System Metal Industries Ltd. V. James Ehizo (2002)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

A writ of summons on the undefended list, was taken out by the plaintiff, who is now the respondent, against the appellant in the High Court of Bauchi State. The particulars of claim are as follows:-

“The plaintiff (sic) claim against the defendant is for the sum of eighty-eight thousand eight hundred and

fifty-seven naira only (N88,857.00), being the unpaid commission of 5% on the net amount of order, amounting to one million seven hundred and seventy seven thousand, one hundred and sixty-two naira only (N1,777,162.00) introduced customers by the plaintiff to the defendant.”

These customers has (sic) since perfected their order and payments made, but the defendant has refused, neglected and failed to pay the plaintiff the agreed 5% commission sums, which is N88,857.00 inspite of demands by the plaintiff.

Whereof the plain (sic) from the defendant this sum of N88,857 .00 with interest at the rate of 25% per

annum from August, 1993 until judgment and thereafter 10% per annum until satisfaction.”

The writ was supported by an affidavit. On 31/1/95, the defendant filed a motion on notice for the following orders:-

(1) An order allowing the defendant to file the notice of intention to defend out of time.

(2) Deeming the attached notice of intention to defend as duly filed and served.

On 7/2/95, a motion containing similar prayers was filed. On 7/2/95, when the matter came up Abubakar, Esq., who held the brief of C. C. Irorakpor for the plaintiff, announced to the court that they had agreed on an adjournment to 11/4/95, to wit – Mr. Ishie of counsel for the defendant confirmed, and added that the adjournment was to enable them argue the issue of jurisdiction. The court then adjourned the case to 11/4/95 to enable the issue of jurisdiction be raised.

When the matter came up on the said 11/4/95 the following transpired:-

“Ishie, E. O. – I intend to move my motion dated 27/1/95 filed on 31/1/95 with receipt No. 453448 and with the leave of the court, I will withdraw my motion dated 27/1/95 of 3 different receipts.

Courts:- Motion dated 27/1/95, with 3 different receipts Nos. 453558, 453598 and 486407 struck off.”