Heco Foam Industries Nigeria Limited V. Chellarams PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Anambra State, Idemili Judicial Division, Holden at Ogidi, delivered by Hon. Justice O.M. Anyachebelu on 22/2/2012.

In the said judgment, the Honourable Court ordered the Appellant to pay the Respondent the sum of N4,413,938.00 being the current outstanding balance of money due and owing to the Respondent by the Appellant as at 24/8/2007 on account of goods sold and delivered to the Appellant by the Respondent between 22/9/06 to 29/9/07 inclusive of which the Appellant failed and/or neglected to liquidate despite demands.

Dissatisfied with the Judgment, the Appellant filed several Notices of Appeal. At the hearing of the appeal, the appellant relied on the Notice and grounds of appeal filed on 20/3/2012. Record was transmitted on 21/5/12. The Appellant?s brief was filed on 21/6/12. At the hearing of the Appeal, the Respondent and its counsel Chief C.E. Eregbuonye were absent even though the Court was satisfied by the proof of service of hearing notice on them that counsel was served

1

with its notice by message on 11/7/16. A call was also made on 21/9/16 to the said Respondent?s counsel notifying him of the day?s hearing. Learned Appellant?s Counsel Dr. C.J. Ubanyionwu urged the Court to activate Order 18 R 9(4) of the Court of Appeal Rules 2011 to take the Respondent?s brief already filed on 13/7/12 as deemed argued. The Court agreed in view of the lack of explanation for the absence of Respondent and its counsel. The Court deemed the Respondent?s brief already filed on 13/7/12 having been argued on 29/9/16.

Briefly, the facts that led to this appeal are as follows:-

The Respondent consigned goods on credit to the Appellant under the name of Heco Foam and Chemical of No. 3B, Ojoto Street Nkpor, an unregistered company, which is the name and address given by the Appellant to the Respondent during the transaction.

?

The Appellant received goods, sold and utilized the proceeds of sale in its business and made partial payment and in payment for the balance, the Appellant issued series of cheques to the Respondent which were returned unpaid. They were tendered as Exhibits P4-P7 at the trial.<br< p=””

</br<

2

When the Respondent demanded for payment through Exhibit P8, the Appellant replied to the letter through Exhibit P9 and acknowledged that the debt arose out of its business transaction with the Respondent and promised to pay the debt.

When the Respondent sued for the debt in January 2008 and served the Writ of Summons on the debtor Heco Foams & Chemical Ltd, the Appellant briefed Counsel to apply for adjournment to explore settlement out of Court.