Emman N. Okafor V. John Nwoye Ezenwa (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

Sometime in 1983 in Lagos, the plaintiff and the defendant discussed the prospect of a company with which the defendant was involved in promoting. It was known as Pace Dry Cleaning and Laundry Services Ltd. The defendant got the plaintiff interested in buying 30% equity shares in the said company. The plaintiff paid the sum of N54,000.00 representing the 30% equity in ten installments and was given a receipt each for eight of those instalmental payments as per exhibits ‘G’ to ‘O’. In fact, as was pleaded, the company had before then been duly incorporated under the Companies Act 1968 and a certificate of incorporation no. RC 45931 issued.

Subsequently in July, 1984, the defendant wrote to inform the plaintiff that the share capital of the company had been increased by N50,000.00 and asked for an additional N15,000.00 from the plaintiff. The plaintiff refused. What followed was that the defendant informed him in writing that his share had been reduced from 30% to 10%. When the plaintiff went to meet the defendant at Aba to protest to him, he was presented with the alternative of either the 10% share or a refund of his money. It would appear the plaintiff opted for a refund and that the defendant offered to do so by N2,000.00 monthly installments.

As this was unacceptable to the plaintiff, he filed a writ of summons on 12 July, 1985 at the High Court of Anambra State in Amawbia-Awka Judicial Division, holden at Awka against the defendant, and in paragraph 16(a) and (b) of the statement of claim, asked for-

(a) The sum of N54,000.00 being money payable by the defendant to the plaintiff as money had and received by the defendant for the use of the plaintiff.

(b) Interest on the said sum at 5% per annum.

Both parties filed and exchanged pleadings, but the defendant did not testify although counsel for him cross-examined the plaintiff and the only witness he called whose evidence was concluded on 8 April, 1987, and the case was adjourned to 28th July for further hearing. On that day plaintiff’s counsel, I.O Chinwuba (Miss), informed the court that there were moves to have the matter settled out of court and “some payments have been made since last adjournment.” The matter was adjourned to 8th December, 1987 but both parties were absent, and Chinwuba (Miss) who appeared for the plaintiff asked for judgment. The court adjourned to 12 January, 1988 for address by plaintiff’s counsel, which she did.

On 24 February, 1988, the learned trial Judge (Uyanna, J.) in a considered judgment concluded as follows:

“Having considered the evidence in its totality I therefore hold that in law based on the facts proved by the plaintiff that plaintiff is entitled to judgment on paragraph 16(a) of his statement of claim. As regards paragraph 16(b) of the statement of claim there shall be judgment for plaintiff at five (5) per centum interest per annum on the said sum of N54,000.00 from the date of this judgment till the judgment debt is completely liquidated.”

The defendant then brought a motion filed on 14th December, 1988 seeking to set aside the judgment. The reasons for his absence from court as from 27th July, 1987 were that on that day as he was driving from Aba to attend court at Awka he was involved in a serious accident which led to his being hospitalised. He said further that he was not personally liable in the transaction with the plaintiff but that the money was paid to the company. Learned counsel for him also raised the issue of the jurisdiction of the High Court of Anambra State to entertain the matter. He argued that the contract was made in Lagos, it was to be performed in Aba and the defendant was not resident in Awka. On 7th November, 1989, the learned trial Judge, in a considered ruling, refused to set aside the judgment. On the question of jurisdiction, he said:

“To my mind, to plead that a person who says he hails from a place does not ‘reside’ in that place when he is not a lawyer seems to be pursuing legalism too far. ‘To hail’ is a compendious word which may mean live in a place as well as being ‘a native of a place’. I think the pleading clearly disclosed where the defendant/applicant resides.”

The defendant appealed in separate appeals to the Court of Appeal, Enugu Division, against the judgment of 24th February, 1988 and the ruling of 7th November, 1989 by the trial court. Both appeals were consolidated. Two of the three issues raised for determination by the Court of Appeal were –

1. Whether the learned trial Judge had jurisdiction to try the suit.
2. Whether the learned trial Judge was right in entering judgment against the defendant when the evidence adduced at the trial showed that the respondent made a contract with a limited liability company called Pace Dry Cleaning and Laundry Services Limited.

On issue 1, the court below examined the pleadings and evidence, and observed per Awogu, J.C.A. who read the leading judgment:

“In the instant appeal, the evidence of the plaintiff was that the defendant ‘hails from Umuogbu Village, Awka.’ In the statement of defence, the defendant agreed that he was a native of Awka, and hailed from Awka, but ‘denies residing there ordinarily.’ The amended statement of claim states, however, that the ‘defendant resides at Umuogbu Village, Awka, and also resides and carries on business at Enugu.’ It seems to me that the fact that the defendant admitted hailing from Awka, but not residing there ‘ordinarily’, is an admission that he resides there also.”