Odesco Intergrated Resources Limited & Anor V. Intercontinental Bank Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment)

This appeal is from the decision of the F.C.T. High Court in Suit No. FCT/HC/CV/2009 delivered on the 10/6/09 under the undefended list procedure.

The Appellants were served with the Summons endorsed under the provisions of order 21 of the FCT High court civil Procedure Rules, (2004 Rules) taken out by the Respondent, on the 28/5/2009 with the 10/6/09 indicated as the return date thereof. On the return date, both parties were represented by Counsel but there was no record of a notice of intention to defend the suit accompanied by an affidavit as required under Order 21 Rules 3(1) of the 2004 Rules.

After announcing appearance for the Appellants Mr. Olorunsola Adeoye informed the High Court that he had just been briefed in the case and that parties had started negotiations to settle the matter out of Court. Learned Counsel then urged the High Court to grant the parties “grace” (an adjournment) “to explore the avenue for settlement” Thereafter, without more, the High court entered judgment in favour of the Respondent on the ground that in the absence of a notice of intention to defend the suit, it was bound to do so. Being aggrieved by the decision, the Appellants caused a Notice of Appeal dated the 12/6/09 to be filed on the same day against it. The Notice of Appeal was predicated on five (5) grounds of appeal from which three (3) Issues were formulated for determination in the Appellants’ brief of argument filed on the 1/1/09.

They are as follows:-

Issue One

“Whether the proceedings in the lower Court complied with Order 21 Rule 1 of the Rules of Court and if answered in the affirmative whether the Appellants had any opportunity to be heard when the learned trial Judge had before proceeding to enter the matter for hearing under the undefended list, satisfied himself that the Appellants had no defence to the action.”

Issue No. 2

“Whether the learned trial Judge was not bound to decide the Appellants’ Application for adjournment one way or the other before proceeding to deliver judgment in this suit.”

Issue No. 3

“Whether it is not mandatory to hear a suit placed in the Undefended list and whether such suit precludes the operation of Order 17 Rule 1 of the Rules of Court of the Federal Capital Territory (Civil Procedure) Rules 2004.”

For the Respondent, two(2) issues were raised from the grounds of appeal at paragraph 3.00 of the Respondent’s brief dated and filed on the 19/2/10, which has no pagination. They are thus.-

” (1) Whether the trial Court is not right to have entered Judgment in favour of the Respondent having regard to the fact that the Appellant did not file any Notice of Intention to Defend the Suit despite their been duly served with the Writ of Summons and supporting Affidavit.

(2) Whether the trial Court was not right to have entered Judgment in favour of the Respondent despite the provisions of Order 17 Rule 1 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules, 2004.”