Dr. Olugboyega Isijola V. Ekiti State Micro Credit Agency (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

FATIMA OMORO AKINBAMI, J.C.A.(Delivering the Leading Judgment)

The Ekiti State Micro Credit Agency, the Respondent herein was the Plaintiff before the High Court of Ekiti State, in Ado-Ekiti Judicial Division where they claimed against the Appellant then defendant herein as follows:-

(1) A sum of Three Million Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only being the outstanding balance on an aggregate sum of Three Million Eight Hundred and Five Thousand Naira (N3,805, 000.00) only advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons and which sum has remained unpaid by the Defendant upon the default of his recommended persons, despite repeated demands and entreaties from the Plaintiff.

(2) The Plaintiff claims 10% post judgment interest on the said sum of Three Million, Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only until the liquidation of the entire judgment sum.

The Respondent commenced the substantive action leading to this appeal in the Ekiti State High Court, under the undefended list procedure of the Old Ondo State High Court Civil Procedure Rules, 1987, applicable in Ekiti State. The Respondent in compliance with the rules of the trial Court filed an ex-parte motion dated 7th June, 2011 for issuance of Writ of Summons under the Undefended List and leave to serve same on the Appellant by substituted means.

The application was granted on the 27th of July, 2011. The Writ of Summons marked “UNDEFENDED” was issued and served on the Appellant through the bailiff of the trial Court. On the 18th October, 2011 a bailiff of the High Court, Ado-Ekiti deposed to an affidavit of service on the Appellant as follows:-

“make oath and say that on 18th day of October, 2011 I pasting served upon Dr. Olugboyega Isijola of Ogotun Ekiti a copy hearing notice, Enrolment of order, Writ of Summons, Affidavit in support of Court Exhibit ‘A’ and ‘B’. In respect of the above mentioned case by delivering same personally to him/her at Ogotun-Ekiti. Before the day I served the process I did not know him but was pointed out to me by Plaintiff”.

The suit was fixed for hearing on the 4th of August, 2011 by the learned trial Judge. However on the 20th October, 2011, Hon. Justice A. K. Fowe granted the Respondent’s prayer and entered judgment as follows:-

“Parties absent. Abiodun Bello for the Plaintiff. No legal Representative for Defendant. There is proof of service on the defendant. There is no Notice of Intention to defend this suit. Under the Undefended List Procedure in the old rules under which this suit was placed under the Undefended List Procedure on the 10th day of October, 2011 and having perused the file, no notice of intention to defend and there is no affidavit disclosing any defence on its merit, this Court gives the following judgment:

“Judgment is hereby given to the Plaintiff and against the Defendant in the sum of Three Million Seven Hundred and Twelve Thousand Naira (N3,712,000.00) only being the outstanding balance advanced by the Plaintiff as credit to several persons recommended by the Defendant to benefit under the Micro Credit Scheme of the Plaintiff with an undertaking to repay in the event of default by the recommended persons which sum has remained unpaid by the Defendant upon the default of his recommended persons, despite repeated demands. The judgment also attracts interest at 10% per annum from now until the final liquidation of the judgment debt”.

The Appellant only got to know of the action and judgment when an attempt was made to levy execution of the judgment upon which he immediately applied to have the judgment set aside, on grounds of non-service of Court process on the Appellant, non-compliance with the rules of Court, lack of fair hearing and lack of jurisdiction which was strongly opposed to by the Respondent.

The Appellant’s motion filed on the 14th of November, 2011 prayed for the following reliefs-

(a) An order of the Honourable Court setting aside its judgment entered in suit no HAD/86/2011.

(b) An order of the Honourable Court extending the time within which the Applicant may enter appearance.