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(2018) LPELR-44376(SC)

In The Supreme Court of Nigeria

On Friday, the 4th day of May, 2018


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria





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This appeal borders on Undefended List Procedure.
This is an appeal against the decision of the Court of Appeal sitting in Abuja. The respondent as plaintiff filed a suit under the undefended list at a High Court of the Federal Capital Territory, Holden at Abuja, claiming some reliefs.

The facts of the case are that Yaman Fuel Filling Station was legally mortgaged to the appellant as security for various loans obtained by Yaman Nigeria Limited from the appellant. In a bid to recover Yaman Nigeria Limited's indebtedness, the appellant exercised its right of sale. The respondent magnified its interest, and liaised with M. S. Shehu & Brothers Ltd., a Government Licensed Auctioneer. Negotiations got underway culminating in an agreed sum of N300 Million for the Yaman Filling Station. The respondent accepted the offer and paid the sum of N300 Million in four installments as follows: 150 Million on 23 November, 2015, N60 Million on 26 November, 2015, N10 Million 27 November, 2015 and N80 Million on 27 November, 2015 into account No. 0034137201 furnished to it (the respondent) by the appellant. Relevant title documents were given to the respondent. The respondent requested for physical handover of the property. The appellant was unable to deliver physical possession of the Filling Station to the respondent. This was due to the fact that Yaman Nigeria Limited resisted being disposed of its filling station. 

The respondent came to Court because he had been unable to obtain physical possession of the Filling Station, and the sum of N300 Million paid for the station was not returned. This suit under the undefended list was for recovery of the purchase price by the respondent for the Filling Station (i.e. 300 Million) plus interest. The Writ of Summons under the undefended list was supported by a 24 paragraph affidavit deposed to by Alhaji Abdulazeez Yakubo Sambo, a Director in the plaintiff's company. Annexed to the affidavit were seven exhibits. On 28th January, 2016, the High Court granted the plaintiff leave to issue and serve the Writ of Summons and other processes on the appellant/defendant, outside the jurisdiction of the trial High Court. On receipt of the Writ of Summons, the appellant/defendant entered conditional appearance on 3 March, 2016 and filed a Notice of Intention to defend the suit with a 31 paragraph affidavit showing cause deposed to by Adepoju Oginni, an employee in the commercial Department of the defendant bank. A further affidavit showing cause for leave to defend was filed on 14th March, 2016. 

The Notice of intention to defend the action was brought under Order 22 Rule 3(1) of the Federal Capital Territory Abuja High Court Civil Procedure Rules, 2004. The defendant entered conditional appearance. After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court's jurisdiction. Proceedings proceeded.  The appearance of the defendant to the proceeding in the High Court was thus unconditional.  The learned trial judge considered the affidavit before him and in a well-considered judgment delivered on 12th May, 2010 entered judgment for the plaintiff/respondent. Dissatisfied with the judgment. The appellant filed an appeal. It was heard by the Court of Appeal, Abuja Division. That Court affirmed the decision of the trial High Court. 

Still aggrieved, the Appellant appealed to the Supreme Court.

The Court determined the appeal on the issues raised by the Appellant and couched as follows:

1. Was the Court of Appeal right when it held that the trial High Court did not violate appellant's right to fair hearing when the trial High Court Suo Motu raised issue of forfeiture of purchase price paid by the respondent and resolved same against the appellant, without affording the appellant any hearing on the issue?

2. Was the Court of Appeal right given the circumstances of the case, when it decided that transfer of the property coupled with physical possession are crucial ingredients of the purchase or sale agreement, between appellant and the respondent?

3. Was the Court of Appeal right when it held that the conflicts in affidavit evidence of the appellant and respondent can be resolved with the aid of documentary evidence without calling oral evidence to resolve the conflict in an undefended list application?

On the whole, the Court found no merit in the appeal and accordingly dismissed same. 

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