Knightsbridge Limited & Anor V. Nathaniel Atamako (1999)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The respondent, Nathaniel Atamako, was the plaintiff in this case instituted at Wari High Court of Delta State as Suit No. W/584/98. The claim was against the two appellants as defendants jointly and severally. His claim as endorsed on the writ of summons is as follows:

‘The plaintiff’s claim against the defendants jointly and for severally is for the sum of N676,827.00 being the balance of the Commission of N853,600.00 due payable by the defendants to the plaintiff as per contract. Some times in the month of July, 1998 at the N.P.A. Yard, Wani, within the jurisdiction of the Honourable Court, the 1st defendant (through the 2nd defendant, its Base Manager and representative/agent) contracted with the plaintiff to pay the plaintiff the commission of N2.00 per litre of Diesel oil (A.G.O) if the plaintiff secured or procured from Messrs Julius Berger Nigeria Plc, N.P.A. Yard, Warri an L.P.O. in favour of the 1st defendant to enable 1st defendant supply the said Julius Berger Nigeria-Plc, some quantity of Diesel oil.

In accordance with the contract the plaintiff procured the L.P.O. No.011950 of 9/7/98 from Julius Berger Nigeria Plc for 1st defendant to supply Julius Berger 426,800 litres of Diesel oil.

The 1st defendant paid the plaintiff the sum of N176,772.50 only out of the total commission of N853,600.00 due on the 426,800 litres (although by its deliberate default 1st defendant supplied only 204,200 litres to Julius Berger) leaving the balance or commission of N676,827. 50 due to plaintiff unpaid in spite of repeated demands. The contract between Plaintiff and the Defendants took place at N.P.A. Yard, Warri within the jurisdiction of the Honourable Court in the month of July, 1998.

The 1st defendant has a principal place of business at and the 2nd defendant resides at Gateway Estate, Airport Road, Warri within the jurisdiction of the Honourable Court.

WHEREFORE the plaintiff claims from the defendants jointly and/or severally the sum of N676,827.50 as above.”

The writ was dated 30/11/98 and filed on 3/12/98. Also filed on the same day along with the writ is an ex parte motion in which the plaintiff prayed the court for an order of the court to enter this suit for hearing in the undefended list and mark the summons as undefended and enter thereon in the writ of summons a date for hearing suitable to the circumstance of the case. The motion was supported by a 29 paragraph affidavit in which the plaintiff/respondent deposed to the circumstances that led to the institution of the claim and gave reasons in support of his request. Paragraphs 6, 9, 11, 13 and 24 of the affidavit adequately set out the facts relied on by the plaintiff/applicant. The said paragraphs 6, 9, 11, 13 and 24 of the affidavit read as follows:

“6. That it was agreed between the 2nd defendant and I that the 1st defendant would pay me the commission of N2.00 for every litre of Diesel oil so ordered by the said Julius Berger Nigeria Plc, from the 1stt defendant.

9. That in accordance with the terms of the oral contract between the parties, the 1st defendant would pay me the total sum of N8S3,600.00 for the 426,800 litres of diesel so ordered.
10. That the 1st defendant was able to deliver only 204,200 litres out of the 426,800 litres ordered to Julius Berger due to the 1st defendant’s inability to perform.
11. That Julius Berger Nigeria Plc. paid the 1st defendant the sum of N1,859,380.00 on 29/9/98: that the cheque was personally collected by the plaintiff and handed over to the 2nd defendant for the 1st defendant: that in return the 2nd defendant issued his personal cheque for the sum of N120,000.00 to the plaintiff as part payment of the commission due the plaintiff which plaintiff collected.
12. That after narrating the above facts to my counsel, Chief J.O. Ighrude, my said counsel advised me and I verily believe him that the defendants have no tenable nor good defence on the merits to my claim against them and as such it is a claim that can be brought under the “Undefended List” of the Honourable Court.”

The matter then came up before Akpomudjere J. The learned Judge granted the prayer and entered the case on the undefended list. The appellants reacted to this development by filing a notice of intention to defend the suit along with a 24 paragraph affidavit disclosing their defence. The affidavit was sworn to by the second defendant/respondent. Paragraph 22 of the affidavit reads as follows:

“22. That Defendants only agree with the plaintiff to pay commission based on the quantity of the product supplied subject to other financial constraints.”

When the case came up for hearing before the learned trial Judge on 8/1/99, learned counsel for each of the parties addressed the court and the Judge thereafter delivered his judgment in the case. He held, inter alia, that the defendants failed to disclose any defence on the merit. The application to transfer the claim from the undefended list was therefore refused and judgment was entered for the plaintiffs as per his claim with N1,000.00 as costs.

The defendants were dissatisfied with the judgment of the Court and they have appealed against it to this Court. Five grounds of appeal were filed. The parties filed their briefs in this court. The appellants formulated the following issue as arising for determination in the appeal:

“Whether it was proper for the learned trial Judge to have entered judgment for the respondent under the undefended list procedure in the circumstances of this matter.”