Tiwani Limited V. Citi Trust Merchant Bank Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

KATSINA-ALU, J.CA.

This is an appeal against the decision of Sanyaolu. J. of the Federal High Court, Port Harcourt delivered on 21 July. 1995.

The respondent as plaintiff claimed against the defendant as follows:

1. An order of possession of the said vessel;
2. The liquidated sum of N6,933,871.88k, being unpaid rental arrears, and over-draft granted to the defendant by the plaintiff at the defendant’s request, with interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January. 1994 till judgment and thereafter total liquidation of the sum;
3. An order of specific performance of the contractual obligation to obtain all requisite approvals; and
4. Damages for breach of contract, loss of profit, as may be assessed; or in the alternative.
5. The liquidated sum of N22,355,783.78k plus interest thereon at the plaintiff’s current prime lending rate from time to time from 1st January 1994 till total liquidation of the debt being the outstanding amount of lease rentals and overdraft.

Pleadings were duly ordered. The plaintiff filed its Statement of Claim to which the defendant filed its statement of defence. The Statement of Defence also includes a counter-claim. Accordingly the plaintiff filed a reply and defence to the counter-claim. On 5th March 1995 the defendant filed a reply to the defence to counter-claim.

Upon the agreement of both counsel on 14/12/94 the learned trial Judge fixed hearing of the substantive case for 23 and 24 January, 1995. Unfortunately, the court did not sit on 23/1/95 though both counsels were in court, so on the prodding of both counsel, trial was further fixed for 15/12/95.

However, for inexplicable reasons, counsel for the defendant did not show up in court for trial on 15/2/95, neither was the defendant represented by any of its officers. Moreover the defendant and its counsel did not deem it necessary to excuse their absence. This being the situation counsel for the plaintiff urged the trial court to commence trial. Thus trial commenced on 15/12/95. P.W.1 Kunle Ajeigbe gave evidence for the plaintiff and the case was adjourned to 24/2/95 for continuation of hearing.

On 24/2/95 both parties were represented by counsel and Mr. Leyimu, of counsel for the defendant sought an adjournment to bring necessary applications to regularize his defence. The application was granted and the case was subsequently adjourned to 28/2/95 for continuation of hearing.

On 28/2/95 defendant’s counsel got the court to regularize defendant’s statement of defence. He then sought an adjournment of further hearing which the trial court rejected. Accordingly hearing of the evidence of P.W.1 continued. Nevertheless P.W.1 could not finish and so his evidence was further adjourned to 16/3/95 with leave to the defendant to file and serve a reply to the defence to counter-claim. if any.

On 16/3/95 the defendant was neither in court nor represented. P.W.1 however continued with his evidence which he concluded on that day. P.W.2 Alfred Soma Jeminimiema also gave evidence on the same day. The case then stood adjourned to the 7/4/95 for address.

On 7/4/95 the defendant’s counsel was again absent in court. Also no representative of the defendant was in court. Plaintiff’s counsel addressed the court and thereupon the learned trial Judge reserved judgment till 16/5/95.

On 16/5/95 the defendant and its counsel in a surprise move served on the court an ex-parte order of Ojutalayo, J., of the Federal High Court. Lagos restraining the learned trial Judge from delivering his judgment. In compliance with that order the learned trial Judge adjourned to 21/6/95 for judgment.

The parties were again in court on 26/5/95. On that day, the present counsel to the defendant made his first appearance. At his instance the matter was adjourned to 6/6/95. Meanwhile the defendant filed a motion dated 25/5/95 on 26/5/95 praying for the following reliefs:

a) An order striking out claims 1.2 to 1.5 of the plaintiffs’ Particulars of Claim on the ground that this Honourable Court has no jurisdiction to entertain them.

b) An order arresting the judgment of this Honourable Court herein fixed for 26th May, 1995 with a consequent order re-opening the case for further trial.