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  • 2003-12-22
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Snig Nig. Ltd. vs. Omoruku Nig. Ltd.

SNIG NIGERIA LIMITED

V

OMORUKU NIGERIA LIMITED

COURT OF APPEAL

( BENIN DIVISION )

M. S. M.-COOMASSIE, JCA (Presided and Read the Lead Judgment)

KUMAI BAYANG AKAAHS, JCA

AMINA ADAMU AUGIE, JCA

CA/B/197M/99

WEDNESDAY, 16TH APRIL, 2003

AGENCY - Agent who contracted in his name - Bindingness of contractual agreement thereon

CONTRACT - Contractual agreement - Bindingness of on agent who contracted in his name

PRACTICE AND PROCEDURE - Undefended list procedure - Leave to defend - When will be granted

PRACTICE AND PROCEDURE - Undefended list procedure - Purpose of -  Defendant therein - When need prove his defence

Issues:

1.              Under the undefended list, is a defendant obliged to prove his defence at the stage he is asking for leave to defend before he can be entitled to leave to defend?

2.              Does the appellant’s defence (if proven) constitute a defence to the respondent’s action?

Facts:

Between June 1997 and March, 1998, at the request of the appellant herein, the respondent supplied labour, welding machines and materials to the appellant in the Warri Refinery and Petrochemical Company Limited [2003] F.W.L.R                Snig Nig. Ltd. vs. Omoruku Nig. Ltd.                                       585 premises at Ekpan, Warri. As at the open of business on 2/3/98 the appellant was indebted to the respondent in the sum of N4,297,874.00 as value of goods and services supplied. On or about the 2nd day of March, 1998, the appellant vide NIB cheque paid the sum of N1,836,300.00 to the respondent leaving a balance of N2,461,574.00. In spite of repeated demands the appellant failed to settle its outstanding indebtedness to the respondent.

The respondent therefore at the Delta State High Court brought a claim for the sum of N2,461,574.00 with 15% interest annually being the sum due for the supply of goods and services rendered, against the appellant.

By an exparte motion under Order 23, rule 1 of the High Court (Civil Procedure) Rules, 1988 of Bendel State as applicable to Delta State, the action was transferred to the undefended list by order of the trial court. The appellant then sought leave to defend the action and filed a notice of intention to defend as well as an affidavit, according to the appellant, disclosing the defence.

The trial court heard the notice to defend and on the 5th of March, 1999 , held that the appellant was in law not entitled to leave to defend the action.

Dissatisfied with the decision, the appellant has appealed to the Court of Appeal.