United Bank for Africa & Anor V. Immarches (Nigeria) Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A. 

 This is an appeal brought by the defendants/appellants against the decision of Ichoku, C. J., sitting in the Port Harcourt Division of the High Court of Rivers State, on 25th June, 1998, in suit No. PHC/927/97. The court gave judgment for the plaintiff in the sum of N1,504,833.00 with N1,500.00 as costs against the two defendants/appellants.

The defendants/appellants being dissatisfied with the court’s judgment appealed to this court and filed two grounds of appeal in the process to wit:

“(a) The learned trial Judge erred in law and misdirected himself, when he entered judgment against the defendants/ appellants on the undefended list on a day fixed for motion for extension of time brought by the defendants/ appellants without fixing another day for hearing of the matter brought under the undefended list by the plaintiff/ respondent and thereby, occasioned a miscarriage of justice.

(ii)(a) The learned trial Judge erred in law and misdirected himself when he failed to consider the merit of the defence raised in the notice of intention to defend filed by the defendants/appellants and proceeded to enter judgment, against the defendants/appellants in the sum of N1,504,833 and cost of N1,500 in favour of the plaintiff/ respondent.”

The appellants formulated 2 issues for determination and adopted same at the hearing of the appeal. The two issues are:

Issues for determination

“3.01 Whether it was proper for the learned trial Chief Judge to have delivered judgment against the appellants on a day fixed for motion of extension of time brought by the defendants/appellants without fixing another date for hearing of the matter brought under the undefended list?

3.02 Whether the learned Chief Judge gave the appellants a fair hearing when he ignored the merit of the defence raised by the appellants in the affidavit supporting the notice of intention to defend and proceeded to enter judgment against the defendants/appellants in the matter brought under the undefended list?”

On his part, the plaintiff/respondent’s counsel also formulated two issues for determination and adopted the two at the hearing of the appeal to wit:

Issues for determination

“1. Whether the learned trial Chief Judge was right in the procedure, he adopted by proceeding to Judgment after granting an application on a motion extending time for the appellants to file and serve their notice of intention to defend together with the affidavit, supporting the notice of intention to defend in a matter placed under the undefended list.

2. Whether on the facts of this case, it could be said that the appellants were denied fair hearing by the lower courts for holding that the affidavit supporting the notice of intention to defend discloses no defence on the merit.”

The facts of this case are that the 1st defendant/appellant’s bank wrote on 20/9/96 to the plaintiff/respondent’s company, a hotel requesting it to reserve a double-room accommodation for the 2nd defendant/appellant, a member of its staff, till further notice. That was done and the 2nd defendant/appellant moved in. He stayed there till 17/10/96, when he checked out. According to him, he gave the respondent notice of his intention to check out and actually checked out on 17/10/96.

The respondent was, however, of the view that with the words, “till further notice”, contained in the letter of request, the contract would continue till it was formally terminated (in writing). In reply, the appellants wrote on 25/10/98 telling the respondent that the 2nd appellant was at liberty to check out any time he wanted and that it was not in the practice of the company to formally write to terminate a contract for lodging.