Lead Merchant Bank Limited V. Petroleum (Special) Trust Fund (2005)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The respondent herein was the Plaintiff at the High Court of Justice of the F.C.T. Abuja (the court below). The respondent on 30/10/2002 filed a Motion Ex-parte before the court below pursuant to Orders Bond 23 of the High Court of the F.C.T, (Civil Procedure) Rules, praying for the following reliefs:

“Leave to issue and place the suit of the Plaintiff/Appellant on the undefended list and same to be marked as such.

2. Another orders as the Court may deem fit to make the circumstance.”

After the Motion Ex-parte was proved, the learned trial Judge granted the leave sought. The appellant alleged that the court’s order granting leave to the respondent was served on tehm together with the Motion ex-parte and the affidavit in support and exhibit. The appellant then filed a Motion on Notice challenging the jurisdiction of the lower court on a number of grounds. In a ruling delivered on 27/5/03, the learned trial Judge discountenanced the objections and entered judgment in favour of the respondent for the sum of N14,729,000.00 plus 10% that sum as counsel’s legal fees.

Being dissatisfied with the Ruling, the appellant ahs now appealed to this court on eight grounds of appeal.

I consider the salient facts giving rise to this appeal very crucial and I give them below in summary.

”the Plaintiff/Respondent is an agency of the Federal Government of Nigeria that was set up under the Petroleum (Special) Trust Fund Decree (now Act) 1994 for the purpose of collecting part of the Revenue of the Federal Government of Nigeria occurring from the sale of refined petroleum products and to apply the said funds towards developmental projects.

The Respondent, in the course of its management and administration and in the execution of its duties under the said Petroleum (Special) Trust Fund Act, entered into a contract with Sono International Nigeria Limited for the supply of motorcycles as part of the Federal Government’s mass transit programme of a cost of N18,411,250.

The Plaintiff/Respondent appointed Boulos Enterprises Limited, a company based in Lagos as the sole source for the motorcycles ordered by the plaintiff.

Sona International Limited obtained an advance payment grantee in the sum of N14,729,000.00 from the Appellant to the Plaintiff/Respondent. When it came to execution of the contract, Boulos Enterprises refused to oblige Sona International Nigeria Limited with the motorcycles for subsequent supply to the Plaintiff/Respondent.

Sona International (Nigeria) Limited wrote several letters, including one dated 26th January, 2000 complaining about inability to perform the contract.”

On the 14th day of December 2004, this court granted leave to the appellant for the appeal to be heard and determined on its brief alone due to the failure of the respondent to file a brief of argument. The appeal was heard on 17/3/05. No brief up to that date was filed by the respondent. Accordingly, this appeal must be determined on the appellant’s brief alone.

In the appellant’s brief, the following seven issues were formulated:

1. WHETHER, having regards to section 251 of the 1999 Constitution of the Federal Republic of Nigeria, the High Court of the Federal Capital Territory lacked jurisdiction to entertain the Plaintiff/Respondent’s claim.
2. WHETHER there was any case of property commenced (sic) before the High Court of the Federal High Capital Territory so as to give the Court jurisdiction when the Plaintiff/Respondent did not file any writ of summons subsequent to the granting of leave to it to commence a case on the undefended list and did not pay any filing fees for the filing of the claim.
3. WHETHER judgment could validly have been entered for the Respondent for an unascertained sum and also for legal fees of its solicitors on the undefended list.
4. WHETHER there was any affidavit evidence on the basis of which the claim on what was said to be the Plaintiff/Respondent’s writ of summons could be granted.
5. WHETHER it was proper for the learned trial Judge to have formulated a case of money had and received and decided it when the case of the Plaintiff/Respondent was not one for money had and received.
6. WHETHER it was proper for the learned trial Judge to have entered judgment for the Plaintiff/Respondent for a sum higher than what the Plaintiff/Respondent said was due to it.
7. WHETHER, even if what the Appellant filed not a notice of intention to defend, the lower court sought not to have considered the defence on the merit raised in the affidavit filed by the Appellant.”

Making his submissions on issue No. 1, learned counsel for the appellant stated that it is not in dispute that the Plaintiff/Respondent is an organ of agency of the Federal Government of Nigeria. By the provisions of section 251(1) of the 1999 Constitution and sections 1(1)(3), 2, 3 of the Petroleum (Special) Trust Fund Act, the lower court completely lacked jurisdiction to entertain the case. The learned trial Judge’s finding on jurisdiction files in the face of binding judicial authorities cited to him.