Nichim Construction Nigeria Ltd & Anor v. E.E. Obomanu (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of Rivers State High court delivered on 11/12/2006. The Plaintiff in the trial court had filed an action claiming.

“1) N4,000,000 (Four Million Naira) only being and representing professional fees due and payable to the plaintiff vide the CONTINENTAL TRUST BANK LTD cheque issued to the plaintiff by the defendants.

2) 21% interest from December 2005 till judgment and thereafter 20% until liquidation.

3) N500,000 (Five Hundred Thousand Naira) only being and representing legal charges paid and or incurred by the plaintiff in the recovery of the above sum.”

The plaintiff sought and obtained leave to have the matter placed on the undefended list and that the Writ of Summon be marked accordingly on 6/11/2006.

By paragraph 1 – 9 of the affidavit in support of the motion for leave to defend the plaintiff deposed as follows:-

“1. That I am a legal practitioner managing the law firm of Tamuno-Ala Associates of 79 Ikwere Road Port Harcourt and by virtue of my position aforesaid I am very conversant with facts of this case.

2. That by a letter dated the 15th day of February 2003 I was engaged by the defendant jointly and severally to file a suit for the recovery of the sum of N414,654,868.00 being debt owed the defendants; by the Niger Delta Development Commission hereafter referred to as NDDC.
3. That consequent upon that instruction suit No. NHC/11/03 was filed and we proceeded from 24th day of February 2003 and following protracted legal argument and objection the matter was slated for judgment on the 10th December, 2003.
4. The court judgment was delivered in January 2004 to the effect that the plaintiff should give evidence as to the disparity in figure and the defendant to show further proof of their objection as to whether the job has not been completed.
5. That following the ruling of the court in a preliminary objection the Defendant (NDDC) in the suit went on appeal in Appeal No CA/PH/172M/2003, we defended the appeal and same was struck out in favour of the Defendants/Respondents in this suit based on the same fees as contained in the letter of 15th February 2003 same is hereto attached and marked exhibit A.
6. That when we returned the plaintiffs in the said suit informed me that he purchased this contract subject matter of that suit aforesaid form a Company called MUSHROCK INVESTMENT NIGERIA LIMITED and same was joined with the 1st defendant as co-plaintiff.
7. That this suit lasted from 24th February 2003 to 19th day of May 2005 and the plaintiff refused to rather give evidence directly or through any agent, or servant but rather instructed me by their letter of 7th October 2004 to discontinue the said suit, the said letter is hereto attached and marked as Exhibit B.
8. That consequent upon this instruction we filed a motion for discontinuance on the 21st day of June 2004 and the suit was accordingly discontinued, the said notice of discontinuance is hereto attached and marked as Exhibit C.
9. That the 2nd defendant acting on behalf of the 1st defendant issued me a CONTINENIAL TRUST BANK CHEQUE FOR THE SUM OF N4,000,000,00 (Four MILLION NAIRA) the same is hereto attached and marked as Exhibit D.”

The defendants were subsequently served. The defendant sought and obtained leave to file notice of intention to defend out of time on 11/12/2006. Their notice of intention to defend was supported by 14 paragraphs affidavit for clarity sake I shall quote paragraph 1 – 13.

‘1. That I am the chairman of NICHIM CONSTRUCTION (NIG) LTD of No 2A Abacha Road, G.R.A Phase 2, Port Harcourt, by virtue of which I am conversant with the facts of this case.

2. That I have the consent and authority of the first defendant to depose to this Affidavit.
3. That paragraph 1 and 2 of the affidavit in support of claim are true.
4. That paragraphs 3 and 4 of the affidavit in support of claim are all falsehoods, as judgment had been delivered in suit No: NHC/11/03 by any court of law.
5. That paragraph 5 of the affidavit in support of claim is true only to the extent that the Court of Appeal struck out the preliminary objection in Appeal No. CA/PH/172M/2003.
6. That paragraph 7 of the affidavit in support of claim is true only to the extent that the defendants instructed the claimant to discontinue the suit No. NHC/11/03 because of the claimant’s attitude and approach to the case, which led to the suit being stalled, not progressing, and causing disaffection, loss of business relationship with NDDC and total to recover the debt owed to the defendant by N.D.D.C. till date, in spite of the fact that the claimant agreed to recover the debt in issue from NDDC within 3 months from the date he was briefed to recover same. The letter we wrote to the claimant on this is hereto exhibited and marked Exhibit A.
7. That paragraphs 9 to 12 of the affidavit in support of claim are false. Furthermore, the CONTINENTAL TRUST BANK CHEQUE of N4,000.00 issued by the defendants in favour of the claimant, was post dated from the date of briefing claimant to 14/12/2005, by which date the claimant had agreed with us that he would have recovered the entire debt owed by N.D.D.C. to the defendants.

The cheque was therefore issued to the claimant as collateral and assurance that fees would be paid, if he recovers the debt owed to us by N.D.D.C. He is yet to recover this debt.

8. That up till this moment of filing this document, the claimant has not recovered any dime or amount out of the debt the N.D.D.C. is owing the defendants.
9. That the claim of the claimant is premature, unmerited and not craned at all because, the payment of the fees of the claimant, as stated in the said cheque above mentioned, is dependent upon the discharge of this duties fully, to recover the debt, which he has failed to totally recover till date.
10. That N.D.D.C. has not paid any money to us to liquidate the debt they are owing us for which the claimant was retained.
11. That clue to the attitude of the claimant, who went to N.D.D.C.’s office at Aba Road, Port Harcourt and sensitized the relevant officers on this debt in issue, in a negative way, the N.D.D.C. has not paid this debt to us till date.
12. That we shall testify orally with witnesses from N.D.D.C. on whether or not the debt has been paid to us.
13. That We hereby this suit counter claim against the claimant to pay us the sum of N5,000,000.00 as damages for the loss we have incurred while we retained him to recover this debt.”

On that same day, Mr. Okpala counsel for the defendant was called upon to address the court as to whether the notice of intention to defend filed disclosed a defence on merit to warrant his being permitted to defend the suit.

Learned counsel for defendant did and judgment was subsequently entered in favour of the plaintiff as the court held that the notice of intention to defend did not disclose any defence on merit.

The defendants being dissatisfied with the said judgment filed a Notice of Appeal containing 4 grounds of appeal.