Nechil Agencies Limited & Anor V. Victor Agencies Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of Hon. Justice S.E. Charles – Granville of Rivers state High court delivered on 3/11/2003.

The plaintiff is the Respondent in this appeal. The plaintiff’s claimed against the defendants at the lower court jointly and severally for:-

“1. The sum of N10,500,000.00 (Ten Million, Five Hundred Thousand Naira) being the amount owed by the Defendants for the hire of the Plaintiff’s Dredger and its accessories for one (1) year as stipulated in clause 2 of the Dredger Hire Agreement, a Deed dated 4th July, 2001 and which expired on 5th July, 2002.

2. The sum of N15,000,000.00 (Fifteen Million Naira) being full value of the plaintiff’s Dredger and accessories hired by the Defendants as stipulated under clause 9 of the aforesaid Deed (the Defendants having failed, refused or neglected to insure the Dredger and its accessories as stipulated in the said Dredger Hire Agreement).
3. The sum of N18,500,000.00 (Eighteen Million, Five Hundred Thousand Naira) being dally rent at the rate of N50,000.00 (Fifty Thousand Naira) per day for the said Dredger and its accessories from 9th July, 2002 to 14th July 2003 (370 days) and thereafter the sum of N50,000.00(Fifty Thousand Naira) per day until delivery of the said Dredger and accessories to the plaintiffs site at osaro’s water Front, Ekara, Onne as stipulated in clauses 16 and 17 of the aforesaid Dredger Hire Agreement.
4. Interest on the above-mentioned sum at the rate of 10% per annum from the 9th of July, 2002 until judgment is given and thereafter interest at the rate of 10% with monthly interest till judgment is given and satisfied.”

By leave of court the suit was entered into undefended list and heard without the defendants filing any Notice of Intention to Defend.

Judgment was subsequently entered in favour of the plaintiff but against the defendants as follows:

“1. The sum of N10,500,000.00 (Ten Million, Five Hundred Thousand Naira) being the amount owed by the Defendants for the hire of the Plaintiff’s Dredger and its accessories for one (1) year as stipulated in clause 2 of the Dredger Hire Agreement, a Deed dated 4th July, 2001 and which expired on 5th July, 2002.

2. The sum of N 15,000,000.00 (Fifteen Million Naira) being full value of the plaintiff’s Dredger and accessories hired by the Defendants as stipulated under clause 9 of the aforesaid Deed (the Defendants having failed or neglected to insure the Dredger and its accessories as stipulated in the said Dredger Hire Agreement).
3. The sum of N18,500,000.00 (Eighteen Million, Five Hundred Thousand Naira) being daily rent at the rate of N50,000.00 (Fifty Thousand Naira) per day for the said Dredger and its accessories from 9th July, 2002 to 14th July 2003 (370 days) and thereafter the sum of N50,000.00(Fifty Thousand Naira) per day until delivery of the said Dredger and accessories to the plaintiffs site at Osaro’s Water Front, Ekara, Onne as stipulated in Clauses 16 & 17 in the aforesaid Dredger Hire Agreement.
4. Interest on the above-mentioned sum at the rate of 10% per annum from today 3/11/2003 and thereafter interest at the rate with monthly rests till judgment is satisfied.”

The defendants being dissatisfied with judgment filed this appeal, parties filed and exchanged briefs after the transmission of record of appeal, In his brief Deacon Nerry Uchefu learned counsel for the appellants formulated two issues for determination – namely:-

“i Whether given the conflicting material exhibits the trial court was right in granting the three heads of claim to the respondent.

ii. Whether the trial court exercised its discretion judicially and judiciously taking into consideration the nature, facts and circumstances of this case.”

Learned counsel for the appellant submitted that the supporting affidavit and the exhibits were contradictory on some material particulars which he submitted demanded full trial on the merit by placing suit on the general cause list. He argued that documentary evidence could be used as longes from which to test the veracity of oral testimonies. He relied on BUNGE V. RTVERS STATE GOVERNOR (2006) 12 NWLR (PT. 995 page 580 and EZEMBA V. IBENEME & ORS (2004) 10 MJSC 54. He added that the condition requisite for an action to be placed on the undefended list was that it must be non-contentions. He referred to ENYE V. OGBU (2003) 10 NWLR (PT. 828) 4A3 at 425.

He urged the court to evaluate the documentary evidence which he claimed the lower court failed to do. He cited GONZEE V. NERDC (2005) 12 MJSC 179 at 196.

He stated that a special damage must be proved strictly which was not done in this case. He cited ODUMOSU V. A.C.B. LTD. (1976) 11 SC 55.

He concluded that the decision of the lower court was perverse.