Chief Eugene Onyechi Eriobu & Anor V. First City Finance Company Ltd (2002)

LawGlobal-Hub Lead Judgment Report

O. Aderemi, J.C.A.

The appeal here is against the decision contained in the ruling of High Court of Lagos State holden at Lagos (Coram Marsh J) delivered on 9th February 1999. Before that court, the respondent claimed against the appellants as defendants jointly and severally in the court below the sum of N766,663.88 being the debt owed to the plaintiff/respondent as at 21st October 1996 arising from loan facilities granted to the defendants/appellants for the purpose of importation of assorted spare parts of Volvo Motor Vehicles in accordance with Contract Finance Agreement No. CF/406/91 of 15th August 1991 entered into by the plaintiff/respondent and the defendants/appellants and subsequently amended at the instance of the defendants/appellants by extending the tenor of the facility reducing the rate of interest applied to the facility and increasing the rate of fixed term deposit of the 1st defendant. The claim was engrossed in a specially indorsed writ of summons with a statement of claim sailed to have been filed by the plaintiff/respondent while the defendants/appellants admitted the service of the specially indorsed writ of summons on them, they denied the service of the statement of claim on them. The defendants/appellants thereupon entered a conditional appearance and filed a counter-affidavit challenging the competence of the proceedings and together with the exhibits attached thereto, they claimed to have raised a defence on the merit. The plaintiff/respondent had on 10/3/98 filed summons for judgment. The defendants/appellants entered a conditional Memorandum of Appearance dated 30th March, 1998 and filed the counter-affidavit afore-mentioned on the 9th of April 1998. The plaintiff/respondent in reaction to the process filed by the defendants/appellants filed a further affidavit dated 17th April 1998 and a second further affidavit dated 8th May, 1998. The learned trial judge in a considered ruling delivered on the 9th of February 1999 entered judgment in favour of the plaintiff/respondent against the defendants/appellants jointly and severally in the sum of N566,663.88 plus interest at the rate of 26% per annum till the whole judgment debt is liquidated.

Being dissatisfied with the said decision the defendants/appellants, as I have earlier said, appealed therefrom to this court upon a Notice of Appeal that carries three grounds. Distilled from these grounds of appeal are two issues which as set out in the appellants’ brief of argument are in the following terms:-

(1) Whether the learned trial judge was entitled to proceed with the hearing of the summons for judgment in the face of the obvious irregularities in the procedure adopted by the plaintiff/respondent, in particular, the writ of summons was endorsed with “particulars of claim” instead of with a statement of claim and that the defendants have not entered appearance when the summons was filed.

(2) Whether or not the appellants have by their counter-affidavit disclosed a prima facie, defence to the plaintiffs’ claim or disclose such facts as may be deemed sufficient to entitle them to leave to defend the action.

The respondents also identified two issues for determination which as contained in their brief of argument, are as follows:-

(1) Whether specially indorsed Writ of Summons (i.e. the Writ of Summons specially indorsed with the statement of claim) requires the filing of an accompanying statement of claim to the specially indorsed Writ of Summons.

(2) Whether respondents’ summons for judgment in the court below under Order 11 proceedings renders the proceedings in the court below leading to the ruling dated 9th February, 1999 (i.e. the final decision appealed against herein) a nullity having regard to:

(i) Conditional Memorandum of Appearance filed by the appellants in the court below without filing an application to set aside Respondent’s Writ of Summons (or service thereof) or summons for judgment aforesaid

(ii) Counter-affidavit dated 9th April 1998 filed by the appellants in the court below against respondent’s summons for judgment

(iii) Ensuring that substantial justice was done in the matter than allowing technicality to prevent deciding the matter on merit.

(iv) Overwhelming documentary evidence in support of respondent’s summons for judgment in the court below, not challenged, not controverted and not disputed.

When this matter came before us on the 17th of April, 2002, Mr. Ibegbu, learned counsel for the appellant adopted the appellants’ brief filed on the 20th of September 2000 and urged that the appeal be allowed. Chief Tagbo learned counsel for the respondent for his part, adopted his client’s brief filed on 8th of February 2002 and urged that the appeal be dismissed.

In my approach to this appeal, I intend to take issue No. 1 on each of the briefs of the appellants and the respondent together,.