Himma Merchants Ltd. Vs Alhaji Inuwa Aliyu (1994)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

This appeal emanates from the Court of Appeal sitting in Jos, which on 2nd March, 1992 dismissed the Defendant/Appellant’s, appeal from the decision of the High Court of Bauchi State holden in Bauchi where the Respondent as plaintiff had taken out a Writ on the Undefended List against them (Appellants) as follows:-

“The plaintiff is the owner of a fuel filling station at Misau Town within the jurisdiction of this Honourable Court while the defendant is an independent petroleum marketer. On or about the 3rd day of March, 1988 the defendant took on lease the plaintiff’s filling station together with all the appurtenances there unto belonging for an annual sum of N7,000.00 with 5 years rent (i.e. N35,000.00) payable in advance.

The defendant paid N18,000.00 secured the necessary approvals and commenced operation at the plaintiff’s filing station but have since failed and neglected to pay the balance of N16,500.00 despite repeated demands.

WHEREOF the plaintiff claims the sum of N16,500 together with 20% interest per month from July 1988 till final payment from the o defendant.”

The writ which was dated 3rd January, 1989 was supported by an affidavit of five paragraphs of the same date. The appellants in response, filed a Notice of intention to defend on 5th April, 1989, equally supporting it with an affidavit of the same date. The 15th of June, 1989 being the return date, learned counsel for the respondent asked for judgment as per their writ of summons pursuant to Order 23 rules 3 and 4 of the Bauchi State High Court (Civil Procedure) Rules in the absence of the Appellant who even though it had filed a Notice of intention to defend, had no counsel representing it. The learned trial Judge in acceding to learned counsel for the respondent’s request, entered judgment in his favour against the appellants in the following terms.

“Since the defendant has not been given leave to defend by the court, this suit shall be heard on the undefended suit. I will therefore enter judgment for the plaintiff for N16,500.00 being balance of the cost of lease of the plaintiff’s Filling Station together with 18% interest per month from July 1988 till the final payment from the defendant.”

Learned counsel for the appellants after judgment initiated action to set it aside and even though learned counsel for the respondent did not oppose the motion filed for the purpose, curiously enough, the printed record of proceedings is bereft of the court’s order. Albeit, one is left to conjecture as to whether the judgment was set aside or not. However, on 3rd October, 1989, the date when full notes began to be taken by the learned trial Judge, learned counsel for the appellant moved the court on the notice of intention to defend, urging him to stay proceedings to allow for the enforcement of an arbitration contained in paragraph 18 of the agreement exhibited by both parties in their affidavits sequel to the suit herein.

The learned trial Judge on 27th October, 1989 in a considered reserved ruling, found for the respondent once more when with an air of unmistakable finality, he said inter alia:

“I hold that there is no valid notice of intention to defend and notice of preliminary objection filed before me, and the supporting affidavit does not disclose fence (sic) on the merit. Judgment is hereby entered for the sum of N 16,500.00 being the balance of money the defendant failed or neglected to pay together with 20% interest per month from July 1988 till final payment from the defendant.”

As pointed out herein before the appellant’s appeal to the court below was dismissed in a considered judgment, the high water mark of which at page 58 of the Record, runs thus:

“As can be seen above the learned trial Judge did not deviate from the claim. Order 40 Rule 7 of the Bauchi State Rules supra relied upon by counsel in his argument is wide and gives the court discretion on interest payable in any judgment entered. I fail to see how the awarded interest by the learned trial Judge can be faulted.”

The judgment of the court below alluded to above is dated 2nd March, 1992. The appellant thereafter filed in that court, a Notice of Appeal dated 10th March, 1992.

However, on the 14th of May, 1992, appellant applied for leave to file and argue four grounds of appeal contained in the Notice of Appeal to the Supreme Court.