Ben Thomas Hotels Ltd. V. Sebi Furniture Company Ltd (1988) LLJR-SC

Ben Thomas Hotels Ltd. V. Sebi Furniture Company Ltd (1988)

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This matter started as a Judgment of the High Court, Kwara State, Lokoja Judicial Division, coram Leslie, J. But the history before that Judgment is equally interesting. The action was brought by motion for judgment under the undefended list. The claim which the plaintiff had brought was an action for what he termed-

“outstanding balance of N68,000.00” as “Cost of furniture items thus supplied to the defendant” and 10% interest per annum.”

The motion on the undefended list came before the Court on 2nd December, 1987.The defendant company was not represented and the Ruling was entered in favour of the plaintiff on 8th December. The judgment of the court then was-

“The result is that the judgment is entered in favour of the plaintiff as per writ of summons for the sum of N68,000.00 vide Order 3 Rule 12 of the High Court (Civil Procedure) Rules, 1975.

The defendant shall also pay 10% interest on the stated sum until judgment debt is finally liquidated:- vide Order 27 Rule 8 of the High Court (Civil Procedure) Rules 1975.”

Costs of N700.00 were also awarded.

On and December, 1987, an application was brought before the Court to “set aside or vary the judgment”

After an exhaustive argument, Ruling was given thereupon on 19th February, 1988.The court (Leslie, J.) dismissed the motion.

The defendant, Ben Thomas Hotels Ltd., appealed to the Court of Appeal. The main plank upon which the appeal was hung was that there was no proof before the learned trial Judge that hearing notice was served on any official of the defendant company.

In a judgment delivered by Akpabio, J.C.A., the court held in regard to the complaint on service not having been effected-

“In resolving this question, I must agree with the submission of learned counsel for the respondent that the answer to this question must be looked for within the four walls of Order 5 rule 8(2) of the High Court (Civil Procedure) Rules of Kwara State, 1975, and nowhere else. Under that rule, there is no provision for the writ or other document to be delivered to a named official of the defendant company. It is merely to be left at the registered office of the defendant company and no more.

There was no suggestion by the learned counsel for the appellant that the address, Kabba-Ajaokuta New Road, Kabba, Kwara State, which appeared on the writ of summons was not the “registered office” of the defendant/appellant. In my view, once the writ of summons has been shown to have been left in the premises of the registered office of the appellant, the provisions of order 5 rule 8(2) has been complied with even though the name of the official of the appellant company to whom the document was delivered was not stated.”

The appellant also complained of discrepancy between the names of the parties on the writ of summons and those in the affidavit of service. The learned Justice of the Court of Appeal answered:-

“I agree with the submission of learned counsel for the respondent that whatever omissions or error there might be in the nomenclature of the parties in the affidavit of service, cannot have any bearing on the validity of the service of the writ on the appellant as the affidavit of the service was not a document intended for service on the appellant. Rather, it was only a document intended to satisfy the court that the writ has been duly served. As long as the suit number on the affidavit of service was the same as that on the case file, it was clear the parties were the same.

Besides, the difference between the names on the writ and those on the affidavit of service, cannot even be said to be misnomers. Rather one was an abbreviation of the other, so as to bring the name within the space available on the Form Judicial C.27. We are all very familiar with the abbreviation of such names as “Union Bank,” in place of the full name of “Union Bank of Nigeria Ltd.” or “Savanah Bank” in place of “Savanah Bank of Nigeria Ltd.” or “Leventis Motors” in place of “Leventis Motors Ltd.” or “S.C.O.A. Motors” in place of “S.C.O.A. Motors (Nig.) Ltd.” In view of these, I think that the objection of learned counsel for appellant in this regard was nothing but a mere quibble.”

and he held –

“On the totality of the foregoing, I am satisfied, as did the learned trial Judge, that the appellant was effectively served with the Writ of Summons and the affidavit in support in this case, but deliberately refused to show up in Court as a delaying tactics. Grounds 1, 2, and 3 of this appeal therefore, fail.”

I have tried to quote the judgment of the learned Court of Appeal in extensor as there seems a lot of logic in the reasoning of the learned Justice of the Court of Appeal and the grounds of appeal before that Court would appear to have been repeated and relied upon in this court. There was another point made by the appellant in the Court of Appeal, and that was that when a case comes up for the first time in a court, it should not be heard. The Court of Appeal had no difficulty too in dismissing this ground.

He concluded –

“The above judgment in my view, did not replace the general rule laid down under order 3 rule 8 as follows:-

” …. the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”

“From the above provision of order 3 rule 8 coupled with rules 9-12 of the Kwara State High Court (Civil Procedure) Rules, 1975, it is very clear that when a case entered on the “Undefended

List” comes to court on the return date, the court has one and only one duty, namely to see whether the defendant has filed a Notice of Intention to defend and an affidavit. If no such notice and affidavit has been filed within five days before the return date, the court has no choice in the matter but to proceed to judgment. Since no pleadings are required to be ordered in a case under the “Undefended List” it cannot be said that a case on that list coming to the court for the first time is coming for mention. According to order 3 rule 8 set out above, it is coming for hearing.” And so, on the totality of the case put before the Court of Appeal, by both sides, the court held-

“1. That the defendant/appellant was effectively served with the writ of summons in accordance with the Laws of Kwara State.

