Rosehill Limited V. Arewa Metal Containers (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL, J.C.A. (Delivering the Leading Judgment)

This appeal is from the decision of the High Court of Kaduna State, contained in a ruling delivered of the 20/9/2001 in Suit No DH/KAD/316/2001 filed under the undefended list, by which judgment was entered in favour of the Respondent based on an admission by the Appellant said to be contained in the affidavit in support of the notice of intention to defend the action.

A lone ground of appeal was filed in the Notice of Appeal dated the 2/12/2001 but with the leave of the court two (2) additional grounds of appeal were filed against the decision.

A notice of intention by the Respondent to rely upon filed upon a preliminary objection was filed on the 16/5/2001 on the ground that the appeal was filed outside the statutory period allowed by law and therefore incompetent.

In the Appellants’ brief dated the 28/2/2006 but filed with the leave of Court, two (2) issues were distilled and of out at page 5 as follows –

3 1 Whether the notice of intention to defend and affidavit in support thereof filed on behalf of the Appellant in defence of the specific claims made by the plaintiff disclosed a defence on the merits such that the learned trial judge upon due consideration ought to have transferred the matter to the general cause list?

3 2 Whether the quality of the plaintiffs case herein warranted judgment being entered piecemeal for her?

For, the Respondent, three (3) issues were said to have arisen from the grounds of appeal at page 3 – 4 of the Respondent’s brief filed on the 23/6/2009 with the leave of the court They are as follows-

1.7 ISSUE 1

Whether there is in the affidavit in support of the Notice of intention to Defend filed by the defendant appellant a categorical and unequivocal admission of indebtedness to the plaintiff in the sum of #3,101, 434.00 for which judgment ought to be entered and whether the judgment in the said sum entered by the learned trial judge was wrongful.

1.8. ISSUE 2

Whether from the depositions contained in the defendants’ affidavit in support of the Notice of Intention to defend Paragraphs 4b, 4h, and particularly Exhibit RG1 thereto there is express admission of the suit of #3,101,434.00 by the appellants to justify the judgment the Court thereto in the said sum.

1.8 ISSUES 3

Whether the entering of the judgment in part in the Undefended List and the transferring of the residue of the claim to the general cause list for hearing is wrongful in law, where there is admission of part of the claim and whether the judgment so entered has occasioned a miscarriage of Justice in this case.