend the suit and made submissions in support and respect thereof. He urged the lower Court in conclusion to transfer the matter to the general cause list for hearing on the merit. The learned Counsel for the Plaintiff/Respondent opposed the application and submitted at the lower Court, that the Defendant/Appellant has not complied with the requirements of Order 23 Rule 3 of the lower Court’s Rules of Court on the basis that the Notice of Intention to Defend and affidavit in support, supposedly attempting to disclose a defence on the merit was filed as a single document and not separately. The matter was then adjourned to 30th July, 1999 for ruling/judgment.

On the said next adjournment date, the learned trial Judge adjudged the Defendant/Appellant’s, “Notice of Intention to Defend” as a “valueless and worthless document.” Judgment was thereafter entered for the Plaintiff/Respondent at page 20 of the record as follows:

“The Writ of the Plaintiff supported by an affidavit therefore stands unchallenged, uncontroverted and uncontradicted. The Court therefore enters Judgment for the Plaintiff in the sum of N125, 000.00 being rent due to the Plaintiff from the Defendant for a period covering January, 1995 to May, 1999. The Defendant is also adjudged to pay 10% interest per annum on the said amount with effect from the date of this Judgment until final liquidation of the judgment sum.”