The Governor Of Imo State & Ors V. E.f. Network Nigeria Limited & Anor (2019)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Owerri Division in Appeal No.CA/OW/201/2014 delivered on the 4th day of July 2016 which upheld the judgment of the trial High Court of Imo State, holden at Owerri delivered on 11th February, 2014 Coram: I. O. Agudua, J.

The respondents herein as claimants had commenced an action at the Owerri Judicial division High Court, holden at Owerri by filing a Writ of Summons on 27th September, 2011. (See page 1 of the record). The record shows that the suit was given No. HOW/538/2011. Filed along with the Writ of Summons was a Motion Exparte and a 24 paragraphs affidavit in support deposed to by the 2nd respondent and a written address in support of the Motion. In the said application, the claimants had sought the following reliefs:

(a) An order of Court setting down this suit under the “Undefended List”.

(b) An order deeming the writ of summons (Exhibit E) as duly filed and served, the filing fees having been paid.

(c) And for such order or other orders as the Honourable Court may deem fit to make in the circumstance.

1

On 25/10/2011 when the matter came up for hearing, being an exparte application, it was undefended but the Court refused the reliefs sought to place the matter on the Undefended List of the Court. Instead, the Court ordered the claimants (hereinafter referred to as the respondents) to file their statement of claim and frontload accordingly as required by the rule. (See; page 146 of the record). The statement of claim and other processes were later filed and duly served on the defendants, (hereinafter called appellant but they did not file any defence to the claim. On the 5th of January, 2012, the respondents filed a Motion on Notice for an Order entering judgment in favour of the claimants, the appellants having failed or neglected to enter appearance and file their statement of defence. Upon service of the application for judgment on the appellants on 7/2/2012, the appellants filed an application on 21/2/2012 for extension of time to enter their Memorandum of appearance and file their statement of defence etc. Yet, the appellants failed to file the said processes to show that they were actually desirous of defending the action.

2

On the 15th June, 2012, the respondents again filed another application for judgment in default after the time extended by the Court for the appellants to regularize had expired. Instead of considering the application for judgment, the trial Court in its wisdom ordered that trial be conducted and Pre-trial process was ordered, and it took place. On 12/12/2013 both parties were represented by counsel and the matter was adjourned to 13/2/2013 for pretrial conference to commence. On the 5th June, 2013 the sole issue as determined and filed by the respondents was adopted by the conference and the case was adjourned to 4/7/2013 for hearing.

When the matter came up for hearing on 4/7/2013 both parties were adequately represented by counsel. Mrs. J.C. Ibe, the Chief State Counsel was for the appellant. While S. O. Ejiogu Esq., with S. I. Uwade Esq., represented the respondents.

The respondents opened their case by calling the 2nd respondent as PW1. He adopted his depositions made on 17th November, 2011 as his evidence. He tendered Exhibits A,B,C,D,E,F,G,H,J,K,L,M,N,O, P,Q,R,S,T,U,V,W, W1-W6, X Y, Z and they were admitted as claimants documents.

3

It is note worthy that the witness was not cross examined by the appellants’ counsel in Court, and the Court recorded cross examination for the witness as NIL. The matter was adjourned to 25/7/2013 for the defence. The learned counsel for the appellants – Mrs. Ibe wrote to Court on the next adjourned date for yet another adjournment on the ground of ill health. When the claimants counsel had no objection, the application was granted, and further hearing was adjourned to 24/9/2013 for defence. The matter suffered yet another adjournment on 24/9/2013 due to the absence of the learned counsel for the appellants. The matter was adjourned to 12/11/2013 for defence. Upon realizing that the defendants did not file any defence, even though they were represented by counsel, who urged the Court to allow her address the Court, the defence was foreclosed pursuant to Order 30 Rule 13 and matter was adjourned to 19/12/2013 for addresses of counsel.