Nigerian Agricultural and Co-operative Bank Limited V. Mr. Lewechi Ozoemelam (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J .C.A.

In the High Court of Kaduna State, sitting in Kaduna, the appellant applied under Order 21 rule 3(1) and (2) and Order 36 rule 9 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State of Nigeria, 1991, praying for the following reliefs-

“1. Extension of time within which to apply to set aside the judgment of this court dated 28th day of May, 1999, delivered in favour of the plaintiff in default of the defendant’s appearance.

2. Setting aside the judgment of this court in this suit, originating summons delivered in default of the defendant’s appearance on 28th May, 1999.
3. An order staying further execution of the judgment of this Honourable Court particularly the sale of the defendant’s bus Toyota Reg. No. AJ 966 DKA pending the determination of this application.
4. An interim order releasing the afore-described vehicle before or at the hearing of this application.”

The learned trial Judge, in a reserved and considered ruling, refused to exercise his undoubted discretion in favour of the applicant on account that there had been an inordinate delay between the time the judgment was delivered and the date the application was brought.

The synopsis leading to the filing of the application on appeal now is that the respondent commenced an action by originating summons against the appellant. It was fixed for hearing on the 1st of February, 1999. The appellant, though served, was neither present in court nor represented. The matter was therefore heard and reserved for ruling on 19th February, 1999, when ruling was unavoidably not ready for delivery on that day and was eventually delivered on 28th day of May, 1999.

It is pertinent to note that the applicant was only aware of the proceedings of the 1st February, 1999, having been served with the originating summons, but it was unaware of the subsequent dates of 19th February, 1999, as well as the 29th May, 1999, as no hearing notices were issued to the appellant against those dates. The appellant claims that, upon becoming aware of the judgment, filed an application for enlargement of time within which to apply to set aside the judgment and order setting the same aside.

It is against the ruling refusing the application on 12th February, 2001, that the appellant has appealed on two grounds of appeal. Briefs of argument were filed and exchanged at appellant’s and respondent’s briefs of argument. The parties formulated issues in their respective briefs of argument. The appellant framed the following issues –

“3.1 Whether the learned trial court was right to refuse to extend time within which to set aside the court’s judgment of the 28th of May, 1999, for the reason of lapse of time between when the judgment was delivered and when the application was brought. Ground 1.

3.2 In the face of haphazard or unforeseen adjournments, whether failure to serve the appellants with hearing notices of all subsequent sittings, including the date for judgment did not nullify the proceedings and judgment of the lower court and whether in the circumstances the lower court ought to have set aside the judgment.”

The respondent in his brief of argument framed the following issues for determination-

“1. Whether the learned trial court in the circumstances of the present case applied the correct principles governing the determination of the applications to set aside default judgments.

2. Whether given the facts and circumstances of this case the lower court was right in refusing to extend the time to apply for the setting aside of its judgment delivered on the 28th day of May, 1999.”

At the hearing of the appeal learned Counsel for appellant, Mrs. Daudu, adopted and placed reliance upon appellant’s brief prepared by Z. Bello (Miss) which was deemed properly filed and served on 20th March, 2003. Learned Counsel for appellant had nothing further to urge outside the brief of argument. Mr. Okoye, learned Counsel for respondent, also merely adopted and relied on the respondent’s brief deemed as properly filed and served on 27th January, 2004. He, too, did not adumbrate on the respondent’s brief of argument.

In arguing issue 1, which is derived from ground 1 of the grounds of appeal, learned Counsel for appellant contended time was a most irrelevant factor to take cognizance of in considering whether to grant the application for extension of time by virtue of the fact that the appellant was not aware of the judgment of the court. Learned Counsel for appellant referred to Order 36 rule 9 relied upon by the learned trial Judge provides that application to set aside the judgment must be brought within 6 days or within longer period as the court may allow for good cause shown and submitted that the fact of appellant’s ignorance of the court’s decision is a good cause for bringing the application within a longer period. In further support of his argument, learned Counsel craved the support of Order 37 rule 6 of the Kaduna State High Court (Civil Procedure) Rules, which counsel contended deals specifically with originating summons and argued that it was the more reason for granting the extension of time. Learned Counsel finally submitted that parties can only be said to have notice of judgment, either if they were in court when the date of judgment was announced or if they were put on notice in accordance with the provisions of Order 39 rules 2 and 3 of the High Court (Civil Procedure) Rules.

Learned Counsel for respondent contended that learned trial Judge predicated his refusal of the application on the fact that appellant was served hearing notice to appear in court on the 1st day of February, 1999, but opted to stay away nor represented. Learned Counsel conceded that although Order 36 rule 9 of the High Court (Civil Procedure) Rules (supra) allows the bringing of application to set aside judgments obtained in default of appearance within a period of six days of the delivery of such judgment he contended that the appellant failed or refused to bring the application within 6 days rather brought the application more than one year and six months. Learned Counsel submitted that appellant had not shown good cause.