University of Nigeria V. Orazulike Trading Company Limited (1989)

LawGlobal-Hub Lead Judgment Report

UWAIFO, J.C.A.

At the Enugu High Court, the plaintiff company (now respondents) brought a claim for the sum of N28,000.00 plus 10% interest against the defendants (now appellants) for goods ordered and delivered. By an ex-parte application under Order III rule 9 of the High Court Rules (Cap. 61) Laws of Eastern Nigeria 1963 then applicable in Anambra State the action was transferred to the undefended list by order made by Onyechi, J., on September 1, 1982. The appellants on 14 October, 1982 raised objection to the corporate name in which they were sued, which was “University of Nigeria Nsukka”, whereas the law establishing the University simply states the name as “University of Nigeria. “The objection was overruled. Counsel for the appellants was allowed an adjournment in order for him to file notice of intention to defend. This he accordingly did.

The trial Judge heard the notice to defend, and on 19 November, 1982 held that certain documents exhibited for consideration showed prima facie that the appellants not only agreed to pay to the respondents the amount claimed but proceeded to prepare voucher to this end. He concluded that:

After considering the submission of Mr. Ezeani for the defendants and Mr. Obegolu for the plaintiffs in the light of the above prima facie findings, I hold that the defendants have not only failed to show defence on merits but that the defences they raised in respect of their application under Order III rule 11 of the High Court Rules are not genuine….I hold that the defendants have not shown sufficient cause in order to be let in to defend this suit. I therefore recourse to Order III rule 13 and enter judgment for the plaintiffs against the defendants on terms of the undefended list writ of summons.”

The appellants have appealed against that decision. There are other aspects of the decision touching upon (1) the notice of intention to defend in the corporate name in which the appellants were sued (upon which a ruling had earlier been given by the trial court), (2) the jurisdiction of the court at Enugu to hear the case instead of Nsukka, and (3) the lack of privity of contract between the appellants and the respondents. All these issues are reflected in the five grounds of appeal upon which the appellants now complain.

In pursuance of those grounds of appeal which I consider unnecessary to set out, six questions for determination have been raised by the appellants. They sufficiently encompass the complaints formulated in the grounds of appeal and read as follows:

“(1) Had the learned Judge jurisdiction to entertain action arising from contract made at Nsukka to be performed at Nsukka and defendant residing at Nsukka in Nsukka judicial division?

(2) Does defendant/appellant reside at Nsukka where its principal organs are situate and reside; and having Enugu as branch or place of carrying on business?

(3) Is the ‘University of Nigeria Nsukka’ a corporate legal entity to sue and be sued in that name or is it a non-juristic person?

(4) Was the learned trial Judge right in holding as he did that a notice of intention to defend brought under Order 3 rule 11 required such notice to disclose a defence on merit?

(5) Does the refusal by the learned trial Judge to admit the defendant/appellant to defend the action constitute a breach of the rule of audi alteram partem and a breach of the appellant’s Constitutional right of a fair hearing pursuant to section 33 of tile Constitution of the Federal Republic of Nigeria 1979?

(6) Does lack of jurisdiction on the part of the trial Judge render his proceedings and judgment a nullity?”

The respondents stated three issues for determination, namely:

(a) Whether the learned trial Judge was right in assuming jurisdiction to entertain the action.