Lonestar Drilling Nigeria Limited V. New Genesis Executive Security Limited (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivered the Leading Judgment)

The appeal is against the judgment of Hon. J. N. Akpughunum, I of Rivers State High Court delivered on 19th January, 2009 wherein the Appellant was ordered to pay to the Respondent the following sums-

(a) A total of $1,091,208.40 (one Million, Ninety-six Thousand, Two Hundred and Eight US Dollars and forty cents) being the total Dollar amount covering the months of January, February, March, June, July, August and September, 2007 {exclusive of VAT charges) for security services rendered by the claimant/Respondent to the defendant (Appellant for which the defendant/Appellant was alleged to have refused or failed to pay despite repeated demands.

(b) A total sum of N99,559,000,84 (Ninety-Nine Million, Five Hundred and Fifty-Nine Thousand Naira, Eighty Kobo) being the naira payment for security and catering services (exclusive of VAT Charges) rendered to the defendant/Appellant by the Claimant/Respondent which sum the defendant/Appellant was alleged to have failed or refused to pay despite repeated demands.

(c) The sum of N50,000.00 (Fifty Thousand Naira) awards as costs.

The suit was heard under the undefended List procedure. The Claimant/Respondent has claimed the sums of $1,096,208.40 and N99, 559,000.84 as liquidated sums for services rendered under a written agreement. The 10% interest per annum was claimed as a statutory interest an judgment sum until the same was fully liquidated. In the suit of the claimant/Respondent the sum of N500.000.00 was claimed as costs of the litigation. Out of this sum the learned trial judge, in her discretion awarded N50, 000.00 representing 10% of the sum claimed. In accordance with the Rules of this court the parties duly exchanged Briefs of Arguments. For the Appellant three (3) issues for determination were formulated from the four (4) grounds of appeal. The issues formulated are:-

1. Whether having regard to the evidence before the lower Court, the learned trial judge was right when he proceeded to enter judgment for the Respondent under the undefended List.
2. Whether the Appellant’s Notice of Intention to Defend raises a triable issue so as to entitle the Appellants to be let in to defend.
3. Whether the writ of summons in this suit under the undefended List Defend Procedure can be issued without the leave of court being sought and obtained.

I have read the Respondent’s Brief. The Respondent thinks that only one issue really stands out from the 4 grounds of appeal for determination. The lone issue formulated is:

Whether the Appellant’s notice of Intention to Defend disclosed any defence on the merits as to warrant the transfer of the suit to the General Cause List of the High Court.

In my humble view the issues formulated by the Appellant cover more grounds that the lone issue formulated by the Respondent. I will, and I do hereby therefore, adopt the issues formulated by the Appellant and accordingly, consider the Appeal.

Appellants third issue queries the competence of the originating process, which according to the Appellant was not issued in accordance with Order 11 Rule 8(1) & (2) of the High Court (Civil Procedure) Rules, 2006 that provide.

8(1) where a claimant in respect of a claim to recover a debt of liquidated money demand believes that there is ns defence to his claim, he shall make an application to a court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto.

(2) The Court shall, if satisfied that there are grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended List”, and mark the writ accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.

Appellant submits correctly in my view that under the foregoing Rules leave of, court to place the suit on the undefended List procedure must be first sought and obtained before the Writ of Summons under the undefended List would be issued. Appellant further argues that in the instant case the said leave was not first sought and obtained before the Writ of Summons (at pages 1-52 of the Record) was taken out on 29th October, 2008. I do not think that the Record of appeal supports this submission. It is trite that the parties, especially the appellant, are bound by the Record. The claimant’s motion ex-parte for leave for the action to be heard and determined under the Undefended List Procedure was filed on 22nd August 2008 – pages 58-94 of the Record. The application was heard and granted on 23rd October 2008 see pages 141-142 of the Record. The writ of summons was, in consequence of the ex-parte order, taken out on 29th October, 2008. There belies the falsity or fallacy of this submission.

Issue 3 shall be, and is, hereby therefore resolved against the Appellant.