Shell Petroleum Development Company of Nigeria Limited V. Chief N.y. Allaputa (2005)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This an appeal against the judgment of Ichoku, the High Court of justice, Port Harcourt, Rivers State of Nigeria on the 29th of January, 2001.
The plaintiff at the trial court and respondent herein filed the writ of summons on 27/11/2000 and placed it on the undefended list. It is extant on page 1 of the transcript record of appeal that the writ was marked as undefended. The claims, against the defendant at the trial court and appellant herein read as follows:
“(i) The sum of N505 Million being money owed the plaintiff by the defendant inclusive of 15% interest on the initial N305 Million from the date it fell due being 24th of December, 1999 till judgment thereafter at 10% on the judgment debt until its satisfaction therefore.
(ii) And subsequently 10% interest on the balance as they shall fall due on the 14/12/2000 and 24/12/2001 until the satisfaction of the debt”?
The writ was verified by an affidavit of 5 paragraphs by the plaintiff on the 27th of November, 2000. On the same date, a motion ex-parte was contemporaneously filed under Order 23 rule 1 of the rules of the trial court praying for an order to enter the suit for hearing on the undefended list and to mark same accordingly. The application was heard on the same date and granted by the learned Chief Judge. The return date was slated for 6/12/2000.
The plaintiff who filed the suit in a representative capacity, deposed to a 17 paragraph affidavit with a view to sustaining his claim. A copy of the agreement between the parties is exhibit A. A receipt concerning the commencement of the registration of a trust fund was attached as exhibit ‘B’. A copy of Union Bank’s letter addressed to ‘the Trustees BTIP, Trust through solicitor is exhibit ‘C’.
Plaintiff’s solicitor’s letter forwarding exhibit ‘C’ to the defendant is exhibit ‘D’.
The requisite notice of intention to defend the suit pursuant to order 23 rule 3(i) of the rules of the trial court was filed by counsel on behalf of the defendant on 5th December, 2000. In support of the said notice of intention to defend the suit, an affidavit of 27 paragraphs was deposed to by Ume Maduka, a legal practitioner on behalf of the defendant on the same 5/12/2000.
The trial C.J. heard arguments of both counsel on 11/12/2000. The arguments canvassed appear very crisp. On 29th January, 2001, he entered judgment in favour of the plaintiff in the sum of N405 Million as well as interest of the sum of N15,750.000 being 15% interest on the amount of N305 Million that was due for over a year. A further 10% interest was granted from 29/1/2001 till the whole amount is liquidated. The trial C.J. fixed cost in favour of the plaintiff at N5,000.
The defendant felt unhappy with the judgment of the trial C.J. The original notice of appeal accompanied by five grounds of appeal was filed on 29/1/2001. Subsequently, five additional grounds were filed with the leave of the court.
On behalf of the appellant, four issues were formulated for a due determination of the appeal. They read as follows:
“1. Was the learned trial Judge right in entering judgment against the defendant under the undefended list procedure inspite of its affidavit disclosing a defence?
- Whether the learned trial Judge was right in placing and or entertaining plaintiff’s claim under the undefended list on the basis of exhibit A and plaintiff’s affidavit in support of the claim?.
- Whether the learned trial Judge was right in law to enter judgment for the plaintiff under the undefended list when on the material before him, plaintiff is not entitled to judgment?.
- Was the learned trial Judge right to proceed to judgment under the undefended list on the finding made by him that defendant filed an affidavit showing facts that would relieve it of its obligations under exhibit A?.
On behalf of the respondent, a lone issue was distilled with precision for a due determination of the appeal. The issue reads as follows:
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