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  • 2001-10-15
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Rivers State Government v. Specialist Konsult

RIVERS STATE GOVERNMENT OF NIGERIA

THE ATTORNEY-GENERAL OF RIVERS STATE OF NIGERIA

V

SPECIALIST KONSULT (SWEDISH GROUP)

COURT OF APPEAL

( LAGOS DIVISION )

G. ADESOLA OGUNTADE, JCA ( Presided and Read the Lead Judgment )

PIUS OLAYIWOLA ADEREMI, JCA

CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JCA

CA/L/132/2001

MONDAY 16TH JULY, 2001

ACTION - Action against state - Commencement of - Venue therefor Whether can be commenced in another state in which the liason office of the former state is situate

PRACTICE AND PROCEDURE - Undefended list procedure -  Action brought thereunder - Where comes to court on the return date - Duty of court

PRACTICE AND PROCEDURE - Undefended list procedure - Notice of intention to file defence and affidavit in support of - Failure to file within prescribed period - Duty of court

PRACTICE AND PROCEDURE - Undefended list procedure - Procedure therefor

PRACTICE AND PROCEDURE - Undefended list procedure - Type of demand made thereunder - Order 60 rule 1, High Court of Lagos State (Civil Procedure) Rules


Issues:

1.            Whether the High Court of Lagos State can exercise jurisdiction in the suit when neither party to the suit resides and/or carries on business in Lagos and the transaction giving rise to the suit did not take place in Lagos.

2.            Whether the sum of USD3,138,122.81 claimed by the plaintiff/ respondent and awarded by the court in the suit was a liquidated sum outstanding from the defendant/appellant in favour of the plaintiff/respondent upon which the court can grant leave directing that the suit be set down for hearing in the undefended list.

3.            Whether the contract, if any, between the plaintiff/respondent and the 1st defendant/appellant provided for payment in U.S. Dollars and, if so, whether the court was right in awarding judgment in U.S. Dollars.

4.            Whether the award of 21% interest in favour of the plaintiff/ respondent against the defendants/appellants is proper in law.

Facts:

The plaintiff brought an action under the undefended list procedure at the Lagos High Court claiming as follows:

“1. The plaintiff claims against the 1st defendant the sum of USD3,138,122.81 cents (Three million, one hundred and thirtyeight thousand and eighty one cents) being outstanding fees due to plaintiff on work already executed on behalf of the Rivers State Government of Nigeria since 27th April, 1995.

2. Interest at the rate of 21% per annum from 27th April, 1995 until the total liquidation of the entire debt under paragraph 1 hereof.”

The defendants, who were served with the writ of summons, did not file any notice of intention to defend together with an affidavit, and the court entered judgment against them.

On the writ of summons, the address of the appellants was shown as

“c/o Rivers State Government Liason Office, Bishop Oluwole Street, Victoria Island, Lagos.”

The defendants appealed, contending, inter alia, that they were not properly served as they were not residing in Lagos.

The Court of Appeal in resolving the appeal, considered Order 60 of the High Court of Lagos State (Civil Procedure) Rules, which provides:

“1.     Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim

is based and stating that in the deponent belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case. 3(1): if the party served with the writ of summons and affidavit delivers to the Registrar in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

2. Where leave to defend is given under this Rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings, or proceed to hearing without further pleadings.”