Jonpal Limited V. Afribank Nigeria Limited (2002)

LawGlobal-Hub Lead Judgment Report

M.D. MUHAMMAD, J.C.A.

This is an appeal against the decision of Justice K. N. Udeh of the Enugu State High Court, sitting at Enugu delivered on 7th May, 2001. By the decision, the lower court dismissed the plaintiff/appellant’s preliminary objection challenging the jurisdiction of the lower court entertaining the defendant’s/respondent’s application to set aside it’s judgment given in favour of the appellant as plaintiff against the respondent then being the defendant. Henceforth, the parties will be referred to simply as appellant and respondent respectively.

The brief facts of the case which brought about the appeal are hereunder supplied.

The appellant initiated a writ and claim in suit No. E/74/2000 at, the lower court seeking, inter alia, certain declaratory reliefs, special and general damages against the respondent. By a motion on notice dated 23/3/2000, the appellant prayed the court for an order entering judgment in his favour against the respondent, who was said to have defaulted in filing its pleadings. The prayer was obliged by the court.

On 11/5/2000, the respondent filed its motion seeking from the lower court the undermentioned orders:-

“1 An order to set aside the default judgment dated 14th April, 2000, obtained by -the plaintiff/judgment creditor/ respondent (herein after called the respondent) against the appellant, in the absence of the applicant, the court processes not having (sic) served on the applicant.

2. An order of extension of time within which the applicant may file its statement of defence in this suit.
3. An order deeming the statement of defence annexed herewith as exhibit ‘A’ as having been properly filed and served, the necessary filing fees having been duly paid.
4. Any further order or orders as the court may deem fit to make.”

A twenty-nine paragraph affidavit and series of annexures supported the respondent’s motion. The most important of these paragraph for the purpose of the instant appeal are paragraphs 5, 6, 7, 23 and 28, are hereunder reproduced:-

“5. That to the best of my knowledge, information and belief, the writ of summons, statement of claim and other court processes in this suit were not served on the said Branch Manager aforenamed, or on any other responsible officer of the applicant.”

“6. That counsel to the applicant, Pat Ofili (Mrs), has informed me and I verily believed her that her inquiries

at High Court Registry Enugu, revealed that the aforementioned court processes meant for service on the

applicant were delivered to “A Secretary attached to Afribank Nig. Plc at No. 36 Okpara Avenue, Enugu,”

“23. That the applicant never knew of the pendency of the substantive suit at the High Court Enugu, as the said suit was never brought to its notice,”

“28 That the applicant is able and willing; to defend the “‘said suit.”

Respondent also filed a further affidavit as reflected at p. 42 to 44 of the print record.