Sparkling Breweries Ltd. & Anor V. Bank of Credit & Commerce International (Nigeria.) Ltd. (2002)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

This appeal deals with the propriety of entering default judgment, when the case has been adjourned for report of settlement, and while a motion seeking extension of time to file the statement of defence is pending.

The facts of this case may be stated briefly as follows:-

Bank of Credit & Commerce International (Nig.) Limited was the plaintiff in suit No. UHC/43/86. The bank took out a writ of summons in the Ughelli Judicial Division, claiming against the defendants now appellants, the following reliefs which were amended in paragraph 9 of the statement of claim:-

“9. Whereof the plaintiff claims against the defendants jointly and severally:

(a) Balance of the debt as at 30/6/87, N378,571.96

(b) Interest thereon at the rate of 15% per annum until judgment.

(c) In the alternative, an order enjoining the defendants to execute a Deed of Legal Mortgage and to execute all necessary documents, mortgaging the property covered by Certificate of Occupancy No. BDSR 2429, the original of which was deposited with the plaintiff by way of Equitable Mortgage.”

The statement of claim, which is dated 27/7/87, was filed on 28/7/87. On 2/10/87, the plaintiff brought a motion under Order 2 rule 12(b) of the Sheriffs and Civil Process Rules, Cap. 151, Laws of Bendel State, 1976, and Order 19, rule 7(1), (2) & (3) of the Rules of the Supreme Court, 1985, praying the court:

“To enter judgment for the plaintiff/applicant against the defendants/respondents in default of statement of defence.”

The defendants filed a motion on 20/4/88, asking for extension of time within which, to file the statement of defence without annexing the proposed statement of defence. In paragraphs 4, 5, 6, 7, 8 and 9, of the affidavit in support of the motion for extension to file the statement of defence, the defendants stated:-

“4. That on receipt of the plaintiff/respondent’s statement of claim, the defendants/applicants intimated the plaintiff/respondent, that they want the case to be settled out of court.

5. That the defendants/applicants have been going to the plaintiff/respondent in order that the case be settled out of court.
6. That this Honourable court adjourned the case for report of settlement.
7. That settlement has broken down.
8. That the defendants/applicants are very willing and ready to defend this case.
9. That the defendants/applicants have good defence to this action.”

On 20/4/88, plaintiff’s counsel moved his application for judgment, even though the defendants were absent but were said to have been served and the court entered judgment for the entire sum with 12% interest from May, 1983 to 20/7/88. The defendants thereafter, brought a motion to set aside the default judgment. This application which was opposed was heard and dismissed on 21/10/88. The appeal is against the refusal to set aside the judgment. The notice of appeal dated 26/10/88, contains five grounds of appeal.

Later the appellants sought leave to file an additional ground of appeal which was granted on 5/5/97. The original grounds of appeal as contained on pages 22-23 of the record of appeal read:-