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  • Maraya Plastics Industries Ltd v. Inland Bank of Nig. Plc
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  • 2002-09-16
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Maraya Plastics Industries Ltd v. Inland Bank of Nig. Plc

MARAYA PLASTICS INDUSTRIES LTD.

ALHAJI YAHAYA AHMED MARAYA

V

INLAND BANK OF NIGERIA PLC

COURT OF APPEAL

( KADUNA DIVISION )

RABIU DANLAMI MUHAMMAD, JCA ( Presided )

VICTOR A. OYELEYE OMAGE, JCA ( Read the Lead Judgment )

JOSEPH JEREMIAH UMOREN, JCA

CA/K/132/2001

TUESDAY, 11TH DECEMBER, 2001

APPEAL - Court of Appeal - Power of pursuant to section 16 Court of Appeal Act

APPEAL - Issue - Issue of law - What is

COURT - Court of Appeal - Power pursuant to section 16 Court of Appeal Act

COURT - Rules of court - Order 23 rule 1 of Civil Procedure Rule - Provision thereunder - Intendment of

EVIDENCE - Affidavit - Document  What makes same an affidavit Importance of the swearing thereto

PRACTICE AND PROCEDURE - Affidavit - Document - What makes same an affidavit - Importance of the swearing thereto

PRACTICE AND PROCEDURE - Ex parte application - Affidavit in support of - Importance thereof

PRACTICE AND PROCEDURE - Order 23 rule 1 of Civil Procedure Rule -  Provision thereunder - Intendment of vis-a-vis claims under the undefended list

PRACTICE AND PROCEDURE - Undefended list - Application for suit to be heard thereunder - Where supported by a further and better affidavit - Whether same is sufficient to support the application

PRACTICE AND PROCEDURE - Undefended list - Claim thereunder When may be tried on merit

PRACTICE AND PROCEDURE - Undefended list - Plaintiff pursuing claim thereunder - What same must show - Civil Procedure Rules Order 23  rule

STATUTE - Court of Appeal Act, section 16 - Power of Court of Appeal thereunder

Issue:

Whether leave of the court below is required before placing a writ on the undefended list under order 23 rule 1 of the Kano State High Court Civil Procedure Rules; if such a leave is required, could it be the reason asked by the appellant why the learned trial Judge in Kano was not right when he heard the case of the plaintiff on the undefended list without a valid affidavit in contravention of the rules.

Facts:

The plaintiff/respondent commenced this suit at the High Court of Kano State under the undefended list procedure. The plaintiff equally filed an ex parte motion supported by an unsworn affidavit. The defendant filed a preliminary objection to the writ. Subsequently, the plaintiff/respondent filed a further and better affidavit in support of the writ.

After hearing the preliminary objection the court ruled that Order 23 of the Kano State High Court Civil Procedure Rules makes no provision for raising a preliminary objection and suggested that the defendant’s objection be contained in his notice of intention to defend if any. The trial court then proceeded to enter judgment under the undefended list procedure in the sum of eleven million one hundred thousand eight hundred and sixty naira thirty eight kobo plus interest at the bank rate of 21% from 16/05/2000 up to the date of judgment and thereafter at 10% court rate from the date of judgment until final liquidation of the judgment debt. The court thereafter transferred for hearing on the general cause list the balance of N944,612.00 which the court ruled as subject of arguments.

Dissatisfied, the defendant/appellant appealed to the Court of Appeal.