Alhaji (Dr.) Bawa Garba & Anor V. Sheba International (Nigeria) Ltd (2001)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

By a writ of summons dated 8/7/98, the plaintiff which is now the respondent before this court filed an action at the Kaduna State High Court holden at Kaduna, under the undefended list of that court pursuant to Order 22 rules 1 – 5 of the Kaduna State High Court (Civil Procedure) Rules 1987 against the defendants, who are now the appellants claiming the following reliefs:

1. The sum of ?15,000.00 (Fifteen thousand pounds sterling) or the equivalent of N2,175,000.00 (Two Million, One Hundred and Seventy Five Thousand Naira) at the exchange rate of N145.00 to a pound sterling being the balance of $40,000.00 (Forty Thousand US Dollars) and ?35,000 (Thirty Five Thousand Pounds Sterling) paid by the plaintiff to the defendants on investment of Jos Satellite Joint Venture.
2. Interest at the rate of 21 percent per annum on the said principals of $40,000.00 and ?35,000.00 as follows.

(a) On $40,000.00 from 3/6/93 – 26/7/96 i.e $ 25,200.00.

(b) on $10,000.00 from 26/10/96 i.e $ 525.00.

(i) Sub-total $25,725.00 or at N85.00 to a US dollar N2,186,625.00.

(c) On ?35,000.00 from 5/8/93 ’97 2412/96 i.e ? 22,050.00.

(d) On ?25,000.00 from 24/12/96 ’97 0/5/97 i.e ? 2,187.00.

(e) On ?20,000.00 from 30/5/97 ’97 8/9/97 i.e ? 1,050.00.

(ii) Subtotal ? 25.287.00 Or (at N145.00 to a pound sterling) N 3,666,687.50.

Total (i) & (ii) N5,853,312.50.

(f) On ?15,000.00 from 8/9/97 until the entire debt is liquidated.”

Upon the service of the writ of summons and the accompanying affidavit in support of the respondent’s claims on the appellants, their learned counsel in response not only filed a notice of intention to defend the action as required under Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987, but also a preliminary objection to the jurisdiction of the trial High Court to entertain the respondent’s action. The notice of intention to defend the action and the notice of preliminary objection challenging the jurisdiction of the trial High Court were supported by the same affidavit deposed to on 17/7/98 on receipt of which the respondent filed a counter affidavit deposed to on 27/7/98. A further and better affidavit in support of notice of intention to defend the action and notice of preliminary objection was filed by the appellants on 28/7/98 before the undefended suit and the preliminary objection came up together before Makeri J. for hearing the same day, 28/7/98. After suffering a number of adjournments, the matter was ultimately heard on 9/11/98. In his ruling/judgment delivered on. 11/6/99, the learned trial Judge dismissed the preliminary objection raised by the appellants and held that the lower court has jurisdiction to hear the suit. On the affidavits in support of the appellants’ notice of intention to defend the suit, the lower court found that no defence on the merit had been disclosed therein to warrant granting the appellants as the defendants in the action leave to defend the suit and consequently proceeded and entered judgment for the respondent as plaintiff against the appellants as defendants as per the sum indicated in the writ of summons. The relevant part of this judgment at pages 106 to 107 of the record reads:

“A careful consideration of all the facts surrounding this matter reveals clearly that the transaction here has nothing to do with the internal management of an incorporated company as submitted by Alh. Sani Aminu Esq. This being the case the submission that it is only the Federal High Court that has jurisdiction in this case can not stand as such the submission is discountenanced. On the issue of notice of intention to defend the suit it is very clear that the defendant was by his admission and making part-payment of the amounts in question vested this court with power to adjudicate on this matter.

The relevant question is whether there is a defence on the merit disclosed by the defendants? The answer is in the negative in the sense that the defendant having admitted the amount and has paid a substantial part of the amount of it, cannot now back out from paying the balance. He even made an undertaking as to whom he would pay the said balance. It is therefore too late at this stage to hear him to say that both the demand made by the plaintiff and the part payment already made by the defendants are all illegal as submitted by Alh. Sani Aminu. There is no iota of any illegality in the whole transaction at all.