Mr. J. I. Ojo V. Mr. Frankline Asuelimhen (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering The Lead Ruling)

The appellant/applicant, vide a motion on notice dated and filed on 16th May, 2013; prayed for an extension of time within which to seek leave to appeal against the ruling of R. I. Amaize, J., of the High Court of Edo State, sitting in Benin City, dated 9th November, 2012.

The appellant/applicant had filed a suit on the undefended list against the respondent, who did not file a memorandum of appearance nor a notice of intention to defend the suit No.B/709/2008. Judgment was consequently, entered for the appellant on 8th June, 2009 by Hon. Justice J.A. Oyakhirome, J., who found that the originating processes with respect to the suit on the undefended list was duly served on the respondent.

On the 16th April, 2012; the respondent’s car was attached by the bailiff of the Edo State High Court, in satisfaction of the judgment of 8th June, 2009, in favour of the appellant. Thereupon, the respondent filed an application at the Edo State High Court, presided over by Amaize, J., which prayed that the default judgment of 8th June, 2009, be set aside, on the ground that the originating processes with respect to the undefended suit aforementioned, were not served upon him. The said application was granted and in his ruling, the learned trial judge, ordered that the suit be re-listed for hearing on the merits. It is against this ruling that the appellant/applicant seeks leave of this court to appeal.

At the hearing of the application on 15th January, 2014; we wondered if the application was competent in view of the provisions of Section 241(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Learned counsel to the parties were therefore directed to file written addresses and ventilate their views on the question raised by us.

Applicant’s written address was dated and filed on 30th January, 2014. In it, the issue for determination formulated therein is:

“Whether this appeal does not raise issues of pure and substantive law that will determine the rights of the parties that this Honourable Court may exercise discretion and determine on its merit in line with the Court of Appeal Practice Direction, 2013.”

The respondent’s written address dated 11th February, 2014 was filed on 12th February, 2014. The issue formulated for determination therein is:

“Whether the applicant has the right in law to appeal against the ruling of the trial judge dated 9th November, 2012 granting leave to the respondent to defend the suit.”

I adopt the issue formulated for determination by the respondent as it is in tandem with the feeling of the court when it ordered that learned counsel to the parties to file written addresses on the question raised by it at the hearing of the application first, on 15th January, 2014; before it was fully argued on 12th February, 2014.

Learned applicant’s counsel submitted that since the essence of a suit on the undefended list was a quick dispensation of justice to parties where the claim borders on recovery of debts or liquidated money demand, it was incumbent on the respondent to have filed a notice of intention to defend the suit in accordance with Order 23 rules 3 and 4 of the Bendel State High Court (Civil Procedure) Rules, 1988, then applicable to Edo State. And that since the respondent did not do so, judgment was rightly entered against him by Oyakhirome, J., on 8th June, 2009. He referred to Planwell V. Ogala (2003) 113 LRCN 2436; MC. Investment Ltd. Ltd Core Inv. & Capital Markets Ltd. (2012) 12 NWLR (Pt.1313) 1; Fortune Int. Bank Plc v. City Express Bank Ltd. (2012) 14 NWLR (Pt.1319) 86 at 105 – 106.

Furthermore, applicant’s learned counsel contended that the judgment of 8th June, 2009 being a final and not a default judgment, can only be set aside by an appellate court, on the authorities of Unity Bank Plc V. Olatunji (2013) 15 NWLR (pt.1378) 503; Mohammed Gidado V. Baba Abadullahi Daku (2006) All FWLR (Pt.292) 25.

Applicant’s learned counsel submitted that the application seeking leave to appeal against the ruling of 9th November, 2012 does not fall within the purview of Section 241(2) (a) of the 1999 Constitution.

On his own part, respondent’s learned counsel submitted that the right of appeal provided for under Section 241(2) of the 1999 Constitution is with respect to final decisions and not an order granting leave to a party to defend an action. Therefore, according to him, the applicant has no right of appeal against the ruling of the trial judge dated 9th November, 2012, pursuant to Section 241(2) of the same constitution.