Stirling Civil Engineering Nig V. Mr. Philip Nwosu (2007)

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MUHAMMAD LADAN TSAMIYA, J.CA.

This is an appeal against the decision of Taraba State High Court, (herein referred to as the trial court I delivered on 8/7/2004.

In the trial court, the plaintiff took out a writ on the undefended list. The particulars briefly are as follows:-

Particulars of Claim

1. The plaintiff is a business man, contractor and general supplier and carry on business in the following names and styles.

(a) U.K. and Sons Nigeria,

(b) O.K. Stores,

(c) I.G. Group of Company,

(d) Our Brother Investment Nigeria.

2. That the defendant is Civil Engineering Company and has operational office in Jalingo Taraba State.
3. That the plaintiff employed some staff to run the above named business outfits for him in Argungu in Kebbi State, Bauehi, in Bauchi State and Maiduguri, in Borno State.
4. That the plaintiff using his four different business names supplied materials to the defendant between 2001 and 2002 totaling the sum of Eight Million, two hundred and ten thousand One hundred and fifty Eight Naira only.
5. That the defendant has failed to pay for these supplies despite repeated demands.

Where upon the plaintiff claims against the defendant as follows:

1. The sum of N6,840,308.00 (Six Million. Eight Hundred and Forty-Thousand, Three Hundred and Eight Naira Only). Being the sum outstanding for sundry item of general goods the plaintiff (trading in the name and style of “UK & SONS NIGERIA” AND OKO Stores”, respectively) supplied to the defendant at its request in 2001/2002 for the defendant’s project at Argungu Kebbi State.
2. 30% interest per annum on the said sum of N6.840.308.00 (six million, eight hundred and forty thousand ,three hundred and eight Naira only). Calculated from January 1st 2003 till date of writ and thenceforth 10% interest per annum on the judgment debt till full liquidation.
3. The sum of N564, 590.00 (five hundred and sixty four thousand, five hundred and ninety naira only). Being the sum outstanding for items of general goods the plaintiff (trading in the name and style of “IG. Group of Company”) supplied to the defendant at its request in 2002 for the defendant at its request in 2002 for the defendant’s project at Bauchi, Bauchi State.
4. 30% interest per annum on the said sum of N564, 590.00 (five hundred and sixty four thousand, five hundred and ninety naira only). Calculated from January 1st 2003 till date of write and thenceforth, 10% interest per annum on the judgment debt till full liquidation.
5. The sum N805.260.00 being the sum outstanding for sundry items of general goods the plaintiff (trading in the name of style of OUR BROTHER INVESTMENT NIGERIA) supplied to the defendant at its request in 2002 for the defendant project at Mafa Maiduguri Borno State.
6. 30% interest per annum on the said sum of N6,840,308.00 calculated from January 1st 2003 till date of writ and, thenceforth 10% interest per annum on the judgment debt till full liquidation.
7. Cost of this action.

The plaintiff, himself made (the following) deposition in the supporting affidavit of the particulars of claims.

5. That U.K. & SONS NIGERIA and O.K.O. STORES in Argungu Kebbi State were at all times materials to this case run by Mr. Chukwudi Okorkwu who represented me in all transaction he had with the defendant.
6. That I know as a fact that between 2001 and 2002, the defendant through its officers bought sundry items of general good including engine oil, tyres, vehicles spare parts, building and plumbing materials, etc. from me through U.K. & SONS NIGERIA and OKO STORES for their use in their Argungu project.
7. That I know as a fact that total cost of items supplied by U.K. & NIGERIA and OKO STORES which have not been paid for till date amount to N6.840.308.00 (six million, eight hundred and forty thousand, three hundred and eight naira only”.)
8. That I know as a fact that IG GROUP OF COMPANY was at all times material to this case, run by Mr. Ignatius Iwu who represented me in all transaction with the defendant.
9. That I know as a fact that the total cost of items supplied by IG GROUP OF COMPANY which have not been paid for till date amount to 564,590.00 (five hundred and sixty four thousand, five hundred and ninety naira only).
10. That I know as a fact that OUR BROTHER INVESTMENT NIGERIA was, at all times material to this case run by Mr. Tochukwu Nwanekezi who represented me in all transaction with the defendant.
11. That I know as a fact between 2001 and 2002, the defendant through it officers bought sundry item of general goods including engines oils, tyres, vehicle spare parts, building and plumbing materials etc. from me through OUR BROTHER INVESTMENT NIGERIA for their use in their Mafa MDG project.
12. That I know as a fact that the total cost of item supplied by OUR BROTHER INVESTMENT NIGERIA which has not been paid for till date amounts to N805.260.00 (eight hundred and five thousand, two hundred and sixty naira only).
13. That I know as a fact that the defendant was later given a discount of N200, 000.00 (two hundred thousand naira only) and also made various payment amounting to about N1,301,500.00 (One million three hundred and one thousand five hundred naira only). Leaving an outstanding balance of N805.260.00 (Eight hundred and five thousand two hundred and sixty naira only) which has remained unpaid till date.
14. That all my effort to get the defendant to settle this debt have proved abortive as it has failed, refused and/or neglected to redeem same in spite of the numerous promises of its officers to do so. Attached hereto are the various demand letter written to the defendant by my solicitors ONYI OKAEGBU & CO (Goldstar Chambers) urging them to settle the debts, to no avail.

They are marked exhibit VII. VIII. IX and X respectively.

22. That I know as a fact the willful failure of the defendant to settle this debts has practically cripple my business as the total sum of N8, 210,158.00 (eight million. Two hundred and ten thousand, one hundred and fifty eight naira only). Owed me constitute the major part of my trading capital.
23. That I usually made a net profit of 5% per month (60% per annum). On monies I invest in my supply business.
24. That I have been paying in excess of 35% per annum to my bankers from whom I borrowed part of the money I used to service the orders of the defendant.
25. That I know as fact that the defendant has no defence in this action.

On 9/6/2004,the ex-parte application seeking the suit to be placed on the undefended list was granted, and the case was adjourned to 24/6/2004 for hearing. On the same 9/6/2004 the defendant was served through its Jalingo Branch Office by throwing the court processes at the officer of the defendant who allegedly refused service. On the return date of 24/6/2004 through its counsel. The defendant filed two applications before the trial court, namely:

1. The application for leave of the trial court to file and serve memorandum of conditional appearance out of time: and
2. The application for an order setting a side the writ of summons on ground of certain defects therein.

When the case was called for hearing neither the defendant nor its counsel was in court. At a point when learned counsel for the Plaintiff was addressing the court, the counsel for the defendant came in and announced his appearance. He apologies for being late and informs the court about their processes they filed. The trial court then granted leave to him to serve the two applications filed, to the plaintiff counsel and allowed to be taken by the court as filed. Upon being served, the counsel for the plaintiff who was then arguing his substantive case urged the court to enter Judgment for the plaintiff inspite of the application before it. He argued that because of the special nature of the undefended list procedure which stipulated steps a defendant intending to defend the suit should take hut in this case the defendant did not take any. He also urged the court to discountenance the two applications as the defendant has not filed the proper papers supposed to be filed, which are a notice of intention to defend with an affidavit disclosing defence or application for leave to do so out of time.

The learned counsel for the defendant in response urged the trial court to hear their two applications just then filed and served and which are pending before it as they are in order and allowed by the rules of the trial court.