Theobros Auto-link Nig. Ltd. V. Bakely International Auto Engineering Co. Ltd. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A, (Delivering the Leading Judgment)

The Appellant and the Respondent entered into a contract for the Respondent to supply the Appellant with motor spare parts. The Respondent has her head office in Uyo whilst the Appellant has his head office in Aba. The Respondent supplied the Appellant with the spare part at a cost of N1.2m.

The Appellant received the parts and made a full payment of N1.2m vide a Zenith Bank cheque of 20th September, 2005. This cheque was returned unpaid for lack of funds. The Respondent’s bank UBA also surcharged him with a sum of N210.00.

After several entreaties, the Appellant paid instalmentally a total of N550, 000.00 only and refused paying any further sums. The Respondent thereafter wrote the Appellant through his counsel demanding the payment of N650, 000.00 balance remaining from the transaction. Two letters were indeed written and dispatched to the appellant by courier. On receipt of these letters, the Appellant replied alleging that the parts delivered were inferior and thereafter refused to pay any further sums.

The Respondent as plaintiff took out a writ under the undefended List procedure. The Appellant as Defendant filed an intention to defend together with his affidavit. The trial Judge held that, the Defendant/Respondent did not disclose any defence on the merit and therefore set a date for hearing.

The trial Judge held in his judgment delivered on 5th July, 2006:

“The judgment be and is hereby entered in the sum of N650, 000.00 in favour of the plaintiff against the Defendant being the balance of the cost of Motor Parts (Mack clutch Assembly) supplied by the plaintiff to the Defendant. That the judgment sum shall attract interest at the rate of 5% per annum from today’s date until it is fully liquidated. That cost of this action is assessed at the sum of N10, 000.00 in favour of the plaintiff against the defendant.”

Being dissatisfied, the Defendant/Appellant filed his notice and 3 grounds of appeal. The Appellant filed his Appellant’s brief on 14th December, 2010 and articulated 3 issues for determination as follows:

“(i) Whether upon a calm view of the affidavits, Reply and Further affidavits of both the Respondent and the Appellant, the High Court jurisdiction to entertain the suit in the first place without first calling for oral evidence to determine the bona fide of the parties.

(ii) Whether upon a calm view of the affidavit, counter affidavit, Reply to counter affidavit and further affidavit of both the Respondent and the Appellant, the High Court below was right to have Placed the suit under the undefended List instead of the general cause list in order to give both the Appellant and the Respondent the opportunity to be heard and be cross-examined to meet with the justice of the case.

(iii) Whether the judgment of the High Court below represents a dispassionate and full consideration of the issues raised by the Appellant before that court and fully made in the Appellant’s Brief vide affidavit, and further affidavit.”

Also filed is the Appellant’s Reply brief on 27th May, 2011.

The Respondent also filed his brief on 02/02/2011 but deemed properly filed and served on 17th May, 2011. In his brief, the Respondent articulated his own 3 issues namely:

“i. Whether the learned trial judge had jurisdiction to entertain the suit of the plaintiff?