Alhaji Sama Mohammed & Ors V. Alhaji Bala Musawa (1985)

LawGlobal-Hub Lead Judgment Report

Wali, J.C.A. 

By a writ of summons issued out in the Sokoto High Court on the undefended list, the plaintiff, Alhaji Bala Musawa claimed against the defendants Alhaji Sama Mohammed, Isa Abdullahi and Sama Construction Company jointly and severally the sum of N12,876.28 being balance of money due to be paid to the plaintiff by the defendants on a building contract job carried out by the former at the request of the latter.

After service of the writ on the defendants they jointly filed a Notice of Intention to Defend and were accordingly allowed to defend the action and the suit was transferred to the general cause list in compliance with Order 3 Rule 10 of the Sokoto State High Court (Civil Procedure) Rules, 1976. Pleadings were accordingly ordered and plaintiff was allowed 7 days within which to file statement of claim while the defendants were given 30 days from the date of service of the statement of claim on them, to file statement of defence.

This order was made on 24/2/84.

When the case came up for mention on 16/4/84, it was shown that defendants were served with the statement of claim on 6/3/84, but no statement of defence was filed. At the request of the defendant’s counsel in person of Mr. S. D. Olodo who was also absent in court that day, the case was adjourned to 17/4/84.

On 17/4/84, S. M. Salihu appeared for the plaintiff while one Mr. Ezerayi appeared for the respondents. S. M. Salihu learned counsel for the plaintiff informed the court that he had already filed an application for judgment against the defendants in the absence of any statement of defence when he was just served with a copy of an application for extension of time by the defendants, within which to file statement of defence.

The learned trial Chief Judge, after reviewing the history of the Suit to date said-

“Today 17/4/84, while the learned plaintiff’s counsel was moving his application, an application for extension of time to file statement of defence was filed on behalf of the defendants. It was passed to the Court by the Court Registrar in Court. It is therefore not before the Court and I did not pay any heed to it. (Italics mine)

The learned Chief judge proceeded to consider the plaintiff’s application for judgment in default of defence at the end of which he entered judgment for the plaintiff in the said sum of N12,876.82 as claimed on the writ with costs assessed at N200.00

The defendants filed into Court an application dated 19/4/84 praying the Court to set aside the default judgment and also to allow them to defend the action. The application was moved on 9/5/84 and after hearing from counsel representing applicants/defendants and the respondent/plaintiff respectively, Ruling was reserved to 18th May, 1984.

On 18/5/84 in a considered Ruling, delivered by the learned Chief Judge, he dismissed the application. As a result of the Ruling the defendants filed in the High Court a motion for a stay of execution of the default judgment pending the determination of the defendant’s appeal against it by the Court of Appeal. This was granted on 21/6/84.

Henceforth, both the defendants and the plaintiff shall be referred to in this judgment as the “appellants” and the “respondents” respectively.

Three grounds of appeal were filed and argued by Mr. S. O. Olodo, learned counsel for the appellants. The arguments were contained in his brief filed pursuant to Order 6 Rule 1 of the Court of Appeal Rules, 1981. He also elaborated orally on some salient points contained in the brief.

Under ground 1 of the grounds of appeal, learned counsel complained that the learned Chief Judge was in error when he refused to entertain his application for extension of time within which to file defence, when the same had already been filed in Court. He submitted that an application of this nature could be made several times and the Court had the unfettered discretion to either grant or refuse it. He cited the following cases to buttress his submission – Ali Abuu Salem v Nwadike 6 ENLR 207 and Schafer v Blyih (1920) 3 KB 163.