Christaben Group Ltd & Anor V. Mr. A. I. Oni (2008)

LawGlobal-Hub Lead Judgment Report

KEKERE-EKUN, J.C.A.

By a writ of summons dated 1st June, 1998, the respondent herein, as plaintiff, instituted an action against the appellants, as defendants, before the High Court of Rivers State sitting at Nchia for the recovery of a debt allegedly owed the respondent by the appellants. The respondent’s claim at page 2 of the record is as follows:

“The plaintiff’s claim against the defendants jointly and severally is for the sum of N 1, 583, 750.00 (One Million, Five Hundred and Eighty-Three Thousand, Seven Hundred and Fifty Naira) representing the unpaid balance outstanding against the defendants under an agreement entered into between the plaintiff and the defendants in April and May, 1994 in Port Harcourt whereby the plaintiff hired out to the defendants at defendants’ request specified number of assorted equipment with operators at agreed daily cost for defendants’ use at NAFCON (i.e. National Fertilizer Company of Nigeria Limited), Onne, River State, during the NAFCON Turnaround Maintenance Exercise that tool place in 1994. The defendants have failed, refused and neglected to pay the aforesaid balance to plaintiff despite repeated demands.

The plaintiff claim (sic) interest on the said amount at the rate of 10% per annum from the date of judgment until actual payment of the judgment debt and for costs.”

Pursuant to leave sought and obtained from the court, the suit was entered for hearing on the Undefended List and marked accordingly. The respondent was also granted leave to issue the writ for service outside the jurisdiction of the court. Although duly served with the writ, verifying affidavit and exhibits annexed thereto, the appellants failed to comply with the provisions of Order 23 rule 3(1) of the High Court of Rivers State (Civil Procedure) Rules by filing a notice of intention to defend the suit. The learned trial judge proceeded to hear the suit on the undefended list and on 1st April, 1999 entered judgment in favour of the respondent in the following terms:

“I have gone through very carefully the affidavit in support of plaintiff’s application praying that this suit be entered on the “Undefended List” as well as the exhibits thereto annexed. In exhibits “H”, “J” and “J1” respectively, defendants acknowledged their indebtedness to the plaintiff to the tune of N1, 081, 067.00 (One million, eighty one thousand, sixty-seven naira).

Since an action brought under the “Undefended List” is for recovery of liquidated damages or specific debt, this honourable court hereby accepts that the liquidated sum claimed in this suit is N1, 081,067.00 which the defendants acknowledged themselves. Any amount above this claimed by the plaintiff is not liquidated and is subject to proof.

Accordingly, I hereby enter judgment for the plaintiff for the sum of N1, 081, 067.00 only against the defendants.

It is herby ordered that 10% interest p.a. on this judgment sum be paid to the plaintiff by the defendants from now till this judgment sum is liquidated. I also hereby award N2, 000.00 costs in favour of the plaintiff,”

The appellants are dissatisfied with this judgment and have appealed to this court by a notice of appeal dated 19th April, 1999 containing five grounds of appeal. On 16/5/02, the appellants were granted leave to file two additional grounds of appeal. The respondent is also dissatisfied with that part of the judgment that excluded the sum of N502, 683.00 from the total amount claimed. He therefore filed a notice of cross-appeal containing two grounds of appeal. On 2nd March, 2005, the respondent was granted leave to file an additional ground of appeal. The respondent also filed a preliminary objection dated 16/11/07 and filed the same day.

In compliance with the rules of this Court the parties duly filed and exchanged their respective briefs of argument. The appellants filed an amended brief of argument, a reply brief to the respondent’s brief and a cross-respondent’s brief. All the briefs are dated 13/2/07. The respondent’s brief is dated 7/1/05. It was deemed filed on 2/3/05. The respondent also filed a cross-appellant’s brief, which is incorporated in his respondent’s brief.

At the hearing of this appeal on 5/3/08, Mr. K. Wodu, learned counsel for the appellants/cross-respondents and Mr. O.O. Osunbor, learned counsel for the respondent/cross appellant adopted their respective briefs of argument. Mr. Osunbor referred us to arguments in respect of the preliminary objection at pages 5 – 11 of the respondent’s brief and urged us to uphold the objection, strike out the grounds of appeal complained of and the issues formulated thereon. Mr. Wodu urged us to allow the appeal and dismiss the cross-appeal. Mr. Osunbor on the other hand urged us to dismiss the appeal and allow the cross appeal.

In their amended brief of argument, the appellants have formulated three issues for the determination of this appeal. They are:

1. Whether on the facts and circumstances of this case, the parties to this action were competent parties for which the lower court can exercise jurisdiction.

Assuming but not conceding that the parties are competent parties: