Rivers State Government Of Nigeria & Anor. V. Specialist Konsult (Swedish Group) (2005)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C

Before the High Court of Lagos State, the respondent as plaintiff commenced this action with a writ of summons dated 6th June, 2000 under the undefended list procedure against the appellants claiming against the 1st appellant the sum of USD3,138,122.81 being outstanding fees due to the respondent on work already executed on behalf of the Rivers State Government of Nigeria since 27th April, 1995. Interest was also claimed on the said sum at the rate of 21% per annum from 27th April, 1995 until the total liquidation of the entire debt. The writ of summons referred to above was accompanied by an affidavit headed “affidavit in support for undefended list” and dated 6th June, 2000. The appellants’ address for service as endorsed on the face of the writ of summons was “c/o Rivers State Government Liaison Office, 26 Bishop Oluwole Street, Victoria Island, Lagos.”

On the 7th of June, 2000, the respondent filed an application seeking directions that “the suit formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing on the undefended list. On the 11th of October, 2000 the court, Hunponu- Wusu, J., granted leave to the respondent and directed that the suit as formulated in the writ of summons together with the affidavit in support with the relevant annexes be set down for hearing as undefended list. The writ of summons was thereafter, allegedly served on one Mrs. Marcus, a clerk at the said Bishop Oluwole Street, Victoria Island address on or about 26th day of October, 2000 and a return date for the hearing was then fixed for the 13th of November, 2000. On the 13th of November, 2000, the court, presided over by Hunponu-Wusu, J., entered judgment in favour of the respondent against the appellants for the sum of US$3,138,122.81 claimed together with 21% interest as claimed until judgment, and thereafter at 6%.

Now, the case of the appellants is that they did not participate in these proceedings as they did not have actual notice of the case. The first actual notice they had of it was when they were served with a garnishee order nisi over their bank accounts. The appellants consequently appealed against the said judgment to the Court of Appeal and also sought and obtained a stay of action of the judgment.

In view of the argument that formed the bedrock of the appeal to this court, I think it is useful to set down the issues upon which the court below dismissed the appeal. The appellant in that court raised the following issues:

“2.1. Whether the High Court of Lagos State can exercise jurisdiction in the suit when neither party to the suit resides and/or carries on business in Lagos and the transaction giving rise to the suit did not take place in Lagos.

2.2 Whether the sum of USD3,138,122.81 claimed by the plaintiff/respondent and awarded by the court in the suit was a liquidated sum outstanding from the defendant/appellant in favour of the plaintiff/respondent upon which the court can grant leave directing that the suit be set down for hearing in the undefended list.

2.3 Whether the contract, if any, between the plaintiff/respondent and the 1st defendant/appellant provided for payment in US Dollars and if so, whether the court was right in awarding judgment in dollars.

2.4 Whether the award of 21% interest in favour of the plaintiff/respondent against the defendants/appellants is proper in law.”

The court below in resolving that the appellants were properly sued in Lagos, reasoned thus:-

“Now, the appellant were served with the writ of summons. They did not take advantage of the provisions of the above rule of Order 60 by indicating that they wished to defend the suit. Defending the suit implies putting before the lower court all the defences either based on law or facts available to the appellants.

On the writ of summons, the address of the appellants was shown as “c/o Rivers State Government Liaison Office, Bishop Oluwole Street, Victoria Island, Lagos.”

There was nothing on the processes before the lower court on the writ of summons and the affidavit to indicate that neither party to the suit resided in Lagos. The appellants in their brief relied on Order 2 rule 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994 to bolster up its argument that as the claim of the respondent was in contract, the claim would have been brought in the “judicial division in which such a contract ought to have been performed or in which the defendant resides. However, a close scrutiny of the affidavit in support of the application and the writ of summons easily reveal that the claim was for a debt which parties themselves had agreed upon but which was not settled by the appellants. The contract had long been performed. The amount due to the respondent had been ascertained at a meeting between parties and agreed at N4,500,000.00 payable in six equal monthly installments beginning from May, 1981. Clearly, this was no longer a claim in contract. It had become a debt. This was therefore a claim that fell within the ambit of Order 2 rule 4 of the High Court Rules which enabled the suit to be brought in a place where the ‘defendant resides or carries on business’. The writ of summons was served on the appellants at its Liaison Office in Victoria Island, Lagos, which was a place where the defendants carried on business. Accordingly, it is my view that the appellants were properly sued in Lagos.”

Against this judgment and orders of the court below, the appellants have appealed to this court. Pursuant to the grounds of appeal filed, the following issues were raised in the appellants’ amended brief filed by their counsel, H. Odein Ajumogobia, SAN, and Attorney-General, Rivers State.