Shell Petroleum Development Company Of Nigeria Limited V. Edward Azukaeme & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The 1st Respondent, as the plaintiff, had approached the Rivers State High Court (coram: P.N.C. Agumagu, J) claiming against the Defendants jointly and/or severally the following reliefs-

a.The sum of N46,165,000.00 being agreed 10% commission with the 1st Defendant and professional and project Management fee as Consulting Engineer for is Defendant on the total value of contract No 09860 awarded by the 3rd Defendant to the 1st Defendant for which the 2nd Defendant is a financier thereof.

b. Interest thereon the said sum at the rate of 21% from January 2000 till judgment and thereafter at 10% until final liquidation thereof.

The suit was originally brought on the undefended list procedure. In due course it was transferred to the general cause list. The Defendants in the suit were

1. EDEBEKA INDUSTRIAL SERVICES LTD
2. FORTUNE INTERNATIONAL BANK PLC
3. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD.

The 3rd Defendant is the present Appellant. The suit against the 2nd Defendant was at a point in the proceedings dropped. The suit against the 2nd Defendant was formally struck out on 5th October, 2005. Thus leaving only the 1st and 3rd Defendants to continue in the defence of the suit.

The 1st Defendant did not file any statement of defence. He offered no defence at all to the suit.

On 4th October, 2005 the 3rd Defendant, the present Appellant, filed an application seeking extension of time within which to file its statement of defence and an order deeming the statement of defence exhibited thereto as duly filed and served. The same 3rd Defendant, on 8th November, 2005, filed another motion seeking an order dismissing the suit it for “lack of reasonable cause of action.” It appears from page 115 that the 3rd Defendant’s motion filed on 4th October, 2005 seeking extension of time to file 3rd Defendants statement of defence was granted and the said statement of defence was deemed filed and served. The effect of this is that the 3rd Defendant’s statement of defence was a subsisting process. However, it is further apparent from page 115 of the Record that the 3rd Defendant’s motion filed on 8th November, 2005 had not been taken and was yet to be taken, as at 17th January, 2006.

This appeal by the 3rd Defendant concerns the proceedings of the trial court on 17th January, 2006, found at pages 10 – 111 of the Record, Before then, on 28th September, 2005, the Plaintiff had filed an application seeking

a. “An order entering final judgment against the defendants as per the Plaintiff’s statement of claim as follows:-

Judgment against the 1st defendant for the sum of N38,800,000.00 (Thirty Eight Million, Eight Hundred Thousand Naira) being 10% agreed commission of which the 3rd defendant is in custody of N25,000,000.00 (Twenty Five Million Naira)

b. Judgment against the 3rd defendant for the sum of N25,000,000.00 (Twenty Five Million Naira) being part of the disputed sum in its custody as partial settlement/satisfaction of N38,000,000.00 being claimed from the 1st defendant.

c. Interest at the rate of 21% upon the said sum of N38, 800, 000.00 from January 2000 till judgment is delivered in the suit and thereafter at 100% until final liquidation thereafter.”

This motion at pages 94 – 97 of the Record prompted the 3rd Defendant to file its motion of 4th October, 2005 at pages 98 – 103 of the Record. The Plaintiffs motion for judgment, filed on 28th September, 2005, was, heard. It was granted, as neither the 1st Defendant nor the 3rd Defendant, through their respective counsel, opposed it.