The Attorney General Gombe State & Anor V. Abdul Gafaru Yusuf And Company Nigeria Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the decision of the High Court of Gombe State delivered on the 20th July, 2005 in Suit No: GM/239/05.

By a Writ of summons dated 6th April, 2005, the Respondent herein, as Plaintiff before the Lower Court, claimed against the Appellants, as Defendants, the total sum N15, 550,923.37 (Fifteen Million Five Hundred and Fifty Thousand, Nine Hundred and Twenty three Naira, Thirty Seven Kobo) only being the amount owed them in respect of the construction of the Referral Hospital, Gombe, plus 10% interest per annum from June 1998 till final satisfaction of the debt.

The Writ was supported by an affidavit of 14 paragraphs and three Exhibits. On 06-04-05, the Lower Court granted the ex-parte application of the Plaintiff and directed that the suit be placed on the Undefended List for hearing, and same be marked as such, pursuant to Order 22 of the High Court Civil Procedure Rules applicable to Gombe State. Thereafter, the case was set down for hearing on 28th April, 2005.

The Defendants were duly served with the Writ of summons and other Court

processes on the 20th April, 2005. By Order 22 Rule 3 (1) of the High Court Rules applicable to Gombe State, a party served with the Writ of summons and other processes under the Undefended List, who desires to be granted leave to defend the action is expected to deliver to the Registrar of Court not less than 5 days before the date fixed for hearing a notice of intention to defend together with an affidavit disclosing a defence on the merit. The Defendants, having been served the Writ on 20th April, 2005, however waited until 28th day of April, 2005 i.e. the date fixed for hearing in the matter, to file a motion on notice titled, “Notice of intention to defend/preliminary objection brought pursuant to Order 22 Rules (1) and (2) and Section 36 of the 1999 Constitution. Therein, they prayed for the following reliefs:

(1) That the writ of summons No. GM/239/2005 commencing this suit is initiated against the wrong parties/defendants.

(2) That the process is an abuse of Court process, as same was initiated before the leave of Court dated 6th day April, 2005 was sought and granted.

(3) That the

action in its entirely is statute barred.

(4) AND for any other order as the Court may deem fit to make in the circumstance.

The motion filed by the Defendants was heard on the 7th July, 2005. In the course of responding to arguments on the motion, Counsel to the Plaintiff raised an objection to the competence of the purported notice of intention to defend on the ground that it was filed out of the time provided in Order 22 Rule 3 of the Rules of Court, and that since there had been no application for an extension of time to file the said notice, same was invalid and therefore there cannot be said to be any defence to the action.

Counsel thereafter asked the Court to enter Judgment for the Plaintiff as per the Writ of summons. In his response, Counsel representing the Defendants countered that there was no need to file a Notice of intention to defend within the stipulated time and that there was also no need to ask for an extension of time.

In ruling on the motion on 20th July, 2005, the learned trial Judge held that the purported Notice of intention to defend filed on the 28th April, 2005 was filed out of time;