Communication Trends Limited V. Mikemore Investment Limited (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

The Respondent, as plaintiff, had by a motion ex parte under the provisions of Order 23, Rule 1 of the Akwa Ibom State High Court Civil Procedure Rules, applied for the issuance and placement of the writ of summons in the suit against the Appellant, under the Undefended List of that court.

The motion, which was dated and filed on the 13/3/2007, was accompanied be an affidavit of nine (9) paragraphs to which were annexed documents marked as Exhibits “1 – 6″. It was heard and granted on the 24/4/2007 by the High Court and accordingly, the writ was marked and placed under the undefended list of that court for hearing. The return date for the hearing was the 7/5/07.

From the printed record of the appeal, on the return date, the Appellant who was Defendant to the suit, was represented by one patience Arikpo, but no counsel appeared for it. C. O. Ezeibe, along with other counsel, appeared for the Respondent and he urged the High Court to enter judgment under Order 23 Rule 4 of the Rules of court. Thereafter, this is what the High Court said and recorded in the record of appeal, page 15:-

‘This suit was entered for hearing on the undefended list on the 24th day of April, 2007. There is an affidavit of service before the court, furthermore, the defendant is in court. There is no notice of intention to defend this suit. I accordingly enter judgment for the Plaintiff in the sum of N464,000.00 with interest at the rate of 10% per annum from judgment until liquidation of the judgment debt.”

Let me at this stage set out the provisions of order 23, Rules 1 and 4 under which the suit was filed, placed and heard by the High court for being the foundation upon which the decision appealed against was based.

They are as follows:-

Order 23, Rule 1

“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is support by an affidavit setting forth the grounds upon which the claim is based and stating that the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.”

Under Rule 4 of the said Order, it is provided thus:

“4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

Pursuant to an order of the court, extending time, a notice of appeal dated and filed 23/6/2008 was transmitted to the court on 5/4/2008, against the decision of the High Court. The Appellant’s brief of argument was filed on the 17/3/2010 and deemed on that day while the Respondent’s brief of argument filed on the same day was deemed on the 7/12/2011.

From the six (6) grounds of appeal contained on the Appellant’s notice of appeal, Mr. Zaccheaus E. Nglass, Esq., learned counsel who settled the Appellant’s brief had distilled the following issues for determination in the appeal:-

“1. Whether under Order 23 Rule 1 & 4 of the High Court of Akwa Ibom State (Civil Procedure) Rules, Cap. 55, Law of Alara Ibom State, 2000, once a Defendant fails to defend a suit under the undefended list procedure, the plaintiff is automatically entitled to judgment.