Nestoil Limited & Anor. V. Fidelis Onuoha (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the judgment in respect of an appeal against the decision of Hon. Justice I. N. Ndu delivered on 1/02/2006 at Rivers State High Court, Port Harcourt.

The plaintiff’ now the Respondent had filed a claim at the court below which reads.

“The plaintiff claims against the defendant jointly and severally as follows:-

(a) The sum of N574,400.00 (Five Hundred and Seventy Four Thousand, Four Hundred Naira) representing the sum due to the eight named welders in respect of No. 2 and 3 of the conditions of engagement as listed and contained in contract No. E. 14247 dated 21st June, 2004.

(b) Interest on the said liquidated sum at the rate of 10% per annum until the whole Judgment debt is discharged.”

The plaintiff sought and obtained the leave of court to enter the suit on the UNDEFENDED LIST. The leave was granted on 13/8/2004. The suit was adjourned to 18/8/2004. The defendants under ORDER 23 Rule 3(1) of the Rivers State High Court Rules of 1987 had to file their notice of intention to defend not less than five days to before the date of hearing.

The defendants being out of time filed motion on notice extending time to file Notice of Intention to defend with an affidavit disclosing the defence on merits on 15/9/2004.

On 1/2/2006, when the case came up for hearing, the defendants and their counsel were absent. Learned counsel for the plaintiff applied for the striking out of the application of the defendants and this was granted.

The meaning is that the defendants failed to file Notice of Intention to Defend and affidavit disclosing defence on merits inspite of having been served with the order of court entering the suit on the undefended List.

The court below there and then entered judgment against the defendants and granted 10% simple interest post judgment sum. It is against this judgment that the appellants filed a notice of appeal on 14/2/2006.

Even though the action against the defendants was instituted in a representative capacity by FIDELIS ONUOHA and 7 other welders, the Notice of Appeal does not include the names of the other welders and does not state the capacity in which FIDELIS ONUOHA sued as required by Order 6 Rule 2(1) of court of Appeal Rule. He is now the sole party joined in this appeal.

This is with due respect wrong. All parties directly affected by the appeal are mandatorily to be stated on the notice of appeal as every process of the appeal is to be served on them. Parties directly affected by the appeal necessarily include parties to the Civil Proceeding at the court below, in the same capacity they sued or were sued in the court below. See the decision of this court in CA/PH/600/2008 between LYCIOUS AMINAOWUKE & ORS V. DEREGO & ORS. Decided on 18/05/2001; ISAIAH & ORS V. ASSOR & ORS (Unreported) in Appeal No. CA/PH/329/2007 delivered on 3/3/2011.

This lapse is fatal to this appeal in that it affects the Notice of Appeal which is the foundation of the appeal. See UWAZURIKE V. A.G. FED. (2003) 8 NWLR (PT. 1035) 1. The consequence is that this appeal should be struck out. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS (1999) 9 NWLR (PT. 618) 187.