Prince Paully Ikpong & Anor. V. Obong Ini Udobong (2006)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal against the ruling of the High Court of Akwa Ibom State of Nigeria, presided over by Mbaba, J, delivered on the 19th of August, 2004 wherein the court dismissed the application of the appellants for an order setting aside the judgment in favour of the respondent delivered by the court below on the 31st of May, 2004.

The facts of the instant case on appeal are that on or about the 27/6/2001 the appellants engaged the services of the respondent, a legal practitioner, to defend them in Suit No. HU/199/2001: Prince E.S. Etukeye & Ors. v. Prince Paully Ikpong & Ors and also to reconcile the warring factions in 2nd appellant, National Association of Small Scale Industries (NASSI) Akwa Ibom State Chapter. The 1st appellant entered into an agreement with the respondent by executing a Client’s Instruction/Agreement form on “behalf of the 2nd appellant, where the respondent’s instruction was clearly stated and the fee due to him was also agreed. The respondent apparently diligently carried out the appellants’ instruction but the appellants failed or refused to pay the bill of professional charges of N500,000.00 despite repeated demands.

On the 11th of March, 2004, the respondent, as plaintiff, took out a writ of summons against the appellants, as defendants, claiming thus:-

“The plaintiff claims against the defendants jointly and severally the sum of N500,000.00 being amount due and payable to the plaintiff by the defendants being bill of professional charges from the professional services rendered by the plaintiff to the defendants on the defendants’ request by defending the defendants in Suit No. HU/199/2001.”

Subsequently, the respondent, on 19/3/04 filed a motion ex-parte with an affidavit praying that the suit be entered for hearing under the undefended list. The motion was heard and granted. The writ of summons, affidavit and order made by the learned trial Judge were duly served on the appellants.

On the 25/4/04 when the matter was listed for hearing, the appellants filed only a notice of intention to defend without an affidavit disclosing a defence on the merit. The case was adjourned to the 28/4/04 but the court did not sit. The case was adjourned to 31/5/04 one of the dates suggested by counsel to the appellants who had written to the registrar for an adjournment. On 31/5/04 the appellant and their counsel were absent from court and no affidavit was filed setting out or disclosing the defence of the appellants. That being the case the learned trial Judge entered judgment in favour of the respondent.

Thereafter the appellants brought a motion seeking an order that the said judgment be set aside before the trial court. The learned trial Judge on 19/8/04 dismissed this motion on the ground that the judgment sought to be set aside by the appellants was a judgment on the merit and the court was functus officio.

Apparently aggrieved by the ruling delivered on 19/8/04, the appellants appealed to this court on two grounds on the 30/8/04. The appellants in their brief of argument dated 4/11/05 and filed on 7/11/05, abandoned ground 1 and distilled a lone issue for determination from ground 2.

The issue for determination is as follows:-

“Whether a judgment on the undefended list procedure based on the High Court (Civil Procedure) Rules of Akwa Ibom State can be set aside in the circumstance of this case.”

The respondent in his brief dated 1/1/06 and filed on 26/1/06 also formulated one issue for determination, which is as follows:-

“Was the judgment delivered by the lower court on 31st May, 2004, a judgment on the merit? And if the answer is in the affirmative; was the learned trial Judge correct to decline jurisdiction to hear the motion of the appellants seeking to set aside the said judgment?”

On the lone issue for determination learned counsel for the appellants, Mrs. Oludare, submitted that it is trite law that a court of law reserves the right to set aside its judgment which was given otherwise than on the merit upon good grounds shown. She relied on Tom v. Ameh (1992) 1 NWLR (Pt.217) page 306 at 310; Mohammed v. Husseini (1998) 64 LRCN 5319 at 5323; (1998) 14 NWLR (Pt. 584) 108 and Teno Eng. Ltd. v.Adisa (2005) 125 LRCN 544 at 546; (2005) 10 NWLR (Pt. 933) 346, and submitted that though the above conditions apply generally to cases heard on the general cause list, they equally apply to the ones heard on the undefended list. She pointed out that they have in paragraphs 3 – 11 of their supporting affidavit in their motion to set aside the judgment set out the reason why they could not file an affidavit to disclose their defence as at the time judgment was entered. The reason the appellants gave was that their counsel, Mr. Ekanem-Ekanem, whose duty it was to file the affidavit, could not do so early enough because he was bereaved. See pages 41 – 42 of the record. Counsel contended that contrary to the allegation of the respondent that the appellants have refused to pay, the appellants have exhibited receipts showing various payments made to the respondent in their proposed defence. She relied on Ataguba & Co. v. Gum (Nig.) Ltd. (2005) 126 LRCN 982 at 990, (2005) 8 NWLR (Pt. 927) 429; Amadi v. Orisakwe (2005) 123 LRCN 1 at 3; (2005) 7 NWLR (Pt. 924) 385 and concluded that the appellants have a defence worthy of being heard and therefore they are entitled to have the judgment set aside. Mrs. Oludare also contended that the court has the right to set aside its judgment even in the undefended list procedure. She relied on Akuneziri v. Okemva (2000) 82 LRCN 3367 at 3370, (2000) 15 NWLR (Pt. 691) 526; Planwell Watershed Ltd. v. Ogala (2003) 113 LRCN 2436 at 2438, (2003) 18 NWLR (Pt. 852) 478; Tom v. Ameh (supra) and submitted that the only way the court can determine whether or not the affidavit of the appellants has disclosed a defence on the merit is to consider it and this can only happen in this case when it goes back for trial. Counsel urged the court to allow the appeal and set aside the judgment of the court below.