Nigerian Agricultural Co-operative Bank Limited V. Johnbull Obadiah (2003)

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ISTIFANUS THOMAS, J.C.A.

This is an appeal against the ruling and judgment of Essang J. of Akwa Ibom State High Court, Oron, delivered on 19th October, 1998 and 26th January, 1999 respectively, in Suit No. HOR/46/95.

The brief facts of the case are as follows:-
The respondent as plaintiff instituted an action by way of a writ of summons dated 24/7/1995, claiming from the appellant as defendant, the sum of N1, 500, 000.00 for general damages for detinue and for a declaration that the seizure by the appellant of 35 bundles of fishing nets, was illegal, null and void. But the statement of claim was not filed until 1st April, 1997, thus a period of 2 years. Still, the appellant was not served with the statement of claim of the respondents until 2/6/1997. The statement of defence and counter claim of the appellant was filed on 2/7/1997, thus within time by the rules of court.

The record shows that the appellant’s statement of defence and the counter-claim were served by the court’s bailiff on the respondent personally on 30/9/1997, but before the service on the respondent on that date, his learned counsel had on 17/9/1997 filed an application before the court for default judgment; and was heard and granted by the court on 15/10/1997. This clearly shows that the appellant’s statement of defence and the Counter-claim had earlier been served on the respondent before the court heard and granted the application for default judgment. Learned appellants counsel has however conceded to the fact that he (counsel) was not in court on the 15/10/1997 when the application was moved and granted.

He equally conceded that the appellant also did not file a Counter-affidavit to the application for default judgment which was on notice. It is curious that learned counsel for the appellant is deliberately silent as to whether the application for default judgment was served on appellant or not. But surprisingly, the same appellant and his counsel, who were not in court on the day the respondents application was moved and granted by the trial court, on that same day, filed an application to set aside the default judgment (see page 22 of the record).

The application to set aside the default judgment was opposed by the respondent, but was however granted by the trial court on 19/10/1998 (thus one year after) on the following terms:-
“The application therefore succeeds. But taking in consideration the age of the case-having been filed in 1995 and the seeming lack of applicant and its counsel’s zeal and determination to defend the suit contributing to delay and setting aside the Notice on motion for Judgment, the Defendant/Applicant shall pay costs to the Plaintiff/Respondent assessed and fixed at N100, 000.00 (One Hundred Thousand Naira).

The aforementioned costs to be paid before the Defendant/Applicant takes further steps to defend the case. As a warning to prevent further exercise in futility, the Defendant/Applicant is to file an undertaking to defend the suit with due care, diligence and determination, failure which, the judgment of 15th October, 1997 shall be restored. Above terms and conditions setting aside the judgment to be fully complied with by the applicant before return date”.

The appellant refused to pay the cost awarded, and the respondent applied to lower court to restore its Judgment of 15/10/1997 since the appellant had not complied with the conditionalities laid in the judgment. The learned trial judge in his ruling of 26/1/1999, restored the terms of his default judgment of 15/10/1997 as follows:-
“All the submissions of the plaintiff’s counsel J.J. Edem, Esq., are up held since the defendant has not complied with the terms and conditions of court’s order dated 19/10/98. That the case has not gone on appeal, the court order being sacrament must be obeyed. Accordingly, Judgment of the court dated 15/10/97 must be restored in favour of the plaintiff for sum of N1. Million”.

Dissatisfied with the former ruling in which appellant was asked to pay a cost of N100, 000.00, learned counsel obtained the leave of this court on 19th April, 1999 to appeal against the conditionalities and the cost. The final judgment of 26/1/1999 is also appealed against by the appellant and by leave of this court, granted on 19/2/2002, amended notice of appeal containing 9 grounds of appeal, the appellant formulated two issues that read as follows:-
“(i) Was there any legal justification or basis for the final judgment of the court delivered on January 26, 1999?
(ii) Did appellant have fair hearing in regard to the final judgment of the court delivered on January 26, 1999?”

I have to point out that right from the beginning of this appeal, the respondent has deemed it not necessary to appear or file briefs. So the appeal with leave of this court is determined solely on appellant brief only. This is in accordance with Order 6 rule 10 of the Court of Appeal Rules 2002.

In arguing issue No.1 which is based on grounds 1, 2, 3, 4, 5 and 7 of the grounds of appeal, learned counsel has copiously referred to the ancillary orders as well as the terms and conditions contained in the default judgment of 15/10/1997; setting aside ruling of 19/10/1998 and the final judgment of 26/1/1999 respectively, and submitted that the crux of this appeal is that there was no basis for the ancillary orders and conditionalities. Learned counsel gave seven reasons as to why reinstating the default judgment is wrong”.

The first reason according to learned counsel is that Order 27 rules 4 and 11 of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State under which the application for default judgment was made, has absolutely not provided that failure to pay cost awarded by a court, judgment would be entered against the party that failed to pay the cost.

In other words, the above stated rules, specifically allowed default judgment only where a party has failed to file his statement of defence within the frame time therein provided or by the Court. Counsel relied on cases of Akinnuli Vs Ayo – Odugbesan (1992) 8 NWLR (Part 258) 172, 189; Imo Broadcasting Corporation Vs Iwueke (1995) 1 NWLR, (part 372) 448, 502, Malgwi Vs Gadzama (2000) 11 NWLR (Part 678) 258.

The second reason according to learned counsel, is that, it is totally illogical for the trial court to restore a default judgment when the same court had earlier acknowledged in its ruling of 19/10/1998, that there was no basis in law for the judgment in the first place, since the respondent’s application, was based on the perceived default of pleadings by the appellant, whereas the appellant, had in fact, filed their pleadings including a counter claim within time.