Chief Barnabas Gemade & Anor V. John T. Tine (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Benue State High Court sitting at Makurdi delivered on 5/4/04 setting aside its judgment delivered on 6/11/03 on the Undefended List.

The appellants herein, as plaintiffs before the lower court fifed a motion ex-parte dated 8/4/03 with supporting affidavit and exhibits attached thereto seeking the following orders:

1. “An order issuing a writ of summons in the undefended list for a liquidated money demand in the sum of N500, 000.00 against the defendant herein.
2. An order that the said writ of summons as applied for here be marked “undefended list”.
3. An order entering a date for hearing on the said writ of summons.

And such further order(s) as this Hon. Court may deem fit to make in the circumstances of this case.”

The Hon. Chief Judge, T.U.F. PUUSU, CJ granted the application on 14/5/03 and adjourned the matter to 26/6/03 for hearing. The writ of summons marked “Undefended List” is dated 14/5/03 and signed and stamped by His Lordship. (See pages 1-7 of the record). Subsequently the appellants obtained an order for substituted service of the writ and other processes on the respondent by pasting them at the door to his office at his last known address at NUJ House, Makurdi. The respondent thereupon entered a conditional appearance to the suit. The matter came up for hearing on 6/11/03. The parties were absent. Learned counsel for the respondent was also absent. Learned counsel for the appellants drew the court’s attention to the fact that the respondent had been served with the writ of summons and other processes on 6/8/03 with a return date and had failed or neglected to file a notice of intention to defend the suit in compliance with Order 23 Rule 3 (1) of the High Court of Benue State (Civil Procedure) Rules. He urged the court to enter judgment in his clients’ favour. The learned Chief Judge, upon being satisfied from the processes before the court that the respondent had been duly served, that he was indebted to the appellants and had failed to file a notice of intention to defend proceeded to enter judgment in the appellants’ favour as claimed.

On 27/11/03 the respondent filed a motion on notice seeking an order setting aside the judgment delivered on 6/11/03 on the following grounds:

(a) ” Only the ex-parte application for the issue of the writ of summons on the undefended list was by substituted service served on the defendant/applicant by pasting.

(b) No hearing notice for the hearing of the suit was served on the defendant/applicant or his counsel.

(c) No writ and/or other ancillary processes were served on the defendant/applicant or his counsel.”

(See pages 12 – 13 of the record).

After listening to the arguments of counsel on either side, the Hon. Chief Judge in a ruling delivered on 5/4/04, held at page 38 of the record:

“I have perused my records but cannot find anywhere where the respondent filed the case on the undefended list. Even though he was granted leave to come under the undefended list he has not done so. This might have prompted the defendant to file a conditional memorandum of appearance. For these reasons, I am of the view that there was a fundamental defect as due process was not followed…I therefore set aside the Judgment earlier delivered by me on November 6, 2003.”

The appellants have challenged this decision by a notice of appeal dated 20/4/04 and filed on 21/4/04 containing two grounds of appeal. The parties duly filed and exchanged their respective briefs of argument. The appellants’ brief settled by J.S. OKUTEPA ESQ, is dated 24/4/2004 and filed on 27/5/2004. He also filed a Reply brief dated 7/3/07 and filed on 12/3/07. It was deemed properly filed on 25/9/2007. The respondent’s brief settled by A.A. IJOHOR ESQ. is dated and filed on 11/11/2005. The respondent filed a notice of preliminary objection dated 8/11/05 and filed the same day. Arguments in respect of the preliminary objection were incorporated in the said brief.

At the hearing of the appeal on 14/4/2011, Mr. Okutepa adopted and relied on the appellants’ brief and urged the court to allow the appeal. Mr. T.D. Pepe drew the attention of the court to the preliminary objection raised and argued in the respondent’s brief. He adopted and relied on the arguments in support of the preliminary objection and urged the court to strike out the appeal. Alternatively he urged the court to dismiss the appeal as lacking in merit.