Dangote Flour Mills Plc V. Samagada Industries Limited (2009)

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JOSEPH EYO EKANEM, J.C.A.

The respondent in this appeal sued the appellant in the High Court of Benue State (the lower Court) in Suit No. MHC/280/2010 for declaratory, injunctive and monetary reliefs. On 23/9/2011, the trial Court (coram Igoche, J.) based on a motion numbered MHC/1199M/2011 entered judgment for the respondent in respect of reliefs 30 (c) and (d) in the statement of claim. This included the sums of N227,921.00 and N6,876,080:00. The respondent, in its ex ? parte application No. MHC/1296M/2011 was granted a garnishee order nisi attaching the judgment debt in the account of the appellant in the Guaranty Trust Bank Plc.

Meanwhile on 17/10/2011, when appellant and its counsel were absent at a pre ? trial conference, the trial Court entered final judgment against the appellant in respect of relief number 30 (a) and (b) which included the sum of N30,668,900:00. The trial Court also awarded general damages of N500,000:00 against the appellant. When there were moves to enforce the judgment, the appellant filed motion No. MHC/1402M/2011 seeking to set aside the default judgment and to

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stay action on the garnishee proceeding. The application was heard by the trial Court and was dismissed on 7/2/2012. Immediately thereafter the trial Court made the garnishee order in motion No. MHC/1296M/2011 absolute against the Guaranty Trust Bank. Aggrieved, the appellant filed a notice of appeal against the decision of the trial Court in Motion No. MHC/1402M/2011 delivered on 7/2/2012 in which the trial Court dismissed its application to set aside the default judgment. The appeal is numbered CA/MK/89/2012.

Again, the appellant with the leave of this Court granted on 9/10/2017, filed a notice of appeal against the judgments of the trial Court delivered on 23/9/2011 and 17/10/2011, respectively. The two appeals were by the order of Court consolidated on 16/5/2019. I shall however deliver separate judgments on them since they still retain their individual identities.

In respect of the instant appeal No. CA/MK/56/2018, appellant filed the following briefs of argument:
(i) Appellant?s brief of argument filed on 25/1/2019 and deemed filed on 16/5/2019;
(ii) A reply brief filed on 9/5/2019 and deemed duly filed on 16/5/2019.

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The respondent filed its brief of argument on 11/4/2019 and the same was deemed duly filed and served on 16/5/2019.

In the appellant?s brief of argument, two issues are formulated for the determination of the appeal. The issues are:
?(1) Whether or not the entire proceedings before the Lower Court and judgment are not a nullity for lack of fair hearing and obtained without jurisdiction. This issue is distilled from Ground 1, 2 and 3 of the Notice of Appeal.
(2) Whether or not the Lower Court could effectively, and legally enter final judgment for the Respondent as per relief 30 (a), a declaratory relief, without taking evidence and without setting aside its order for trial on the merits. This issue is distilled from Ground 4 and 5?.

In the respondent?s brief of argument, the afore ? stated issues are adopt but with modifications as follows:
?1 Whether or not the judgments are a nullity for lack of fair hearing or jurisdiction.
2. Whether or not in the circumstances of this case the lower Court was wrong to grant relief 30 (a)?.
?
The issues formulated by both counsel are in substance the

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same but the issues as formulated by respondent?s counsel are more concise and precise. I will therefore adopt them for the determination of the appeal.

Before treating the issues, I shall first consider the preliminary objection raised by respondent?s counsel at pages 6 and 7 paragraph 3.1 of his brief. Arguments in respect thereof are at pages 7 ? 9 paragraphs 3.3 ? 3.9 of the said brief. F.T. Uparegh, Esq. for respondent referred to the preliminary objection and arguments thereof in his brief of argument in urging the Court to dismiss the appeal.