The Shell Petroleum Development of Nigeria Limited V. Arho-joe Nigeria Limited (2005)

LawGlobal-Hub Lead Judgment Report

AMINA A. AUGIE, J.C.A.

The respondent as plaintiff commenced the Suit as per its Writ of Summons, dated 2nd October, 2001, wherein it claimed as follows:-

1. The sum of N97,200,000.00 (Ninety seven million two hundred thousand naira) being monies the defendant is owing the plaintiff, which said debt arose from the supply of 3,600,000 litres of AGO (diesel) to the defendant at Ogunu between the 27th day of August, 2001 and 1st September, 2001 at Ogunu, within the jurisdiction of this Honourable Court. The defendant has failed and or neglected to pay the aforementioned sum of N97,200,000.00- despite plaintiff’s invoice of 1/9/2001 and repeated demands.
2. The plaintiff also claims interest at the rate of 21% per annum.

On the 3rd of October, 2001, the respondent applied to have the case placed on the undefended list, which application was granted same day by Akperi, J. Upon service on it of the relevant processes, the appellant as defendant filed:-

(i) Memorandum of appearance dated 9th October, 2001;

(ii) Notice of intention to defend dated 16th October, 2001;

(iii) Affidavit disclosing a defence, to which was exhibited a statement of defence; and

(iv) A further affidavit disclosing a defence on the merits.

On the return date, 25th October, 2001, learned Counsel on both sides proffered arguments on whether the appellant’s affidavit disclosed a defence to warrant transferring the suit to the general cause list; this was before Akperi, J., who adjourned the case “to 4/12/2001 for authority and argument if necessary”. On the 4th of December, 2001, the case was further “adjourned to 18/12/2001 for ruling”. On the 18th of December, 2001, Akperi, J, said:-

“In view of my movement from jurisdiction, writing a ruling will amount to duplicating things, it is better for the next court to take a stand on it. Case is accordingly adjourned to 14/1/2002 for argument.”

On the 14th of January, 2002, the matter came up before the new Judge, Anigboro, J, and the record of the trial court that day reads as follows:-

“Plaintiff is represented by Joseph Emecho, Managing Director. Defendant is represented by Oisamaye Longe, Legal Officer. Chief E. L. Akpofure SAN (with him F. I. Agboro Esq.) appears for the plaintiff. Chief E. L. Akpofure SAN applies that the motion to defend filed on the 16/10/2001, be struck out because the defendant’s counsel is absent. O. Longe representing the defendant informs the Court that he has no copy of the notice to defend and he cannot move the application. He asks for a date to enable the defendant to move the notice.

Court: The case was adjourned till today, when counsel for both parties were in Court. There is no reason given by O. Longe to persuade me to adjourn the notice to defend filed by the defendant which was adjourned till today for argument. In the circumstances, I accede to the application by Chief E. L. Akpofure SAN that the Notice to Defend filed by the defendant be struck out. The notice to defend filed by the defendant on the 16/10/2001 is hereby struck out for want of diligent prosecution.

Chief E. L. Akpofure SAN applies for Judgment in accordance to Order 23 Rule 4 of the High Court (Civil Procedure) Rules 1988 of Bendel State of Nigeria applicable to Delta State.

Court: The defendant in the circumstances has failed to deliver a notice to defend and the prescribed affidavit. The court is bound by the said Order to give Judgment. The defendant in this case having been duly served with the processes in this case as per the order of this court made on the 3/10/2001, judgment is hereby given for N97, 200,000. 00 being the monies due to the plaintiff from the defendant for the supply of AGO (diesel) as claimed by the plaintiff in the undefended Writ of Summons duly served on the defendant. Defendant shall pay cost of N2,000.00 to the plaintiff for this action”.