Chiboka Nigeria Limited & Anor V. Nnatu-nwosu Engineering Works Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE, JCA (Delivering the Leading judgment)

This is the judgment in respect of the appeal lodged by the appellants who were the defendants at the trial court.

The plaintiff had filed a writ of summon claiming against the defendants jointly and severally “the sum of N6,100,000.00 representing the capital and interest of the loan to the 1st defendant through the 2nd defendant and for the agreed interest of 30% per month on the capital of N1000,000.00 to continue from October 1993 until judgment is obtained by the plaintiff.”

The writ of summons and affidavit in support pursuant to Order 23 Rule 1 of the High Court Rules along with other processes were ordered to be served on the defendants with leave of court by substitution by posting on 21/2/94.

On 18/4/94, the trial judge entered judgment in favour of the plaintiffs as follows:-

“JUDGMENT

There is a claim brought under Order 23 Rules 1 of the rules of high Court on the Undefended list.

It is a claim for the sum of N6,1000,000 representing the capital and interest of a 1 million Naira loan to the 1st defendant through the 2nd defendant at an agreed interest of 30% per month from October 1992.

I have read through the statement of claim and the affidavit in support pursuant to Order 23 Rule 1 of the rules of High Court. I hereby give judgment in terms of the writ.”

It is against this judgment that the defendants being aggrieved filed Notice of Appeal on 14/3/2001 containing 5 grounds of appeal.

Parties to the appeal filed and exchanged briefs.

The respondents raised preliminary objections to the appeal by a motion on notice filed on 14/1/2011 which I shall first deal with before going into the main appeal.

The objections go thus:-

“(1) An order striking out the Notice of Appeal filed with the leave of the Honourable court dated 13/3/01 and filed 14/3/01.