G. Ofodile Okafor, Oon, (San) V. Peoples Democratic Party (Pdp) (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TINUADE AKOMOLAFE-WILSON, J.C.A.:(Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of Honourable Justice O.A. Musi of the Federal Territory High Court delivered on 1st December, 2011.

The Appellant as Plaintiff commenced a suit against the Defendant, now Respondent on the undefended list procedure for his professional fees. The Endorsement as to the claim reads –

“(a) The sum of N50,000,000.00 (Fifty Million Naira) only being the sum due and owing as his professional fees for representing the defendant in election petitions in Ebonyi State, in 2007; and

(b) 10% court interest from the date of judgment until the liquidation of the entire judgment sum.

(c) N250,000.00 being cost of this action.”

The Respondent was duly served with the processes which indicated the return date to be 1/12/2011. On that day, the Respondent had not filed any process particularly there was no Notice of Intention to defend the suit. Instead it sought for an adjournment to allow the Respondent file a defence, stating that they “are ready and willing to defence (sic) this suit to its logical conclusions.” The Appellant objected stating that the court was duty bound to give judgment to the Appellant in accordance with the Rules governing Undefended List. The court granted the adjournment to 13/2/2011 despite stiff opposition from the appellant’s counsel on the basis of fair hearing.

Being dissatisfied with the Ruling, the Appellant filed a Notice of Appeal to this Honourable Court containing two grounds which I will reproduce hereunder so as to show clearly the grievance of the Appellant –

“1. The learned trial judge erred in Law when under the Undefended List procedure, he failed to hear and give judgment to the Plaintiff, in the absence of any Notice of Intention to defend and affidavit disclosing a defence on the merit from the defendant. And this occasioned a miscarriage of justice.

2. The Learned trial Judge erred in Law when he refused to follow and be bound by the decision of the Supreme Court under the rule of stare decises in the case of Planwell Watershed Limited v. Ogala (2003) 12 S.C. (Pt. 11) 39

(c) Despite this decision and a host of other similar decisions of the Apex Court, the trial judge refused to hear the suit.”

The reliefs sought from the court are:

1. An order setting aside the ruling of the trial Judge made on the 1/12/2011.
2. An Order of the Court of Appeal hearing the suit and giving judgment to the Plaintiff as per the claim.

In accordance with the Rules of court, Briefs of Argument were duly filed by the parties.

In the Brief of Argument filed by the Appellant for himself, two issues were formulated for determination namely –

1. WHETHER THE LEARNED TRIAL JUDGE WAS NOT IN GRAVE ERROR WHEN HE REFUSED TO HEAR THE SUIT AS UNDEFENDED LIST AND ENTER JUDGMENT FOR THE PLAINTIFF IN THE ABSENCE OF ANY NOTICE OF INTENTION TO DEFEND. (GROUND 1)
2. WHETHER THE LEARNED TRIAL JUDGE WAS NOT BOUND TO FOLLOW THE DECISION OF THE SUPREME COURT IN THE Planwell Watershed Ltd. v. Ogala (2003) 18 NWLR (Pt. 852) 478. (Ground 2)

The Respondent, in the brief of argument filed by Chief Olusola Oke on 19/9/2013 but deemed properly filed on 7/10/2013 condensed the Appellants two issues into one thus –