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  • Kwara Hotels Limited v. Ishola
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  • 2002-12-30
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Kwara Hotels Limited v. Ishola

KWARA HOTELS LIMITED

V

MR. DAVID ISHOLA

[ Trading under the name and style of Davis Technical Company ]

COURT OF APPEAL

( ILORIN DIVISION )

MURITALA AREMU OKUNOLA, JCA ( Presided )

PATRICK IBE AMAIZU, JCA

WALTER S. NKANU ONNOGHEN, JCA ( Read the Lead Judgment )

CA/IL/19/2001

MONDAY, 10TH DECEMBER, 2001

ACTION - Undefended list action - Application envisaged under Order 22 rule 1 of the Kwara State High Court Rules, 1989 - Meaning of

ACTION - Undefended list action - How to originate

CONTRACT - Where in writing - Whether can be varied orally

COURT  - High Court - Jurisdiction of to enter judgment on admissions in the pleadings - Exception thereto

COURT - Application pending before court - Failure to draw attention of court to  - Effect

EVIDENCE - Pleadings - Admissions therein - How to establish

EVIDENCE - Written contract - Whether can be varied by oral evidence

JURISDICTION - High Court - Jurisdiction of to enter judgment on admissions in the pleadings - Exception thereto

PLEADINGS - Admissions therein - Jurisdiction of High Court to enter judgment thereon - Exception thereto

PRACTICE AND PROCEDURE - Application pending before court -

Failure to draw attention of court to  - Effect

PRACTICE AND PROCEDURE - High Court - Jurisdiction of to enter judgment on admissions in the pleadings- How to establish admissions in pleadings

PRACTICE AND PROCEDURE - Preliminary objection - Notice of brought as a demurrer without raising same in the statement of defence Effect of in view of abolition of demurrer

PRACTICE AND PROCEDURE - Undefended list - How to originate an action under undefended list

PRACTICE AND PROCEDURE - Undefended list - Order 22 rule 1 of the Kwara State High Court Rules, 1989 - Meaning of application envisaged thereunder

PRACTICE AND PROCEDURE - Undefended list - Plaintiff who had filed his action under the undefended list procedure - Subsequent statement of claim filed thereby - Effect of

PRACTICE AND PROCEDURE - Undefended list - Whether marking a writ ‘undefended list’ by the plaintiff without an enabling order of court makes the writ void

PRACTICE AND PROCEDURE - Undefended List Procedure - Courts duty thereunder - Whether limited to making the writ and entering same for hearing under the undefended list

PRACTICE AND PROCEDURE - Writ of summons - Issue of - Whose prerogative - Whether the registrar or the judge - Whether a judge can issue and enter the writ for hearing under the undefended list

PRACTICE AND PROCEDURE - Writ of summons - Validity of - Conditions therefor

Issues:

1.            Whether the trial court was right in giving judgment after pleadings has been concluded and whether it can be said that the parties were not heard.

2.            Whether the court did not give consideration to the issues of law raised before giving judgment.

3.            Whether the trial of this case is fair to the parties.

Facts:

The plaintiff supplied goods to the defendant upon Local Purchase Orders [LPOs] issued by the defendant and accepted by the plaintiff. The defendant settled part of the debts arising from the transactions as evidenced in LPOs No. 264 and 268 leaving a balance of N9,793.00 as admitted by the defendant in its statement of defence and the net amount on LPO No. 312  in the sum of N 90,620.50.

The plaintiff applied for a writ of summons in the manner prescribed by the rules of Kwara State High Court, but marked the writ ‘undefended list’ suo motu. The application for the issue of the writ was accompanied by an affidavit as required under the undefended list procedure. However, the plaintiff subsequently filed a statement of claim. When the processes were served, the defendant filed a notice of preliminary objection and a statement of defence. But the preliminary objection was not raised from the defence filed . When the matter came up for hearing, plaintiff counsel applied for judgment in view of the admission of the claim as contained in the statement of defence.

Judgment was entered for the plaintiff inspite of the defence counsel’s opposition to the application for judgment, though without making reference to his notice of preliminary objection. It is against this judgment that the defendant has appealed.