Jonason Triangles Ltd. & Anor V. Charles Moh & Partners Ltd (2002)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

The present respondent was the plaintiff in the High Court of the Cross River State holden at calabar wherein the respondent claimed jointly and severally against the appellants as the 1st and 2nd defendants respectively for the sum of N5,000,000.00 (five million naira) as special and general damages. The particulars of special damages were stated in paragraph 12(a), (b) & (c) of respondents’ statement of claim which read thus:

“(a) The sum of N275,000.00 (two hundred and seventy-five thousand naira) given to the defendants by the plaintiff for a job not performed.

(b) The sum of NI80,000.00 (one hundred and eighty thousand naira) being the amount the plaintiff spent in hiring the pay loader for the contract.

(c) The sum of N550,000.00 being the expected profit that the plaintiff would have made if there was no breach on the side of the defendants. Total of the special damages is the sum of N1,005,000.00. General damages for inconveniences, loss of business and reputation in business is the sum of N3,995,000.00. Total is the sum of N5,000,000.00.”

It would appear from the printed record that the writ of summons in the matter was dated the 7th day of April, 1995. The statement of claim would appear to have also been filed with the writ of summons. It does not appear from the records when those steps were in fact taken in the proceedings.

However, it suffices to note that the appellants were served with the documents on a date prior to the 25th day of April, 1995. This is because the appellants by a motion dated 25th April, 1995, before the High Court of Cross River State holden at calabar prayed the court for the transfer of this suit/matter from the High Court of Cross River State to the High Court of Rivers State in the interest of justice. Attached to the said motion was a 16 paragraph affidavit sworn to by the 2nd appellant, who described himself as a businessman and a director of the 1st defendant. A conditional appearance for the appellants was also made on their behalf by their learned counsel, C. U. Ikeji, Esq., on the same date as when the above motion was filed, namely, the 25th of April, 1995.

Thereafter, an undated motion on notice, brought under the inherent jurisdiction of the court, was filed for the respondent by his learned counsel, F. O. Onyebueke, Esq. By that motion, the appellants were notified that the court will be moved on the 23rd of May, 1995, that appellants or their counsel can be heard for the accelerated hearing of the case, and for any order/orders as the court may deem fit to make in the circumstances. One Chief Charles Molokwu, who described himself as the managing director of the respondent/company deposed to a 5 paragraph affidavit in support of the motion. This motion for accelerated hearing would, from the depositions in the affidavit, apparently filed to cause the main suit to be heard as early as possible, and to prevent the matter from being transferred to the High Court of Rivers State, sequel to the application made to that effect by the appellants.

It is clear that on the 23rd May, 1995 the matter came up before Ecoma, C. J., the former Chief Judge of Cross Rivers State and he noted that the parties were present. He further noted that Mr. Onyebueke with Mr. Aniema Ephraim appeared for the respondent and that Mr. Ikeji, counsel for the appellants wrote a letter asking for an adjournment. His request was granted and the matter was adjourned to the 12th of June, 1995 for mention. On that day, the 1st appellant and his counsel were absent and as counsel for the appellants wrote asking for an adjournment, the matter was accordingly adjourned to the 4th of July, 1995. On the adjourned date, the matter was adjourned with the consent of both counsel to the 31st of July, 1995 for motions. On that day, though parties were present with their respective counsel, the matter was with consent of both counsel, adjourned to the 27th of September, 1995 for ‘motion’.

Now on the 27th September, 1995, the court noted thus: –

“Parties present. Mr. Onyebueke for the plaintiff. Defendant says he met with his counsel who said he would be in court. He does not know why he is not here. Onyebueke says this is the 5th time that Mr. Ikeji has not come to court and have (sic) refused to move the court. He urges the motion to be struck out by this court.

Court. The motion filed on the 25/4/95 by the defendants is hereby struck out without prejudice. The case is hereby adjourned to the 24th of October, 1995 for hearing of motion for accelerated hearing and hearing of the substantive suit. I make no order as to costs.”

On the 24th of October, 1995, to which the matter was adjourned for hearing of the motion for accelerated hearing, and the hearing of the main suit, only the respondent and his learned counsel, F. O. Onyebueke, were present in court. The appellants and their counsel were absent. It was then that counsel for the respondent, told the court that he would like to go on with the case. Apparently the court acceded to this request as the witness for the respondent was called upon to testify. The witness who was the only witness for the respondent, thereafter gave evidence in support of the case for the respondent. At the conclusion of his evidence, the court then reserved judgment to the 20th of November, 1995.

The judgment was duly delivered on the adjourned date. By virtue of the judgment, the appellants were adjudged liable jointly and severally in respect of the respondent’s claims. The court thereupon made the following orders: