Prince Pst Patrick Nnaji & Anor V. Barr. Louis M. Alozie (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Imo State High Court, in suit No. HOW/668/2007, delivered on 8/3/2010 by Hon. Justice N. B. Ukoha, wherein his lordship refused to set aside an earlier judgment in the suit, delivered on 11/7/2008 in default of pleadings.

The Appellants were, on 1/5/2013, granted leave to replace the deceased (original) Appellant, Eze (Dr) Leo. O. Nnaji, who was the Defendant/Applicant at the Lower Court.

On 12/12/2007, the Respondent (as Plaintiff in the lower court) filed an ex-parte application for leave to issue a writ of summons and place same on the undefended list, for hearing and determination. The application was granted and the suit placed on the undefended list, accordingly.

But following a successful notice of intention to defend the suit, filed by the Defendant (Appellants herein) on 8/1/08, the suit was transferred to the general cause list by an order of court made on 19/2/2008 and the parties were allowed 30 days, each to file pleadings, starting with the plaintiff. Of course, the Defendant’s time was to begin to run upon service on him of the statement of claim by the plaintiff (Respondent herein).

On 11/7/2008, judgment was, however, entered for the plaintiff in the sum of N900, 000.00 (Nine Hundred Thousand Naira) in default of pleadings, following a motion for judgment, filed by the Plaintiff on 17/6/2008 and moved on the said 11/7/2008.

Appellants filed a motion on 19/8/09, praying the trial court to set aside the said judgment, on the grounds that both the Respondent’s (Plaintiff’s) statement of claim and motion for judgment were not served on the Defendant or his Counsel. That was after making a formal enquiry by the Defendant’s Counsel, through a letter, dated 18/8/2008, requesting for the certified true copies of the statement of claim, the motion for judgment and the affidavit of service filed to that effect.

The certified true copies obtained showed that Appellant (as Defendant) was served with the processes. Appellants claimed the said affidavit of service was astonishing, as “the affidavit of service (the first, that was sworn to on 29/4/08 claimed to have effected service on 24/4/08, beyond the time allowed by the court below) was less than transparent”, having stated that the defendant was served “by delivering the same personally to the Defendant through the solicitor”; that the two affidavits of service were unambiguous as to whom service was effected on.

Appellants had insisted that the processes were not served on them. After hearing the submissions of Counsel on both sides and the oral testimonies, entertained by the trial court to resolve conflicts in affidavits, the learned trial court held, as follows, dismissing the application to set aside judgment:

“Since there is manifest evidence that the Defendant/Applicant was served with the statement of claim of the claimant and a motion to enter judgment and he failed to act timeously rather waited until judgment is entered and execution about to be levied before he decided to wake up from slumber, I will be reluctant to set aside the judgment, where there is proof that the defendant/applicant was actually served. The application to set aside is equitable remedy and he who goes to equity must go with clean hands. I dare say that the hands of the defendant/applicant are not clean as he approached the court for equitable remedy. The application to set aside and other reliefs under it are hereby refused, since it has been shown that the defendant was served and he chose not to defend his case.”

That is the Ruling Appellants are appealing against, for which they filed Notice of Appeal on 12/3/2010, as per pages 144 to 147 of the Records of Appeal, disclosing five (5) grounds of Appeal. They filed Amended Notice of Appeal with the leave of this court, deemed duly filed on 10/6/14, and their Brief of arguments on 6/12/2013, which was also deemed duly filed on 10/6/14. They distilled two (2) Issues for determination, as follows:

1. Whether the lower court was right in refusing/dismissing the motion to set aside the judgment in default and other reliefs under it, having regard to the fair hearing provisions in the 1999 Constitution. (Grounds 2, 3, 4 and 5)
2. Whether the lower court was right, while relying on section 167 (d) of the evidence Act 2011 (then section 149 (d)) to hold that failure (as alleged) of the Appellant to explain how he got the processes in contention, means they were indeed served (Ground 1).”

The Respondent filed his Brief on 23/6/14, and distilled two (2) issues, too, for determination, as follows:

1. Whether the Appellant was served with the statement of claim and motion for judgment as buttressed by the Bailiff’s affidavit of service found and affirmed by the trial court. (Ground 3).
2. Whether having regard to the facts and circumstances of the case, the Applicant can rightly claim that his right to fair hearing was breached. (Grounds 1, 2, 4 and 5)

A brief facts of the case shows that the Plaintiff’s (Respondent’s) suit at the High Court, which had been transferred from the undefended list to the general cause list, was “for the sum of N900,000.00 (Nine Hundred Thousand Naira) being money had and received by the defendant from the plaintiff for a failed consideration, which amount the defendant has failed, neglected, or refunded (sic) to pay, despite of several demands. Interest on the judgment debt the rate of 10% from the date of judgment till final liquidation of same.”

Upon failure to file statement of defence, the Respondent filed a motion for judgment in default of pleading, having filed his statement of claim on 17/3/08, which was said to have been served on the Appellant on 24/4/08, through his Counsel. In the statement of claim, the Plaintiff (Respondent) sought the following reliefs: