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  • 2003-12-01
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Jadcom Ltd. vs. Oguns Electricals

JADCOM LIMITED

MR. ALI BAALBAKI

V

OGUNS ELECTRICALS

COURT OF APPEAL

( ABUJA DIVISION )

IBRAHIM T. MUHAMMAD, JCA ( Presided and Read Lead Judgment )

ZAINAB ADAMU BULKACHUWA, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/50/97

THURSDAY, 15TH MAY, 2001

ACTION - Counter-claim - Whether a separate action - Need to support claims therein by evidence

COURT - Fundamental aim of - What is - Attitude of court to strict adherence to technicality

COURT - Judges - Whether can deliver judgment within two days after last date of hearing

FAIR HEARING - Definition of

FAIR HEARING - Party who failed to utilize opportunity afforded him to do what the law entitled him - Whether can complain of breach of fair hearing

JUDGMENT AND ORDERS - Judgment - Whether judges can deliver within two days after last date of hearing

LEGAL PRACTITIONER - Counsel - Duty on not to make frivolous allegation against Judges

PARTIES - Party who failed to utilize opportunity afforded him to do what the law entitled him - Whether can complain of breach of fair hearing

PARTIES - Plaintiff in an action - Competence of - Whether issue of can be raised at any stage

PLEADINGS - General traverse - Whether enough to controvert material and essential averments in the statement of claim

PLEADINGS - Pleadings not supported by evidence - Evidence led on unpleaded facts - Effect

PLEADINGS - Specific traverse - Essence of

PRACTICE AND PROCEDURE - Parties - Party who failed to utilize opportunity afforded him to do what the law entitled him Whether can complain of breach of fair hearing

PRACTICE AND PROCEDURE - Plaintiff in an action - Competence of - Whether issue of can be raised at any stage

PRACTICE AND PROCEDURE - Pleadings - General traverse Whether enough to controvert material and essential averments in the statement of claim

PRACTICE AND PROCEDURE - Writ of summons - Issuance and service of - Irregularities therein - Defendant’s failure to timeously raise protest against - Whether amounts to waiver of his right to protest against same

WAIVER - Meaning of

WAIVER - Writ of summons - Issuance and service of - Irregularities therein - Defendant’s failure to timeously raise protest against -

Whether amounts to waiver of his right to protest against same WORDS AND PHRASES - ‘Waiver’ - Meaning of

Issues:

1.              Whether the learned trial Judge was not in error to have entered judgment in favour of the respondent when the appellants have not been given any opportunity to present their defence.

2.              Was the learned trial Judge right in entering judgment in favour

of the respondent whose competence in law to institute the action was not proved?

3.              Was the learned trial Judge right to proceed with the suit based on void writ of summons?

4.              Was the learned trial Judge not in error in dismissing the appellants’ counter-claim instead of entering judgment for the appellants on same in the circumstances?

Facts:

The respondent herein as the plaintiff in 1994, in Minna, entered into an agreement with the defendants for the supply and installation of electrical materials at the Central Bank Quarters, then under construction in Abuja. The agreed cost of installing the electrical materials was N350,000.00 (three hundred and fifty thousand naira only); supplies of the equipments were effected through issuance of various LPOs on different dates. There were further supplies outside LPOs for different sums of money. The total costs of materials supplied to the defendants amounted to N461,500.00. The defendants paid the sum of N260,000.00 leaving a balance of N201,500.00. The plaintiff claimed further, that the defendants did not pay any amount for the labour on the installation of the materials. The total balance unpaid therefore, including labour, amounted to N551,500.00 (five hundred and fifty one thousand five hundred naira only) as at 11/6/96.

After settlement of pleadings, learned counsel for the plaintiff applied to the trial court to set down the suit for hearing. The suit was set down for hearing on 26/11/96. On that date, learned counsel for the plaintiff was in court, the defendants and their counsel were not in court. The suit was fixed for hearing on the 3/12/96. On this date, the plaintiff and his counsel were in court. Defendants were not in court but one Mr. C.C. Ofule held Akin Adewale’s brief for the defendants. Hearing commenced on that day with the plaintiff testifying as PW1. He concluded his testimony that day. Cross-examination by defendant’s counsel and continuation of hearing were ( reserved) adjourned to 28/1/97. On 28/1/97, learned counsel for both parties were in court. They agreed to take another date for the cross-examination and they were given the 4/2/97.

The next date the trial court sat was the 10/3/97. The plaintiff was in court in person but his counsel was not in court, the counsel for the defendants was in court. The trial court re-fixed the matter for 17/3/97 for crossexamination. On 17/3/97 the plaintiff and his counsel were in court. The defendants and their counsel were not in court. In view of lack of any explanation as to the reason for their absence the plaintiff’s counsel apply to close his case. The trial court noted same and adjourned to 19/3/97 for judgment. On 19/3/97 judgment was entered in favour of the plaintiff.

Being dissatisfied the defendants as appellants have appealed to the Court of Appeal.