Ault & Wiborg (Nigeria) Limited V. Nibel Industries Limtied (2010)

LAWGLOBAL HUB Lead Judgment Report

F.F TABAI, JSC

The record of this appeal is rather scanty and does not appear to contain all the details about the suit from its inception. However from the materials available in the record, it is clear that the suit was commenced at the Ota Judicial Division of the High Court of Ogun State. The Plaintiff company was the Respondent at the court below and also the Respondent here. The Defendant company was the Appellant at the Court below and also the Appellant before this Court. The claim of the respondent against the Appellant was for the sum of N1,320,013.83 (one million, three hundred and twenty thousand and thirteen naira, eighty-three kobo) only representing debt with interest at the rate of 21(twenty-one) percent per annum from November 2001 until the final liquidation of the debt. There was also a claim of 21 (twenty-one) percent post-judgment interest.

By an ex-parte motion dated 29th October, 2001 the Respondent sought an order that the suit be entered on the undefended list. The application was granted on the 30th of October, 2001 and the writ of summons marked “Undefended List”. The writ of summons together with the affidavit in support of the claim and documents attached thereto were served on the Defendant/Appellant on the 18th of December, 2001 which then filed a memorandum of appearance. It did not however file an intention to defend the suit.

After taking address of counsel the trial court by its judgment on the 17th of May, 2002 allowed the claim. On the consequences of a failure to give a notice of intention to defend the trial court at Page 9 of the record said:

“Failure to deliver a notice of intention to defend a suit on the ‘Undefended List’ means only one thing that is that the defendant has no defence to the claim. It is therefore tantamount to an admission by the defendant of the Plaintiffs claim”

The trial court then entered judgment for the Respondent in the following terms:

“The result is that judgment should and is hereby entered in favour of the Plaintiff for the sum of N1, 320, 013.83 (one million, three hundred and twenty thousand and thirteen naira, eighty-three kobo) only being the cost of goods supplied by the Plaintiff to the Defendant in 1997-vide Order 23 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987.

The Defendant shall also pay 10 (ten) percent interest on the stated sum from today 17/7/02 until the judgment debt is finally liquidated-vide Order 40 Rule 7 of the Rules of this Court.”

The Defendant/Appellant was not satisfied with the judgment, especially with the award of interests on the principal sum representing the debt it owed to the Plaintiff/Respondent. It was therefore desirous of appealing against the judgment but did not appeal within the three months stipulated in section 24(2) (a) of the Court of Appeal Act to appeal.

By a motion wrongly dated the 8th of January, 2002 but filed on the 10th of January, 2003 at the court below the Defendant/Applicant sought an order of the court below enlarging the time within which to file a Notice of Appeal against the decision of the High Court of Ogun State (as per the judgement of Hon. (Mr.) Justice Onamade given on the 17th of July, 2002). The grounds upon which the application was brought were stated therein as follows:

(i) The right of the Appellant to appeal from the decision complained about is guaranteed under section 241 (1) (a) of the Constitution of Nigeria 1999.

(ii) Section 25 (2) (a) of the Court of Appeal Act limits the time within which to file an appeal from the decision complained about to three months.

(iii) As the decision was given on the 17th of July, 2002 normal time has expired since September 2002 to file the notice of Appeal.

(iv) Order 3 Rule 4 (1) of the Court of Appeal Rules 2002 permits this Court to enlarge the time within which appeal may be brought.