Oando (Nig.) Plc. (Formerly, Unipetro (Nig) Plc.) V. Mr. Ameme Nwachukwu (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A.: (Delivering the Leading Judgment)

The appeal is against the decision of the High Court of Justice, delivered by M. Kobani, judge, on 22nd February, 2005, in which the plaintiff now respondent was granted the sum of N22,834,902.00 being the money paid by the plaintiff to the defendants, now appellants for petroleum products as per receipts numbers 30606639 of 20-4-04; 30608601 of 28-04-04; 30608600 of 28-4-04 and 3061108 of 07-09-04 which money the appellants had received but refused, failed, neglected and or ignored to deliver to the respondent in spite of repeated demands.

The brief fact of this case is that the respondent as plaintiff sued the appellants under the undefended list. The writ of Summons was for the sum of N22, 834,902 being the money paid for the petroleum products to the appellants as per the receipts listed above plus accrued interest at the rate of 21% from the date of first payment of 20-01-04 till judgment and interest on judgment debt at the rate of 21% per annum from the date of judgment until the total judgment debt is fully liquidated.

At the lower court, leave to enter the suit on the undefended list was granted on 28th January, 2005 and the matter was adjourned to 22nd February, 2005, with an order, that, the writ be served on the defendant, but now appellant. On the hearing date, the appellant moved his motion on notice praying the court to set aside the respondents’ suit for incompetence and also, praying for extension of time within which to file and serve its Notice of Intention to Defend and to deem the said notice of intention to defend and affidavit disclosing defence on the merit as properly filed and served. It is to be noted that the appellants motion afore said was filed on the 22nd February, 2005, namely the hearing date. This is contained at page 16 of the record, and the notice of intention to defend supported by a 29 paragraph affidavit disclosing the defence are contained at pages 19-24 of the record. On the hearing date, the appellant’s motion and the notice of intention to defend were yet to be filed and the trial court granted the respondents oral application to enter judgment in accordance with Order 23 Rule 4 of the High Court of Rivers State (Civil Procedure) Rules 1987. The appellant orally applied for an adjournment as it was very clear that the appellants were served with the suit on 9th February, 2005, but they could not file the notice of intention to defend within the stipulated period of 5 days before hearing date. The trial court found that the appellants were served on 9th February, 2005, that is 13 days before hearing date. The trial court summarily gave judgment in favour of the plaintiff/respondent are per his writ of claim.

Dissatisfied with the judgment, the appellant filed on 23-02-2005 its notice of appeal containing 5 grounds of appeal.

Distilled from the grounds, the appellant has raised 2 issues for determination as follows:

1. “Whether the lower court was in breach of the appellant’s constitutional and fundamental right to fair hearing when it refused to hear the defendant/appellants motion for:

(i) Preliminary objection to competence of the suit,

(ii) Extension of time to file Notice of intention to defend.

(iii) An order deeming the Notice of intention to defend with affidavit disclosing a defence on the merits as properly file and served; And proceeded to pronounce on its merits, and therefore found against the defendant/appellant giving judgment against it without hearing its motion and therefore the merits of the case.

2. Whether the requirements of Order 23 Rule 1 of Rivers State Rules of High Court (undefended list procedure) were met before the lower court placed the suit under undefended list and if so, was the lower court right to have entered judgment in favour of the respondent for the sum of N22,000,00 plus interest”

On the part of the respondent, the brief was filed on 1st November, 2007 but with the leave of court, it was deemed filed and served on 22nd April, 2008. The respondent has raised 3 issues for determination and they read as follows:-

“1. Whether the lower court was wrong in entering judgment for the plaintiff in the absence of Notice of intention to defend under Order 23 Rule 4 of the High Court Rules 1987 of Rivers State.

2. Whether the defendant’s motion on Notice for extension of time to file Notice of Intention to defend was before the lower court when the suit was heard and judgment was entered under the undefended list.
3. Whether the hearing of the suit under the undefended list and entering judgment in the absence of the defendant’s notice of intention to defend and or motion for extension of time from the case filed amount to denial of fair hearing”

I have carefully considered the parties respective issues for determination, and I am of the considered view that determination of the appellants issue number 1 reproduced above is sufficient to fully dispose of the appeal.

To determine the appeal effectively there is needed to scrutinize filed at the lower court at page 15 of the record, the trial judge made an enrolled order as follows: –

“APPLICATION EXPARTE TO ENTER THE SUIT UNDER THE UNDEFENDED LIST.