Public Finance Securities Ltd. & Anor V. Sir Chief Harrison Jefia (1998)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A.

This appeal is from a judgment of Obi, J., sitting at the Warri Division of the Delta State High Court in Suit No. W/216/93 given on 15th April, 1994 wherein in an action brought under the undefended list by the respondent, he adjudged the appellants liable jointly and severally to pay the sum of N3, 593,851.00 (Three Million, five hundred and ninety three thousand, eight hundred and fifty one naira) which sum was to attract 40% interest from 8th August, 1993 till 31st December, 1993, and a further interest of 15% from the last date till 15th April, and a further interest of 10% from 15th April 1994 until payment. The case of the respondent was that he made several deposit placements totalling N3, 593,851.00 with the 1st appellant based on the assurance and warranty of the 2nd appellant, that upon maturity the respondent will be paid.

The respondent filed a writ of summons with an affidavit that the matter be placed on the ‘Undefended List’, when it was manifestly clear that the appellants could not pay the sum placed on fixed deposit.

The appellants entered conditional appearance upon service of the writ on 15th day of November, 1993, and on the same date filed “Notice of Intention” to defend the suit. They thereafter on 7th day of February 1994 filed a Notice of Preliminary objection to the suit.

The Court of trial heard argument on the preliminary objection filed by the appellants and with the consent of plaintiff and defendants counsel, adjourned the matter to 16th day of March, 1994, to resolve by oral evidence, whether the 1st defendant’s office was situate in Warri, Delta State. The respondent called three witnesses to substantiate the fact that the 1st defendant had an office in Warri, within the jurisdiction of the court whilst the appellants called two witnesses. The learned trial Judge in a considered judgment found for the respondent on the 15th day of April, 1994. Dissatisfied with the judgment of the court below the appellants appealed to this court. The Notice of Appeal at pages 49 – 51 of the record of proceedings contains four grounds.

Briefs of argument were filed and exchanged.

From the grounds of appeal the appellants raised three issues for determination. They read as follows:-

“(a) Whether or not the Honourable Judge was right in holding that the Honourable Court was competent and seised of jurisdiction in entertaining the action of the plaintiff as formulated?

(b) Whether or not the learned trial Judge was right in still retaining the cause in the undefended list in the face of defence disclosed and the affidavit of the parties necessitating the Honourable Judge to call evidence to resolve the conflicts in some aspect of the case.

(c) Whether or not the trial Judge was right in holding the 2nd appellant liable jointly on ground or failure to account for money invested by the plaintiff with the 1st appellant and thus invoking the provision of S. 290 of the Company and Allied Matters Act, Laws of the Federation of Nigeria 1990 in the face of the plaintiff’s failure to comply with Order 25, rule 5, of the Bendel State High Court (Civil Procedure) Rules 1988 (as applicable in Delta State and proceeding to hold that the 2nd appellant had no defence to the action?”

On his own part the respondent also raised three issues for determination. They read:-

(i) Whether there was service of the Writ of Summons and other processes on the 2nd appellant.

(ii) Whether the learned trial Judge was right in lifting the veil of incorporation pursuant to Section 290 of the Companies and Allied Matters Decree 1990 and holding the 2nd appellant liable for debt owed by the 1st appellant.

(iii) Whether the learned trial Judge was right in proceeding with the matter under the “Undefended List”.