Smart Essang V. Aureol Plastics Ltd. & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A. 

This is an appeal by the plaintiff/appellant against the ruling of Bassey, J., sitting at Uyo in the Uyo Judicial Division of the High Court of Akwa Ibom State, delivered on the 3rd day of June, 1999 in suit No. HU/341/97. The suit was filed or commenced at Uyo High Court under the undefended list procedure by virtue of Order 23 of Akwa Ibom State High Court (Civil Procedure) Rules, 1989. Later, the suit was transferred to the ordinary cause list pursuant to Order 23 rule 3(2) of Akwa Ibom State High Court (Civil Procedure) Rules, 1989 for hearing and determination, and pleadings were accordingly ordered by the learned trial Judge to be filed by the parties. Consequently, pleadings were filed and exchanged by the parties. In paragraph 22 of the statement of claim, the plaintiff/appellant claimed against the defendants/respondents jointly and severally as follows:

“Wherefore, the plaintiff claims against the defendants jointly and severally a total sum of N4,893,855.94 made up as follows:

(a) N1,666,262.11 being capital and interest on the sum of N1,100,000.00 at 21 % per annum interest with effect from 22/11/95 to 19/11/97.

(b) N2,782,697.14 being capital and interest on the sum of N2,000,000.00 at 21 % per annum interest with effect from 19/4/96 to 19/11/97.

(c) N166,626.98 being commission and interest on the sum of N110,000.00 at 21 % per annum with effect from 19/4/96 up to and including 19/11/97.

(d) N278,269.71 being commission and interest with effect from 19/4/96 up to and including 19/11/97.”

The plaintiff’s claim was sequel to an arrangement whereby he (the plaintiff) in the course of his duty as a consultant and at the request of the defendants sourced for funds and passed same to the defendants who, despite demands by the plaintiff, have failed, refused and/or neglected to repay the said sum of money. In paragraph 2 of the joint statement of defence, the defendants raised as a point of law the issue of jurisdiction of the trial court. While in paragraph 4 of the said statement of defence, the defendants pleaded that before the substantive trial of the suit, the matter should be set down for hearing and disposal by the court on the issue of the court’s lack of jurisdiction and the improper joining of the 2nd defendant in the suit.

Subsequently, at the close of pleadings for the parties, the defendants by motion on notice brought under Order 24 rule 2 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 prayed the court below for the following orders:

“(1) Setting down for hearing and to dispose of before the trial the following points of law which have been raised in the defendant’s statement of defence.

(a) That the defendants being within Oron Judicial Division ought not to have been sued at Uyo High Court within Oyo Judicial Division.

(b) The 2nd defendant being an agent of and acting with authority on behalf of a known and named principal (the 1st defendant) ought not to have been sued in person along with the said principal in this matter.

2. And for any further order(s) as the honourable court may deem fit to make in the circumstances.”

The motion was supported by a seven paragraph affidavit sworn to by the 2nd defendant as the Chairman of the 1st defendant. Annexed to the said affidavit are exhibits 1AC1 to 1AC3. The plaintiff filed a counter-affidavit in support of the motion. There is also a further affidavit filed by the defendants/applicants.

After hearing arguments from counsel for the parties on the said motion, the learned trial Judge on the 3rd of June, 1999 delivered his ruling.