Mike Johnson & Anor V. Ifeanyi Ogbujimma (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This is an appeal against the judgment delivered on 7th December, 2004 by Honourable Justice S.E. Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja. The High Court of the Federal Capital Territory will hereinafter simply be referred to as “the lower court”.

The Respondent as Plaintiff commenced the instant action against the Appellants as Defendants before the lower court under the Undefended List Procedure. This was sequel to the order of the lower court made on 5/7/2004 granting the Plaintiff leave to enter the suit under the undefended list and for the same to be marked accordingly. As shown at pages 1 – 12 of the Records, the Respondent in initiating the instant proceedings under the undefended list procedure filed a motion ex-parte dated 1/6/2004 in which the leave of the lower court was sought to “issue and enter this suit on the undefended list and for the writ to be so marked”. The following were filed along with the motion ex-parte (i) writ of summons dated 1/6/2004; (ii) a statement of claim equally dated 1/6/2004; and (iii) an affidavit in support of writ with Exhibits ‘A’ – ‘D’ attached. The said affidavit was deposed to on 1/6/2004 by one Miss. Chinyere Odumuko a litigation secretary in the Chambers of Respondent’s counsel. It is however to be noted that consequent to the order of the lower court placing the instant suit on the undefended list, the processes that were apparently served on the Appellants as Defendants were the writ of summons (duly marked “Undefended List”); affidavit in support of writ with Exhibits ‘A’ – ‘D’ attached; and motion ex-parte and supporting affidavit. (See pages 25 – 38 of the Records). The claims of the Respondent as Plaintiff against the Appellants as Defendants as endorsed on the Writ of Summons that issued in the action read:-

“1. The sum of N241, 730 as outstanding balance on the timber products sold to the defendants.

2. The sum of N150, 350 being a liquidated sum for materials and work done on the Defendants’ project site at Gwarimpa.
3. Damages to the tune of N600, 000 for breach of contract.”

The case of the Respondent as Plaintiff, as can be gathered from the affidavit in support of the writ of summons is that on or about 10th July, 2002, the 1st Appellant who is a director and chairman of the 2nd Appellant purchased some timber products valued at N375, 730.00 from him (i.e. Respondent). The timber products which the 1st Appellant purchased were to facilitate the execution of a building contract project awarded in favour of the 2nd Appellant at Gwarimpa Housing Estate, Abuja. That the 1st Appellant made a part payment of only N134, 000.00 out of the value of the timber products leaving a balance of N241, 730.00 and which balance the 1st Appellant refused to pay despite repeated demands, Sometime in October, 2002 and given the inability of the 1st Appellant to pay the money owed, the said 1st Appellant pleaded with him (Respondent) to take over the contract awarded the 2nd Appellant in order to recoup the debt from the proceeds. This was because the 2nd Appellant lacked the resources to complete the project. The Respondent accepted the offer of the 1st Appellant as he saw no other way of recovering his money. This resulted in the signing of a Memorandum of Understanding (i.e. MOU) on 4/10/2002 by the parties, The MOU amongst other conditions provided (i) that the Respondent would complete the project and recoup the debt of N241, 730.00 and that the remaining profit would be shared by the parties at an agreed ratio: and (ii) that the Appellants would make the Respondent a signatory to the 2nd Appellant’s account with Manny Bank and introduce the Respondent officially to CITEC, The Appellants complied with the first condition (even though in breach) but refused to comply with the second condition at all. Pursuant to the MOU, the Respondent claimed to have committed a total sum of N150, 350.00 in materials and labour towards the execution of the project. The Respondent claimed that because the 1st Appellant refused to introduce him to the interested parties, his workmen were harassed and chased away by some men who claimed to have some interest in the job, some days after his workmen got to the site. The 1st Appellant did nothing about this despite the fact that the Respondent brought the development to his notice. The contract was eventually terminated by CITEC who duly evaluated and paid for all the work done by the Respondent at the stage of termination. The Appellants who agreed to indemnify him (i.e. Respondent) to the extent of any work done on the project in the event the contract was terminated before completion have refused to pay him the sum of “N392,80” even though CITEC had paid for the work done.

