Bona V. Textile Ltd. & Anor.v. Asaba Textile Mill Plc (2012)

LAWGLOBAL HUB Lead Judgment Report

OLU ARIWOOLA J.S.C.

The action that finally led to this appeal emanated from the High Court of Justice of Delta State in the Asaba Division, holden at Asaba. The action was initiated by the Asaba Textile Mill Plc as Plaintiff, hereinafter referred to as the Appellant while the Respondents herein were the Defendants at the trial court.

The action was commenced by a Writ of Summons under the undefended List Procedure. The plaintiff had claimed by the endorsement on its Writ of Summons as follows:

“(a) The sum of Five million, five hundred and sixty two thousand, eight hundred and seventy five naira, seventy two kobo (N5,562,875.72) being the defendants’ indebtedness to the plaintiff which sum the defendants refused to refund despite repeated demands.

(b) Interest on the said N5,562,875.72 at the rate of 20% until the entire sum is liquidated.”

In support of the claim was an affidavit of 19 paragraphs to which various documents were attached and marked Exhibits A to E respectively. By paragraph 17 of the supporting affidavit, the defendants were said to have no defence to the action. But on the 4th day of December,2003 upon being served with the processes, the Defendants filed their “Notice of Intention to Defend” the action. Attached to the said Notice was an affidavit of 26 paragraphs to which various documents were attached as Exhibits.

In its ruling of the 5th of February, 2004, the trial court having considered all the processes filed, granted the defendants leave to defend the action and thereby transferred the suit “from the Undefended List to the General Cause List for hearing and determination”

Thereafter, by a Notice of Motion dated 6th February,2004 the Respondent sought the following order from the trial court;

“To enter judgment for the plaintiff for the sum of N1,415,050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court.”

To the Notice of Motion, the Appellants filed a counter affidavit of 9 paragraphs.

In its considered ruling on the said application, the trial court held inter alia, thus:

“This court having ruled and transferred this case to the General cause List and cannot go back and by whatever means or name or rule try to reopen that which is closed. It would however have been different if pleadings have settled and this issue were to arise out of the pleadings filed as a result of the transfer of this suit to the General Cause List.”

The refusal of the trial court to enter judgment summarily as sought led to an appeal to the court below on two Grounds of appeal as follows, bereft of the particulars:

“(a) Error in Law