C.G.G. (Nig) Ltd V. Moses Amino (2005)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the writ of summons issued from the Registry of the High Court of Delta State, Oghara Judicial Division on 15/6/99 is the Respondent’s claim against the appellant: “The plaintiff claim against the Defendant is for the sum of N5M (Five Million Naira), only being special and general damages (particulars of which shall be given in the Plaintiff’s statement of claim to be filed in this suit) for negligence in that nor about the month of January, 1999, plaintiff’s right wrist which became swollen excruciatingly painful and had to be operated upon on the 9th day of February, 1999, due to the tasking job assigned to plaintiff virtually useless. In spite of the knowledge of the Defendant regarding the terrible plight of the plaintiffs, the Defendant has failed, refused and or neglected to pay to the plaintiff the above stated sum of in spite of letter and personal call on Defendant. Wherefore the plaintiff claim against the Defendant the of N5M as above equitable reliefs as this Honourable Court may deem fit to grant in the circumstances.”

There is an affidavit dated 21/6/99 to the effect that the writ was served on the said 21/6/99.

The Statement of Claim was dated 30/7/99 but filed on 16/8/99. The defendant (now appellant) entered a conditional appearance on 1/11/99.

On 4/11/99, the Respondent then plaintiff filed a motion pursuant to Ord. 27 Rule 7 of the High Court (Civil Procedure) Rules of Bendel State 1988 as applicable to Delta State.

There is another affidavit sworn to on 16/11/99 to the effect that the writ of summons and motion/affidavit were served on 15/11/99. The motion was taken on 17/11/99. The relevant portion of the record of the Court below on 17/11/99 is reproduced hereunder:
“Having heard P.K. Ogbimi Esq. of Counsel for the Plaintiff/Applicant who moved his motion on Notice, the Court ordered as follows:-

‘Application granted as prayed. Final Judgment is hereby entered in favour of the plaintiff/ Appellant in whose favour Judgment is hereby entered in the sum of N5,000,000.00 (Five Million Naira) against the defendant based on special and general damages for negligence and injuries suffered by the plaintiff in the cause of his employment as an employee in the defendant’s company. In other words, judgment is entered for the Plaintiff as per paragraph 37 of the Statement of Claim.” As a prelude to its order reproduced above, the Court noted that “The writ of summons and statement of claim were filed since June/August, 99 and there has been no response since from the defendants as time allowed by the rules having lapsed.” The significance of this observation by the Court below will be made clearer in the course of this judgment.

On 24/1/2000, the appellant filed a motion asking for extension of time to apply, and an order to, set aside the defendant on 12/11/99.

There is another motion dated 27/11/2000 and filed on 28/1/2000 for an order to set aside the writ of attachment and an order to stop further execution of the default judgment.

Again on 10/10/2000, the appellant filed yet another motion for reliefs identical with the reliefs in the motion filed on 24/1/2000.

On 25/10/2000, the appellant filed another of the series of motion, this time asking for the following orders:

“1. Extending time within which applicant can apply to set aside the default judgment in this suit dated 17/11/99.
2. Setting aside the said default judgment.
3. An order setting aside the writ of attachment and/or execution including attachment of Applicants vehicles in execution of the default judgment in this suit.
4. An order discontinuing further execution of the applicant’s properties.

The Court heard the motion and in a considered ruling struck same out on 11/4/2001.
Aggrieved by the ruling, the appellant appealed to the Court on six grounds, hereunder reproduced without their particulars:
“Ground 1.
The learned Trial Judge erred in law when she adopted the bailiffs affidavit of service of the writ of summons as conclusive proof of service in the face of denial of service by the Appellant.

Ground 2.
The learned trial Judge erred in upholding the service of the motion for judgment on an unnamed secretary of Appellant Company.

Ground 3.
The learned trial Judge erred in upholding the date of service of the statement of claim disclosed in the bailiff’s affidavit as conclusive.

Ground 4.
The learned trial Judge erred and robbed Appellant of his right to fair hearing when she held that there was no defence shown on the affidavit.