Bellview Airlines Limited V. Carter Harris (Proprietary) Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State delivered on 30/4/2014 by Hon. Justice O. A. Williams in suit No: ID/1427/2012: Carter Harris (Proprietary) Limited V. Bellview Airlines Limited, in which judgment was entered in favour of the Respondent as Claimant against the Appellant as Defendant under the Summary Judgment Procedure.

The Respondent, the claimant before the Court below, had on 28/12/2012 instituted an action vide a Writ of Summons against the Appellant, the Defendant before the Court below, filed along with a 20 paragraph statement of claim, claiming the following reliefs, namely:

“1. The sum of R519, 254. 22 (Five hundred and nineteen thousand, two hundred and fifty – four Rand and sixty – two cents) or its Naira equivalent at the date of judgment, being cost of Corporate Uniforms and Clothing supplied to the Defendant by the Claimant pursuant to a Supply Agreement made between the parties on 10/1/2008.

2. General damages in the sum of N20, 000, 000. 00 for the Defendant’s breach of the supply Agreement made on

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10/1/2008 between the Claimant and the Defendant.

3. Interest at the rate of 21% on the above sum from the date of commencement of this action until judgment is delivered and thereafter at the rate of 10% until the judgment is liquidated.
4. Cost of this action.”

See pages 1 – 82 of the Record.

On 22/1/2013, the Respondent filed an application by way of a Motion on Notice supported by an affidavit and written address seeking an order entering summary judgment against the Appellant pursuant to Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004. See pages 46 – 92 of the Record.

Upon service, the Appellant entered appearance on 5/3/2013 and subsequently on 19/4/2013 filed a Notice of Preliminary Objection supported by an affidavit of 11 paragraphs, together with a written address challenging the jurisdiction of the Court below to entertain the claims of the Respondent on the ground that the cause of action of the Respondent touches on admiralty outside the jurisdiction of the Court below. In response, the Respondent filed a counter affidavit of 9 paragraphs together with a written address. See pages 93 – 113, 114- 123 of

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the Record.

The preliminary objection was heard on 18/12/2013 and was subsequently dismissed by the Court below in a ruling delivered on 5/2/2014. The Appellant was dissatisfied with the said ruling and promptly appealed against it vide a Notice of Appeal filed on 14/3/2014. The Appellant also filed an application on the same date seeking a stay of proceedings of the suit pending the determination of the appeal.

On 17/3/2014 when the matter came up before the Court below, the Respondent?s Counsel informed the Court below of service on them of the Appellants application seeking a stay of its proceedings. However, it would appear that the Courts copy of the said application was still with the Appellants counsel and which he sought the Court’s indulgence to pass on to the Court but which request was refused. The Court below then proceeded to hear the Respondents pending application for summary judgment, to which the Appellant did not file any process in response.

On 30/4/2014, the Appellants counsel drew the attention of the Court below to their pending motion filed on 17/4/2014 and served on the Respondent on 22/4/2014, which the Court below