Gateway Paper Products Nig. Ltd. & Anor V. Intercontinental Bank Plc. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A., OFR (Delivering the leading Judgment)

This is an appeal against the Judgment of Olateregun J. of the High Court of Justice Abeokuta, Ogun State in Suit No. FHC/AB/CS/3/2007 delivered on the 5th March 2007. In the said Suit the present Respondent as Plaintiff claimed against the Appellants as Defendants as follows –

1. The sum of N53, 499,436.12 being the outstanding balance due to the Plaintiff from the Defendants as at 30th June 2005 arising from the contract finance facility granted the 1st Defendant by the Plaintiff and guaranteed by the 2nd Defendant on the 9th January 2001.
2. Interest on the said sum of N53, 499,436.12 at the agreed rate of 22.5 per cent per annum from the 30th June 2005 until judgment and thereafter at the same rate until final liquidation.

Following an application ex-parte by the then Plaintiff (now Respondent) the case was placed under the undefended list and the 5th March 2007 was fixed by the trial High Court as the return date. On the said 5th March 2007 the case came up for hearing, the then Defendants (now Appellants) having on the 21st February 2007 been served with the court order and other processes. Learned Counsel for the then plaintiff informed the court that the then Defendants had failed to file a Notice of Intention to defend the action and requested that judgment be entered in favour of the plaintiff. Learned Counsel for the then Defendants requested the Court to be given time to seek leave to defend the action because the Defendants had a defence to the action.

Counsel for the Defendants informed the Court that the delay in responding to the action was because the Managing Director of the Defendant Company was out of the country. The learned trial Judge having listened to both counsel, came to the conclusion that the Defendants had no defence to the action and entered judgment for the Plaintiff pursuant to Order 24 Rule 4 of the Federal High Court Civil Procedure Rules 2000. It is this judgment that is the subject matter of this appeal and in respect of which the aggrieved Defendants turned Appellants filed a Notice of Appeal.

The said Notice of Appeal contained at pages 54-55 of the Record of Appeal is dated the 6th March 2007 and was filed on the 7th March 2007. Following the grant of an order of Court to do so, the Appellants filed an Amended Notice of Appeal on the 20th November 2008 incorporating additional grounds of Appeal. The Amended Notice of Appeal is reproduced in its entirety below –

“AMENDED NOTICE OF APPEAL

TAKE NOTICE that the Appellant being dissatisfied with the decision of the Federal High Court, Abeokuta contained in the Judgment, of Hon. Justice C.M.A. Olatoregun dated 5th day of March, 2007 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4.

AND THE APPELLANTS state that the names and address of the parties affected by the appeal are those set out in paragraph 5.

2. Part of the Decision of the Lower Court complained of:

The Whole Decision

GROUNDS OF APPEAL

Ground One

The learned trial judge erred in law in giving judgment in favour of the Respondent without giving the Appellant a right of fair hearing in the determination of this suit pursuant to S. 36 of the Constitution of the Federal Republic of Nigeria 1999.

Particulars of Error

(a) Respondent commenced this suit by Motion Ex-parte entering the suit for hearing under the undefended list on 6/2/07.