Nicodemus Ugwu V. Francis Emenogba (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This is an Appeal against the decision of R. O. Olorunfemi J. of the High Court of Justice Kogi State holding at Obangede delivered on the 27th day of July, 2005.

The fact of the case is that the Respondent as Plaintiff in the lower Court took out a Suit under the Undefended List against the Defendant/Appellant for the sum of N806,150.00 and 15% monthly interest on the sum. The Returnable date as endorsed on the Suit served on the Defendant/Appellant was 2/5/2005. On 2/5/2005, the case was not taken and the Suit was adjourned to 11/5/2005. The Defendant/Appellant through his Counsel filed a Notice of Intention to defend the suit on 26/4/2005.

The Defendant/Appellant’s Counsel was not in Court on 2/5/2005 and on 11/5/2005 to argue or move his Notice, instead he wrote a letter for adjournment and the Suit was adjourned to 26/5/2005 for hearing. On 26/5/2005, the suit could not be taken and it was again adjourned to 4/7/2005. On 4/7/2005, the Defendant/Appellant’s Counsel again sent in another letter seeking for a further adjournment of the Suit.

The Plaintiff/Respondent’s Counsel reminded the Court of the nature of the Suit, being one brought under the Undefended Suit but did not object to the further adjournment sought and the Suit was further adjourned to 27/7/2005.

On 27/7/2005, the Defendant/Appellant’s Counsel wrote yet another letter for a further adjournment of the Suit. This application for a further adjournment was opposed by the Plaintiff/Respondent’s Counsel. The learned trial Judge sustained the objection to the adjournment and ordered the Plaintiff/Respondent to go ahead with his case, Order 23 Rule 4 having been complied with, The Plaintiff/Respondent presented his case under the Undefended list and asked for Judgment summarily pursuant to Order 23 rule 4. Judgment was accordingly entered in favour of the Plaintiff as per his claim in the Writ of Summons. It is against this Judgment that the Appellant appealed to this Court.

Parties have exchanged their Briefs. The Appellant’s Brief of argument dated 29th November, 2007, was filed on same date while the Respondent’s Brief of Argument was dated and filed on 10′” December, 2007.

From the five grounds of Appeal contained in the Notice of Appeal, four issues were distilled on behalf of the Appellant and they read as follows:

“(1) Whether or not the trial Court was right when it dispensed with the notice of intention to defend and the supporting affidavit before it heard the suit under the undefended list.

(2) Whether or not the trial lower Court received and evaluated the defence contained in the Counter-affidavit before it arrived at its decisions.

(3) Whether or not the notice of intention to defend is properly placed before the trial Court.

(4) Whether the denial by the trial Court of the appellant hearing and the opportunity of being heard, amounts to breach of the principle of fair hearing.”

On behalf of the Respondent, the following issues are raised for determination of this Appeal:

“(1) Whether the lower Court complied with the provisions of Order 23 Rules 1, 2, 3, and 4 of the Kogi State High Court (Civil Procedure) Rules 1991 before entering Judgment in favour of the Respondent?