Ika Local Government Area V. Mr. Augustine Mba (2006)

LawGlobal-Hub Lead Judgment Report

OMOKRI, J.C.A.

This is an appeal against the Judgment of the High Court of Akwa Ibom State, sitting at Abak, presided over by Justice E. I. Edemekong, delivered on 22/6/04 in Suit No.HA/UND/18/2004.

The present respondent, who was the plaintiff at the trial court, instituted proceedings against the appellant, who was the defendant, claiming:

“1. The sum of N295,000.00 (Two Hundred and Ninety-five thousand Naira) being the total sum of the three contracts awarded the plaintiff by the defendant for production of Executive Name Tags Vide Jobbing orders numbers IKA LG/AD/S/49/T/VOL.1/159 of N100,000.00 (One Hundred thousand Naira) dated 30th April, 2003 and IKA LG/AD/S/49/T/VOL.1/160 of N95,000.00 (Ninety-five thousand Naira) dated 5th May, 2003 respectively and which payments were both approved in the same respective jobbing orders after completion on 12th May, 2003, and another contract awarded the plaintiff by the defendant on 3rd July, 2003 to design 6 (six) Executive Name Tags at the sum of N130,000.00 (One Hundred and Thirty thousand Naira) which he executed on 8th July 2003 of which he was only paid N30,000.00 (Thirty thousand Naira) on 22nd December, 2003.

2. 25% interest rate per annum on N295,000.00 (Two Hundred and Ninety-five thousand Naira) from 1st June, 2003 till the whole sum is liquidated.”

On the 24/3/04, the respondent filed an application praying the court below to place the suit filed on the undefended list. On the 3/5/04 court ordered the writ of summons issued should be placed on the undefended list and that same be marked accordingly. The suit was then adjourned for hearing on 22/6/04.

On that day the appellant filed an application before the court below praying for an order extending time within which the appellant, may enter appearance in the suit and file a statement of defence to the suit. The application which was brought pursuant to Order 22 Rule 3 of the High Court of Akwa Ibom State (Civil Procedure) Rules and under the inherent jurisdiction of the court, is supported by an 11 paragraph affidavit deposed to by one Godwin Tommy.

The learned trial Judge dismissed the application and entered judgment for the respondent in the sum of N295,000.00 at 10% per annum from the date of the judgment until the final liquidation of the judgment debt. Another sum of N5,000.00 was awarded as cost of the action.

Dissatisfied with the judgment delivered by the court below, the appellant appealed to this court on two grounds of appeal on 22/6/04, the same day the ruling/judgment was delivered. The two grounds of appeal are reproduced hereunder shorn of their particulars.

“Ground 1

The learned trial Judge erred in law by refusing to grant the appellant extension of time within which to file its notice of intention to defend, its affidavit disclosing defence, as stipulated by the order of the learned trial court enter on 3rd May, 2004. The application for extension of time was made by the appellant pursuant to Order 22 rule 3(1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 which application the trial court refuse and consequently denied the appellant fair hearing in the matter.

Ground 2

The learned trial Judge erred in law in his ruling/judgment which implies that Order 22 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 does not gave the appellant a remedy to apply for extension of time to file its notice of intention to defend and its affidavit disclosing defence since the matter was instituted under undefended list procedure.”

The parties duly filed, served and exchanged their respective briefs. The appellant in its brief dated 23/11/04 and filed on 3/12/04 distilled 3 issues for determination out of the two grounds of appeal filed. The issues are as follows:

“(i) Whether the appellant was not denied its constitutional right of fair hearing when the trial court rejected its application for extension of time to enter appearance and file its defence to the suits.