Chief Kenneth Gbagi & Anor V. Chief T. J. Onomigbo Okpoko (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the decision of the Ughelli High Court, Delta State as contained in the Ruling of OHWO J. delivered on the 5th of February, 2009 in an application brought by the Applicants (as Applicants therein) for an order to set aside the default Judgment of the Warri High Court (Coram MAKWE J.) that default Judgment was given mainly because the Appellants (as Defendants) did not file their Statement of Defence.

The Appellants after so many attempts filed an application on the 17th of November, 2008 to set aside the said Judgment. The application and the Supporting affidavits and exhibits are on pages 86 to 95 of the Record of Appeal. It was argued on the 28th of January, 2009. The proceedings in respect thereof are on pages 116 – 117 of the Record of Appeal. The Ruling of the Court in respect thereof which is now being appealed against is on pages 143 to 158 of the Record of Appeal. The Notice of Appeal upon which this appeal is predicated is the Notice of Appeal filed and dated 27th January, 2010 – amended pursuant to the Court order of 12th January ,2010 which raises 4 Grounds of Appeal.

The Summary of the Facts of this case is as follows:

The Respondent, as Plaintiff in the lower Court, filed an action against the Appellants (as Defendants) seeking, in the main:

“an order of specific Performance that the Defendants do transfer to the Plaintiff all the shares held in their names in the books of NEM Insurance PLC as at 23rd November, 2000 upon Plaintiff depositing with the Registrar of this Honourable Court, a Bank Draft drawn in favour of either the 1st or 2nd Defendant in the sum of N4,437,984.00.”

The Respondent sought other reliefs in the alternative. The Writ of Summons and Statement of Claim showing those reliefs are contained on pages 1 to 6 of the Record of Appeal. The Appellants entered conditional appearance as shown on page 22 of the Record of Appeal and filed a Notice of Preliminary Objection dated and filed 10/12/07 as shown on pages 23 to 26 of the Record of Appeal, querying inter alia, the jurisdiction of the Court to entertain the suit on account of the fact that the subject-matter of the suit has to do with the transfer of shares of a Company registered under the Companies and Allied Matter Act which Company was not even a party to the suit. The Respondent (Plaintiff) responded by filing an application for default judgment dated 11th January, 2008.

It is on pages 27 to 33 of the Record of Appeal. In the meantime, unknown to the Appellants, the said Notice of Preliminary Objection had been of struck out on 10th January, 2008 when the matter came up. As far as the Appellant (Defendants) could tell, there was no hearing notice on them for the hearing of that Notice of Preliminary Objection. The lower Court heard the application of the Respondent for default judgment and granted same on 26th February, 2008. The Appellants filed a number of applications to set aside the default judgment which applications were not moved and struck out. In the meantime, the matter was transferred from Warri Judicial division where the Applicant’s application dated 17th November, 2008 to set aside the default judgment of 26th February, 2008 was finally heard and determined by OHWO J. who refused the said application.

In the said application (pages 86 to 95 of the Record of Appeal) the Appellants had complained in their paragraphs 6 and 7 of their Affidavit in support that they never received a hearing notice for the hearing of their Notice of preliminary Objection. The Appellants exhibited their proposed Statement of Defence which also had a Counter-Claim. (See pages 89 to 90 of the Record of Appeal). This was to show that the Appellants not only had a good defence to the suit, but that they even had a Counter-Claim against the Respondent. The Appellants also stated in that affidavit that they were challenging the jurisdiction of the Court in limine. (See paragraph 9 of the Affidavit in Support on page 88 of the Record of Appeal).

Arising from the grounds contained in the Amended Notice of Appeal, the Appellants formulated the following issues for the determination of this Court.

(1) Whether or not the lower Court should have considered this issue of jurisdiction even suo motu in deciding whether or not to set aside the default judgment.

(Ground one)

(2) Whether or not the lower Court exercised its discretion properly in the Circumstances of the case especially in the light of the Complaint that the Notice of Preliminary Objection was determined more or less exparte. (Grounds 2 & 3)

(3) Whether or not the Appellant had proper notice of the hearing of the Motion for judgment dated 11th January, 2008.