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  • 2002-08-26
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Job Charles (Nig.) Ltd v. Okonkwo

JOB CHARLES (NIG.) LTD.

J. U. NWOGWUGWU

EZEKIEL AYOGU

V

DR. J. E. N. OKONKWO

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN T. AKPABIO, JCA ( Presided and Read the Lead Judgment )

EUGENE CHUKWUEMEKA UBAEZONU, JCA

SULE AREMU OLAGUNJU, JCA

CA/E/22/2000

WEDNESDAY, 28TH NOVEMBER, 2001

ACTION - Undefended list procedure - Party who filed notice of intention to defend a matter - Whether can deny service of the writ of summons

PRACTICE AND PROCEDURE - Service of court process - Service of writ originating from one state High Court on defendant in another State -  Service without proper endorsement and out of time - Remedy thereunder - Where defendant took part in the proceedings without complaint - Effect thereof - Section 97 and 99 Sheriffs and Civil Process Act, Cap 407 LFN 1990

PRACTICE AND PROCEDURE - Service of court process - Where defendant is not properly served with a writ of summons - Defendant attending courts and participating fully in the proceedings - Whether defendant can complain of non-service

PRACTICE AND PROCEDURE - Court process - Writ of summons - Service of - Whether sine qua non to any effective adjudication

PRACTICE AND PROCEDURE - Undefended list procedure - Duty of trial court before giving judgment or dismissing the claim

PRACTICE AND PROCEDURE - Undefended list procedure - Governing provision in Enugu State - High Court Rules (1988)

PRACTICE AND PROCEDURE - Undefended list procedure - Notice of intention to defend - Where discloses sufficient facts - Duty on trial

Court not to consider at that stage whether defence has been proved

PRACTICE AND PROCEDURE - Undefended list procedure - Party who entered conditional appearance and filed notice of intention to defend -  Whether can complain of non-service or non-endorsement of writ of service out of jurisdiction

PRACTICE AND PROCEDURE - Undefended list procedure - Party who filed notice of intention to defend a matter - Whether can deny service of the writ of summons

PRACTICE AND PROCEDURE - Undefended list procedure - Transfer of by the appellate court to the general cause list - How done - Whether judgment can be entered for an amount admitted while the contentious part of the claim is transferred to the general cause list

PRACTICE AND PROCEDURE - Undefended list procedure - Triable issues -  Where raised in respect of one out of several items - What the trial court must do

STATUTE - Sections 97 and 99 Sheriffs and Civil Process Act, Cap 407 Non-compliance therewith - Effect

SHERIFFS AND CIVIL PROCESS - Sections 97 and 99 Sheriffs and Civil Process Act, Cap 407 - Non-compliance therewith - Effect WORDS AND PHRASES - ‘Triable issue’ or ‘bonafide issue’ - Meaning of

Issues:

1.            Whether the trial Judge lacked the jurisdiction to entertain the suit.

2.            Whether the court was right in the circumstances of the case in entering judgment for the plaintiff without giving the defendants opportunity to be heard.

Facts:

The plaintiff/respondent herein brought this suit under the undefended list procedure claiming against the defendants jointly and severally the sum of N400,000.00 which the plaintiff gave as loan to the 1st and 2nd defendants and interest at the rate of N40,000 (per quarter). The loan of which was guaranteed by the 3rd defendant by an agreement dated 22nd March 1995. By 16th December, 1998 when the 2nd defendant was reported dead, the defendants had paid the sum of N319,000 of the principal sum of N400,000 while nothing was paid in respect of the interest of N40,000 per quarter. Thus a total of N771,000 was due and payable to the plaintiff as at June 1999.

Upon receipt of the court process, the defendants caused their counsel to enter a conditional appearance and a notice of intention to defend supported by an 11 - paragraph affidavit disclosing the ground of defence wherein the defendants admitted borrowing the sum of N400,000.00 from the plaintiff but averred that they paid back the sum of N370,000.00. The trial court entered judgment in favour of the plaintiff in the sum of N771,000.00 as claimed by the plaintiff and cost of N5,000.00. Aggrieved with the said judgment, the defendants appealed to the Court of Appeal.