African Petroleum Plc V. Nivisco And Company Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BA’ABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the Delta State High Court, sitting at Effurun Judicial Division, delivered on the 27th day of May, 1997. The respondent, a limited liability company, as the plaintiff instituted an action against the appellant also a limited liability company, which was the defendant under the undefended list procedure and claimed as per the writ of summons as follows:-

“The plaintiffs claim against the defendant is for the total sum of N871.570.00 (Eight Hundred and Seventy-One thousand, Five Hundred and Seventy Naira), being defendant’s indebtedness to the plaintiff for jobs done by plaintiff for defendant, upon the latter’s demand, including charges for defendant’s hire of plaintiff’s Welding Machine as detailed hereunder:-

(I) N27.580.00 for AP. support Deck painting.

(2) N309.990.00 for Welding of damaged barge, belonging to A.P. at Okerenko, Escravos River.

(3) Hire fee for welding machine from 26/3/96 till 10/9/96, at the rate of N3,000.00 per day, totalling N534.000.00.

The agreement for the jobs, was made between the parties at Effumn in 1995 and 1996 within the jurisdiction of this Honourable Court. Defendant has failed to settle the indebtedness despite repeated demands.

Dated this 13th day of December, 1996.”

By an order of the trial court dated 17/1197, following an ex-parte application, the suit was placed under the undefended list. Thereafter, upon being served with the process in the matter, the appellant as defendant, filed a motion on notice, seeking for the following orders:-

(1) Leave to defend the action out of time.

(2) Deeming as properly filed and served the notice of intention to defend together with the attached affidavit marked Exhibit ‘RC1’ as properly filed and served the appropriate filing fees having been paid.

(3) Leave to defend this action and remove the action from the undefended list and place on the cause list.”

There were two affidavits in support of the motion, both deposed to By Mrs. Roli Craig, Counsel to the defendant/appellant. The motion was argued and the learned trial judge in his judgment delivered on 27/5/97, gave judgment in favour of the respondent/plaintiff as claimed.

The plaintiff being dissatisfied with the said judgment appealed to this court by its Notice and grounds of appeal, containing two grounds of appeal. The two grounds read as follows:-