Leo Melos Pharmaceutical Industries Ltd & Anor V. Unions Homes Savings & Loans Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A.(Delivering the Leading Judgment)

By an undated writ of summons, the Respondent herein who was the Plaintiff at the Lagos State High Court claimed against the Appellants jointly and severally the following reliefs:-

(a) The sum of N13,198,251.12 being the sum outstanding on the banking facility granted to the 1st Defendant as at 3rd December, 2003 and guaranteed by the 2nd Defendant which the Defendants have refused to pay despite repeated demands.

(b) Interest on the said sum at 27% per annum from 31st December, 2003 until payment.

(c) Cost of this suit.

This writ of summons was followed by a motion ex-parte filed on the 30th January, 2004 in which the Respondent applied that the suit be placed on the undefended list. On the 1st of March, 2004, the lower Court granted the motion ex-parte wherewith the following orders were made:-

That leave be and same is hereby granted to the Plaintiff/Applicant to issue a writ of summons as against the Defendants.

2. That this suit be placed under the undefended list.
3. And that the writ of summons be marked accordingly.

The procedure adopted for the initiation of the writ of summons and the motion for the case to be set down for hearing were in accordance with Order 60 of the then High Court of Lagos State (Civil Procedure) Rules 1994.

The Appellants entered appearance and filed an affidavit of intention to defend the suit. Thereafter the High Court of Lagos State (Civil Procedure) Rules 2004 came into effect and the Respondent filed a statement of claim and front loaded all the materials for the hearing of the suit in accordance with the new rules and also filed a motion for judgment against the Appellants under Order 11 of the new rules. The statement of claim and the motion on notice for judgment were served on the Appellants on the 19th of September, 2005. The Appellants failed to file a defence or counter affidavit to the motion for judgment.

Under the new rules, the Appellants had 42 days to file a statement of defence. This they failed to do despite the fact that they were served with the Respondent’s processes. The Appellants also did not have before the Court an application for extension of time to react to the processes filed by the Respondent as at 8th March, 2006 when the application for judgment by the Respondent was moved and granted. The judgment that was delivered on the 8th of March, 2006 is in accordance with the application for judgment. The appeal herein is against that judgment.

The Appellants notice of appeal which is dated 16th March, 2006 and filed the same date contains six grounds of appeal, which I hereunder reproduce without their particulars as follows:-

1. The learned trial Judge erred in law in assuming jurisdiction over a writ that was commenced and marked under Order 60 of the old High Court of Lagos State (civil procedure) Rules 1994 when the said Order was nonexistence, extinct and deliberately omitted by the new High Court of Lagos State (Civil Procedure) Rules 2004.
2. The learned trial Judge erroneously assumed jurisdiction over a statement of claim and summons for judgment both dated 16/9/05 filed pursuant to Order 11 of the new High Court of Lagos State (Civil Procedure) Rules 2004 when the writ of summons had already been marked and processes filed and trial ordered to continue under the old High Court of Lagos State (Civil Procedure) Rules 1994.
3. The learned trial Judge erred in law by denying the Defendants their constitutional right of fair hearing in refusing an application of Defence counsel for short adjournment in order to the application to regularize the statement of defence counter affidavit and written address that were already filed.
4. The learned trial Judge erred in law by basing his decision on Exhibit G and did not consider the defence raised in both the Defendants statement of Defence and counter affidavit that Exhibit was obtained by fraud.
5. The learned trial Judge did not consider the analysis of payments made in satisfaction of principal exhibited both in the statement of defence and the counter affidavit dated 7/3/06.
6. The decision is against the weight of evidence.

Parties filed and exchanged briefs of argument. At the hearing of the appeal on the 21st of January, 2010, the Appellants’ counsel did not put up appearance and the Appellants’ brief of argument was identified by Mr. Olapade, learned counsel for the Respondent and same was deemed argued, since parties were duly served with hearing notice. At paragraph 3.01 the Appellants identified two issues for the determination of this appeal. These issues are hereunder reproduced as follows:

a. Whether an action commenced under Order 60 of the defunct High Court of Lagos State (Civil Procedure) Rules 1994 can be continued under Order 11 of the new High Court of Lagos State (Civil Procedure) Rules 2004.

(b) Whether the Defendants were denied fair hearing by the refusal of the lower Court to adjourn to enable the defence counsel to regularize the statement of Defence and counter affidavit already filed.