Guinness Nigeria Plc. V. Prince Obot Ufot (2007)

LawGlobal-Hub Lead Judgment Report

OWOADE, J.C.A.

This is a consolidated appeal against the decision of the Akwa Ibom State High Court, Ikot Abasi Division, contained in the rulings of Okpo, J. dated 29th April, 1998 and 30th August, 1999 respectively.

By a writ of summons dated and filed on 11th August, 1997 in suit No. HAB/40/97 the respondent as plaintiff claimed against the appellant and one Mrs. Charity Ukofia as 2nd and 1st defendants respectively, the sum of N2 million (Two million Naira) representing special and general damages for negligence in the manufacture of its product Guinness Big Stout which the plaintiff allegedly consumed and developed an ailment. The plaintiff’s/respondent writ of summons was followed by a statement of claim dated 20th August, 1997 and filed on 4th September, 1997.

Meanwhile, the 1st defendant filed a memorandum of appearance but the 2nd defendant (now appellant) did not. However, on the 14th January, 1998, the appellant then 2nd defendant filed a statement of defence dated 1st September. 1997 out of time and without leave of court so to do. In the pendency of the 2nd defendant’s/appellant’s statement of claim and the 1st defendant’s memorandum of appearance, the respondent as plaintiff brought a motion against the defendants for judgment in default under the provision of Order 14 rule 1 of the High Court (Civil Procedure) Rules, 1989 of Akwa Ibom State. In the absence of the appellant as 2nd defendant, the learned trial Judge entertained the motion for default judgment, took the evidence of the plaintiff and his medical witness and on the 29th April. 1998, gave a ruling in which he entered final judgment upholding the plaintiff’s claims as against the 2nd defendant/appellant only. By a motion dated 21st May, 1999 and filed on 24th May, 1999 in suit No. HAB/Misc. 29/99, the appellant as applicant before the lower court brought a motion:

(a) For an order extending the time within which the 2nd defendant/applicant can apply to set aside the judgment delivered in suit No. HAB/40/97 on 29th April, 1998 in default of appearance at trial.

(b) An order setting aside the said judgment.

(c) Leave to defend the action as per the statement of defence filed on 14th January. 1998.

(d) An order granting a stay of execution of the judgment delivered in suit No. HAB/40/97 on 29th April, 1998 in default of appearance at trial, pending the determination of the suit on the merit, and

(e) For such further and/or other order(s) as this Honourable Court may deem fit to make in the circumstances.

The trial court took arguments on this motion and on the 30th day of August, 1999 in a considered ruling, the court found no merit in the appellant’s/applicant’s motion on notice to set aside, refused and dismissed same.

The appellant’s brief of argument dated 14th November. 2002 was filed on 18th November. 2002. The respondent with leave of court filed a notice of preliminary objection, the argument of which was incorporated in his brief of argument dated 6th February, 2004 and filed on 9th February. 2004 whereof, the appellant filed a reply brief on 16th February, 2006.

In its notice of appeal dated 11th April. 2000 and filed on 13th April, 2000, the appellant filed five (5) grounds of appeal. In the brief of argument, learned counsel for the appellant submitted three (3) issues as arising for determination.

“1. Whether the proceeding of the 29th day of April, 1998 and 30th day of August, 1999 respectively were proper in law.

2. Whether the appellant was denied a fair hearing by the lower court and whether a travesty of justice was committed by the lower court against the appellant by the said denial of fair hearing?
3. Whether the award of damages was proper in law?”

The respondent on the other hand formulated the following two (2) issues for determination.