Job S. Akingbade V. African Paints (Nig.) Plc (2008)

LawGlobal-Hub Lead Judgment Report

ABOKI, J.C.A.

This Appeal is against the judgment of the F.C.T. High Court of Justice, Bwari Judicial Division, Zuba, delivered on 22/7/2004 by O.O. Goodluck, J.

The lower court on 5th February, 2004 granted leave to the plaintiff/respondent to issue the writ of summons in this matter under the Undefended list pursuant to Order 3 rule 1 of the High Court of FCT, Abuja (Civil Procedure) Rules. The matter was adjourned to 29th March, 2004 for hearing. The defendant/appellant after acknowledgement of service of the court process filed a memorandum of appearance dated 20th April, 2004. On the hearing date, the matter was adjourned at the instance of the defendant/appellant. The court granted two further adjournments to enable the parties settle their differences out of court. When settlement out of court became impossible, parties agreed on 27th May, 2004 to take a date, 29th June, 2004 for hearing. On the said date, counsel for the defendant/appellant asked for another adjournment to 13th July, 2004 to enable him file his defence. The court ordered that the plaintiff was at liberty to move his application for judgment on the adjourned date if the defendant did not take appropriate step to regularize his defence. Instead of filing his defence, the defendant/appellant filed a notice of preliminary objection dated 1st July, 2004.

On 13th July, 2004, the court heard arguments on the notice of preliminary objection and same was overruled. The plaintiff/respondent renewed its application for judgment and it was heard pursuant to Order 21 rule 4.

It was only after the matter had been heard on 13th July, 2004 and adjourned to 22nd July, 2004 for judgment that the defendant/appellant filed on 15th July, 2004 a motion on notice for extension of time to file his defence out of time.

The learned trial Judge granted in the judgment all the claims of the plaintiff/respondent. The trial court specifically stated that the defendant/appellant did not file his notice of intention to defend as prescribed by Order 21 rule 3 of the High Court (Civil Procedure) Rules of FCT.

It is against the judgment that the defendant/appellant has now appealed.

A lone issue has been formulated for determination on behalf of the defendant/appellant and it reads:

“Was the learned trial Judge right in entering judgment for the plaintiff despite the weighty notice of intention to defence filed by the defendant?”

The respondent submitted one issue also for determination in this appeal thus:

“Whether the learned trial Judge was right to have entered judgment in this case in favour of the respondent herein all the circumstances?”

Both issues presented by the parties are similar in content, I will however prefer to adopt the issues as couched by the respondent with a little modification to read as follows:

“Whether in the circumstance of this case the learned trial Judge was not right to have entered judgment in favour of the respondent.”

It has been argued on behalf of the appellant that after the learned trial Judge had verbally granted the appellant an order that notice of intention to defend be deemed as properly filed and served, the court never alluded, in the final judgment, to the notice of intention to defend filed by the defendant/appellant, let alone the supporting affidavit which contained a counter-claim against the respondent. Learned counsel for the appellant argued that this approach of the trial court is tantamount to an outright rejection of the notice of intention to defend.