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Jos North Local Government v. Daniyan

JOS NORTH LOCAL GOVERNMENT

V

ADESOLA DANIYAN

( Trading under the Name and Style of Daniyan & Associate )

COURT OF APPEAL

( JOS DIVISION )

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

JOSEPH JEREMIAH UMOREN, JCA.

ISA ABUBAKAR MANGAJI, JCA.

CA/J/316/98

TUESDAY, 23RD MAY, 2000

ACTION - Commencement of claim for a liquidated demand action Undefended List procedure - Principles governing

ACTION - Claim for a liquidated demand - Undefended list procedure Defendant required  to disclose a defence to the action - Whether defence  disclosed to be gathered from defendant’s affidavit in support of Notice of intention to defend

COURT - Action -  Claim for a liquidated demand - Undefended List procedure  - Principles governing

COURT - Claim for a liquidated demand - Undefended List procedure Requirement to disclose a defence to the action - Whether defence shown to be gathered  by court from affidavit  in support of Notice of intention to defend

COURT - Undefended List procedure - Defendant’s affidavit  in support of Notice of intention to defend - Duty of court in the consideration thereof

PRACTICE AND PROCEDURE - Undefended List procedure - Principles governing

PRACTICE AND PROCEDURE - Undefended List procedure - Defendant’s affidavit in support of Notice of intention to defend - Duty of court in consideration thereof

PRACTICE AND PROCEDURE - Claim for a liquidated demand - Undefended List procedure - Defendant required to disclose a defence to the action on the merit - Whether defence disclosed to be gathered from defendant’s affidavit in support of Notice of intention to defend

Issue:

Whether the Notice of intention to defend filed by the Appellant disclosed a defence on the merit to warrant transferring the suit to the General Cause List.

Facts:

The Appellant was the defendant at the trial court while the Respondent was the Plaintiff. By his writ of summons, filed in suit No. PLD/J116/98, at Plateau State High Court, holden in Jos, under the Undefended List procedure, the Respondent claimed against the Appellant the sum of N3,050,187.83, being payment for professional services rendered to the defendant. According to the Respondent, sometime in 1992, his firm of Estate Surveyors, Valuers, Real Estate  Consultants and Relocation Agents, was appointed to carry out rating, valuation, assessment and collection of Tenement rates on all rateable hereditaments within part of Jos metropolis, under the Appellant’s authority. Under the agreement, he was entitled to “10% of tenement/Property rate collected, as well as any reimbursable expenses”. Between 1992 and 1997, these commissions and reimbursable expenses came to N3,050,187.83,  which the Appellant failed and refused to pay despite repeated demands. The Respondent, however, conceded that its copy of the agreement between the parties could no longer be found but exhibited a copy described as “draft copy” of the same.

The Appellant filed an affidavit in support of intention to defend and denied the Respondent’s claim. It asserted that there was no formal contract duly executed between the parties. It, however, conceded that it had an arrangement whereby the Respondent collected rates as their commission agents, deducted his expenses and commission and then remitted the balance to it through its bank account. However, a time came when the expenses and commission became so large that nothing was left for the council after the Respondent had deducted what he called his “reimbursable expenses”.

Therefore, after an investigation, the council terminated the contractual arrangement between it and the Respondent.

The learned trial Judge, Dakyen, J., after considering the Appellant’s affidavit in support of its Notice of intention to Defend, was of the opinion that the same did not disclose a defence on the merits. He refused to transfer the matter to the General Cause List and, therefore, entered judgment in favour of the Respondent as claimed.

The Appellant was dissatisfied with the decision of the trial court and, therefore, appealed. In the determination of this appeal, the Court of Appeal considered the provision of Order 23 Rule 3(1) and (2) of the Plateau State High Court (Civil Procedure) Rules 1987.