Dr. S.m.o. Nnoruka V. C.c. Ezekwem (2006)
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SULEIMAN GALADIMA, J.C.A.
This is an appeal brought by the Appellant who was 1st Defendant, against the Ruling of RC. AGBO, (J) of Enugu State High Court delivered on 29/1/2003 refusing to set aside his earlier judgment on the undefended list.
The Respondent who was the plaintiff at the lower court issued out writ of summons in the undefended list against Dr. S.M.O. Nnoruka and Smonec (Nig.) Ltd. as defendants, the former of which is now the appellant, claiming:
“N1 million Naira being debt owed the plaintiff by the defendants for professional Services rendered which debt has remained unpaid after the service of plaintiff bill of charges in October 2001 and after repeated demands.
Learned trial judge found that the defendants did not file a notice of intention to defend the action, entered judgment for the plaintiff as claimed.
The Appellant by a motion on Notice at the lower court filed on 5/7/2002 applied to set aside the said judgment “for non-disclosure of facts.” Arguments were proffered by respective counsel on both sides. On 29/1/2003, learned trial judge delivered its considered ruling in which he refused to set aside his earlier judgment entered in favour of the Respondent.
Dissatisfied with that ruling, Appellant filed his Notice of Appeal containing THREE grounds.
In compliance with the Rules of this Court Counsel for the parties filed brief of argument. In the Appellants brief of argument the three issues distilled for our consideration are as follows:
“1. Whether a Judge is “Funtus Offico” and hereby fore closure (sic) from setting aside judgment obtained in the undefended list.
- Whether or not the circumstances of a case does not determine a Judge’s discretion in setting aside its judgment.
- Whether or not ORD 24 Rule 15 of the Anambra High Court Rules 1988 (applicable in Enugu State) distinguishes judgments obtained in the undefended list from other judgments.”
The Respondent’s counsel on the other hand, disagreeing with the two issues formulated by the Appellant except issue No. 1, formulated the following two issues as follows:
“(a) Whether a judgment delivered under the undefended list is a judgment on the merits under the prevailing Rules of Court in Enugu State.
(b) Whether the trial court properly and duly considered the affidavit evidence as well as the laws applicable in coming to the conclusion, which it did, that the application was made in bad faith.”
I agree with the learned counsel for the Respondent that it is only the first issue formulated by the Appellant is relevant for the determination of this Appeal, as it is identified from the third ground of appeal.
It is the contention of the Appellant’s counsel that a judge is not foreclosed from reopening a case simply because same was decided in the undefended list. He submitted that a court can set aside its judgment in the undefended suit in the .interest of justice especially where the issue of fair hearing is involved. Reliance is placed on the case of PLAN WELL WATERSHED LTD AND ANOR. V. CHIEF VINCENT OGALA 16 N.S.C. Q.R. p. 138 at p. 140. That under Order 34 Rules 5 (a) – (c) of the High Court Rules of Anambra State, 1988, whether the suit is in the undefended list or merely undefended, the court is required to call for proof of the claim of N1 million by the Respondent.
Learned Counsel for the Respondent, on the other hand, has argued that judgment delivered under undefended list is a judgment on the merits and since the Court becomes functus officio after delivery of such judgment, it cannot review it. He relied on the following legal authorities:
- BEN THOMAS HOTELS LTD V. SEBI FUNITURES CO. LTD (1989) 5 NWLR (pt. 123) P. 523.
- U.T.C. (NIG) LTD V. PAMOTEI (1989) 2 NWLR (pt. 103) p.244.
- FIRST BANK OF NIG. PLC V. LABBO (1996) 3 NWLR (pt.483) p.615
- AZUMI V. PAN AFRICAN BANK LTD. (1995) 3 NWLR (pt. 467 p.462.
- N.S. ENGINEERING CO. LTD V. EZEUDUKA (2002) 1 NWLR (pt.784) p.469.
- B.W.S. ENG. CO. LTD V. NANZO INT. CO. LTD. (2002) 2 NWLR (pt. 751) p. 252
The position of the Law under undefended list procedure is very clear.
It is that a judgment given under it is a judgment on the merit. It is not the same as judgment entered in default procedure. See BANK OF THE NORTH LTD. V.L INTRA BANK SA (1969) ALL NLR 91 at 97; BAERTHLE & CO LTD V. LIMA SERVICES LTD. (1992) 1 NWLR (pt.217) 273 at 277 and FIRST BANK OF NIGERIA PLC V. LABBO (Supra); These authorities and those of BEN THOMAS HOTELS LTD V. SEBI FURNITURE CO. LTD (Supra); U.T.C. NIG. LTD V. PAMOTEI (Supra); distinguish between a judgment on the merit and a judgment entered in default judgment. The learned trial judge correctly held under the prevailing rules of Court, that is, Orders 9 Rules 2 and 24 Rule 9 of the High Court Rules, Anambra State 1988, applicable to Enugu State, that a judgment obtained therein is a judgment on the merit and the court becomes functus officio to review its judgment. This issue is therefore answered in the affirmative.
The second issue is that whether the trial court properly and duly considered the affidavit evidence as well as the laws applicable, in coming to the conclusion, which it did, that the application was made in bad faith. The lower court considered the circumstances of the case and found that it could not exercise its discretion in favour of the appellant herein and applicant in the lower court. The Court stated at page 55 of the Records (lines 8 – 14):
“The applicant in their affidavit complained that the respondent deceived them into, not coming to join issues with him in court. That is not the tenor of the prayer before me. Even if it were, I would still refuse the application. This is because their own affidavit do not support that claim.”
The Court then concluded that the appellant was never deceived and held that the application was brought in bad faith. I agree with the learned counsel for the Respondent that the findings of fact made above were arrived at after a deep appreciation of the affidavit evidence submitted before the Court for evaluation. These findings of the lower court were not attacked or challenged. The learned trial Judges did consider order 24 Rule 15 (supra) and its applicability in the matter before it. After reproducing the said Rule in his ruling, the learned trial Judge further stated that the Rule did not avail the applicants/appellants as their presence or absence, on the date of hearing of the case placed in the undefended list, was immaterial and that the court was bound to proceed to judgment in the absence of the notice of intention to defend the suit. The court relied on the case of BEN THOMAS HOTELS LTD. V. SEBI FURNITURE CO. LTD (Supra).
Order 24 Rule 15 (Supra) deals with judgment in default of appearance. It is not an omnibus or all embracing rule of court as argued by the appellant in his brief of argument. Further, Order 9 Rule 42 of the same Rules of Court deals with the setting aside of a judgment in default of pleadings. In the circumstance the second issue of the Respondents is answered in the affirmative.
In the result the appeal fails. It lacks merit and is hereby dismissed. I cannot disturb the finding of the lower court that the appellant’s application brought before it and subject of this appeal, was made in bad faith. The Respondent is entitled to costs, which I assess at N5, 000.00.
Other Citations: (2006)LCN/1913(CA)
