Mains Ventures Limited V. Petroplast Industries Limited (2000)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A. 

The respondent in this appeal was the plaintiff in the court below. He claimed by his writ of summons taken out on 15th August,1995, the sum of N5,657,610 said to be outstanding prices of 39.018 metric tons of PVC materials supplied by the plaintiff to the defendant, interest at 21% from 9/6/95 till payment was also claimed.

Processes served, the defendant who is appellant herein entered an appearance by Memorandum of Appearance filed on 22/8/95, but filed no defence.

By a summons for judgment pursuant to Order 10 Rules 1 and 2 of the High Court of Lagos Civil Procedure Rules, the plaintiff applied for final judgment against the defendant. This was filed on 27/9/95. The defendant, who had not filed a defence, filed a counter affidavit in reaction to the summons for judgment and a proposed statement of detence.

In the course of time, the hearing of the summons for judgment commenced.

Learned Counsel for the plaintiff’ Mr. Ojeleke made his submission, after which the court adjourned for the defence to reply. The adjournment was at the instance of the learned defence counsel, Chief Adogah.

On the adjourned date, being the 9th of October, 1996, the defence counsel was not in court. He had written a letter dated 7th October, 1996 to the Registrar, seeking for an adjournment. His reason was that he had to be at the Court of Appeal, Benin, and a superior Court on the 9th of October, on which date he was to respond to the submissions in the Summons for Judgment, earlier adjourned at his instance.

The learned trial Judge, after listening to complaint made by the plaintiff’s counsel concerning the application for adjournment upheld same. He refused the application for adjournment, closed the defendant’s case and adjourned the summons for 21/10/96 for judgment.

Learned counsel for the defendant on 14/10/94 filed a Notice of Appeal against the ruling of the trial Judge refusing his application for adjournment. He also filed a motion for stay of further proceedings. The motion was fixed for 25th November, 1996.

On 21/10/96, the learned trial Judge proceeded to deliver judgment on the summons for judgment. He gave judgment in favour of the plaintiff, having decided that the defendant had no defence to the action.

The defendant also appealed against the judgment on 21/10/96, being also dissatisfied.

It has been observed that the appellant did not appeal against the substance of the decision of Martins J. in the judgment given in favour of the plaintiff. Rather he appealed against the procedure by which the learned trial Judge proceeded to judgment without hearing the defence, and notwithstanding the pendency of a motion for stay of proceedings pending in the matter in his court before the judgment was delivered.

The 5 grounds of appeal without their particulars are set out:-

“(i) The learned trial Judge erred in law when he proceeded to give judgment in the matter in spite of a pending application for a stay of further proceedings pending before the court.