Dr. S.m.o. Nnoruka V. C.c. Ezekwem (2006)

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SULEIMAN GALADIMA, J.C.A. 

This is an appeal brought by the Appellant who was 1st Defendant, against the Ruling of RC. AGBO, (J) of Enugu State High Court delivered on 29/1/2003 refusing to set aside his earlier judgment on the undefended list.

The Respondent who was the plaintiff at the lower court issued out writ of summons in the undefended list against Dr. S.M.O. Nnoruka and Smonec (Nig.) Ltd. as defendants, the former of which is now the appellant, claiming:

“N1 million Naira being debt owed the plaintiff by the defendants for professional Services rendered which debt has remained unpaid after the service of plaintiff bill of charges in October 2001 and after repeated demands.

Learned trial judge found that the defendants did not file a notice of intention to defend the action, entered judgment for the plaintiff as claimed.

The Appellant by a motion on Notice at the lower court filed on 5/7/2002 applied to set aside the said judgment “for non-disclosure of facts.” Arguments were proffered by respective counsel on both sides. On 29/1/2003, learned trial judge delivered its considered ruling in which he refused to set aside his earlier judgment entered in favour of the Respondent.

Dissatisfied with that ruling, Appellant filed his Notice of Appeal containing THREE grounds.

In compliance with the Rules of this Court Counsel for the parties filed brief of argument. In the Appellants brief of argument the three issues distilled for our consideration are as follows:

“1. Whether a Judge is “Funtus Offico” and hereby fore closure (sic) from setting aside judgment obtained in the undefended list.

2. Whether or not the circumstances of a case does not determine a Judge’s discretion in setting aside its judgment.
3. Whether or not ORD 24 Rule 15 of the Anambra High Court Rules 1988 (applicable in Enugu State) distinguishes judgments obtained in the undefended list from other judgments.”

The Respondent’s counsel on the other hand, disagreeing with the two issues formulated by the Appellant except issue No. 1, formulated the following two issues as follows:

“(a) Whether a judgment delivered under the undefended list is a judgment on the merits under the prevailing Rules of Court in Enugu State.

(b) Whether the trial court properly and duly considered the affidavit evidence as well as the laws applicable in coming to the conclusion, which it did, that the application was made in bad faith.”

I agree with the learned counsel for the Respondent that it is only the first issue formulated by the Appellant is relevant for the determination of this Appeal, as it is identified from the third ground of appeal.

It is the contention of the Appellant’s counsel that a judge is not foreclosed from reopening a case simply because same was decided in the undefended list. He submitted that a court can set aside its judgment in the undefended suit in the .interest of justice especially where the issue of fair hearing is involved. Reliance is placed on the case of PLAN WELL WATERSHED LTD AND ANOR. V. CHIEF VINCENT OGALA 16 N.S.C. Q.R. p. 138 at p. 140. That under Order 34 Rules 5 (a) – (c) of the High Court Rules of Anambra State, 1988, whether the suit is in the undefended list or merely undefended, the court is required to call for proof of the claim of N1 million by the Respondent.