Aubergine Collections Ltd. & Anor. V. Habib Nigeria Bank Ltd. (2001)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A.

The respondent herein by a writ of summons filed against the appellants as the defendants in the High Court of the Federal Capital Territory Abuja claimed as follows:

“(a) The sum of N1,845,073.40 (One Million Eight Hundred and Forty Five Thousand and Seventy Three naira, forty kobo) being the total outstanding debt owed the plaintiff by the defendants on an overdraft facility of N1,250,000.00 granted them with accruing interest and agreed bank fees.

(b) 10% interest per annum on the judgment debts from the date of judgment until final liquidation.

(c) Cost of the action.”

On an application by the plaintiff the matter was placed on the undefended list. The writ of summons was served on the defendants on the 9th of February, 2000 and was returnable on the 17th of February.

The defendants were out of time in filing the notice of intention to defend as specified under the provisions of Order 23 rule 3 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules Cap. 511, LFN 1990. The defendants on the 15th day of February, 2000, filed before the trial court a motion on notice praying for extension of time and attached to the motion was notice of intention to defend the action. It is claimed that in the affidavit in support of the motion the defendants disclosed and explained the reasons for the inability to file the notice of intention to defend the action within the stipulated period provided in the aforesaid Civil Procedure Rules on the 17th day of February, 2000, the plaintiff’s counsel was not in court and the defendant’s counsel, with the leave of the trial court moved the aforesaid motion for extension of time to file the notice of intention to defend the action. The trial court refused the application and proceeded to hear the action on the undefended list in the absence of the plaintiff’s counsel and entered judgment in favour of the respondent against the defendant. It is against the decision refusing to extend time to file notice of intention to defend the action that the defendants have now appealed to this court.

The notice of appeal contains two grounds of appeal which read as follows:-

“1. Error in Law.

The learned trial Judge erred in law when he refused to countenance the defendant’s application for extension of time on the ground that there was no provision for such a relief under Order 23 of the High Court Civil Procedure Rules and by so determining suo motu, the learned trial Judge had occasioned a miscarriage of justice arising from inadvertence to the provisions of Order 22 rules 1 and 2 of the High Court Rules.

Particulars of Error.

(a) Order 21 rules 1 and 2 permits the High Court to extend time in any situation in which a party is out of time for doing any of the acts permitted under the rules of court.

(b) Refusal to attend the application, which was properly before the court and to which there was no notice of preliminary objection or counter-affidavit was a breach of the defendant’s right of fair hearing guaranteed under S. 36(1) of the 1999 Constitution.

(c) The learned trial Judge ought to have granted the application as prayed moreso as the plaintiff’s counsel was not in court to oppose the application and by interfering with the application created a situation whereby the defendants were prejudiced ought to have been granted before a consideration of the case on the undefended list could be embarked upon.