UAC Nigeria Plc V. Miss R. O. Odeyemi (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A (Delivering the Leading Judgment)

This is an interlocutory appeal against the decision of the High Court of Justice, Federal Capital Territory Abuja delivered on 24/04/03. The appellant as plaintiff in the high court vide a motion ex-parte filed on 16th of July 2002, prayed the court for issuance of a writ of summons under the undefended list. Consequent to the grant of the application the writ of summons accompanying the affidavit in support was filed, duly marked and entered under the undefended list.

The respondent then the defendant after two adjournments filed a notice of intention to defend on the 26th of March 2003 raising therein issue of forgery and he also counter claimed. The learned counsel for the appellant objected to the notice of intention on the basis that it was filed out of time and without leave of court, counsel contended that the only application before the court is to grant leave to defend the action supported by an affidavit. He urged the court to discountenance the notice of intention to defend but if the court is minded to consider same he submitted that the defendant had not raised any triable issue to warrant the court to transfer the case to the general cause list. The trial court in a reserved judgment on 29/04/2003 after hearing the learned counsel for the respective parties on whether the respondent can defend held thus:

“I have gone through the affidavit of the Plaintiff and the Exhibits attached, the court has equally went through the notice of intention to defend filed by the Defendant including the affidavit and exhibits attached to the notice of intention to defend.

The fact that the notice of intention to defend was filed out of time will not preclude this court from looking at the said notice of intention to defend.

The Defendant denied authorizing of Exhibit A1 attached by the Plaintiff and further alleged forgery, for the proper determination of this matter pleadings have to be exchanged and evidence given, so as to know whether Exhibit A’ was forged or not, for this reason this matter is transfer to general cause list, the plaintiff to file its statement of claim within a period of two weeks and defendant to file her statement of defence within 30 days of receiving the statement of claim.”

The appellant being dissatisfied with the reproduced decision of the trial court caused a notice of appeal to be filed on 14/05/2003 containing two grounds of appeal, which without the particulars reads as follows:

GROUND OF APPEAL:

1. “The learned trial judge erred in law in refusing to enter judgment for the Appellant and transferring the suit to the general cause list and this error occasioned a miscarriage of justice.

GROUND TWO:

The learned trial judge erred in law when he held that the Notice of intention to Defend filed out of time will not preclude the court to look at the said Notice of intention to Defend, this error occasioned a failure of justice.”

In line with the practice and rules of this court, parties filed and exchanged written briefs. The appeal was initially heard on 09/11/2010 and in the cause of writing the judgment, the court observed that the record of appeal was incomplete because the Notice of Intended to defend filed on 26/03103 and relied on by the trial court in the decision and proceedings was not in the record of appeal. The learned counsels were served hearing notice on the directive of this court to appear on 24/02/2011. On appearance they were informed by the court of the incomplete record, pursuant to which a motion on notice was filed on 10/03/2011 seeking leave to file and use supplementary record of appeal. Application was granted on the 14/03/10 and the supplementary record of appeal filed on 10/03/2011 was deemed as duly filed and served. Parties had filed and exchanged written briefs. At the hearing of the appeal on 14/03/2010 the learned counsel for the Appellant A. B. Dodo adopted the appellants brief filed on 28/04/10 pursuant to an order made by court on 22/04/10. The brief was settled by Abdulhamid Mohammed. The learned counsel for the respondent did not appear in court he wrote a letter that he will be appearing before the Federal High Court on pre-election matter. The respondents brief settled by Bola Aidi filed on 27 105110 pursuant to the provisions under order 17 rules 9(a) of the rules of this court was treated as having been duly argued.

In the appellants brief filed on 28/04/2010 the learned counsel that settled the brief Abdulhamid Mohammed distilled a sole Issue for determination from grounds 1 and 2. This Issue reads thus:

“Whether from the facts and circumstances of the suit, the learned trial judge erred in law when the transferred the matter to the General cause list and refused to enter judgment in the suit.”

In the respondents brief, the learned counsel also formulated one sole Issue very similar to that of the appellant except for the phraseology which reads as follows: