Emperion West Africa Limited V. Aflon Limited & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, OFR J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of the Federal Capital Territory (Coram U. A. Inyang J.) (“The lower court” for short) delivered on the 7th day of July 2008 dismissing the appellant’s motion on notice dated 8th September, 2005, wherein the appellant as applicant in the said motion sought among other reliefs before the lower court, an order setting aside the judgment of the lower court earlier delivered on the 25th of June 2005 in the absence of the applicant now appellant.

At the lower court, the first respondent as Plaintiff thereat, took a writ of summons dated 5/2/2004 seeking the undermentioned reliefs:-

a) The sum of N1, 312,723:85 being payment for equipment and services that were not supplied and rendered.

b) The sum of N880, 000:00 being rent of office and employment of 2 officers for 12 months.

c) The sum of N8, 000, 000:00 as general damages for breach of contract, and

d) The plaintiff claims 21% interest on the said sum of N1, 312,728:85k from 7th October 2003 until judgment and thereafter 10% interest on the total debt until liquidation.

The background facts which gave rise to this appeal as could be gleaned from the record of appeal are summarised as follows:-

The first respondent took a writ of summons dated 5th February, 2004 against the present appellant as first defendant and the second respondent as the 2nd defendant thereat, and sought the four aforesaid reliefs. According to the appellant/first defendant, it became aware of the suit filed against it by the 1st plaintiff (1st respondent) on Monday 15th August, 2005 when the lower court’s bailiffs came to its office to levy execution of the judgment of the lower court in the substantive suit.

The appellant stated that on seeing that, it quickly referred the matter to its solicitors who without waste of time, took immediate step by conducting search at the lower court’s record and proceeded to file a motion to set aside the judgment of the lower court. The motion was argued at the lower court and the latter, ultimately dismissed the said motion on notice to set aside the judgment vide a 154 paged Ruling of the lower court delivered on 7th July, 2008.

Piqued by the ruling of the lower court, the appellant appealed to this court vide a notice of appeal dated 20th September, 2006. Later with leave of this court granted on 2nd June 2010 the appellant amended its Notice of Appeal by inclusion of some additional grounds of appeal. The Amended Notice of Appeal containing a total of fifteen grounds of appeal was filed on 4th June, 2010.

Perhaps it will be apt to set out the substance of the motion on notice dated 8/9/2005 which appeared on pages 36-62 of the Record in which the appellant (1st defendant) prayed the court to set aside the judgment and which was later dismissed by the lower court vide its 154 paged ruling delivered on 7/7/2008 and which also led to the institution of this appeal by the appellant.

In the motion on notice dated 8th of September, 2005, the appellant as applicant prayed the lower court to grant him the under listed reliefs:-

a) AN ORDER setting aside the judgment of this Honourable Court delivered against the applicant on the 24 day of June 2005