E. B. Ukiri V. Geco-prakla (Nig.) Ltd (2010)

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, J.S.C.

The appellant who appears in person, is a legal practitioner and was retained according to the terms of their agreement, by the respondent company to handle its legal matters. The relationship continued for some time but later misunderstanding arose. Matters came to a head when on 20/7/1994, the respondent wrote to the appellant terminating the retainership agreement and tendered the sum of N490,000.00 being what it considered it owed the appellant as outstanding professional fees. The appellant disagreed with the figure and on the 22/5/1995, applied for a Writ of Summons from the High Court of Rivers State under the “undefended list” procedure and claimed what according to him, was the outstanding remaining professional fees owed to him by the respondent. The matter was placed on the “undefended list”. The matter suffered two adjournments and was on 14/7/1995, fixed for hearing on 28/9/1995. Meanwhile on the 27/9/1995 the respondent caused to be filed on its behalf, a Motion on Notice praying for the following prayers:-

“1. An order setting aside the purported service on the defendant/applicant of the Writ of Summons xxxxx

2. An order extending the time within which the defendant/applicant should file its Memorandum of Appearance.
3. An order deeming the Memorandum of Appearance annexed to the affidavit in support of this Motion and marked as Exhibit “F 1″ as properly filed and served xxxxx.
4. An order extending the time within which the defendant/applicant should file its Notice of Intention to Defend this suit.
5. An order deeming the Notice of Intention to defend the suit, annexed to the affidavit in support of this Motion and marked as Exhibit’ F 2″ as properly filed and served, xxxxx”.

On the 31/1/1996, the learned trial judge ruled on the application and refused it. He entered judgment in favour of the plaintiff on the undefended list. The defendant felt aggrieved and appealed to the Court of Appeal Port Harcourt Division.

The registrar of the trial court on the 22/2/1996 imposed the conditions of appeal to be perfected by the defendant within 30 days from that date. It appeared that the conditions were not met by the defendant and after some protracted applications, the Court of Appeal on the 8th of February 1998 dismissed the defendant’s appeal for failure to comply with the conditions of the appeal as provided by order 3 rule 20 of the Court of Appeal Rules. On the 19/2/1998 the defendant filed on application in the Court of Appeal praying among other prayers the restoration of the dismissed appeal. It was claimed that the defendant had no notice of conditions of appeal imposed by the registrar on the 22/2/1996. The plaintiff objected to the application and filed not only a counter-affidavit but also a Notice of Preliminary Objection. The preliminary objection filed on the 27/2/1998 was in these terms:-

a. That the application is incompetent, an abuse of the process of the Court.

b. The Honourable Court lacks the jurisdiction to entertain and grant the applicant’s motion.

And the grounds of the preliminary objection are as foilows:-

(i) There is no pending appeal capable of being restored by this Honourable Court.

(ii) xxxxx.”

Arguments were heard for and against the defendant’s application to restore the dismissed appeal and in its Ruling delivered the 8/2/1999.

The Court of Appeal held:-

xxxxx

“I shall quickly dispose of the preliminary objection by saying that if there were pending an appeal, then the application for the restoration of the appeal will be meaningless. But the truth of the matter lies in the provision of the Rules Order 3 rule 20 (4) of Court of Appeal Rules. It provides, inter alias, that “An appellant whose appeal has been dismissed under this rule may apply by Notice of Motion that his appeal be restored.” And “Any such application may be made to the Court and the Court may xxxxx.”