The Governor of Imo State of Nigeria & Ors V. E. F. Network Nigeria Limited & Anor (2016)

LawGlobal-Hub Lead Judgment Report

ITA GEORGE MBABA J.C.A. 

This appeal emanated from the judgment of Imo State High Court in Suit No. HU/538/2011, delivered on 11/2/2014 by Hon. Justice Ijeoma Agugua, wherein the learned judge entered Judgment for the claimants, as per their claims. Appellants, who were defendants at the trial Court, being aggrieved, filed this appeal on 7/5/2014, as per their Notice of appeal, challenging the judgment, on pages 173 to 176 of the Records of Appeal.

The Claimants (now Respondents) had filed a writ of summons on 27/9/2011, seeking the same reliefs. On the same date, they filed a motion exparte praying for an order setting down the suit under the undefended list and deeming the writ of summons (Exhibit E) as duly filed and served, the filing fees having been paid. On 25/10/2011, the trial Court refused the application to place the matter on the undefended list, and ordered the claimant to filed their statement of claim and front load accordingly. The Defendants did not file their defence and even having been granted extension of time to file the same, they still failed to do so.

On 16/12/2013, the

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defendant applied again, to be allowed to defend that suit by further extending time for them to file their statement of defence and deeming the said processes already filed as duly done, and for the recalling of CW1 for cross examination. This application was refused on the grounds that pleadings had been closed and defendants foreclosed.

It has to be stated that while the defendants were not forthcoming with any memorandum of appearance and/or statement of defence (after being duly served with the statement of claim), the claimants filed a motion for judgment, which was what prompted the defendants to apply for the initial extension of time to file their said processes. They were granted 30 days on 10/5/12 to do so. Because the defendants still failed to file their defence and forfeited the time extended for them to do so, the claimants again, applied for judgment, but the trial Court, in its wisdom, ordered that trial be conducted and so ordered for pretrial processes, which occurred and the claimant and defendants attended (See page 151 of the Records).

The trial was conducted and the 2nd claimant testified as PW1, but he was not cross ?

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examined, because Counsel for defendants failed to cross examine him. The Court thereupon adjourned the case for defence. The defendants failed to defend the suit and the Court adjourned the matter for final addresses. It was at that stage that the defendants brought the second application, on 16/12/2013, for the following reliefs:
(1) An Order of Court granting the defendants leave to defend this case before judgment is delivered by filing their conditional Memorandum of Appearance, statement of Defence, list of witnesses, sworn depositions and the list of documents they intend to rely on at trial of this case.
(2) An Order of Court for extension of time to file Conditional Memorandum of Appearance and for further extension of time within which the Defendants/Applicants may file their statement of defence, list of witnesses, witnesses sworn depostitions and the list of documents they intend to rely on at the trial of this case.
(3) An Order of Court deeming the Conditional Memorandum of Appearance, Statement of defence, list of witnesses sworn depositions and the list of documents they intend to rely on at the trial of this case as having been

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properly filed and served.
(4) An Order of Court granting the defendants leave to recall the CW1 who gave evidence in this case on the 4/7/2013 for the purpose of being cross examined by the defendants/applicants Counsel.

The application was heard and refused on 21/1/2014 (a date earlier fixed for adoption of addresses). Because the trial Court refused that application, the claimant (Respondents) adopted their address, while the defendants (Appellants) made an oral final address on that day ? 21/1/2014, and the Court reserved judgment, which was delivered on 11/02/2014, in favour of the Respondents.

Appellants filed their brief of Arguments on 6/8/14, which was deemed duly filed on 16/6/15. They distilled three issues for the determination of the appeal:
(a) Whether having regards to the perculiar procedure of commencement of the matter under the undefended list, the learned trial judge was right to have assumed jurisdiction where the writ of summons was irregular and incompetent before the Court. (Ground 1)
(b) Whether the Honourable Court?s refusal to allow the Defendants/Appellants leave to defend the said suit before