Ikpala Estates Hotels Ltd. V. National Electric Power Authority (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A. 

This is an appeal against the decision of Emilia Ibok, J. in suit No. HC/53/2002 delivered at the High Court of Cross River State, Calabar Division, dated the 27th May, 2002.

The plaintiff took out a writ of summons against the defendant in the following terms:
“1. The sum of N351, 095.00 (Three hundred and fifty one thousand and ninety five Naira) only being debt owed the plaintiff since 25th September, 1997 arising out of the Hotel accommodation and feeding provided for one Mr. A. O. Enang, a staff of the defendant at the instance of the defendant which the defendant has failed to settle despite repeated demands.
2. 10% interest on the said N351, 095 .00 from the 25th September, 1997 until judgment is delivered.
3. 10% interest on the judgment sum from the day of delivery of judgment till liquidation.
4. N5, 000.00 being out of pocket expenses.”

The facts of the case are not in dispute and they are straightforward. On the 27th day of August, 1997, the respondent as defendant wrote a letter to the manager of the appellant as plaintiff requesting that the appellant provide hotel accommodation and feeding for one of its staff, Mr. A. O. Enang for twenty eight days.

Accordingly the appellant provided hotel accommodation and feeding for the said Mr. A. O. Enang and family for 28 days. A bill of N351, 095 .00 was incurred by the said Mr. A. O. Enang on behalf of the respondent. The appellant submitted the said bill to the Calabar office of the respondent for settlement. However, the bill was never settled in spite of its acknowledgement by the respondent.
On the 12th day of February, 2002 the appellant filed a writ of summons and an affidavit praying the lower court to enter the suit for hearing under the undefended list.

The writ of summons and the affidavit were served on the respondent. The respondent reacted by filing a notice of intention to defend and an affidavit disclosing a defence. The respondent in paragraphs 3 – 4 of its affidavit admitted the fact that it was indebted to the appellant to the tune of N351,095.00 however, the learned trial Judge ruled that the affidavit of the respondent has disclosed a defence on the merit because contentious issues are raised therein which require a full hearing.

Dissatisfied and aggrieved by the ruling of the learned trial Judge that the affidavit of the respondent raised contentious issues which can only be determined through a full trial, the appellant has appealed to this court.

The notice of appeal has only one ground of appeal. From the ground of appeal the appellant formulated one issue for determination as follows:
“Whether or not the learned trial Judge was right to hold that the affidavit accompanying the respondent (sic) notice of intention to defend has raised triable issues in view of the unequivocal admission of the principal claim of the appellant by the said affidavit?”

The respondent also formulated one issue for determination. It reads:
“Whether, notwithstanding the admission by the respondent of part of the appellant’s claims, the learned trial Judge was in the circumstances of this case right to transfer the entire claims for hearing under the general cause list?”

Learned counsel for the respondent raised a preliminary objection at page 2 of the respondent’s brief. The preliminary objection was filed in the Registry of this court on 12/11/2002.
Before I consider the lone issue for determination in both briefs, I should consider the preliminary objection and the reply to it in the reply brief of the appellant. The preliminary objection impeaches the competence of this appeal.

The main threshold of the respondent’s objection to the competence of the appeal is two fold namely:-
1. Non-compliance with section 25 subsection 2(a) of the Court of Appeal Act, and
2. Section 242 subsection 1 of the 1999 Constitution.

In respect of non-compliance with section 25 subsection 2(a) of the Court of Appeal Act, it was submitted that proceedings leading to this appeal were in the undefended list. It was argued that the nature of the verdict reached, whether in favour of the plaintiff or defendant determines whether the verdict was final or interlocutory.

It was contended that where the decision refuses leaves to the defendant to defend the action, and judgment is given in favour of the plaintiff, the decision being on the merit is final, and the remedy open to an aggrieved defendant is to invoke such appellate remedies as enure to its benefit, or conversely commence a fresh suit to set aside such a decision. Reference was made to the case of Bank of the North Ltd. v. Intra Bank S.A. (1969) All NLR 88 at 93; Mark v. Eke (1997) 11 NWLR (Pt.529) 501 at 524.

Learned counsel for the respondent stated that where, however, the defendant is granted leave to defend the action, such a verdict is interlocutory, since there still remains some steps to be taken by the trial court in the resolution of the dispute. It was argued that the interlocutory nature of such a verdict draws constitutional support from section 241(2)(a) of the 1999 Constitution which debars a plaintiff from appealing against such a decision. See case of Ifediora v. Ume (1988) 2 NWLR (Pt.74) 5 at page 17.