Safiudeen Ademola Edu V. Shell Trustees (Nigeria) Limited (2002)

LawGlobal-Hub Lead Judgment Report

NSOFOR, J.C.A.

The respondent was the plaintiff in the trial court. It had claimed against the defendant, herein the appellant, as follows:-

“1. The sum of N36,000,000 being money paid by the plaintiffs to the defendant in September, 1993 for a consideration which has wholly failed on the part of the defendant in that the plaintiffs made the said payment to the defendant for a 20 year sub-lease of a parcel of land covering about 20.945 acres at Elelenwo Area of Port Harcourt and it has since turned out that the head lease is a nullity and therefore no lease could be created from same.

2. The sum of N2,000,000 as special damages being legal expenses incurred by the plaintiffs in the perfection of the purported sub-lease until it turned out that the head lease is a nullity.
3. Alternatively to (1) and (2) above, the sum of N38,000,000 comprising N36,000,000 being payment for the purported sub-lease referred to in paragraph 1 and N2,000,000 being the legal expenses all of which the defendant covenanted under clause 3(v) of the sub-lease to refund and/or secure the appropriate consent to the transaction.
4. Interest on the sum of N36,000,000 at 15% per annum until judgment and a further 15% per annum until judgment shall have been satisfied.”

Before the writ of summons initiating the suit was issued, the plaintiffs, by way of a motion ex-parte, filed on the 14/6/95, applied pursuant Order 23 rules 1 and 5, Rule 6 of the Rivers State High Court (Civil Procedure) Rules, 1987 and the inherent jurisdiction of the Honourable court praying for the following reliefs:-

“1. An order of this court entering the suit herein in the undefended list.

2. An order of this court granting the plaintiff leave to issue and serve the writ of summons and the attached statement of claim and the affidavit verifying the claim on the defendant in Lagos State outside the jurisdiction of this Honourable court.
3. For such further order or other orders as this Honourable court may deem fit to make in the circumstances.”

The application was heard. The motion was allowed. Granting the application, (see p.47 of the Record), the learned trial Judge ordered as follows:-

“Therefore I order (1) that the suit be entered in the undefended list and processes be so marked. (2) Leave is granted to the plaintiff/applicant to issue and serve the writ of summons and the attached statement of claim and the affidavit verifying the claims on the defendant in Lagos State outside the jurisdiction of this court. 32 days granted for the defendant to enter appearance. Case is adjourned to 26/7/95 for hearing.

Sig. Mrs. M.U.Ofili Judge – 16/6/95

The writ of summons was duly served on the defendant on the 20th of June, 1995, vide the affidavit of service sworn by Godson Olomo, bailiff, High Court, Lagos, at page 50 of the record of appeal on the same 20th day of June, 1995.

The defendant, although served with the writ of summons duly marked as “Undefended List”, did nothing assuming he was minded to contesting the claims and defending the action. He did not comply with Order 23 rule 3(1) of the Rivers State High Court (Civil Procedure) Rules, 1987 (infra).

On the return date being the 19th of October, 1995, the suit was heard as undefended in accordance with Order 23 rule 4 of the Rivers State High Court (Civil Procedure) Rules, 1987. See p.59 to 61 of the record of appeal.

In his judgment, after hearing the counsel of the plaintiff, the learned trial Judge wrote, inter alia, at pages 60/61 of the record as follows:-

“…Therefore this court grants judgment to the plaintiff in the terms stated in their writ and statement of claim.

That is to say:-