Elizade Nigeria Limited V. Tabek & Company Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment and orders of the Rivers State High Court Port Harcourt, contained in the Judgment of Justice ICHE N. NDU the Chief Judge of Rivers State, delivered on the 7th day of November, 2006.

The Respondent as Claimant by writ of summons (pages 1-2 of the record) filed on the 4th of July 2006 commenced this action under the undefended list procedure against the Appellant (Defendant) claiming as follows:-

(a) A sum of N8,600,000.00 (Eight Million, Six Hundred Thousand Naira) only, being the outstanding debt the Defendant is owing the plaintiff

(b) Interest on the outstanding sum of N8,600,000.00 (Eight Million, six Hundred Thousand Naira) at the rate of 21% per annum until Judgment is given and 4% per annum until same is fully paid.

(c) The Respondent followed this up with a motion ex-parte also filed on the 4/7/06 asking the court to place the matter under the undefended list (pages 3-19 of the records). The court on the 24th day of July 2006 made an order placing the matter on the undefended list and adjourned the matter to the 18 the October 2006 for hearing.

The case of the Respondent as shown in the writ of summons, motion ex-parte and affidavit in support of the claim for liquidated money demand under the undefended list procedure is to the effect that the Appellant (Defendant) was supplied with 2 units of Toyota Prado GX A/T on the 31st day of July 2003 valued at N11,800,000.00 (Eleven Million, Eight Hundred Thousand Naira) only.

The Appellant made a cash deposit to the tune of N2,200,000,00 (Two Million, Two Hundred Thousand Naira) only. On a later date, another Toyota Prado Jeep valued at N5,700,000.00 (Five Million, Seven Hundred Thousand Naira) only was also supplied to the Appellant. The Appellant did not pay for either of the Toyota Jeeps valued at N17,550,000.00 (Seventeen Million, Five Hundred and Fifty Thousand Naira) only, save the N2,200,000.00 (Two Million, Two Hundred Thousand Naira) it made as a deposit for the 1st two Toyota Prado GX A/T Vehicles.

After several attempts to recover the money, the Respondent caused the arrest of the Appellant’s Managing Director Mr. Joe Robinson Jnr and recovered one of the Toyota Prado GX A/T from him. The recovered vehicle was later sold by the Respondent for the sum of N6,750,000.00 (Six Million, Seven Hundred and Fifty Thousand Naira) only.

As a result of the above, the Respondent claimed that the Appellant is indebted to her to the tune of N8,600,000.00 (Eight Million, Six Hundred Thousand Naira) only, being the cost of (one 1 Toyota Prado GX M/T vehicle less the initial deposit of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) only. The Respondent (Claimant) stated that the Defendant (Appellant has no defence to the action.

Upon receipt of the summons, the order putting the matter in the undefended list and the affidavit in support, the Appellant filed his Notice of intention to defend and affidavit in support. See pages 21-25 of the records. The contention of the Appellant being that he was not indebted to the Respondent to the tune of N8,600,000.00 (Eight Million, Six Hundred Thousand Naira) as the amount to be paid by the Appellant was not yet ascertained.

It was the case of the Appellant from her affidavit disclosing a defence on the merit that there was a disagreement over the exact amount of money to be paid for the vehicle wherein the parties went into negotiations. During the course of negotiations, the Prado Jeeps supplied were found not to be in good condition.

Due to these problems the parties, based on the long standing relationship between them, went into further negotiations. At a meeting amongst the Respondent’s Chairman and the General Manager Operations, Chief M. Ade Ojo and Mike Onyia respectively and the Appellant’s Managing Director, concessions were made by the Respondent to the Appellant.

It was also the Appellant’s case that he had made other cash payment/deposits apart from the N2,200,000,00 (Two Million, Two Hundred Thousand Naira) only. During the course of this dispute and negotiation the Respondent arrested the Appellant’s Managing Director, repossessed one of the Prado Jeeps and sold it for an amount not known to the Appellant. He stated that the Appellant had a very good defence to the action.