Hyun Sung Hydraulic V. Sahyra Nig. Ltd. & Ors (2007)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A

This is an appeal against the judgment of the Kano State High Court NO.3 in Suit No. K/106/2003 delivered on 15/1/04.

The appellant, as plaintiff at the trial court took out a writ of summons on 7/2/2003 against the 1st and 2nd defendants who are the 1st and 2nd respondents in this appeal, claiming the following reliefs:

1. “The sum of N2, 533, 343.00 being the amount outstanding for hydraulic machines and accessories sold to the Defendant by the Plaintiff from 04/10/2000 to 08/01/2001; the Plaintiff has made several and repeated demands for the said balance but the Defendant has so far failed, neglected or refused to pay same.
2. Costs and interest at the rate of 10% p.a. on the said balance from the day judgment is delivered until the judgment debt is fully paid.”

The suit was entered on the Undefended List. Along with the writ of summons, the plaintiff filed an ex-parte application and a motion on notice for an order against the defendants to furnish security in the sum of N2, 500, 000.00. The plaintiff also sought an order that the machines, which had already been delivered to the defendants, be attached in the interim and kept in the custody of the court pending the determination of the suit or further orders from the court. The court refused the ex-parte application but granted the motion on notice. The order was duly executed. After the execution, the 3rd respondent herein filed an application before the court seeking the release of the attached machines to him on the ground that he had purchased them from the 2nd respondent. The appellant and the 1st and 2nd respondents filed counter affidavits to the motion.

Before the motion could be heard, the presiding Judge, Shehu Atiku, J declined further jurisdiction. The suit was therefore transferred to High Court No. 3 presided over by Umaru Alkali, J. On 24/7/03 the 3rd respondent filed a fresh motion seeking to be joined in the suit as a co-defendant and seeking the release of the machines to him. The appellant filed a notice of preliminary objection dated 30/7/2003 challenging the court’s jurisdiction to entertain the 3rd respondent’s motion. When the 3rd respondent’s application came up for hearing on 9/10/03 the appellant and the 1st and 2nd respondents were absent and unrepresented by counsel. The appellant’s preliminary objection was accordingly struck out. The 3rd respondent therefore argued his application. The prayer seeking to join him as a co-defendant was granted. The court however adjourned further hearing in respect of the prayer seeking the release of the machines to 20/10/03, to afford the appellant and the 1st and 2nd respondents an opportunity to react. On 20/10/03 the appellant filed another preliminary objection challenging the court’s jurisdiction to hear or further entertain the 3rd respondent’s motion.

On 15/1/04 when the suit came up for hearing, the appellant’s counsel drew the court’s attention to the fact that the 1st and 2nd respondents had not filed a notice of intention to defend in accordance with the rules of court and applied for judgment against them. The learned trial Judge accordingly entered judgment in favour of the appellant against the 1st and 2nd respondents. He also ordered the immediate release of the attached machines to the 3rd respondent even though the appellant’s preliminary objection to the further hearing of the 3rd respondent’s motion dated 24/7/03 had not been disposed of.

At page 39 of the record the learned trial Judge held as follows:

“I have listened to the parties in this case. I am satisfied that the transactions between the plaintiff and the 2nd [defendant] has been completed and since [the] 2 defendants did not file any notice of intention to defend plaintiff is entitled to judgment and consequently judgment is hereby granted in favour of the plaintiff as per the writ of summons/statement of claim of the plaintiff. With regard to the release of the machine the 3rd defendants counsel has since move (sic) the application and when the 1st and 2nd defendants were about to apply question of reconciliation arose they file (sic) a notice of preliminary objection and I have gone through the notice of objection and nothing therein concern (sic) the 3rd defendants. Plaintiff has (sic) no claim against the 3rd defendant. He has validly purchased the machine from the 2nd defendant. This is clear from the various affidavits filed by the 3rd defendant.

And not delivered (sic) by the other parties. Consequently I order that the machine be released to him immediately and plaintiff can then attach (sic) the 1st and 2nd defendants’ properties to recover their judgment debt.” The appellant was dissatisfied with the part of the decision ordering the release of the machines to the 3rd respondent. It has therefore appealed to this court by its notice of appeal dated 15/1/04 containing three grounds of appeal. The grounds of appeal are as follows:

1. The decision is against the weight of affidavit evidence adduced in the proceedings.
2. The learned trial Judge denied the plaintiff fair hearing, an opportunity to be heard before arbitrarily granting the 3rd defendant’s motion and ordering the release of the attached machines to the 3rd defendant.

PARTICULARS

i) The plaintiff filed and was prepared to argue their preliminary objection but was not allowed to do so before the motion was granted.

ii) The said objection challenged the Hon. Court’s jurisdiction to entertain the motion.

iii) The plaintiff and the 1st and 2nd defendants also had respective counter affidavits to the motion but were not allowed to be heard in reply to the 3rd defendant’s arguments before the motion was granted.

iv) The Hon. Trial Judge had become functus officio and had no jurisdiction to further entertain the 3rd defendant’s motion.