Compagnie Generale De Geophysique (Niglt) Cgg Nig Ltd V. Moses Aminu (2015)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The plaintiff was an employee of the defendant. In the course of his employment he suffered severe injuries on his wrist. After an operation, the wrist became virtually useless. When all attempts by the plaintiff to convince the defendant to pay compensation failed he took out a Writ of Summons accompanied by statement of claim against the defendant claiming the sum of N5,000,000.00 (Five Million Naira) as special and general damages for the negligence and injuries he suffered while in the course of duty in the defendant company. After these originating processes were served on the defendant, the defendant entered Conditional Appearance on the 1st of November 1999. Notwithstanding the fact that defendant’s appearance was unresolved the plaintiff filed a Motion on Notice on 4/1/99 under Order 27 rule 7 of the High Court (Civil Procedure) Rules of Bendal State 1988 (application in Delta State) for:

1. An order of Court entering final judgment for the plaintiff in default of the defendant/respondent to file its statement of defence.

And for such further order or orders that this honourable court may deem fit to make in the circumstances.

On the 17th day of November, 1999 apparently oblivious of conditional appearance entered by the defendant, the learned trial judge, after hearing learned counsel for the plaintiff, F.K. Ogbimi Esq., entered final judgment for the plaintiff default of the defendant to file its statement of defence.

The Court ordered as follows:

“Application granted as prayed. Final judgment is hereby entered in favour of the plaintiff/applicant in whose favour judgment is hereby entered in the sum of N5,000,000.00 (Five Million Naira) against the defendant based on Special and General damages for negligence and injuries suffered by the plaintiff in the course of his employment as an employee in the defendant’s company. In order words judgment is entered for the plaintiff as per paragraph 37 of the statement of claim.”

In rapid succession, the defendant filed applications asking for extension of time to set aside the default judgment. To set aside writ of attachment, to stop further execution etc. Finally on the 23rd of January 2010 the trial judge heard a motion on Notice brought under Order 37 rule 9, Order 47 rule 1 of the High Court Rules, Section 30(1) of the 1999 Constitution for:

1. Extension of time within which applicant can apply to set aside the default judgment dated 17/11/99.
2. Setting aside the said default for suit (sic)
3. An order setting aside the writ of attachment or execution, include attachment of applicants vehicles, in execution of default judgment.
4. An order discontinuing further execution of applicants properties.

And on 11/4/2001 the learned trial judge found the application to be unmeritorious and struck it out with costs of N1,000 in favour of the plaintiff/respondent. Dissatisfied with the refusal of the learned trial judge to set aside the default judgment the defendant/appellant lodged on appeal. The Court of Appeal (Benin City Division) heard the appeal and in a considered judgment delivered on the 6th day of December, 2005 allowed the appeal and ordered as follows:

“The default judgment of the lower court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a judge other than Onojite-Kuejubola J.

This appeal is against that judgment. Briefs of argument were filed and exchanged. The appellant filed an appellants brief and a reply brief on the 11th day of April 2006 and the 12th of March, 2007 respectively. The respondents brief was filed on the 12th day of July 2006.

Learned counsel for the appellant formulated two issues for determination. They are:

1. Whether the Court of Appeal ought not to have resolved the issue of jurisdiction and refrain from remitting same to the High Court.
2. Whether the Court of Appeal ought not to have struck out this suit for want of jurisdiction.

Learned counsel for the respondent formulated a sole issue for determination. It reads:

1. Whether in the light of the fact that jurisdiction being a fresh point, not previously canvassed in the court of trial, the court below was wrong to have remitted the entire suit back to the court of trial for “trial de novo” which trial would necessarily include the consideration of the issue of jurisdiction.

I have examined the issues presented by both sides for determination of the appeal. I am satisfied that both set of issues ask the same questions. I shall in the circumstances consider the two issues formulated by the appellant and they shall be taken together.

At the hearing of the appeal on the 16th day of December 2014 learned counsel for the appellant, Mr. D. I. Ajaba adopted the appellants brief and reply filed on 11/4/06 and 12/3/07 respectively and urged this court to allow the appeal.