Noclink Ventures Ltd & Anr. V. Chief Oke Muo Aroh & Anr. (2007)

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JIMI OLUKAYODE BADA, J.C.A,

This is an appeal against the Ruling of the High Court of Anambra State holden at Onitsha in Suit No:-0/22/2002 Noclink Ventures Ltd. & 1 other Vs. Chief Okey Muo Aroh & 1 other delivered on 20/5/2005.

The appellants by their Statement of Claim had claimed against the respondents jointly and severally the sum of N12,000,000.00 being debt due from the respondents to the appellants.

Even though the Respondents did not appear in court nor filed any defence, in a judgment delivered on 11/3/2003, the sum of NI2,000,000.00 was awarded in favour of the appellants with N20,000.00 cost against the respondents.

By a motion dated 27/7/2003 and filed on the same date, the 2nd respondent had prayed for

– An order setting aside the Judgment of the lower court delivered in suit No:-0/22/2002 on the ground that the court entered the said judgment without jurisdiction.

The trial court heard the application and the said judgment delivered on 11/3/2003 was set aside.

Dissatisfied with the decision to set aside the said Judgment, the appellants now appealed to this Court.

The appellants formulated two issues for determination as follows:-

(1) Was the trial Judge right in holding that the Provisions of Order 9 rule 42(3) of the High Court Rules of Anambra State 1988 did not apply to the present case and was there enough evidence placed before the court to dislodge successfully the presumption raised by the proof or affidavit of service of the Bailiff that the respondents had been properly served with the processes in the case.

(2) Whether the trial judge was right or justified in raising the issue of the mutilation of the affidavit of service “suo muto” and yet not affording the parties opportunity to address him on the issue, and in setting aside even the Judgment obtained against the 1st Respondent who had not complained that he was not properly served.

The Respondents also formulated three issues for determination as follows:-

(1) Whether it is not Order 26 rule 4(1) of the Anambra State High Court (Civil Procedure) Rules 1988 that is applicable in an application to set aside a judgment obtained in default of pleadings as in this suit.

(2) Whether pre-action Notice was served on the 2nd Defendant/Respondent in keeping with Sections 158 and 159 of the Anambra State Local Government Laws 1991 and the rules as prescribed by the practice Direction.