F. K. Construction Co. Ltd. V. Trevi Foundation Nig. Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment)

The appeal is against the ruling and the final judgment of the learned trial judge Akpughunm of Port Harcourt High Court, delivered on 29-06-2004 in which the appellant’s preliminary objection to the plaintiff but now respondent’s suit, was dismissed or overruled. The suit was on the undefended list. The trial judge heard the undefended list in favour of the respondent.

Dissatisfied with the judgment, the appellant filed a notice of appeal on 29-06-2004 containing 4 grounds of appeal.

From the 4 grounds, the appellant has raised 3 issues for determination.

They read thus:

1. “Whether the suit was fixed for ruling on the preliminary objection or hearing of the substantive suit. If it was for ruling, whether final judgment can be entered in the course of delivering ruling on an interlocutory application (ground 4)
2. Whether the learned trial judge should not have given the defendant/appellant the opportunity to file and serve its notice of intention to defend with affidavit disclosing a defence on the merit before proceedings to judgment in the undefended list since the matter was fixed for ruling (ground 1)
3. Whether in the face of the writ of summons, the affidavit in verification and the affidavit in support of the application under the undefended list, the trial judgment can enter the suit or the undefended list and judgment in favour of the plaintiff/respondent (grounds 2 and 3)”.

On the part of the respondent a sole issue is raised. It reads thus:-

“Whether the decision of the High court is correct having regard to the circumstances of the case”.

This appeal is straight forward and I will treat jointly, the appellant’s three [3] issues along with the respondent’s sole issue

The appellant’s issue 1 is, whether the suit was fixed for ruling on the preliminary objection or hearing of the substantive suit. In my considered opinion, the undefended list proceedings, is a special procedure and it is peculiar in its subject and application. The respondent’s claim against the appellant at the lower court was for the sum of N48,579,052.75 being and representing unpaid invoices expended in the execution of the contract which was clearly awarded to the respondent. The contract was for construction of the Woji Trans-Amadi Bridge Port Harcourt. When the respondent’s suit was filed, it was under the undefended list. The trial judge made order that, the appellant should be served with the order, which would give the appellant, an opportunity to file a notice of intention to defend as required by Order 23 Rule 2 of the Rules of Rivers state High Court. When the appellant was served with the undefended list along with hearing notice, instead of filing a notice of intention to defend, it filed a preliminary objection on the ground that, the trial court had no jurisdiction to hear the undefended list. Despite the failure to file the notice of intention to defend, the trial judge, still gave the appellant sufficient time to consider if it had a defence. In the enrolled order as contained at page 41 of the record, it reads:

“IT IS ORDERED that this suit be placed for hearing in the undefended list and that the Writ of’ Summons be marked accordingly.

IT IS ALSO ORDERED that the Writ of Summons, the order and all other processes in this suit shall be served on the defendant/respondent before the date filed for hearing”.

The appellant has not denied that, the enrolled order was effectively served on it. On 01-02-2004, the appellant argued his objection despite the respondent’s reminder to the trial judge that the matter was earlier on adjourned to hear the undefended list. The argument was adjourned to 24th March 2004 for reply on the preliminary objection, but could not be heard on the adjourned date and the trial court further adjourned to 24th June 2004. After parties had argued on the objection, the trial judge held that the writ of summons was not wrong, and that the trial court had jurisdiction to hear and determine the writ on the undefended list. The trial court dismissed the preliminary objection.

I have considered the trial judge’s proceedings, and at page 65 of the record, his Lordship effectively stated as follows:-

“Having dismissed the notice of preliminary objection, I shall now look at the claim before me. The present action was commenced under the undefended list procedure. By the rules, a defendant served with such process is enjoined to file a Notice of Intention to Defend supported by an affidavit disclosing a defence on merit, not less than 5 days to the date fixed for hearing if he intends to defend the action.