Shell Petroleum Development Company Of Nigeria Limited V. Sam Royal Nigeria Limited (2016)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal by the Appellant herein is against the judgment of the Court of Appeal Port Harcourt Division delivered on the 14th day of April, 2005 affirming the decision of the Rivers State High Court, Ahoda delivered on the 20th day of June, 2000, entering judgment for the Respondent herein under the undefended list procedure.

Appellants’ Notice of Appeal in this Appeal contains only a sole ground of Appeal. The ground reads thus:

“The Learned Trial Justices of the Court of Appeal misdirected themselves in law and thereby came to a wrong conclusion when they held that the Rule of the High Court of Rivers State on enlargement on time does not apply to matters brought under the undefended list.”

Detailed background facts of this case are not all that relevant or material to the determination of this appeal, save as set out to expose the indolence and lack of diligence and further ensuing incompetence of the Notice of Appeal raised in the Respondents’ Preliminary of Objection filed by it on 5/6/2009.

In his writ filed on the 10th day of April, 2000 which was subsequently placed under

undefended list, the Respondent herein as plaintiff claimed, inter-alia from the Appellant, as defendant, payment of the liquidated sum of N7,021,938.00 (Seven Million twenty-one thousand, nine hundred and thirty eight naira). The motion was fixed for hearing on the 18th day of May, 2000. Though the Appellant was duly served with the Respondent’s action, it did not file any notice of intention to defend the action together with an affidavit disclosing a defence on the merit; until the 18th day of May, 2000, when it filed a motion for extension of time within which to file and serve its notice of intention to defend the suit together with a supporting affidavit.

When the matter was called up for hearing, the trial Court took argument from both parties on the propriety or otherwise of the Appellants’ application for extension of time and adjourned for ruling. In its considered ruling of 20th day of June, 2000, the Court came to the conclusion that the fact contained in the Appellants’ Affidavit did not raise any bona fide defence on the merit. Consequently, the learned trial judge entered judgment in favour of the Respondent under undefended list.

The Appellant was not satisfied with this decision, he then appealed to the Court of Appeal, Port Harcourt Division which in its unanimous decision given on the 14th day of April, 2005, affirmed the decision of the trial High Court and dismissed the Appellant’s appeal for lacking in merit.

It is against the concurrent findings of facts of two Courts below that the Appellant is challenging in this appeal filed on the 15th day of April, 2005 vide Notice of Appeal containing a single ground of appeal (reproduced above) with an indication that further grounds will be filed upon receipt of the judgment of the Court below.

It is pertinent to further note that the conditions of appeal imposed by the Court below, giving the appellant 14 days within which to comply was not complied with. Hence the appellant brought an application before the Court below on the 15th day of June, 2006 for an extension of time within which to comply with the conditions of appeal and to set aside the certificate of non compliance issued by the Court.

Since the granting of the appellant’s application to file additional grounds of appeal on the 5th June, 2007, no such additional grounds of appeal

have been filed. Therefore, as stated earlier, this appeal relates only to the sole ground of appeal out of which two issues were raised in the following manner:

1. Was the lower Court right in holding that extension of time to file the notice of intention to defend is in the discretion of the trial judge, which may be exercised only when the defendant has filed not less than 5 days before the day fixed for hearing an affidavit disclosing a defence on the merit
2. Did the Court below not err in law in upholding that the trial Judge exercised his discretion in respect of the application for extension of time to file notice of intention to defend

It is to be noted that on the 5th day of June, 2009 the Respondent filed the following Notice of Preliminary Objection to the Appellants’ appeal: