Swift Bird Sugar Company V. Ofi Food Industries Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of W. K. Olaifa, J. of the High Court of Justice Ibadan in Suit No. I/191/2004 delivered on the 20th November, 2006. In the said High Court below, the present Appellant as Plaintiff had commenced action against the present Respondent as Defendant under the Undefended List Procedure pursuant to Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988 of Oyo State. In its marked writ of summons dated the 26th April, 2004 contained at pages 1 and 2 of the Record of Appeal, the plaintiff had claimed as follows-

1. The sum of N450,000.00 (Four hundred and fifty thousand Naira) due to the plaintiff and being the balance of the rent unpaid by the defendant in respect of lease of agreement situate at Block C, Plot 6, Oluyole Industrial Estate, Ring Road, Ibadan and which sum the defendant has refused, failed and or neglected to pay to the Plaintiff despite repeated demand and promise to pay.
2. Interest at the rate of 10% per annum from the date of judgment until payment.

In its supporting affidavit the Plaintiff deposed to facts in support of its claim under the Undefended List and that it verily believed that the defendant had no defence to the action.

Leave was thereupon granted to the plaintiff to have this suit entered in the Undefended List. Defendant brought an application to defend the suit and to have the said suit transferred from the undefended list to the general list for hearing. In its ruling on the application at page 34 of the Record of Appeal the trial court observed as follows-

‘There is no doubt that a triable issue is raised in the arguments of both Counsel’.

This Court is disposed to granting the Defendant’s application for leave to defend the Suit. Accordingly,” it is hereby ordered that the parties shall file their pleadings forthwith.”

Pleadings having been so ordered, the Plaintiff filed a statement of claim dated the 6th July, 2004 and filed same day which is contained at pages 32 and 33 of the Record of Appeal wherein it claimed against the defendant at paragraph 11 as follows –

(i) The total sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) being the balance of the rent unpaid by the defendant to the plaintiff at N75,000.00 for the years 1995/96, 1996/97, 1997/98, 1998/99, 1999/2000 and 2000/2001 respectively in respect of lease of the Plaintiff’s property situate, lying and being at Block G, Plot 6, Oluyoie Industrial Estate, Ring Road, Ibadan and which sum the defendant has refused, failed and/or neglected to pay to the plaintiff despite repeated demands and promise to pay.

(ii) Interest at the rate of 10% per annum from the date of judgment until payment.

In response the Defendant filed a statement of defence which was subsequently amended and by paragraphs 14 and 15 of which it averred as follows –

14. The Defendant will contend at the trial of this action that if the Plaintiff has any right to any balance of rent unpaid as from 1995 on the itemized premises as claimed against the Defendant which the Defendant is not conceding, such right has been extinguished by operation of law and by the Limitation Laws of Oyo State.
15. The Defendant will at the trial rely on the equitable defences of laches, acquiescence and waiver of rights.

Whereof the Defendant herein urges the Court to dismiss all the plaintiff’s claims as frivolous.

In his considered judgment already referred to earlier, the learned trial Judge dismissed the plaintiff’s case on the ground that same was statute barred. This appeal is predicated on the finding of the learned trial Judge in his judgment delivered on the 20th November, 2006.

The aggrieved Plaintiff now as Appellant filed a Notice of Appeal dated the in December, 2006 containing three grounds.

The said Notice of Appeal is contained at pages 157-159 of the Record of Appeal and is reproduced hereunder.