Dangote Textile Products V. Hascon Associates (2013)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, JSC

This is an appeal against the judgment of the Kaduna Division of the Court of Appeal delivered on the 16th day of December, 2004 wherein the court dismissed the appellants appeal and affirmed the judgment of the Zamfara State High Court in suit No. ZMS/GS/8/2002 delivered on the 26th day of March, 2002. In the said suit, the plaintiffs now respondents claimed against the defendants now appellants various sums of money as follows:-

(i) The sum of N 2,087,435.00 (Two million, eighty seven Thousand, four hundred and thirty five Naira only) plus interest on the said sum at 24% per annum calculated at monthly rate from 26/3/2001 until judgment and thereafter at 10% until final liquidation.

(ii) The sum of N274,000.00 (Two hundred and seventy four thousand Naira) had and received of the 2nd Respondent by the 2na and 3ld Appellants in order to facilitate the payment of (i) above; plus interest at 24% per annum calculated at monthly rate from 3/5/2001 until judgment and thereafter at 10% until final liquidation.

(iii) Cost assessed at N 5,000.00 (five thousand Naira only).

From the Writ of Summons and as shown on the record, the proceedings in the trial court were instituted on an undefended list. On the 13th March, 2002 and at the trial courts proceedings, the defendants/appellants informed the court of their pending application before it. Their motion prayed the court to hear and consider their notice of intention to defend supported by an affidavit disclosing their defence on the merit. They also prayed orally and urged that the court should treat the late filing of their process as an irregularity in accordance with order 2(1) of the Sokoto State High Court (Civil Procedure) Rules 1987 (applicable in Zamfara State) and there upon extend the time within which the defendants/appellants are to file their Notice of Intention to defend and also the affidavit in support thereof. The appellants also filed a motion for extension of time to enter appearance, supported by an affidavit wherein they sought to explain their delay in filing.

The totality of the application was vehemently opposed to by the plaintiffs learned counsel and he urged the court to enter judgment in their favour. The court thereafter adjourned the matter for ruling which was on the 26th March, 2002 ruled infavour of respondents. The trial court in otherwords refused to oblige the defendants’ application for being out of time. Consequently, judgment was therefore entered for the plaintiffs/respondents in terms of all their claims.

On appeal by the Defendants/Appellants to the Court of Appeal Kaduna Division, the learned Justices of that court affirmed the decision of the trial judge and dismissed the appellants appeal on the 16th December, 2004.

The appellants were dissatisfied with the outcome at the lower court and hence the appeal now before us which notice was dated the 22nd December. 2004 and containing six grounds of appeal and their particulars.

In compliance with the Rules of this court, parties filed and exchanged briefs of arguments. By the appellants brief filed on the 15th June, 2006 and adopted in argument of the appeal on the 5th March, 2013, learned counsel for appellants, Nelson Uzuegbu, Esq formulated the following four issues for the determination of the appeal:-

‘ISSUE NO. 1

Whether in view of the trial courts refusal to consider the Defendants affidavits, which were before him and thus denying the said Defendant fair hearing, the learned Justices of the Court of Appeal did not err in their view that the learned trial judge properly exercised his discretion in the case before him. This issue arises from grounds 3and 5 of the Notice of Appeal.

ISSUE NO. 2

Whether the issue of jurisdiction was not rightly raised and for the first time before the Learned Justices of the Court of Appeal. This issue arises from ground 2 of the Notice of Appeal.