Emsilv Nigeria Limited & Anor. V. Mr. Sylvanus Emunemu (2006)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By a writ of summons dated and filed on the 22/3/2004 the Respondent as the Plaintiff before the trial court claimed against the Appellants/Defendants jointly and severally the sum of N180,000.00 (One hundred and eighty thousand Naira) only being the sum due and owed to the plaintiff which sum the Defendants had refused to pay in spite of repeated demands.

By a motion ex-parte which was moved and heard by the trial court on the 7/4/2004 the court granted leave that the suit be entered in the undefended list.

Upon being served with the writ and the order placing the suit on the undefended list, the defendants by a motion dated and filed on the 21/5/2004 prayed for an order of the court extending the time within which the defendants may file their notice of intention to defend and a deeming order on the annexed notice of intention to defend.

The court heard the said motion on the 2/6/2004 and granted the relief sought and adjourned the matter to 16/7/2004 for hearing.

On the said date the lower court took argument from counsels to the parties and entered judgment for the Respondent on the amount claimed.

The defendants being dissatisfied have now appealed to this court vide Notice of Appeal filed on the 23/9/2004 containing four grounds of appeal.

The parties duly filed and exchanged briefs of argument as required by the rules of this court which said briefs were adopted and relied upon by the respective learned counsels at the hearing of this appeal.

The Appellant in their brief of argument identified the following issues;

“1. Whether the learned trial judge was right when he held “That the 1st Defendant is bound by the name it called itself” without the necessity for a legal proof to establish that it is a legal personality recognized by law.

2. Whether from the learned trial judge’s admission and the state of the affidavit evidence – that exhibits A and B came from the 1st Appellant duly signed on its behalf by the 2nd Appellant it was right in law to still hold the 2nd Appellant liable jointly and severally for the sum of N180,000.00
3. Whether from the affidavit evidence, the Respondent has established that the sum of N180,000.00 being claimed is the sum outstanding as indicated on Exhibit ‘A’.
4. Whether the Respondent has established any valid contract with the Appellants to warrant the payment of N180,000.00 to him in view of the strong denials of Exhibit ‘A’ and ‘B”.

The Respondent raised the following issues;

“1. Whether there was evidence before the lower court to show or establish that the 1st defendant is not a juristic person.

2. Whether the trial court was right to have held that exhibits ‘A’ and ‘B’ emanated from the Appellants.”

The Respondent also raised a preliminary objection to the appeal based on the following grounds;

“1. That the grounds of appeal do not arise out of the decision of the lower court appealed against.