Aprofim Engineering Construction Nigeria Limited V. Sidov Limited (2005)

LawGlobal-Hub Lead Judgment Report

UDOM-AZOGU, J.C.A.

This is an appeal against the judgment of Hon. Justice N. O. Adekola, Chief Judge of High Court Ibadan, Ibadan Judicial Division delivered on 9/7/99 in which he refuse the application by the defendant/appellant to set aside its judgment dated against the plaintiff dated 24/3/99.

(a) In the court below the plaintiff now (respondent) claimed against the defendant (now appellant) the sum of N4, 625,809.00 being the balance of money due to the plaintiff under the contract by which the plaintiff supplied 330 of 18mm thick coloured plywood and 10 tonnes of 12mm diameter high yield reinforcement to the defendant.

(b) Interest on the said sum at the rate of 21% from 21/5/97 till judgment is delivered and thereafter at the rate of 10% until the judgment is liquidated.

In his statement of defence the defendant denied the entire claim of the plaintiff and in paragraph 12(c) of the statement of defence he averred as follows:

“the defendant did not at any time or in any manner whatsoever, enter into any agreement with the plaintiff in the sum of N5, 119, 500.00 or that there is a balance of N4, 625, 809.00 due to the plaintiff at all.”

On 6/1/99 when trial commenced the plaintiff was in court while the defendant was absent, except that one Mr. Alimi of counsel from defendant’s counsel’s chambers announced appearance for the appellant. Throughout the entire proceedings including December 4th 2001 despite the fact the plaintiff’s counsel and defendant’s counsel were in court on February 25th 1999 when the case was adjourned to March 17th 1999, on 17/3/99 when the case came up for hearing the defendant was absent. Plaintiff’s counsel announced to the court that defendant had abandoned its defence by their absence from court and urged the court to enter summary judgment. The case was adjourned to 24/3/99 for judgment. The trial Chief Judge held,

“In the circumstance I hereby hold that by all the available evidence and all the exhibits tendered by the plaintiff in course of this case the defendant is indebted to the plaintiff in the sum of N4, 132, 480.00. I hereby give judgment in the sum of N4, 132, 480.00 being the balance due to the plaintiff from the defendant in respect of exhibits A and B. The defendant shall pay interest at the rate of 10% per annum on the judgment debt until the judgment debt is liquidated. The plaintiff has not offered sufficient evidence to prove that it should be entitled to interest of 21% per annum from the defendant when the action was filed. That shall be the judgment of the court.”

When the defendant/appellant company became aware of the judgment, it briefed its counsel S. A. Afolabi Eso to file a motion urging the court to set aside its judgment for want of jurisdiction.

After looking into the appellant’s counter-affidavit and further affidavit including notice of preliminary objection filed by the plaintiff/respondent the court on 9/7/99 ruled refusing the appellant’s application to set aside its judgment on the grounds that the judgment was one on the merit and that the issue of jurisdiction could not be raised after judgment.

This appeal is against the ruling of the court below. In addition to the 4 grounds of appeal filed, the appellant with leave of court amended and filed one additional ground of appeal bringing the number of grounds to five (5).

The appellant distilled four issues for determination from the said grounds of appeal.

Issue 1

In the face of exhibits AA2 and AA3 attached to the appellant’s motion on notice before the lower court, was there a subsisting cause of action against the appellant when the lower court proceeded to trial on 6/1/99 and delivered judgment on 24/3/99 such as to clothe the judgment with validity and strip the lower court of the power and jurisdiction to set aside the judgment upon the appellant’s application.