MR. Babatunde Ajayi V. E.M.A General Enterprises (Nig) LTD (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMINA AUDI WAMBAI, J.C.A. (Delivering the Lead Ruling)

This application by way of motion on notice dated and filed on the 13/3/2015 by the Respondent/Applicant prays for the following:-

1. “Leave of this Honourable Court to tender additional evidence in this appeal.
2. An order admitting the certified True copy of page 16 of the Guardian Newspaper publication dated February, 25th 2005 which is attached herewith as “Exhibit A1″ as additional evidence in this Appeal.
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”

The brief facts of the case necessary for this application are that the Respondent as Plaintiff commenced an action at the Federal High Court Katsina, against Mr. Ade A. Babington Ashaye (Receiver, Stirling Civil Engineering Nigeria Limited in Receivership) under the undefended list procedure claiming the sum of Twenty Two Million, Four Hundred and Sixty-Six Thousand, Two Hundred Naira and Fifty Kobo (N22, 466,200.50K) being the balance of payment due to the Plaintiff for carrying out sub-contract work of stone pitching of water drainage in Funtua town of Katsina State for

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Stirling Civil Engineering Nigeria Limited. Judgment was entered in favour of the Respondent and the Appellant being dissatisfied appealed to this Court. That Appeal was allowed by this Court on the ground that the Federal High Court, Katsina lacked jurisdiction to entertain the action. The Judgment was set aside and the suit struck out. Consequent upon the striking out of the case, the Respondent as Plaintiff filed a fresh action before the High Court of Katsina State in suit No. KTH/FT/135M/2010 against the said Mr. Ade A. Babington Ashaye (Receiver/Manager Stirling Civil Engineering Nigeria Limited) under the undefended list procedure claiming the same amount.

The matter was placed on the undefended list and for the absence of a notice of intention to defend and of the Appellant on the return date, default Judgment was entered against the Appellant in favour of the Respondent. The displeasure of the Appellant against that decision gave rise to the present Appeal from which this application arose.

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The Appellant’s Counsel later sought and was granted leave to amend the Notice of Appeal and in ground 1 of the Amended Notice of Appeal averred that the

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Appellant as Defendant was not a proper party to the suit having been sued as:-

“MR. ADE A. BABINGTON ASHAYE, THE RECEIVER/MANAGER OF STIRLING CIVIL ENGINEER NIGERIA LIMITED?

In his brief of argument filed on 16/12/2013 but deemed properly filed and served on the 01/12/2014, in respect of the appeal, learned Counsel for the Appellant argued in his issue No. I distilled from ground I that the Appellant having been sued in his name

?MR. ADE A. BABINGTON ASHAYE, THE RECEIVER/MANAGER OF STIRLING CIVIL ENGINEER NIGERIA LIMITED?

instead of the Company’s name, vitiated the entire action and all proceedings conducted thereon were a nullity and ought to be set aside.