Adosco Nigeria Ltd. & Anor V. Chilewa Investment Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL ADAMU GALINJE, J.C.A (Delivering the Leading Judgment)

By a writ of summons dated 23rd April 2007 and filed on the 24th of April 2007, the Respondent herein claimed from the Appellant, the sum of N717, 500.00 being outstanding balance owed it by the Appellant for hiring and using its 12 a grader machine and interest at the rate of 10% per month on the principal sum from the date of judgment until the judgment sum is full paid.

In support of the writ is an affidavit in support of claim under the undefended list. Annexed to the affidavits aforesaid are the, following documents:-

1. Equipment Hiring/Leasing Agreement,
2. Invoice for N330, 000
3. A copy of a cheque for N1,317,500 issued by the 1st Appellant.
4. Another copy of a cheque issued by the 1st Appellant.
5. A copy of invoice for N717,500 issued by the Respondent being outstanding balance.
6. Demand for Immediate payment by Godwin Okoro Esq.

By a motion ex-parte dated 23rd April 2007 and filed on the same 25/4/2007, Learned Counsel for the Respondent, Mr. Godwin Okoro applied that the suit be placed on the undefended list and be so marked. This motion which was supported by a 6 paragraph affidavit was also accompanied with a written address dated 23rd April 2007 and filed on the 25/4/2007.

By a notice of preliminary objection dated and filed on the 1/6/2007, Mr. C.E. Onyebukwa, Learned Counsel for the Appellants prayed the lower court for an order striking out the suit on the ground that same was incompetent having been commenced by an invalid writ of summons. Written addresses in support and against the preliminary objection were filed and exchanged. The Trial Judge heard arguments from learned counsel for both sides who adopted the written addresses on the 19/7/2007. In a considered ruling which was delivered on the same day, the preliminary objection was overruled for being frivolous.

Having overruled the preliminary objection, the Learned Trial Judge went ahead to deliver judgment in the main suit since the return date which was on the 18/6/2007 had since elapsed and the Appellants failed and or neglected to file a notice of intension to defend the suit. The Learned Trial Judge granted the claims of the Respondent and ordered the Appellants to pay to the Respondents cost of prosecuting the case which was assessed at N8, 000.

The Appellants are dissatisfied with the judgment and have therefore brought this appeal the notice of appeal which is at pages 32-34 of the record of Appeal, contains two grounds of appeal which I reproduce hereunder without their particulars as follows:-

“1. The Learned Trial Judge erred in law when he proceeded to enter judgment for the claimant upon dismissing the preliminary objection of the Defendants/Appellants without affording the Defendants an opportunity to be heard on the merits [sic] of the substantive suit, thereby denying the Defendants their constitutional right to fair hearing.

The Learned Trial Judge erred in law when he dismissed the preliminary objection filed by the Defendant as frivolous and an attempt to secure a technical victory.”

Learned Counsel for parties filed and exchanged briefs of argument. Appellants formulated two issues for determination of this appeal. They read thus:-

“i. whether the lower court was right in upholding the validity of the writ of summons in this suit which abridged the time provided by the Rules of court for the Defendant to enter appearance from 42 days to 8 days

ii. whether the lower court was right in entering judgment against the Appellants after overruling their preliminary objection without giving the Appellants opportunity to defend the suit on the merit.”

Issues 1 and 2 are distilled from grounds 2 and 1 respectively.

For the Respondent, two issues have been formulated for determination of the appeal.