Pursuant to the leave of the lower court granted in that regard, the Appellants as Defendants duly filed a Notice of Intention to Defend and Affidavit in Support, These processes would appear to be the ones at pages 40 – 42 of the Records. Also at page 45 of the Records is a motion on notice filed on 22/9/2004 in which the Appellants sought for (i) order to file memorandum of appearance out of time; (ii) order to file notice of intention to defend out of time; (iii) order deeming the processes in question to have been properly filed, It is in the affidavit in support of this motion that the Appellants deposed to facts in response to those in the ‘affidavit in support of writ’ filed by the Respondent. Also attached to the affidavit in question are Exhibits ‘A’ – ‘D’, Exhibit ‘D’ is a joint statement of defence.

The case of the Appellants, as can be gathered from the affidavit in support of the motion dated 22/9/2004, is that the 1st Appellant is a director of the 2nd Appellant which is a limited liability company incorporated under the Companies and Allied Matters Act, 1990. That sometime in October, 2002, the Respondent entered into a memorandum of understanding (MOU) with the 2nd Appellant. That pursuant to the MOU, the Respondent agreed to finance and execute the contract awarded to the 2nd Appellant by CITEC International Estates ltd for the construction of “a unit 32 Maiwa building type at Gwarimpa House Estate, Team 5 A, Abuja”. The value of the contract was N10, 273, 482.66 and payment was to be made in three stages of completion level as stipulated by the awarding company – CITTEC International Estates Ltd. The first stage of the contract had already been performed by the 2nd Appellant before the Respondent came into the picture and the Respondent was to take over the second and third stages of the contract. It is a condition in the MOU that the Respondent is not entitled to be indemnified in the event of non-performance or under performance. The Appellants claimed that the Respondent displayed lack of seriousness after he took over the job. This is because the Respondent refused to carry out the job as promised. This development, according to the Appellants, led to the revocation of the contract by CITTEC International Estates Ltd. The revocation of the contract, the Appellants also claimed have resulted in the 2nd Appellant losing all its expected gains as well as investment earlier put into the contract. The Appellants said that sometimes in April, 2004 the Respondent wrote to demand for the sum of N241, 730.00 and N150, 720.00 for a purported indebtedness by the 1st Appellant to him (i.e. Respondent) and that his (i.e. 1st Appellant) lawyers immediately responded, The 1st Appellant was appalled when the Respondent served himself and the 2nd Appellant with court processes under the Undefended List sometimes in July, 2004. The Appellants claim to have a good defence and counter-claim on the merit, to the Respondent’s action and for this purpose exhibited a joint statement of defence.

Page 70 – 72 of the Records, show that the lower court heard the case on 7/12/2004 and adjourned Ruling therein to 7/12/2004. The Judgment/Ruling of the lower court starts from page 72 of the Records and ends at page 74. The said Judgment/Ruling on its face shows the date of delivery as 7/12/2004. In its Judgment/Ruling the lower court at pages 73- 74 of the Records said thus: –

“The Defendants by not denying that the plaintiff expended the sum of N150, 000.00 on the project are deem (sic) to have admitted same, and by virtue of paragraph 12 of the Memorandum of Understanding Exhibit B attached to the plaintiffs affidavit, the plaintiff is entitled to be reimbursed by the defendants. The affidavit of the defendant did not disclose enough evidence to suggest that the contract was terminated by CITEC International Estates Limited because of non-performance of the plaintiff.

The plaintiff having satisfied this court that the defendants (sic) outstanding balance of debt to him stood at N241, 730 before the memorandum was executed, and after the memorandum of settlement, the plaintiff equally satisfied the court that the work he carried out on the project stood at N150, 000.00, the only conclusion drawn is that the defendant actually has no defence to the plaintiffs claim, See Tank V FBN PLC 2003 51 WRN Pg. 54 at 56

Where it is apparent that the defendant actually has no defence to the plaintiff’s claims, the court will or should enter a summary judgment without necessarily proceeding to full trial.

Judgment is hereby given in favour of the plaintiff. The two defendants to pay the plaintiffs (sic) jointly and severally the sum of N392, 080.00 (Three Hundred and Ninety two Thousand Eighty Naira) only being outstanding balance of timber sold to the defendants by the plaintiff and the value of the work carried out by the plaintiff on the defendant’s (sic) project.

The Defendants to pay 10% annual interest on the judgment sum with effect from 7th day of December, 2004 until the whole judgment sum is liquidated”.

The Appellants being dissatisfied with the judgment of the lower court; lodged a Notice of Appeal against the same on 20/12/2004. The Notice of Appeal contains five grounds of appeal. The grounds of appeal shorn of their particulars read: –