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Aruwa v. Abdulkadir

SENATOR M. A. M. ARUWA

V

MRS. W. A. ABDULKADIR

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/76/2000

THURSDAY, 14TH JUNE, 2001

ACTION - Undefended list action - When transferred to the general cause list

ACTION -  Undefended list procedure - Affidavit of a defendant under the undefended list action- What it must contain - Duty of court while considering same

APPEAL - Fresh issue on appeal - Issue of jurisdiction of trial court - How raised for the first time on appeal

APPEAL - Fresh issue on appeal - Whether can constitute ground of appeal without leave of the Court of Appeal

LEGAL PRACTITIONER - Legal fees - Claim by counsel therefor - Whether can be enforced through undefended list procedure

PRACTICE AND PROCEDURE - Undefended list procedure - Action filed thereunder - When transferred to the general cause list

PRACTICE AND PROCEDURE - Undefended list procedure - Affidavit of a defendant thereunder - What it must contain - Duty of court while considering same

PRACTICE AND PROCEDURE - Undefended list procedure - Claim of counsel for legal fees - Absence of agreement by parties before or after providing the legal services - Whether such claim can come under undefended list procedure

PRACTICE AND PROCEDURE - Undefended list procedure - Condition precedent to bringing claim thereunder

WORDS AND PHRASES - ‘Debt’ - Meaning of

WORDS AND PHRASES - ‘Liquidated money demand’ - Meaning of

Issue:

Whether the lower court is right in deciding that no defence on the merit had been disclosed in the affidavit of the appellant in support of his notice of intention to defend the suit.

Facts:

The dispute in this suit arose over the payment of professional or legal fees of N1.2 million charged by the respondent for prosecuting the appellant’s case in suit No. CA/K/EPNA/5/99. Judgment in that case was delivered in favour of the appellant. The respondent forwarded her bill of charges for settlement, same day that judgment was delivered. About 3 months after, the respondent sent a reminder calling on the appellant to settle the bill within 7 days in order to forestall legal action being instituted against him. The appellant failed to settle the fees, the respondent therefore instituted this action in the High Court of Kaduna State under the undefended list.

The appellant also filed his notice of intention to defend the suit supported by an affidavit. At the conclusion of hearing the trial court held that the affidavit of the appellant did not disclose enough defence on merit to justify granting the appellant leave to defend the suit. Aggrieved, the appellant appealed to the Court of Appeal.