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  • Crown Flour Mills Ltd. vs. Owodunni
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  • 2005-05-02
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Crown Flour Mills Ltd. vs. Owodunni

CROWN FLOUR MILLS LTD

V

ABDULAARASAQ OPEYEMI OWODUNNI

(Trading as Opeyemi Owodunni Enterprises)

COURT OF APPEAL

( ILORIN DIVISION )

ABOYI JOHN IKONGBEH JCA ( Presided )

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

JA’AFARU MIKA’ILU JCA

CA/IL/36/2003

WEDNESDAY, 7TH JULY, 2004

APPEAL - Issue for determination - Formulation of on grounds of appeal - Effect of failure to so do

APPEAL - Issues for determination - Need for to arise/ flow from grounds of appeal - Effect of non-compliance

COURT - Abuse of court process - Meaning of

COURT - Appeal Court - Whether can consider whether the affidavit in support of notice of intention to defend an action under the undefended list procedure discloses any defence on the merit to plaintiff’s action.

COURT - High Court - Whether there are more than one established for each state of the federation

PRACTICE AND PROCEDURE - Undefended list procedure - Affidavit in support of notice of intention to defend - When Appeal Court can consider whether discloses any defence on the merit to the plaintiff’s action

PRACTICE AND PROCEDURE -  Struck out matters - Party whose action is struck out - Right of to begin de novo by reinstituting the action or by applying for it to be relisted WORDS AND PHRASES - ‘Abuse of court process’ - Meaning of

Issues:

1.              Whether the plaintiff’s suit was an abuse of court’s process particularly after an earlier suit had been discontinued.

2.              Whether on the totality of the materials before the lower court, judgment should have been entered for the plaintiff taking into consideration the fact that the suit was entered for hearing under the undefended list

Facts:

There was a business relationship between the appellant and respondent, in which the appellant supplied its product, Supreme flour, to the respondent on credit for sale to customers. The transactions resulted in an outstanding debt which the appellant sought to recover by action. The respondent disputed the indebtedness by contending that the relationship between the parties was that of distributorship with agency No. 4002 in which the products of the appellant were supplied on credit to the respondent who in turn, supplies to retailers appointed by the appellant, also on credit. That payment is made by the respondent only when the retailers pay for their previous supplies and collect fresh supplies. That the appellant suddenly stopped the relationship and demanded payment from the respondent for all goods supplied. Respondent further contended that the debt, if any, is owed by the retailers.

As the relationship became more strained, the appellant reported to the Nigeria Police Force who arrested the respondent. The respondent instituted an action for enforcement of fundamental rights in the Federal High Court, Ilorin, which suit was subsequently transferred to the Kwara State High Court of Justice and renumbered as KWS/171/2001 and assigned to Hon. Justice Ojo.

Meanwhile, the appellant instituted suit No. KWS/106/2000 in the Kwara State High Court sitting at Ilorin under the undefended list procedure claiming the sum of N667,000.00 as debt due from and payable by the respondent to the appellant. The suit was assigned to Hon. Justice Elelu Habeeb. The suit was later discontinued and consequently struck out. The appellant, who had not counter-claimed in suit No. KWS/171/2001 filed a motion therein asking for judgment in the sum of N667,000.00 which motion was subsequently withdrawn by the appellant and struck out by the court.

The appellant later filed the present suit under the undefended list procedure claiming the sum of N579,000.00 in the writ of summons but N567,000.00 in the affidavit in support of application for issue of writ of summons.

The respondent filed notice of intention to defend the action and an affidavit of defence. He equally contended in his argument inter alia that the action was an abuse of process of court.

The trial court upheld respondent’s contention that the suit was an abuse of court process and accordingly struck it out.

Dissatisfied, the appellant appealed to the Court of Appeal.