Chellarams PLC V. Pashtun Nigeria Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, J.C.A. (Delivering The Leading Judgment)

The appeal herein is against the ruling of Kaduna State High Court, Kaduna Judicial Division in suit No.KDH/KAD/1015/2015 delivered on 13th February, 2013 by Hon. Justice Dogara Mallam, wherein the learned trial Judge obliged an adjournment to the respondent’s counsel on the day fixed for hearing of motion for summary judgment, to enable the respondent file the necessary processes to defend the appellant’s claim.

The appellant being dissatisfied with the grant of the adjournment, filed a notice of appeal on 14th February, 2013 challenging the entire ruling on 3 grounds of appeal.

By a writ of summons dated 5th December, 2012, the appellant as plaintiff, commenced civil proceedings before the lower court against the respondent and applied for summary judgment vide a motion dated same 5th February, 2012 claiming against the respondents (as defendants) jointly and severally the following reliefs:

“(i) The sum of N11,333,000,00 (Eleven Million, Three Hundred and Thirty Three Thousand Naira) being the outstanding balance of the value of 400 (Four Hundred) units of motorcycles supplied by the plaintiff to the 1st Defendant on credit basis at the defendant’s request, which balance payment has since the year 2009, become due and payable but remained unpaid.

(ii) The sum of N9,442,072.00 (Nine Million, Four Hundred and Forty Two Thousand Seventy Two Naira) being the accrued interest on the outstanding balance payment as at 21/10/2011.

(iii) 3% (three percent interest rate) per calendar month from the 22/10/2011 on the outstanding balance payment until the date of judgment.

(iv) 10% Court rate interest, from the date of judgment on the judgment sums until final liquidation of the entire judgment sums

(v) The plaintiff also claim against the defendants jointly and severally the cost of filing and prosecuting this case.”

On the date fixed for the hearing of the motion 13/3/2013, learned respondent’s counsel asked for an adjournment because according to him, they were only briefed at 5.00pm of the previous day, the 12/3/13. He also orally raised a preliminary objection.

The learned trial Judge overruled the objection taken to the application for adjournment and granted the adjournment sought to the 15/4/13.

The displeasure of the defendant (now Appellant) about the adjournment granted by the learned trial Judge gave raise to this appeal filed by P. Y. Garuba Esq. on 14th February, 2013 challenging the said decision.

In compliance with the Rules of this Court, the learned counsel to the appellant and to the respondent exchanged their briefs of argument. The appellant’s brief of argument dated 21/3/13 and the reply dated 25/04/13 and filed on 30/4/13 were settled by P. Y. Garuba Esq. The respondent’s brief of argument dated and filed on 19/4/13 was settled by Araga A. O. Esq.

The learned respondent’s counsel filed a motion on notice on 10/02/14 to argue a preliminary objection to the appeal. Same was however withdrawn and struck out on 13/2/14.