  1. That the learned trial Judge was right in hearing and determining the case on the date he did.
  2. That the learned trial Judge was right in entering judgment for the respondent based on the provisions of Order 3 rule 12 of High Court (Civil Procedure) Rules of Kwara State, 1975; and finally
  3. That the learned trial Judge was right in refusing to set aside the said judgment of 8/12/87 because he was “functus officio.” The court dismissed the appeal and an appeal therefrom has been lodged in this court. I have earlier said that the grounds of appeal in the Court of Appeal have been duplicated here.

Learned Counsel for the appellant, Mr. Wole Olanipekun, in a full brief, urged on grounds I, II and III of his grounds of appeal that: “The service of the writ and statement of claim was on Ben Thomas Hotel whereas the name of the appellant was Ben Thomas Hotel Ltd.”

He in fact seemed to have made a real heavy weather of this point. But with respect, there is no weight, heavy or light in the argument. Order 5 rule 8(2) of the High Coun (Civil Procedure) Rules of Kwara State, 1975 provides:-

“Service on a company may be effected by leaving the document at, or sending it by registered post to, the registered office of the Company”

The affidavit of the Manager of the plaintiff company provides –

“That Alhaji Ibrahim Dasuki, a bailiff in the Lokoja High Court served the applicant in my presence on 28th September, 1987, at about 11.00 a.m. whilst I acted as a pointer with the processes in suit No. KWS/LO/16/87 and also a police constable No. 113324, Uwenu C. of Kabba Police Station was in attendance and he wrote a testimony of the service.”

Ibrahim Dasuki, the Bailiff, filed an affidavit of service which was part of the evidence in the case. He said –

“On the 30th day of October, 1987, at 9.30 a.m. I served a writ of summons, a true copy whereof is hereunto annexed issued out of this court Lokoja upon the Ben Thomas Hotel Kabba a complement of Civil summons by delivering the same personally to Manager to Ben Thomas Hotel Kabba…….”

I think the rule had been adequately complied with. The Bailiff, Dasuki, could even have just left the summons on the premises. He did not do so. He left it with a person he referred to as Manager. To my reasoning, this is good service and the trial court had sufficient facts before him to have made the decision that the defendant was –

“duly served as evidenced by the affidavit of service sworn to on the 4th day of November 1987 by the senior bailiff on Judicial Form…”

The Court of Appeal after a brilliant summation affirmed this finding as per Akpabio, J.C.A., who said-

“Finally, on this question of whether there was or was no effective service, I should like to make at least three other observations, which clearly justified the learned trial Judge in holding that there was effective service on the appellant. First, the case was one of one oath against two oaths. We had the oath of one Dada Olorunfemi, appellant’s Supervisor against the oath of the Senior Bailiff (an independent Court official) as well as the oath of one Sefunmi Adekunle, a Manager of respondent company who swore to a counter-affidavit that he acted as a pointer to the Bailiff, Alhaji Ibrahim Dasuki, and was present when the writ of summons was served on the Manager of appellant on the 30th October, 1987 at 9.30 a.m. prompt. Secondly, there was the fact that the said appellant’s affidavit was sworn to by a relatively junior employee of the appellant who knew next to nothing about the matter, instead of by the Chairman/Chief Executive, Mr. B.A. Sesere, who ordered the furniture in dispute, and so had personal knowledge of the matter. Appellant’s Supervisor at paragraph two of his affidavit stated that:-

“I know of the facts of this case,”

and yet turned round at paragraph 12 to say:-

“That up till now, the applicant does not know what the action or claim which culminated in the judgment of 8/12/87 is all about.”

There was also no indication as to how they came to know of the existence of the said judgment, e.g., whether there was an attempted execution or attachment on them, as was the case in Wimpey Ltd. v. Balogun (supra).

Thirdly, throughout the whole affidavit, of appellant’s supervisor, there was no where it was alleged that the appellant had a good defence to the action and so should be allowed to defend, neither was any indication whatsoever given about what such a defence would be. He merely wanted the judgment set aside for nothing.”

With respect, I cannot fault this reasoning. Indeed, I agree with the reasoning and conclusion of the Court of Appeal. On ground IV of the Grounds of Appeal, the learned counsel for the appellant attacked in his Brief the decision of the trial court that it held it was functus officio and could not set aside its own judgment. Learned counsel relied upon Order 3 rule 14 of the Kwara State High Court Rules.

However, in the argument before the court, learned counsel seemed to have abandoned this point.

H After my decision in regard to Grounds I, II, III and having regard to the attitude of the learned counsel for the appellant it is my view that a decision upon this point is no longer necessary. The important point in this case is that the action was brought under the undefended list. It has been held that the defendant was properly served. The court had every right to try the matter on the first day of its coming before it. The defendant failed to show up after service. The court gave judgment upon the facts before it to the plaintiff and rightly in my view.

Despite the voluminous and detailed submissions of learned counsel, there is no substance of any sort in this appeal. It is hereby dismissed. The order of the trial court which was affirmed by the Court of Appeal is hereby further affirmed. Costs of N500.00 are hereby awarded to the respondent.

Other Citation: (1988) LCN/2386(SC)

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