Arbico Ltd. V. Chief Sunday Dike Odogwu (2007)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, J.C.A.

The appellant was plaintiff in Suit No. ID/782/90 against the respondent as defendant at the High Court of Lagos State Ikeja Division. In the suit the appellant claimed of the respondent the sum of N629,959.72 being money owing the appellant as outstanding building contract fee.

Appellant also claimed interest calculated at 20% of the said sum from December 1988 to December 1989 and from 1st January 1990 at the rate of 30% until the final payment. Unable to serve the respondent personally, the appellant obtained an order of court for substituted service by pasting at the respondent’s residence No. 4/6 Ikoyi Road, Obalende, Lagos. Upon being served the originating processes “and the statement of claim by pasting on 17th September 1990 the respondent by a memorandum dated 25th September By a motion dated 31st October 1990 and filed on the same date, the appellant as plaintiff/applicant sought of the High Court of Lagos State an order entering final judgment against the respondent in favour of the applicant upon the amount endorsed on the writ of summons and the statement of claim on the neglect or failure of the defendant/respondent to the a memorandum of appearance and statement of defence. This motion fixed for hearing on 12th November 1990 was served by pasting at No. 4/6 lkoyi Road Obalende on 8 November 1990. On 28 November 1990, appellant argued its motion for judgment in default of appearance and pleadings. The respondent was absent and not represented by counsel. The court acceded to the appellant’s request and entered judgment for the appellant on the grounds that the respondent did not put in appearance nor did he file a statement of defence.

On 18-12-90 the respondent filed in the court below a statement of defence and counter claim and a motion on notice seeking to regularize same. On 8th January 1991 the respondent filed another motion in the High Court seeking the following orders:

“(1) An order staying the execution of the default judgment obtained in this case by the plaintiff/respondent against the defendant/applicant on 12th day of November 1990;

(2) An order setting aside the default judgment in service of the Motion for judgment in this case on the defendant/applicant:

(3) And for such other order or further orders as the Honourable court may deem fit to make in the circumstances.”

This motion was argued on 14th May 1991 and in a considered ruling on 31st May 1991 allowed the motion and set aside the default judgment.

Not being satisfied with this ruling, the appellant has filed this appeal seeking to upturn it. The appellant filed the following grounds of appeal:

“I THE LEARNED Judge erred in Law and misdirected himself on the facts of the case when he held as follows:

“The reason for the applicant’s failure to appear at the hearing had been given. A man cannot be at two places at the same time. I believe the defendant was overseas when the motion for judgment was pasted on his door.”

2. The learned trial judge erred in law and on the facts of the case when he set aside his judgment given in default.
3. Having regard to the totality of the circumstances of this case the learned trial judge failed to exercise his discretion judicially and judiciously.
4. The leanred trial judge erred in law and on the facts when he held that the applicant’s case is supportable since the suit is such that requires proof of expenditure and materials used in building two houses.
5. The LEARNED TRIAL JUDGE ERRED IN LAW AND on the facts in setting aside his judgment when all the conditions laid down by the Supreme Court in WILLIAMS V. HOPE RISING VOLUNTARY SOCIETY 1982 1-2SC 145 for setting aside the judgment of the Court had not been fulfilled.”

From these grounds of appeal the appellant has distilled two issues for determination to wit:

“(a) Whether the learned trial judge was right in setting aside its own judgment when there was no material before the court upon which the same can be set aside.

(b) Whether having regard to the facts and circumstances of this case, the learned trial judge could be said to have exercised his discretion judiciously and judicially in setting aside the default judgment.”