Miss Aniema Udo Uko V. MR. Celestine E. Ucha (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment)

The Respondent as plaintiff had commenced Suit No. HUK/MISC.43/2007 in High Court of Akwa Ibom State, Ukanafun Judicial Division under the undefended list, against one Udo Uko Etok, now deceased, as defendant. The late defendant filed a Notice of Intention to Defend, upon which the matter was transferred to the general cause list. In the course of proceedings, the Appellant, on her application, was joined as the 2nd defendant.

The Respondent filed Statement of Claim on the 20/5/2008, while the Amended Statement of Defence of the 1st Defendant and the Appellant was filed on 25/5/2009. Hearing commenced with the evidence of the Respondent. While proceedings were pending, there was an industrial action embarked upon by the Judiciary Staff Union of Nigeria (JUSUN), consequent upon which proceedings were stalled since the trial court could not sit.

The 1st defendant and the Appellant were represented by C. M. Idemudo, Esq. and B. I. Ademola-Bello, Esq. of the Chambers of C. M. Idemudo, Esq. The complaint of the Appellant is that they were not subsequently issued with any hearing notice to enable them defend the matter. That when court resumed its sitting on 3/2/2010, the Respondent and his counsel were in court, while the now deceased 1st Defendant and the Appellant, as well as their Counsel, were absent. The trial court did not order hearing notice to issue on them.

This position was the same on various dates and still no hearing notice was ordered to issue on them. On 9/6/2010, in the absence of the defendants, they were foreclosed by the trial court from cross examining the PW3. The trial court then called on the Respondent to proceed with the case. Again, no hearing notice was ordered to issue on the 1st Defendant and the Appellant. On 2/11/2010, the trial count foreclosed the 1st defendant and Appellant from defending the action, in their absence. On 4/5/2011, the defendant and the Appellant as well as their counsel were absent.

The Respondent’s counsel adopted their final address and the trial Judge adjourned the case for judgment. The trial Judge did not issue hearing notice on the 1st Defendant and the Appellant. The learned trial Judge delivered judgment in default of defence and in the absence of the 1st Defendant and the Appellant on 6/6/2011. The judgment was against the 1st Defendant and the Appellant.

A new Counsel for the 1st Defendant and Appellant had filed a Motion on Notice for leave to defend the action, fixed for hearing on 6/6/2011. But, the trial Court did not countenance the motion. The 1st Defendant and the Appellant, dissatisfied with the said judgment appealed to this Court, before the demise of the 1st Defendant.

It is the case of the Respondent that Appellant failed to show diligence in defending the matter. The Record of Appeal would demonstrate that the trial court had shown sufficient indulgence to the Appellant, which was disregarded.

In the Amended Notice and Grounds of Appeal filed on 25/3/2013, the Appellants raised three Grounds of Appeal; and, sought an Order to allow the appeal and set aside the judgment and orders of the lower court delivered on June 6, 2011 by Hon Justice Pius P. Idiong; and to declare the proceedings and judgment in Suit No. HUK/43/2007 a nullity.

The Appellants’ Brief of Argument, settled by Paul A. Udoh, Esq. of Counsel, was filed on 25/3/2013. The Respondents’ Brief settled by Victor Nkonong, Esq. of Counsel on 1/7/2013, and deemed properly filed and served on 9/10/2013. The Appellants’ Reply Brief was filed on 7/11/2013 and deemed property filed and served on 16/9/2014. The respective Briefs were adopted by Mr. Udoh for the Appellant and by Samuel Akpobio, Esq. of Counsel for the Respondent on 16/9/2014.

In the Appellants’ Brief, three Issues have been distilled for determination as follows:

1. Whether the proceedings and judgment of the Court below was not a nullity being in breach of the principles of fair hearing.
2. Whether the finding and judgment of the trial High Court was not perverse thereby occasioning a miscarriage of justice.
3. Whether from the pleadings and evidence of the Respondent and findings of the Court below the friendly loan agreement allegedly entered into between the Plaintiff/Respondent and 1st Defendant was not thereby subsumed and extinguished by the Merger Agreement between the Respondent and the 1st Defendant.

The Respondent adopted the issues raised for determination by the Appellant, but with minor amendments as follows:

1. Whether the proceedings and judgment was a nullity and whether it is in breach of principles of fair hearing.
2. Whether the finding and judgment of the trial High Court was perverse and occasioned a miscarriage of justice.
3. Whether from the pleadings and evidence of the Plaintiff/Respondent and findings of the Court the friendly loan allegedly entered into between the Plaintiff/Respondent and 1st Defendant/Appellant was subsumed and extinguished by the merger agreement between the Plaintiff/Respondent and the 1st Defendant/Appellant.

I shall adopt the issues raised by the parties for the determination of this appeal. I however consider Issue No. 1, as raised by both parties, which affects the competence of the proceedings and judgment on appeal, to be control in determination of this appeal.

Issue No. 1