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Suleiman vs. U.A.C. of Nigeria Plc

ALHAJI ABUBAKAR SULEIMAN

V

U.A.C. OF NIGERIA PLC

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided and Read the Lead Judgment )

RABIU DANLAMI MUHAMMAD, JCA

MAHMUD MOHAMMED, JCA

CA/K/142/2001

THURSDAY, 11TH APRIL, 2002

APPEAL - Ground of appeal - Argument in respect of the same ground of appeal - Whether can be canvassed twice

APPEAL - Ground of appeal - Ground attacking an interlocutory ruling of a trial court against which appeal was not filed within time - Effect

APPEAL - Interlocutory decision - Appeal against - Time within which to file - Section 25(2), Court of Appeal Act, Cap 75 Laws of the Federation

APPEAL - Issues for determination - Argument by respondent on issues not arising from any ground of appeal and unconnected with any cross-appeal - Impropriety of

EVIDENCE - Admitted facts or admission against interest - Whether require proof - Section 75, Evidence Act

EVIDENCE - Affidavit in reply - Function and nature of

EVIDENCE - Documentary evidence - When court may not insist thereon

EVIDENCE - Evidence Act, Cap 112 section 38 - Applicability of in instant case

EVIDENCE - Evidence Act, Cap 112, section 91(3) - Statement made by a person at a time when proceeding were pending or contemplated involving a dispute in fact which the document tend to establish Whether applicable in instant case

EVIDENCE - Evidence Act, section 91(3) - Where invocation of by counsel amounts to mere legalism which would occasion prejudice to a party’s case - Duty of court to avoid

LEGAL PRACTITIONER - Legalism of counsel - Where would prejudice a party’s case or occasion miscarriage of justice - Duty of court to stand against

PRACTICE AND PROCEDURE - Undefended list action - When unnecessary to transfer same to general cause list

Issues:

1.            Whether the respondent/plaintiff’s claim is sufficiently proved and the averment contained in the various affidavit filed on behalf of the plaintiff are unchallenged.

2.            Whether the affidavit in support of the notice of intention to defend did not disclose any defence on the merits to entitle the suit to be transferred to the general cause list for trial.

Facts:

The respondent, as plaintiff, at the lower court brought an action against the appellant as the defendant under the undefended list claiming the sum of N2,786,840 as endorsed on the writ of summons taken out on 30/3/ 99 . Upon the service of the writ of summons on the appellant, a conditional appearance was entered. A notice of intention to rely on a preliminary objection was given in addition to filing notice of his intention to defend the action on the merit. The preliminary objection was considered and refused.

Upon service of the notice of intention to defend, the respondent deposed to a further and better affidavit in which he proffered explanations for some of the averments contained in the affidavit in support of notice of intention to defend.

The learned trial Judge in his reserved and considered judgment entered judgment in favour of the respondent for the sum of N2,262,430.14 an amount far less than the respondent’s claim of N2,786,840 endorsed on the writ of summons. The appellant, being aggrieved, appealed to the Court of Appeal.