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CaseLaw

Holman Bros V. Kigo Nig. Ltd (1980) CLR 9(a) (SC)

Judgement delivered on September 5th 1980

Brief

  • Leave to appeal
  • Issues for determination
  • Wrongful exercise of discretion

Facts

On 14th May, 1979, in the High Court Kano state, in Suit No. K/108/79, Kigo (Nigeria) Limited, the first respondents, that is as plaintiffs, claimed:

  • "i.
    the right to reject the whole crushing plant comprising one Goliath primary Crusader 30 x 18 and one Goliath secondary 30 x 24 sold and delivered by the Defendant to the plaintiff between April and September, 1978. And
  • ii.
    special and general damages for several breaches of contract by the Defendant in respect of goods sold and delivered by the Defendant and for several wrongs committed in tort against the plaintiff including deceit, fraud, false representations and negligence whereby the Plaintiff has suffered substantial damages.”

Special damages alone claimed amounted to the sum of N3,836,323 Interest was also claimed.

Later, the 1st respondents filed their statement of claim dated 22nd May, 1979 in obedience to an order of court made in that behalf on 21st May, 1979.

On 24th September, 1979, on the ex parte application of the appellants, Godwin Barsby Limited of Leicester, England, were joined by order of court, Jones, C J as he then was, as Third Party in the suit.

And pursuant to the order of court made in that behalf, Third Party Notice and other relevant papers were served on counsel in Kano, who accepted service within the jurisdiction of the court, acting for the Third Party, herein 2nd respondents.

After the occurrence of a number of other events, including appearances in court by counsel for the 2nd respondents and obtaining orders for extension of time within which to file statement of defence for the 2nd respondents and a definite date for the hearing of the suit which, at all events, was fixed by consent of all parties to commence on 26th February, 1980 counsel for the 2nd respondents applied under Order 6, rule 10 and Order 12, rule 3 of the High Court, Kano, Rules 1976 by motion on notice, dated 26th December, 1979 for:

  • (a)
    an order setting aside the proceedings on the Third Party Notice; or striking out the Third Party from this action and
  • (b)
    extension of time by 3 days to file a defence in this action.

The motion was supported by 2 affidavits, that is, an affidavit and a further affidavit setting out the grounds and circumstances for the application.

On 11th February, 1980, the High Court, Rowland, J. delivered a reserved ruling, set aside the Third Party proceedings and struck out the Third Party, that is, 2nd respondents from the suit

Appellants applied to the High Court for leave to appeal to the Federal Court of Appeal against the decision and the application was refused. Appellants then appealed to Court of Appeal for leave, and his was also refused. Appellants further appealed to Court of Appeal for leave to appeal to the Supreme Court against the decision refusing leave. The application was granted.

Issues

  • 1.
    Whether a decision of the Federal Court of Appeal to refuse an...
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