Legalpedia Citation: (2024-07) Legalpedia 21719 (CA)

In the Court of Appeal

HOLDEN AT IBADAN

Mon Jul 15, 2024

Suit Number: CA/IB/252/2019

CORAM

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Muslim Sule Hassan Justice of the Court of Appeal

PARTIES

O.A AVANTI NIGERIA LIMITED

APPELLANTS

SKYMAT NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT LAW, CIVIL PROCEDURE, JURISDICTION, GARNISHEE PROCEEDINGS

SUMMARY OF FACTS

O.A. Avanti Nigeria Limited (the Appellant) entered into a contract with Skymat Nigeria Limited (the Respondent) for the provision of goods and services. After the job was completed, the Appellant alleged that the materials used were substandard and demanded that the Respondent redo the job. Despite this, the Respondent pursued a suit at the Ogun State High Court for payment of the outstanding contract sum and damages.

The Appellant claimed that an out-of-court settlement was agreed upon, with the Appellant paying an additional N300,000 to the Respondent. However, no official withdrawal of the suit took place, and judgment was delivered in favor of the Respondent, leading to garnishee proceedings for enforcement. The Appellant then applied to set aside the judgment on grounds of non-service of hearing notices, which was dismissed. Dissatisfied, the Appellant appealed to the Court of Appeal.

HELD

The Court of Appeal dismissed the appeal, affirming the decision of the trial court. The court held that the Appellant’s further affidavit was rightly discountenanced for being filed out of time, and that the trial court was correct in refusing to set aside the judgment. The appeal lacked merit, and costs of N50,000 were awarded against the Appellant.

ISSUES

1. Whether the trial court was correct in discountenancing the Appellant’s further affidavit and reply on points of law for being filed out of time?
2. Whether the trial court was right in refusing to set aside the judgment, concluding that the Appellant had no triable defence and was duly served?

RATIONES DECIDENDI

DISCOUNTENANCING OF DOCUMENTS FILED OUT OF TIME – APPLICATION OF COURT RULES

“The court has the discretion to discountenance affidavits and documents filed out of time when there is no application for an extension of time, particularly where the delay is unjustified and no reasonable excuse is provided.”

– Per Ugochukwu Anthony Ogakwu, J.C.A.

SETTLEMENT AGREEMENTS – REQUIREMENT FOR OFFICIAL WITHDRAWAL OF SUITS

An agreement to settle a dispute out of court must be formally communicated to the court through the appropriate legal channels. Failure to withdraw the suit officially means the court retains jurisdiction to proceed with the case.”

– Per Danlami Zama Senchi, J.C.A.

NON-SERVICE OF HEARING NOTICES – REQUIREMENT TO RAISE TIMELY OBJECTION

“Where a party alleges non-service of hearing notices, such objection must be raised promptly. Failure to do so, coupled with participation in the proceedings, weakens any claim of non-service.”

– Per Muslim Sule Hassan, J.C.A.

EVIDENCE OF PAYMENT WITHOUT OFFICIAL RECEIPT – INSUFFICIENT TO ESTABLISH SETTLEMENT

“The mere presentation of a bank statement showing payment is insufficient to establish a settlement agreement unless there is corresponding evidence of official withdrawal or acknowledgment of settlement by the opposing party.”

– Per Ugochukwu Anthony Ogakwu, J.C.A.

TRIABLE DEFENCE – ESTABLISHING MERITORIOUS DEFENCE FOR REOPENING CASE

“For a court to consider setting aside a judgment, the applicant must show a meritorious defence. A draft statement of defence with substantial gaps in material facts is insufficient to persuade the court to reopen the case.”

– Per Danlami Zama Senchi, J.C.A.

FAILURE TO FILE MOTION FOR EXTENSION OF TIME – CONSEQUENCES FOR LATE FILING

“A party who fails to file a motion for extension of time when filing documents out of time cannot expect the court to exercise its discretion in their favor. The rules of court must be adhered to strictly unless compelling reasons justify an extension.”

– Per Muslim Sule Hassan, J.C.A.

AFFIDAVIT OF SERVICE – PRIMA FACIE EVIDENCE OF PROPER SERVICE

“An affidavit of service deposed to by a court bailiff is prima facie evidence of proper service of court processes unless rebutted by credible counter-evidence. Mere allegations of non-service without evidence are insufficient.”

– Per Ugochukwu Anthony Ogakwu, J.C.A.

GARNISHEE PROCEEDINGS FOLLOWING FINAL JUDGMENT – NO AUTOMATIC STAY WITHOUT APPLICATION

“Garnishee proceedings following a final judgment will proceed unless a formal application for a stay of execution is made and granted. Mere notice of appeal does not operate as an automatic stay of enforcement.”

– Per Danlami Zama Senchi, J.C.A.

OPPORTUNITY TO BE HEARD – FILING OUT OF TIME DOES NOT CONSTITUTE A BREACH OF FAIR HEARING

“The failure to file a document within the prescribed time does not automatically equate to a denial of fair hearing. The onus is on the party to ensure compliance with court rules, and failure to do so is a procedural lapse, not a constitutional breach.”

– Per Muslim Sule Hassan, J.C.A.

FRAUDULENT MISREPRESENTATION – STANDARD OF PROOF

“Allegations of fraudulent misrepresentation in civil proceedings must be proven beyond reasonable doubt. Mere assertions of deceit or non-disclosure, without concrete evidence, will not suffice.”

– Per Ugochukwu Anthony Ogakwu, J.C.A.

LACK OF MERITORIOUS DEFENCE – BASIS FOR REFUSING TO SET ASIDE JUDGMENT

“Where a party fails to demonstrate a meritorious defence, particularly where material facts are missing or inadequately presented, the court is justified in refusing to set aside the judgment.”

– Per Danlami Zama Senchi, J.C.A.

LATE FILING OF AFFIDAVITS – CONSEQUENCES FOR PROCEDURAL FAILURE

“Procedural failures, such as late filing of affidavits or failure to request extensions of time, weaken a party’s case on appeal. Courts will not condone procedural lapses unless justified by exceptional circumstances.”

– Per Muslim Sule Hassan, J.C.A.

PROCEDURAL FAIRNESS – DISCRETION OF THE COURT

“The court retains wide discretion to determine whether to extend time for filing documents or allow certain affidavits. This discretion must be exercised judiciously, with due consideration to the rules of court and the specific facts of the case.”

– Per Ugochukwu Anthony Ogakwu, J.C.A.

CASES CITED

Not Available

STATUTES REFERRED TO

Ogun State High Court (Civil Procedure) Rules 2014

Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

Companies and Allied Matters Act, Cap C20, LFN 2004

Evidence Act, 2011

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