Zakhem Oil Serve Limited V. Art-in-science Ltd (2009)

LawGlobal-Hub Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA

This is an appeal against the judgment of the High Court of Rivers State, holden at Port Harcourt, delivered on 10th December 2007 entering judgment in favour of the respondent herein. By a writ of summons dated 10/9/07, the respondent herein, as claimant, sought the following reliefs against the appellant, as defendant:

1. The sum of N6, 562, 500.00 (Six Million Five Hundred and Sixty-Two Thousand Five Hundred Naira) being the cost of pipes supplied to the defendant under a contract and which cost has not been liquidated by the Claimant.

2. Interest thereon at the rate of 10% per month from the 12th of May 2007 until judgment is given and thereafter, interest at the rate of 10% until total liquidation of the debt.

The writ was supported by an affidavit with exhibits attached thereto.

The respondent sought and obtained leave to issue the writ and enter it under the undefended list. Upon being served with the writ, the appellant entered a conditional appearance to the suit and filed a notice of intention to defend with a supporting affidavit. The appellant also filed a motion on notice challenging the jurisdiction of the court to entertain the suit but withdrew it on 10/12/07 when the matter came up for hearing. On the same day, learned counsel for the respondent withdrew the claim for VAT as reflected in Exhibit C attached to the supporting affidavit, which the appellant had objected to in its affidavit in support of its notice of intention to defend, and urged the court to enter judgment in the respondent’s favour. After considering the affidavit evidence before him and the submissions of learned counsel, the learned trial Judge entered judgment in favour of the respondent as follows at pages 37 – 38 of the record:

“Now that the claimant has discontinued with the claim to VAT, I find that what shall remain in Exhibit C is only the contract sum of N6,250,000.00 for which the claimant asked the court to enter judgment in its favour. In the circumstance I hold that the issue of VAT no longer constitutes a triable issue for which this suit may be transferred to the general cause list for trial. … In the circumstance, pursuant to Order 11 Rule 11, I merely enter judgment in this suit in favour of the claimant in the sum of N6,250,000.00 being the amount of pipes the claimant supplied to the defendant which sum the defendant has failed or neglected to pay. I refuse the 10% per annum post-judgment (sic) interest on the said sum as claimed because there is no express or implied custom or trade which enjoins the defendant to pay such interest in respect of the contract between the parties. I grant the payment of interest of 10% per annum on the judgment debt from the date of this judgment until the liquidation of the judgment debt in accordance with the Rules of this court. I therefore order accordingly.”

(Underlining mine)

The appellant was dissatisfied with this decision and filed a notice of appeal containing three grounds of appeal.

The parties, in compliance with the rules of this court duly filed and exchanged briefs of argument. In the appellant’s brief filed on 25/2/08, two issues were formulated for the determination of the appeal thus:

1. Whether the learned trial Judge has jurisdiction to place the suit under the undefended list and deliver judgment thereafter. (Ground 1 of the notice of appeal)

2. Whether the learned trial Judge was right when he delivered judgment under the undefended list without transferring the suit to the general cause list (Grounds 2 & 3 of the notice of appeal) The respondent, in its brief of argument filed on 24/4/08 adopted the two issues formulated by the appellant At the hearing of the appeal on 17th February 2008, the appellant, although duly served with hearing notice against that date, was absent and unrepresented by counsel. However, having filed a brief of argument, it was deemed to have argued the appeal pursuant to Order 17 Rule g (4) of the Court of Appeal Rules 2007. V.I. Oguafor Esq., learned counsel for the respondent adopted the respondent’s brief and urged us to dismiss the appeal and affirm the judgment of the trial court.

I have critically examined the grounds of appeal and the issues formulated therefrom. The law is settled that a ground of appeal must relate to the decision appealed against and must be a challenge to the validity of the ratio of that decision. See: Egbe v. Alhaji & Ors. (1990) 1 NSCC (Vol. 21) (Part 1) 306 @ 332 lines 39 – 44: Dalek Nig. Ltd. v. Ompadec (2007) All FWLR (364) 204 @ 226 F- H. A ground of appeal that does not arise from the judgment appealed against and any issue formulated thereon is incompetent and liable to be struck out

Ground 1 of the notice of appeal at pages 40 – 41 of the record reads thus: