Delta State Government V. Dr. Effiong Johnson Okon & Anor. (2001)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

At the Lagos High Court in suit No.LD/2356/99, the respondent was the plaintiff. He claimed from the appellant for the sum of N3,410,000.00 being professional charges for the medical services rendered to the defendant in the treatment of its employees between February, 1995 and September, 1997. The writ of summons issued by the respondent was specially indorsed with and accompanied by a statement of claim pursuant to Order 10 rule 3 of the Lagos State High Court Civil Procedure Rules.

The writ of summons and statement of claim were served on the appellant. Later the respondent brought an application for final judgment in the said sum of N3,410,000.00 in default of appearance and statement of defence. A bailiff of the High Court of Justice, Asaba, Delta State who claimed to have effected service of the application and affidavit deposed to an affidavit of service to the effect that the appellant was served with the process on 11/10/99. On 25/10/99, the application for summary judgment came before Rhodes-Vivour J. The respondent’s counsel moved the motion and judgment was entered against the appellant in these words:

“Accordingly judgment is entered for the plaintiff against the defendant in the sum of N3,410,000.00 plus interest at 20% per annum from 4/2/93 until judgment and at 4% until the judgment debt is fully paid.”

However on 5/11/99, the appellant brought an application praying for the following:

“1. An order setting aside its judgment dated 25th October, 1999.

2. An order setting aside the writ of fifa dated 29th October, 1999.
3. An order setting aside the attachment of the properties of the defendant/applicant on 3rd November, 1999.
4. And order setting down the case for it to be heard on its merit.”

The grounds for bringing the application were stated on the motion paper thus:

“1. That apart from the writ of summons and statement of claim served on the Attorney-General of Delta State in Asaba on 31/8/99 no other process was served in this suit.

2. That plaintiff/respondents did not comply with the provisions of Order V rule 5 of the Sheriff and Civil Process Act Cap. 407 Laws of the Federal Republic of Nigeria, 1990.
3. That the defendants/applicants have a good defence to the action.”

On 9/11/99, the respondents filed a notice of preliminary objection in which they asked:

“That having regards to the tenor and intendment of Order 60 rule 4 of the High Court of Lagos (Civil Procedure) Rules, 1994, section 287(3) of 1999 Constitution is fundamentally defective, incompetent, incurably bad, a gross abuse of judicial process, unpardonable waste of valuable judicial time and hence the Honourable Court lacks jurisdiction to entertain same.”

The grounds relied upon for bringing the notice of preliminary objection were stated to be these:

(A) With reference to reliefs No.1 and 4 on the judgment debtor’s motion paper, the Honourable Court can not set aside or review its judgment entered on 25th October, 1999 since it was entered under undefended list, hence judgment entered on the merit. The court cannot sit on appeal against its own judgment. It is only a court with appellate jurisdiction that can sit in judgment or review the said decision. The defendant failed to file a notice in writing of its intention to defend the suit and affidavit disclosing a defence on the merit. The Honourable Court lacks jurisdiction to sit as an appellate court over its own decision.

We refer your Lordship to the following cases:

1. U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt .103) P.244
2. Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.l23) 523 P. 529, 531, 532, 534-537.
3. Agueze v. P.A.B. Ltd. (1992) 4 NWLR (Pt.233) 76 P. 85-89.
4. J. Bearthle & Co. Ltd. v. Lima Services Ltd. (1992) 1 NWLR (Pt.217) P.273.
5. Mark v. Eke (1997) 11NWLR (Pt.529) 501 P. 524.
6. F.B.N Plc v. Obande & Sons (Nig.) Ltd. (1998) 2 NWLR (Pt.538) 410 P.418, 423 para F-G.
7. Wanko v. U.B.N Ltd (1991) 9 NWLR (Pt.213) P.112.
8. Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt.524) 290 P.297.
9. N.B.C.I. v. Abiokwe (1997) 11 NWLR (Pt.527) 25 P.34.
10. Edem v. Cannon Ball Ltd. (1998) 6 NWLR (Pt.553) 298 P.314.

(B) With further reference to reliefs No.2 & 3 on the defendant/judgment debtor’s application, the position of the law has changed. Having regards to section 287(3) of 1999 Constitution consent of Attorney-General to enforce or execute judgment against either government property or property under custody and control of public officers in their official capacities.