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  • 2005-11-14
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Ramadan (Nig.) Ltd. v. Afribank Plc.

RAMADAN NIGERIA LIMITED

ALHAJU GANIYU ADEWOPO

V

AFRIBANK PLC.

COURT OF APPEAL

( KADUNA DIVISION )

MAHMUD MOHAMMED OFR, JCA ( Presided )

STANLEY SHENKO ALAGOA JCA

KUDIRAT M. O. KEKERE-EKUN JCA ( Read the Lead Judgment )

CA/K/384/01

WEDNESDAY, 13TH APRIL, 2005 

APPEAL - Fresh issues on appeal - How raised

APPEAL - Grounds of appeal - Difference between application to file an additional ground of appeal and an application to raise fresh issues  on appeal

APPEAL - Issues of determination - Need to be confined to the actual decision of the court

APPEAL - Jurisdiction - Issue of - When raised for the first time on appeal - Needlessness of leave of court for

JUDICIAL PRECEDENT - Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568 and Maley v. Isah (2000) 5  NWLR (Pt. 658) 651; and Kwara Hotels Ltd. v. Ishola (2002) FWLR (Pt. 135) 759, (2002) 9 NWLR (Pt. 773) 604 distinguished on needlessness of a formal ex parte application to place a suit on the undefended list

JURISDICTION - Issue of jurisdiction - Fundamental nature of - When it can be raised - Propriety of raising on appeal for the first time without leave of court

PLEADINGS - Fraud - Allegation of - Need to specifically plead

PRACTICE AND PROCEDURE - Technicalities - Duty on court not to rely thereon but to do substantial justice

PRACTICE AND PROCEDURE - Undefended list procedure - Formal ex parte application to place suit on the undefended list Needlessness of - Order 22, rule 1, Kaduna State High Court ( Civil Procedure) Rules, 1987 considered - Cash Affairs Finance Ltd. v. Inland Bank (Nig.) Plc. (2000) 5 NWLR (Pt. 658) 568 and Maley v. Isah (2000) 5 NWLR (Pt. 658) 651 , distinguished -  Kwara Hotels Ltd. v. Ishola (2002) FWLR (Pt.  135) 759, (2002)

9  NWLR (Pt. 773) 604 followed

PRACTICE AND PROCEDURE -  Undefended list procedure - Good defence on the merit - What court should look at in determining

STATUTE - High Court of Kaduna State (Civil Procedure) Rules, 1987, Order 22, rule 1 - Needlessness of a formal ex parte application to place suit on the undefended list - Cash Affairs Finance Ltd.

v. Inland Bank (Nig.) Plc. (2000) 5 NWLR ( Pt. 658) 568 and Maley v. Isah (2000) 5 NWLR (Pt. 658) 651, and Kwara Hotels Ltd. v. Ishola (2002) FWLR (Pt. 135) 759, (2002) 9 NWLR (Pt.

773) 604  distinguished

Issues:

1.              Whether the trial court had jurisdiction to entertain the respondent’s suit without first hearing and granting a formal application for leave to place the suit on the undefended list.

2.              Whether the appellants’ notice of intention to defend dated 29/7/99 and the supporting affidavit sworn to on 30/7/99 disclosed a defence on the merits to warrant the transfer of the suit to the general cause list.

Facts:

The respondent as plaintiff in the High Court of Kaduna State filed an action against the appellants who were the defendants under the undefended list procedure claiming the sum of eighteen million, four hundred and sixty-four thousand, five hundred and seven naira, sixty-one kobo ( N18,464,507.61) being the principal sum and interest in respect of loan facilities granted the 1st appellant by the respondent and guaranteed by the 2 nd appellant. Annexed to the writ of summons was an affidavit in support of the claim and some exhibits.

Upon receipt of the writ, the appellants filed a notice of intention to defend the suit pursuant to Order 22, rule 3 of the Kaduna State High Court ( Civil Procedure) Rules, 1987 along with an affidavit in support of the notice.

When the matter came up for hearing, appellants’ counsel was absent in court. The counsel for the respondent while addressing the court made reference to the averments contained in the notice of intention to defend and contended that they did not disclose a defence on the merits. The trial Judge in his ruling refused to transfer the suit to the general cause list on the ground that the appellants had admitted respondent’s claim and the affidavit in support of the notice of intention to defend did not disclose a defence on the merits. He therefore entered judgment in favour of the respondent in the sum claimed with interest at 21% from July 1999 till the date of judgment and at 10% thereafter until the judgment sum is fully liquidated.

Dissatisfied, the appellants appealed to the Court of Appeal.