Kaduna South Local Government V. North Links Construction Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of Kaduna State High Court of Justice delivered on 5th March, 2008 in suit No.KDH/KAD/29/2008 by Hon. Justice M. M. Ladan wherein summary Judgment was entered in favour of the Respondent in the absence of the Appellant’s notice of intention to defend the suit.

The Respondent as the plaintiff before the Lower Court took out a writ of summons and a statement of claim on the 22/01/2008 and claimed against the Appellant, then as defendants, the following:-

“1. The Plaintiff’s claim is for the sum of N42,173,112.99 (Forty Two Million, One Hundred and Seventy Three Thousand one Hundred and Twelve Naira, Eighty Nine Kobo against the defendant being balance of unpaid contract sum executed by the plaintiff.

2. Cost of Filing this suit.”

The matter was fixed for hearing on 05/03/2008. However, when the case was called, the Appellant who was said to have been served with writ of summons and the other Court processes on the 30/01/2008, the proof of which the learned trial Judge acknowledged, was absent from the Court.

Thereupon the learned Counsel for the Respondent, Sadau Garba Esq., applied for Judgment under Order 11 Rule 5 (2) of the Kaduna State High Court Civil Procedure Rules.

The Lower Court acceded to that application and entered the following Judgment in favour of the Respondent against the appellant, thus:-

(1) The defendant shall pay the sum of N42,173,112.89 to the plaintiff being balance of unpaid contract sum executed by the plaintiff.

(2) The defendant shall bear the cost of this suit upon application for cost by the Respondent’s Counsel, the sum of N200,000 was awarded as cost against the defendant (now Appellant).

The Appellant prayed the lower Court vide a motion on notice dated 26/05/2008 for an order setting aside the whole proceedings in the suit including service of Court processes, Judgment and Garnishee order of 22nd May, 2008, for lack of Jurisdiction and lack of service and fraud. The motion was accompanied by an affidavit and a written address.

In reaction to the motion, the respondent filed a 4 paragraphed counter-affidavit and a written address opposing the motion.

The motion was heard and in his considered Ruling on 31/07/2008, the learned trial Judge dismissed same for lacking in merit.

Dissatisfied with the decision of the Lower Court for entering default Judgment in favour of the respondent, the Appellant through his Counsel, Miss F. M. Shittu filed a notice of appeal dated 02/06/2008 on the 03/06/2008 challenging the decision.

In accordance with the Rules of this Court, briefs were exchanged. The Appellant’s brief of argument dated 12/03/2013 and filed on 14/03/2013 as well as the reply brief filed on 25/03/2014 were settled by M. T. Muhammad Esq.