Chinelo Okoye V. Grunz Link Ltd (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered by Onitsha Division of the High Court of Anambra State on 27th April, 2007 in Suit No. O/142/2002. The respondent as the plaintiff had commenced the suit through the Writ of Summons filed on 4th March, 2002 together with a supporting affidavit seeking that the suit be heard under the Undefended List. Upon the Notice of Intention to defend and affidavit of the defendants, the suit was transferred to the general cause list and pleadings were filed accordingly.

The claim of the plaintiff as averred in paragraph 37 of the Statement of Claim filed on 18/11/2004 is for:

“(a) The sum of N3,970,500.00 (Three Million, Nine Hundred and Seventy Thousand, Five Hundred Naira) being the value of computer equipments and accessories supplied by the plaintiff to the defendants.

(b) Interest at the rate of 21% per annum of the said sum of N3,970,500.00 from the 10th day of July, 2001 until Judgment is given.

(c) Interest at the rate of 4% per annum on the judgment debt till the judgment debt is liquidated.

(d) Total cost of this proceedings”.

The defendants’ statement of defence filed on 5/4/2005 was subsequently amended through the Amended Statement of Defence And Counterclaim filed on 25/7/2006 wherein the defendants denied the plaintiff’s claim and made a Counterclaim for the sum of N312,500.00. A Reply to Statement of Defence And Counterclaim was filed by the plaintiff on 20/9/2005.

At the trial, one witness testified for the plaintiff as the PW1 while the defence called three witnesses as DW1, DW2 and DW3, and after the filing and adoption of written addresses by the parties’ Counsel, the learned trial judge eventually entered judgment in favour of the plaintiff. It must be stated here that there were four defendants in the action but in his judgment the learned trial judge found that there was no privity of contract between the plaintiff and the 2nd, 3rd, 4th defendants and their names were accordingly struck out while the judgment was entered against the 1st defendant alone for the sum of N3,970,500.00 with interest at the rate of 10% per annum from the date of judgment until liquidation of the judgment debt, while the Counterclaim was dismissed for want of merit.

Aggrieved by the judgment, the 1st defendant (now called the appellant) filed a Notice of Appeal on 2/5/2007 with two grounds of appeal, but with the leave of this court granted on 12/4/2011, the appellant filed four additional grounds of appeal numbered as grounds 3, 4, 5 and 6. In the Appellants’ Brief of Argument prepared by Chudi Obieze Esq and filed on 14/4/2011, the following issues were formulated for determination;

1. Whether the trial court could in law competently enter judgment for the plaintiff after having suo motu called on the parties to address it on the desirability of entering a non suit against the plaintiff?
2. Whether the amount shown typed on Exhibit B can be said to represent the total value of goods supplied by the Respondent to the Appellant subject to exclusion or subtraction of N423,000.00 from the amount as value of returned goods or items as at 12th March, 2001 when Exhibit B was made?
3. Are Exhibits D and E conclusive proof of the Respondent’s claim in view of Exhibit H?

Arguing the 1st issue the learned Counsel contended that at the stage where the trial court suo motu invited the parties to address it on non-suit, the court had made up its mind that there was no satisfactory evidence to entitle either of the parties to judgment and the invitation of the court to parties for address amounted to a decision.

It was submitted that where a non-suit order is contemplated, it is desirable to first hear the parties, citing GRAIG V. GRAIG (1967) NMLR 55 and Order 34(1) of the High Court of Anambra State Rules, 2006. It was submitted also that when by its ruling of 19/2/2007 the trial judge stated that the issue of non-suit crossed his mind it meant that the court had decided and ruled that there was no evidence which entitled either party to judgment and court could only either non-suit the plaintiff or dismiss the suit, as it lacked jurisdiction to hold thereafter that the plaintiff had proved part of his case which will amount to a legal summersault.

The argument of the learned Counsel on the second issue centres on exhibit B which the learned trial judge accepted as an agreement by the appellant that the total value of goods supplied to her by the respondent was N12,393,500.00 as at the date it was made, subject to subtraction of N423,000.00 being the value of goods or items returned.

It was contended that on its face, exhibit B contains other deductions from the stated prices apart from the amount of N423,000.00 for the returned items, it contains also a grand total of N10,345,500.00. It was submitted with reliance on AKINBISADE V. STATE (2006) 17 NWLR (PT. 184) 204 that in the construction of a document the document must be read and interpreted holistically and a party cannot pick a portion thereof that is convenient for his own case.