Magna Maritime Services Ltd. & Anor. V. S.A. Oteju & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

KALGO, J.S.C.

This appeal is not as complicated as portrayed by the learned counsel for the appellants in his brief of argument. There was no cross appeal filed by the respondents in the appeal to this court and the reference to cross-appellant in the title of the appeal was misleading and wrong. In the trial, Federal High Court, Lagos, the appellants as plaintiff claimed against the respondents jointly and severally:-

” … the sum of N2,839,000.00 (Two million eight hundred and thirty-nine thousand naira) being the equivalent of $33,314.00 (Thirty three thousand three hundred and fourteen Dollars) calculated at the autonomous rate of N85.00 per dollar, being the amount owed the plaintiff by the defendants at 22nd March, 1993 in that the defendants failed or neglected to effect payment in full for auto gas oil supplied by the plaintiff and/or his agent to the defendant’s vessel (M/V Sea friend and Victory Reefer) at the defendant’s request.

… interest on the said amount at the regulated rate of 21% monthly from 1st April, 1993 till judgment and thereafter at the same rate until the final liquidation of the entire sum with costs.”

On the 29th of April, 1996, the defendants hereinafter referred to as the respondents were reported to have been served with the writ of summons containing the appellants’ claims. On that day, the trial court made the following order:-

“Plaintiff is granted 7 days from the date of this order to file its statement of claim and the defendants 21 days from date of service of statement of claim to file the defence.”

The plaintiffs (now appellants) filed their statement of claim within time and served it on the respondents. On the 10/6/96, the respondents without filing any defence, filed a motion seeking to set aside the service of the writ of summons on them for non compliance with the trial court’s rules. The application was heard and on the 16th of October, 1996, the court ruled that the 1st respondent was personally served in accordance with Order 10 rule 16 of the Federal High Court Rules and that the bailiff who served the process has filed proof of service testifying to the fact that the service was personal. There was no appeal against this ruling and the respondents had not up to that stage filed their defence to the action.

Again on the 11th of December, 1996, the respondents filed another application for an order dismissing the suit on the ground that it was an abuse of the court process or in the alternative to consolidate it with a similar suit between the parties pending before Jinadu, J., in the same Federal High Court, Court 3, Lagos. On the 5th of May, 1997, when the application came up for hearing, it was discovered that the suit sought to be consolidated with the present case was in fact struck out by Jinadu, J. on 23/4/97. The application was overtaken by events and it was accordingly struck out. On 2/5/97, the respondents filed an application before Jinadu, J., to re-list the suit struck out by him on 23/4/97, and on 12/6/97 they filed another application praying the trial court for stay of its proceedings in the case pending the determination of the application before Jinadu, J. The learned trial Judge heard the application for stay on 15/6/97, and after hearing counsel and studying the documents in the matter found that there was no special reason to stay the proceedings before her especially as she is of co-ordinate jurisdiction with Jinadu, J. She therefore struck out the application. Meanwhile the case had already been fixed for definite hearing on the 5th of May, 1997.

On the 18/5/97 when the actual trial commenced and the appellants called its first witness, PW1, the learned counsel for the respondents walked out of court without the leave of the trial Judge on the excuse that he was sick. At the end of the testimony of PW.1 the case was adjourned to 7/8/97 for continuation and a hearing notice for that day was ordered to be served on the respondent. On the 7/8/97 when the case came up for continuation, the respondent’s counsel was still absent and they were not represented. The appellants’ counsel closed their case and addressed the court. The case was adjourned to 16th October, 1997 for judgment. It is pertinent to observe that up to this stage the respondents neither filed their statement of defence nor filed any application for enlargement of time to do so.

Earlier on the 3rd of July, 1997, the respondent’s counsel filed a notice of appeal to the Court of Appeal against rulings of the trial court delivered on 16/1 0/96 and 18/6/97. On the 11/8/97, the respondents filed another application for stay of proceedings of the trial court pending the hearing and determination of the said appeal. The learned trial Judge was still patient and listened to the parties’ counsel on the matter and adjourned to 4/11/97 for ruling. While the ruling was being awaited, the respondents waking up from their slumber about their defence, this time by a new counsel, filed on 31/10/97 application for change of counsel and for extension of time to file their defence.

In a considered ruling on the application for stay of proceedings delivered on the 4/11/97 the learned trial Judge Ukeje, J. comprehensively reviewed what has happened in the case up to that stage including the effect of various rulings she had given earlier, and came to the conclusion that it was not appropriate to stay the proceedings in the case at that stage. She therefore dismissed the application and proceeded to read the judgment on the substantive case. The appellants succeeded in his action as plaintiff in the absence of any defence by the respondent and judgment was entered in its favour in the principal sum of $33,314.00 Dollars. The claim on pre-judgment interest was dismissed.

The respondents were dissatisfied with that decision and they appealed to the Court of Appeal on 3 grounds. The appellants as respondents in the Court of Appeal also cross-appealed on the issue of pre-judgment interest. Both parties filed their respective briefs there. The Court of Appeal, after hearing the appeal, per Aderemi, JCA said:

” In the final analysis, the main appeal for all I have said supra, succeeds; the judgment of the court below is hereby set aside; the suit is remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge for re-trial. For reasons that I have stated supra, I shall refrain from making a pronouncement on the cross-appeal. ”

From this decision the appellants appealed to this court on 6 grounds of appeal. Both parties filed and exchanged their respective briefs of argument in this court as per the rules of court. In their brief, the appellants raised 5 issues for the determination of this court and they are:-