O.A Avanti Nigeria Limited v. Skymat Nigeria Limited (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSLIM SULE HASSAN, JCA (Delivering the leading judgment)

This is an appeal against the decision of the Ogun State High Court sitting at Ota delivered by Hon. Justice O.O. Majekodunmi in suit No. HCT/260/2016, on the 16th day of May, 2019, wherein the trial court dismissed the appellants motion to set aside his judgment for non-service dated 27th March, 2019, and found that the appellant has no defence to the claims of the respondent for which judgment has already been entered.

The appellant was the defendant/applicant, while the 1st respondent was the judgment creditor/respondent at the trial court. The appellant being aggrieved with the decision of the trial court in dismissing her motion on notice had appealed against same to this court vide his notice of appeal dated 11th day of June, 2019 and filed on the same date.

The notice of appeal which challenged the decision of the trial court on three grounds is found after pages 248 – 251 of the record. The appellant filed an amended notice of appeal on the 7th of February, 2020, but same was deemed properly filed on the 9th of May, 2024.

The record of appeal was compiled and transmitted to this court on the 28th of June, 2019. The appellants brief was filed on the 7th of February, 2020, but deemed properly filed on the 9th of May, 2024.

The respondent’s brief of argument was filed on the 8th of July, 2020, but deemed properly filed and served on the 9th of May, 2024. The appellant upon receipt of the respondents brief filed a reply brief on the 7th of December, 2021, but same was deemed properly filed on the 9th of May, 2024.

At the hearing of the appeal, counsel to both appellant and respondent adopted their respective briefs upon which this court reserved the appeal for judgment.

This appeal emanated from the decision of the Ogun State High Court sitting at Ota hereinafter referred to as the trial court. The appellant who was the defendant/applicant at the trial court filed a motion on notice praying the trial court to set aside the Judgment she entered in favour of the respondent/claimant as per her reliefs claimed at pages 5 – 6 of the record.

The respondent who was claimant at the trial court approached the court for claims of payment of contract sum N9,098,181.62 (Nine million, ninety-eight thousand, one hundred and eighty-one naira, and sixty kobo) and damages.

The trial court went ahead, heard the matter and entered judgment for the respondent. The respondent proceeded to enforce the judgment through garnishee, and it was one of the garnishee Banks served with the order nisi that drew the appellants attention to the judgment against her, hence, the application to set aside the judgment sought to be enforced for non-service. The trial court in a considered ruling refused the application on the basis that the appellant has no triable defence. It is this ruling that is the subject matter of this appeal.

Brief statement of facts

The brief facts of the case leading to this appeal according to the affidavit supporting the appellants motion at the trial court is that, the appellant contracted the respondent for a job, and made an initial payment of N2,500,000 for the job. But after completion of the job, the appellant realized that the materials used for the job were substandard, and not of quality as agreed. The appellant on that basis, instructed the respondent to re-do the job based on the quality agreed and the respondent acknowledge same.

That however, after sometime, the appellant was served with the respondents writ and statement of claim, and the appellant responded by having his lawyer prepare a draft of her defence and upon the respondent being shown the unfiled draft of the appellants defence in exhibit A annexed to the supporting affidavit, the respondent opted for settlement out of court and after talks were done between the two parties, the appellant added N300,000 to the respondent and the respondent agreed to do the job at agreed standard and to withdraw the suit.

The appellant believed the word of the respondent that he would withdraw the suit and the appellant needed not come to court on the matter, and for a long time, the appellant never received any hearing notice on the matter until all of a sudden the appellant was served with final written address, and he called the CEO of the respondent and he told him to ignore the process.