Dr. Okechukwu Obi & Anor V. Henry Ugwa & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the ruling of the Kaduna State High Court of Justice (lower Court) delivered on the 19th of September 2012 in suit No. KAD/KD/ 26B/2012 in an application seeking for an order to set aside the judgment of the Court delivered on the 12th of July 2012. The genesis of the case before the lower Court is that in June 2011 the 1st respondent supplied four (4) tankers of Kerosene to the 1st appellant valued at N7, 350,000.00.

There were other transactions between the appellants and the respondents which led to a disagreement as to who was owing the other and for what sums of money. The respondents as plaintiffs before the lower Court took out a writ of summons dated the 3rd of April 2012 and applied for summary judgment pursuant to Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007, claiming as follows:

?a. An award in favor of the plaintiffs and against the defendants for the sum of #6,800,000= six million, eight hundred thousand naira only being the liquidate sum due and payable to the plaintiffs by the defendants of

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which the defendant failed, refused and neglected to refund to the plaintiffs despite repeated demands.

b. An award of 10% ten percent interest on the said sum of N6,800,000= six million, eight hundred thousand naira only per annum from the date of judgment until final liquidation of the entire sum in favor of the plaintiffs and against the defendants.

c. An award of expensae litis i.e. cost of this action calculated at the rate of 10% ten percentum of the claim in paragraph one thereof.

d. The defendants may pay the foregoing claims to I. O. Ezengwa & Co, the plaintiffs? counsel within the time. See pages 1-22 of the Record of Proceedings.?

The appellants were served with the originating processes as provided by Order 11 of the High Court Rules on the 9th of May, 2012. The appellant did not file a defence on the merit to the applications of the respondents as required by Order 11 Rule 4 of the High Court (Civil Procedure) Rules 2007. The appellants were represented by counsel on the 18th and 22 of May 2012 when the matter came up for hearing. counsel were not prepared for the hearing of the matter thence, they sought

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for an adjournment which was granted. The matter was adjourned to the 19th of June, 2012 for the hearing of the application for summary judgment. Neither the appellants nor their counsel were in Court. The matter was further adjourned to the 17th of July 2012 for the hearing of the motions. On the 12th of July, 2012, the appellants’ counsel was not in Court, but Mrs. J. A. Ike Esq., held brief for him. Mrs. Ike Esq., sought for an adjournment on the ground that she was not prepared for the hearing of the applications, that she was only holding brief for the counsel to the appellants. The learned Judge refused to grant the adjournment, and proceeded to hear the application in accordance with Order 11 Rule 4 of the Rules of Court, and entered a summary judgment for the respondents per their claims. The appellants were aggrieved by the judgment of the lower Court, hence they filed a motion on Notice seeking for an order to set aside the summary judgment of the lower Court delivered on the 12th of July 2012. The learned trial judge of the lower Court refused the application, and dismissed it. The appellants, dissatisfied with the dismissal of their application,

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filed a Notice of appeal to this Court on the 24th of September, 2012, challenging the decision of the lower Court on a two (2) grounds which are thus: