Nsit Atai Local Government V. Engr. Edwin J. Ene (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the writ of summons issued from the Registry of the High Court of Justice, Akwa Ibom State Uyo Judicial Division is the claim for the sum of N2,558,250 made by the plaintiff now Respondent against the appellant, then defendant. The Respondent also claimed 30% of the said sum as interest per annum from 26/6/02 till judgment as well as 10% of the sum from date judgment till final liquidation.

Pursuant to an ex-parte application by the Respondent as plaintiff the matter was placed on the undefended list for hearing and determination on 10/4/03 and fixed for hearing on 30/4/03. The Court ordered that its order and all relevant processes be served on the defendant now appellant.

On the return date the appellant was represented by its P. E. O. (General Duties) Mr. Augustine E. Edet.

Learned Counsel for the Respondent informed the trial Court that the appellant did not file a notice of intention to defend the Suit. He urged the Court to invoke Order 23, Rule 4 of the High Court (Civil Procedure) Rules to hear the matter as undefended suit and enter judgment accordingly. The trial Court was satisfied that the processes in the suit marked undefended were served on the appellant on 17/4/03 but the appellant failed to file a notice of intention to defend and or affidavit disclosing a defence on the merit. Accordingly, the Court entered judgment in the sum claimed and 10% interest per annum from the date of judgment till the liquidation of the debt.

On 5/5/03 the appellant filed a motion on notice pursuant to the inherent jurisdiction of the Court for an order to stay the judgment delivered on 30/4/03 as well as an order setting aside the said judgment and ordering a trial on the merit. This was supported by an affidavit of 11 paragraphs deposed to by Augustine Edet as the Litigation Officer of the appellant. The trial Court took submissions of the Counsel for the parties on 28/7/03 and in its ruling delivered on 4/8/03 the trial Court dismissed the application.

Aggrieved by the ruling the appellant filed a notice of appeal on two grounds:

“(1) The ruling/decision is against the weight of evidence.

(2) The learned trial Judge erred in law by failing to set aside its decision of 30th April, 2003 when it is apparent that the said judgment/decision was not on the merit.”

(Particulars omitted).

In his brief of argument the appellant formulated one issue from ground (2) and abandoned ground one which is hereby struck out. The issue formulated is “Whether the judgment of the lower Court delivered on 30/4/03 without considering the notice of intention to defend a trial Judgment on the merit that cannot be set aside.”

The Respondent adopted the appellant’s lone issue in his brief of argument.

Arguing the lone issue in his brief learned Counsel for the appellant said the judgment delivered on 30/4/03 without the Court having the opportunity to look at the notice of intention to defend is not a judgment on the merit and not a final judgment and could therefore be set aside at the instance of the party affected by the judgment. He referred to Order 23 Rule 3(1) of the “Akwa Ibom State Civil Procedure Rules” and said there is no time frame within which a defendant must file a notice of intention to defend. He referred to the records and said the appellant did file the notice of intention to defend along with a 22-paragraph affidavit on 30/4/03. He argued that if the Court Registrar did not bring the notice to the attention of the Court the failure should not be visited on the appellant. Learned Counsel conceded, contrary to his earlier position that “judgment on the undefended list procedure is a judgment on the merit and could only be set aside under any of the circumstances set out in IKPONG & ANOR v. UDOBONG (2007) 2 NWLR (Pt. 1017) P. 184. He relied on MARK v. EKE (2004) 5 NWLR (Pt. 865) P. 54, SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC 6, SCOTT-EMUAKPOR v. UKAIBE (1975) 12 SC 41. He said the appellant complied with Order 23 Rule 3(1) on 30/4/03 the date of the judgment. He submitted “that taking cognizance of the order of events in the Court’s registry, the notice of intention to defend must have been filed before the judgment was entered and not afterwards.”

Again, learned Counsel speculated that if the Court did not see the notice of intention to defend at the point of entry of judgment “wouldn’t that fact bear heavily in the mind of the Judge at the time of hearing application to set aside the said judgment?”