Jolabon Investment Nigeria Limited & Ors V. Oyus International Company Nigeria Limited (2015)
LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the judgment of the High Court of Justice, Federal Capital Territory, Abuja (“the Trial Court” for short) in Suit No. CV/252/2010 delivered on 20/4/2011 in which the trial court entered judgment in favour of the respondent (qua plaintiff) in the sum of Five Million Naira (N5, 000,000:00) with interest at the rate of 20% per month from 15/11/2007 against the appellants (qua defendants).
The facts forming the background of this appeal are that the respondent entered into a consultancy agreement with the 1st appellant for the latter to assist the respondent to procure land facing Tafewa Balewa Road, Central Business District, Abuja.
The respondent agreed to pay the consultant the sum of Twenty Seven Million Naira (N27, 000,000:00) with an initial deposit of Five Million Naira (N5, 000,000:00) paid by the respondent. The balance of Twenty Two Million Naira (N22, 000,000:00) was to be paid before the release to the respondent of original letter of allocation. The 1st appellant agreed to refund the deposit of Five Million Naira upon certain terms if it failed to get the allocation/letter of offer after four weeks of the payment of the deposit.
The 3rd appellant served as a guarantor for the deposit.
The transaction went sour and the respondent sued the appellants on the undefended list for;
“(i) The sum of N5, 000,000:00 being money paid the defendants without consideration.
(ii) 25% interest per month commencing from 15th of November, 2007 as per the Consultancy Agreement between the plaintiff and Defendants.
(iii) Cost of this action.”
Aggrieved by the judgment of the trial court, the appellants have appealed to this court by means of a notice of appeal bearing four (4) grounds of appeal, dated 20/4/2011 but filed on 21/4/2011.
In the appellant’s brief settled by Adekunle O. Otutoju, Esq; dated 29/4/2011 and filed on 4/8/2011 but deemed filed on 4/6/2014, four issues are formulated from the four grounds of appeal. The issues are:
“1. Whether the lower court was right to have entered judgment under undefended list action in the sum of 5 Million and 20% interest per month commencing from 15th of November, 2007 as per the provisions of Article 2(f) of the consultancy agreement.
- Whether the lower court was right to have relied on the consultancy agreement upon the agreement being varied and breached by the respondent himself in arriving at his (sic) judgment without calling oral evidence.
- Whether the Appellant (sic) right to fair hearing have (sic) not been breached by the lower court for not transferring the matter to the general cause list to enable the Appellant tender documents and call witness in the matter.
- Whether it will be right to call for documentary evidence at this stage of determining whether the Appellant (sic) have a defence on the merit or not under the undefended list action, when the lower court held that the Appellant did not attach the cheques to his Notice on (sic) intention to defend the suit without proper recourse to the provisions of Order 21 of the High Court of the Federal Capital Territory Civil Procedures (sic) Rules.”
On his part, Godwin S. Ogboji Esq; of counsel, for the respondent in his brief of argument dated and filed on 19/1/2012 but deemed filed on 4/6/2014, decocted one issue for the court’s determination of the appeal.
The issue is:
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