Eleba V. J.M.S. International Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

T.O. AWOTOYE J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of Rivers State High Court:

Port Harcourt judicial Division delivered on L911212005 between J. M. S. International Ltd. v. Arch. G. N. Eleba.

The plaintiff/Respondent on 11/10/2001 instituted an action against the Appellant claiming:

“1) The sum of 5 Million Naira only which the defendant has refused to pay the Plaintiff despite repeated demand.

2) Interest therein at 10% from the date of judgment until the sum is liquidated.”

In line with the Rivers State High Court Rules the Plaintiff filed motion exparte praying that the suit be heard in the “UNDEFENDED LIST”. The motion exparte was supported by 21 paragraphs affidavit and several documentary annextures. The Plaintiff/Appellant deposed in paragraph 18 of the affidavit that the Defendant had no defence to the action.

In response after being served the Defendant filed Notice of Intention to Defend out of time and later sought Ieave for court to regularise the Process.

The suit was later transferred to the general cause list. The plaintiff filed statement of claim on 4/7/2002 and served the Defendant on the same day.

When the Defendant did not file and serve his statement of Defence as required by the rules of court, the Plaintiff applied that final judgment be entered in his favour in default of the Defendant filing his statement of defence. The Defendant was served with the motion for judgment on 30/10/2002. The Motion on Notice was argued on 76/6/2003 when the Defendant did not appear in court did not file statement of Defence on counter – affidavit to oppose the application for judgment despite having been served. The further hearing of the application was adjourned to 15/ 10/2003 and further adjourned to 13/11/2003 when the judgment was delivered in favour of the plaintiff.

On 7/1/2004 the defendant filed an application praying as follows:-

“1. An order for extension of time to apply to set aside the Default judgment made on 13/11/2003 against the defendant.

2. An order of court setting aside the said judgment made by the Honourable court on 13/11/2003.
3. An order staying the execution of the judgment inclusive of all process of execution.
4. An order relisting the case for hearing on the merit.
5. An order for extension of time to file the defendant/Applicants’ statement of Defence/Counter Claim out of time.
6. An order deeming the statement of Defence/Counter claim filed on 6/3/2003 here to attached as EXH/A as properly filed as served out of time.
7. For such orders as the Honourable Court may, deem fit to make in the circumstance.”

He supported the application with 40 paragraphs affidavit claiming that he had filed his statement of defence since 1/3/2002. The Plaintiff opposed the application by filing 23 paragraphs of counter -Affidavit.

After hearing the parties the learned trial judge on 19/12/2005 delivered a ruling dismissing the application and awarding cost of N5,000 in favour of the plaintiff/Respondent.