Borticelli Nigeria Limited & Ors v. Hitobs Nigeria Limited (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED BABA IDRIS, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Kaduna State High Court in suit No: KDH/KAD/745/14 delivered on the 29th day of February, 2016.

The respondent as plaintiff at the lower court, filed an application for summary judgment dated the 3rd day of February, 2014, praying for the following reliefs:

1. An order entering summary judgment in this suit as final judgment in favour of the plaintiff/applicant and against the defendants/respondents in the following terms:

(i) The sum of N6,981,600.00 (six million, nine hundred and eighty one thousand, six hundred naira) being the balance of the cost of 10,000 sq. metres of P.V.C. ceiling and cornice (clips) sold to the defendants by the plaintiff.

(ii) Interest on the judgment sum at the rate of 10% per annum from the date of judgment until the entire judgment sum is liquidated.

(iii) The cost of this action.

2. And for such further order(s) as this honourable court may deem fit to make in the circumstances.

The application was supported by an 8 (eight) paragraph affidavit and attached were 6 (six) documents marked as exhibits AF as well as a written address.

Before filing this application, the respondent filed a writ of summons on the 3rd day of September, 2014 claiming against the appellants jointly and severally the following reliefs:

1. The sum of N6,981,600.00 (six million, nine hundred and eighty-one thousand, six hundred naira) being the balance of the cost of 10,000sq. metres of P.V.C. ceiling and cornice (clips) sold to the defendants by the plaintiff.
2. Interest on the judgment sum at the rate of 10% per annum from the date of judgment until the entire judgment sum is liquidated.
3. The cost of this action.

The appellants who were respondents before the lower court, filed a motion on notice on the 12th day of November, 2014, sought for and obtained leave of court to file the defendants joint statement of defence, deposition on oath, documents to be relied on, and written address in opposition to the application for summary judgment. On the 11th day of February, 2016, the application for summary judgment and opposing processes were heard by the lower court.

The respondents contention at the lower court was that on or about the 9th day of August, 2013, the appellants vide their letter of introduction and supply, introduced their organizations business to the respondent in Kaduna and requested for installment supplies of 10,000 square meters of PVC ceilings and PVC pipes and that payment will be made to the respondents account and the tellers remitted for every transaction accordingly.

The respondent claimed further that on the 21st day of August, 2013, it sold the first installment of N10,000 square meters of PVC ceilings and cornice (clips) to the appellants vide the respondents credit Invoice No. 1259 of 21st August, 2013 at the total price of N10, 200,000.00 at the rate of N1,020.00 per square meter but that in the course of conveying the goods for the appellants, the vehicle was involved in an accident and some of the goods were damaged and that the total goods damaged is N3, 218,400 leaving the goods not damaged to the balance of N6,981,600.00 and waited to receive the said balance from the appellants to no avail and after making several demands.

The learned trial Judge, Honourable Justice Darius Khobo gave ruling in suit No: KDH/KAD/745/14 on the 29th day of February, 2016 in favour of the respondent herein. Obviously dissatisfied with the said ruling of the 29th February, 2016, the appellants herein filed a notice of appeal dated the 14th day of March, 2016 raising 2 (two) grounds of appeal.

The parties thereafter filed their respective briefs of argument. In the appellants brief of argument filed on the 10th day of March, 2017 and settled by their counsel Chidiebere A. Akalugwu, Esq., these 2 (two) issues were distilled for determination as follows:

1. Whether the appellants had disclosed such facts as may be deemed sufficient to entitle him to defend the action generally. (Grounds 1 and 2 of the notice of appeal)
2. Whether the trial lower court can suo motu make computation of amount due to the respondent in the face of contradictory documents from both parties without going into full trial to ascertain the actual amount in dispute hence the respondent had admitted having accident while conveying the PVC Ceiling and the cornice (clips) sold to the appellant and large number of the goods completely destroyed on transit. (Ground 2 of the notice of appeal)

On issues one and two which will be considered in detail in this judgment, it was submitted the learned trial Judge ought to have granted the appellants the leave to defend the suit and that not doing so had occasioned a miscarriage of justice which this court is empowered to set aside by virtue of its power under section 15 of the Court of Appeal Act.