Nigeria National Petroleum Corporation (NNPC) Pension Limited V. Vita Construction Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TANI YUSUF HASSAN, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Federal Capital Territory Abuja in Suit No. FCT/HC/CV/2210/2010 delivered on the 7th day of March, 2011.

The respondent as plaintiff at the lower Court instituted the action against the appellant as defendant under the undefended list dated 17/08/2010 as reflected at page 1-7 of the record of appeal. The appellant as defendant was served with the writ on 8th day of November, 2010. The Notice of intention to defend was filed on 15/11/2010 as shown as pages 107-118 of the record. The Notice of intention to defend was filed out of time in violation of the provision of Order 21 Rule 3(1) of the Rules of the High Court of Federal Capital Territory and no application for extension of time to regularize the processes was made.

The trial Court proceeded to determine the case under the undefended list. At the end of the day, judgment was entered in favour of the plaintiff (Respondent herein) on the 7th day of March, 2011. The judgment gave rise to this appeal.

?The Notice of Appeal dated the 10th day of March, 2011 has five grounds with

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its particulars and reliefs sought. The Notice of Appeal is at pages 162 168 of the record.

The appellant’s brief of argument dated the 16th day of April, 2012 and filed on 17/04/2012 was deemed properly filed on 07/11/2015.

The appellant’s counsel. Moses. B Bature distilled four issues for determination as follows:

1. “Whether the trial Court was right in finding that the Appellant Notice of intention to defend and affidavit in support thereof were filed out of time and in any event whether the appellant was given fair hearing in that Court” (Ground 1).
2. “Whether the leaned trial Judge was right to have heard the respondent’s suit which included an unliquidated claim that is pre-judgment interest on which there was no agreement of parties under its undefended list procedure.”(Ground 2).
3. “Whether having regard to the fact that the respondent had no claim for cost, the trial Court was right in suo motu granting cost of N10,000.00 (Ten Thousand Naira) in favour of the respondent.’ (Ground 4).
4. “Whether the trial Court was right when rather than transferring this suit to the general cause list, it entered judgment for the

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respondent” (Grounds 3 and 5).

The respondent?s brief of argument dated and filed on 15/05/2015 was deemed properly filled on 18/05/2015.

O.J. Aboje Esq. the respondent?s counsel also formulated four issues for determination as follow:

1. ?Whether the ?interest? awarded to the respondent pursuant to claim ?(6)? after judgment was entered in favour of the respondent in the Court below was claimed and awarded by the Court below as a pre-judgment interest (Ground 2).
2. ?Whether “cost” awarded to a successful party in an action need be specifically prayed for to cloth the Court with jurisdiction to grant same?” (Ground 4).
3. ?Whether Ground 1 of the Notice of Appeal arose from the decision of the Court below and assuming without conceding that ground 1 of grounds of appeal arose from the decision of the Court below whether the Court below accorded the appellant fair hearing (Ground 1).
4. ?Whether the appellant is bound to perform its obligations contained in Exhibit ?1? disclosed at Paragraph 3(a) of the counter affidavit of the appellant and

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