Sojecon Engineering Limited V. Stanbic Bank Nigeria Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T.O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the judgment in the appeal against the judgment of JUMBO J. at the Rivers State High Court Port Harcourt delivered on 22/01/2004.

The plaintiff in the lower court took out the writ of summons against the defendant claiming as follows:

“1. The sum of N7,104,626.63 (Seven Million, One Hundred and Four Thousand, Six Hundred and Twenty Six Naira, Sixty Three Kobo only) being monies due and outstanding from the defendants in favour of the Plaintiff for the Contract Finance Facility granted the defendant.

2. Interest on the said sum of N7,104,626.63 (Seven Million, One Hundred and Four Thousand, Six Hundred and Twenty Six Naira, Sixty Three Kobo only) at the rate of 38% per annum from the date this matter is instituted until judgment.

It further sought and obtained leave of order of court to enter the suit under the undefended list. The motion exparte on this prayer was supported by a 25 paragraphs of affidavit.

As required by the Rules of Court the defendant in response filed notice of intention to defend the suit under ORDER 23 RULE 3 of the RIVERS STATE HIGH COURT RULES 2006. The said notice was supported by 13 paragraphs affidavit. In paragraph 3 of the affidavit supporting the NOTICE the defendant admitted paragraphs 1- 13 of the affidavit of the plaintiff.

The learned trial judge considered the various processes filed concluded that “the defendant’s affidavit in support of his notice of intention to defend is destitute of any material fact that could defeat the plaintiff’s claim. The affidavit discloses no defence on the merit. “The trial court therefore entered judgment in favour of the plaintiff in terms of his writ of summons,

The defendant being dissatisfied with the judgment of the lower court filed Notice of Appeal with 4 Grounds of Appeal.

The appellant wants the court to allow this appeal set aside the judgment of the trial court entered on 22/1/2004 and order this suit to be transferred from the undefended to the ordinary cause list for trial on the merits before another judge of the High Court of Rivers State of Nigeria.

Parties to this appeal filed and exchanged briefs of argument.

In the appellant’s brief, the appellant formulated one issue for determination to wit.

WHETHER OR NOT THE LEARNED TRIAL JUDGE EXERCISED HIS DISCRETION JUDICIOUSLY AND JUDICIALLY WHEN HE DECLINED TO TRANSFER THIS SUIT FROM THE UNDEFENDED LIST TO THE GENERAL CAUSE LIST.

The issue formulated by the Respondent is essentially the same as that formulated by the appellant. I shall therefore adopt the issue as formulated by the appellant for the purpose of this appeal.

In the brief of argument learned counsel for the appellant submitted that it was the duty of the defendant to show all or any of the following in his affidavit in support of notice of intention to defend.