Ben Thomas Hotels Ltd. V. Sebi Furniture Company Ltd (1988)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C.

This matter started as a Judgment of the High Court, Kwara State, Lokoja Judicial Division, coram Leslie, J. But the history before that Judgment is equally interesting. The action was brought by motion for judgment under the undefended list. The claim which the plaintiff had brought was an action for what he termed-

“outstanding balance of N68,000.00” as “Cost of furniture items thus supplied to the defendant” and 10% interest per annum.”

The motion on the undefended list came before the Court on 2nd December, 1987.The defendant company was not represented and the Ruling was entered in favour of the plaintiff on 8th December. The judgment of the court then was-

“The result is that the judgment is entered in favour of the plaintiff as per writ of summons for the sum of N68,000.00 vide Order 3 Rule 12 of the High Court (Civil Procedure) Rules, 1975.

The defendant shall also pay 10% interest on the stated sum until judgment debt is finally liquidated:- vide Order 27 Rule 8 of the High Court (Civil Procedure) Rules 1975.”

Costs of N700.00 were also awarded.

On and December, 1987, an application was brought before the Court to “set aside or vary the judgment”

After an exhaustive argument, Ruling was given thereupon on 19th February, 1988.The court (Leslie, J.) dismissed the motion.

The defendant, Ben Thomas Hotels Ltd., appealed to the Court of Appeal. The main plank upon which the appeal was hung was that there was no proof before the learned trial Judge that hearing notice was served on any official of the defendant company.

In a judgment delivered by Akpabio, J.C.A., the court held in regard to the complaint on service not having been effected-

“In resolving this question, I must agree with the submission of learned counsel for the respondent that the answer to this question must be looked for within the four walls of Order 5 rule 8(2) of the High Court (Civil Procedure) Rules of Kwara State, 1975, and nowhere else. Under that rule, there is no provision for the writ or other document to be delivered to a named official of the defendant company. It is merely to be left at the registered office of the defendant company and no more.

There was no suggestion by the learned counsel for the appellant that the address, Kabba-Ajaokuta New Road, Kabba, Kwara State, which appeared on the writ of summons was not the “registered office” of the defendant/appellant. In my view, once the writ of summons has been shown to have been left in the premises of the registered office of the appellant, the provisions of order 5 rule 8(2) has been complied with even though the name of the official of the appellant company to whom the document was delivered was not stated.”

The appellant also complained of discrepancy between the names of the parties on the writ of summons and those in the affidavit of service. The learned Justice of the Court of Appeal answered:-