Dr. Okechukwu Obi & Anor V. Henry Ugwa & Anor (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A.

This is an appeal against the ruling of the Kaduna State High Court of Justice (lower Court) delivered on the 19th of September 2012 in suit No. KAD/KD/ 26B/2012 in an application seeking for an order to set aside the judgment of the Court delivered on the 12th of July 2012. The genesis of the case before the lower Court is that in June 2011 the 1st respondent supplied four (4) tankers of Kerosene to the 1st appellant valued at N7, 350,000.00. There were other transactions between the appellants and the respondents which led to a disagreement as to who was owing the other and for what sums of money. The respondents as plaintiffs before the lower Court took out a writ of summons dated the 3rd of April 2012 and applied for summary judgment pursuant to Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007, claiming as follows:
?a. An award in favor of the plaintiffs and against the defendants for the sum of #6,800,000= six million, eight hundred thousand naira only being the liquidate sum due and payable to the plaintiffs by the defendants of

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which the defendant failed, refused and neglected to refund to the plaintiffs despite repeated demands.
b. An award of 10% ten percent interest on the said sum of N6,800,000= six million, eight hundred thousand naira only per annum from the date of judgment until final liquidation of the entire sum in favor of the plaintiffs and against the defendants.
c. An award of expensae litis i.e. cost of this action calculated at the rate of 10% ten percentum of the claim in paragraph one thereof.
d. The defendants may pay the foregoing claims to I. O. Ezengwa & Co, the plaintiffs? counsel within the time. See pages 1-22 of the Record of Proceedings.?

The appellants were served with the originating processes as provided by Order 11 of the High Court Rules on the 9th of May, 2012. The appellant did not file a defence on the merit to the applications of the respondents as required by Order 11 Rule 4 of the High Court (Civil Procedure) Rules 2007. The appellants were represented by counsel on the 18th and 22 of May 2012 when the matter came up for hearing. counsel were not prepared for the hearing of the matter thence, they sought

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for an adjournment which was granted. The matter was adjourned to the 19th of June, 2012 for the hearing of the application for summary judgment. Neither the appellants nor their counsel were in Court. The matter was further adjourned to the 17th of July 2012 for the hearing of the motions. On the 12th of July, 2012, the appellants’ counsel was not in Court, but Mrs. J. A. Ike Esq., held brief for him. Mrs. Ike Esq., sought for an adjournment on the ground that she was not prepared for the hearing of the applications, that she was only holding brief for the counsel to the appellants. The learned Judge refused to grant the adjournment, and proceeded to hear the application in accordance with Order 11 Rule 4 of the Rules of Court, and entered a summary judgment for the respondents per their claims. The appellants were aggrieved by the judgment of the lower Court, hence they filed a motion on Notice seeking for an order to set aside the summary judgment of the lower Court delivered on the 12th of July 2012. The learned trial judge of the lower Court refused the application, and dismissed it. The appellants, dissatisfied with the dismissal of their application,

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filed a Notice of appeal to this Court on the 24th of September, 2012, challenging the decision of the lower Court on a two (2) grounds which are thus:
GROUND 1
The decision is against the weight of evidence
GROUND 2
The learned trial judge erred in law when he refused to set aside the default judgment of the Court dated 12th July, 2012.
PARTICULARS OF ERROR IN LAW
(i) The learned trial Judge held as follows: “The application by the Applicant in this case is neither an appeal against the Judgment nor another action to set the Judgment aside on ground of fraud. This Court cannot therefore set the Judgment aside being a judgment on the merit”
(ii) The learned Judge further held as follows: “I will not pretend that I have not seen the document annexed to the applicants affidavit in support which appear to show that they have made some payments to the respondents, however, this does not make the judgment a default judgment, in the circumstance this application must fail and it is accordingly dismissed”

The appellants sought the following reliefs in the event of this appeal succeeding.
1. An order setting

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aside the ruling of the Honorable Justice Gideon Kurada delivered on the 19th September, 2012.
2. An order setting aside the default judgment of the Honorable Justice Gideon Kurada delivered on 12th July, 2012.
3. An order of this Honorable Court directing a retrial of the case.

The appellants’ brief of argument dated 27th of December, 2013, was deemed filed on 30th April, 2014; having been earlier filed on 27/12, out of the prescribed period. The respondents’ brief of argument dated 4th June, 2014 was deemed filed on 25th of March 2015, having been filed on 18th of December, 2014. In the appellants’ brief of argument 2 issues were distilled from the grounds of appeal on page 6 thereof. On page 3 of the respondents’ brief a lone issue has been formulated for the determination of the Court in the appeal. Issue 3 of the appellants and the sole issue of the respondents are not dissimilar. Therefore, the issues for determination in the two briefs of argument are hereby compressed to two issues thus:
(i) whether the trial Court was right in its decision to have refused to set aside its default judgment when the appellants defence raises triable

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