Nsit Atai Local Government V. Engr. Edwin J. Ene (2008)

LawGlobal-Hub Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.C.A.

Endorsed on the writ of summons issued from the Registry of the High Court of Justice, Akwa Ibom State Uyo Judicial Division is the claim for the sum of N2,558,250 made by the plaintiff now Respondent against the appellant, then defendant. The Respondent also claimed 30% of the said sum as interest per annum from 26/6/02 till judgment as well as 10% of the sum from date judgment till final liquidation.

Pursuant to an ex-parte application by the Respondent as plaintiff the matter was placed on the undefended list for hearing and determination on 10/4/03 and fixed for hearing on 30/4/03. The Court ordered that its order and all relevant processes be served on the defendant now appellant.

On the return date the appellant was represented by its P. E. O. (General Duties) Mr. Augustine E. Edet.

Learned Counsel for the Respondent informed the trial Court that the appellant did not file a notice of intention to defend the Suit. He urged the Court to invoke Order 23, Rule 4 of the High Court (Civil Procedure) Rules to hear the matter as undefended suit and enter judgment accordingly. The trial Court was satisfied that the processes in the suit marked undefended were served on the appellant on 17/4/03 but the appellant failed to file a notice of intention to defend and or affidavit disclosing a defence on the merit. Accordingly, the Court entered judgment in the sum claimed and 10% interest per annum from the date of judgment till the liquidation of the debt.

On 5/5/03 the appellant filed a motion on notice pursuant to the inherent jurisdiction of the Court for an order to stay the judgment delivered on 30/4/03 as well as an order setting aside the said judgment and ordering a trial on the merit. This was supported by an affidavit of 11 paragraphs deposed to by Augustine Edet as the Litigation Officer of the appellant. The trial Court took submissions of the Counsel for the parties on 28/7/03 and in its ruling delivered on 4/8/03 the trial Court dismissed the application.

Aggrieved by the ruling the appellant filed a notice of appeal on two grounds:

“(1) The ruling/decision is against the weight of evidence.

(2) The learned trial Judge erred in law by failing to set aside its decision of 30th April, 2003 when it is apparent that the said judgment/decision was not on the merit.”

(Particulars omitted).

In his brief of argument the appellant formulated one issue from ground (2) and abandoned ground one which is hereby struck out. The issue formulated is “Whether the judgment of the lower Court delivered on 30/4/03 without considering the notice of intention to defend a trial Judgment on the merit that cannot be set aside.”

The Respondent adopted the appellant’s lone issue in his brief of argument.

Arguing the lone issue in his brief learned Counsel for the appellant said the judgment delivered on 30/4/03 without the Court having the opportunity to look at the notice of intention to defend is not a judgment on the merit and not a final judgment and could therefore be set aside at the instance of the party affected by the judgment. He referred to Order 23 Rule 3(1) of the “Akwa Ibom State Civil Procedure Rules” and said there is no time frame within which a defendant must file a notice of intention to defend. He referred to the records and said the appellant did file the notice of intention to defend along with a 22-paragraph affidavit on 30/4/03. He argued that if the Court Registrar did not bring the notice to the attention of the Court the failure should not be visited on the appellant. Learned Counsel conceded, contrary to his earlier position that “judgment on the undefended list procedure is a judgment on the merit and could only be set aside under any of the circumstances set out in IKPONG & ANOR v. UDOBONG (2007) 2 NWLR (Pt. 1017) P. 184. He relied on MARK v. EKE (2004) 5 NWLR (Pt. 865) P. 54, SKENCONSULT (NIG) LTD v. UKEY (1981) 1 SC 6, SCOTT-EMUAKPOR v. UKAIBE (1975) 12 SC 41. He said the appellant complied with Order 23 Rule 3(1) on 30/4/03 the date of the judgment. He submitted “that taking cognizance of the order of events in the Court’s registry, the notice of intention to defend must have been filed before the judgment was entered and not afterwards.”

Again, learned Counsel speculated that if the Court did not see the notice of intention to defend at the point of entry of judgment “wouldn’t that fact bear heavily in the mind of the Judge at the time of hearing application to set aside the said judgment?”

He added that if the trial Court had looked at the notice of intention to defend together with the affidavit the Court would have arrived at a different decision. He urged the Court to allow the appeal, set aside the ruling of the trial Court and order a retrial of the suit.

In his argument learned Counsel for the Respondent referred to DUKE v. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR (Pt.959) P. 130 AT 154 to buttress his contention that the judgment in the circumstances of the case is a judgment on the merit. He argued that there being no provision in the High Court Civil Procedure Rules for setting aside a judgment on the undefended list, the trial Court was right in refusing to set aside its judgment.

Learned Counsel impugned the appellant’s claim that judgment was entered for the Respondent “without considering the notice of intention to defend”. He said the duty of the trial Court on the return date is to see from the Court’s file if the defendant filed a notice of intention to defend and affidavit disclosing a defence on the merit. He relied on BEN THOMAS HOTEL LTD v. SEBI FURNITURE CO. LTD (1989) 5 NWLR (Pt. 123) 67. He referred to the records of the trial Court, which showed that the appellant was represented in Court by its Litigation Officer one Mr. Augustine Edet. He argued that if the appellant had filed a notice of intention to defend with an affidavit disclosing a defence on the merit at the time the trial Court dealt with the case especially when learned Counsel for the Respondent asked for judgment in default of notice of intention to defend the said litigation officer who was present in Court at all material times would have so informed the trial Court. Counsel urged the Court to draw the inference that at that point in time no notice of intention to defend had been filed. He said the trial Court complied with Order 23 Rule 4 of its Rules in entering judgment for the Respondent. Counsel argued that the finding of the lower Court that the notice and Exhibit Exh.NA1 was not filed at the time the Court gave its judgment on 30/4/03 was not questioned by the appellant. He contended that in the circumstances the trial Court had no option other than to enter judgment for the Respondent. He relied on TAHIR v. J. UDEAGBALA HOLDINGS LTD (2004) 2 NWLR (Pt. 857) 438 AT 451 – 452. He said that the facts of IKPONG & ANOR v. UDOBONG (2007) 2 NWLR (PT. 1017) 184 relied on by the appellant are different from the facts of the case at hand. He relied on DANIELS v. INSIGHT ENG. CO. LTD (2002) 10 NWLR (PT. 775) 246 in support of his case that judgment entered in an undefended suit pursuant to Order 23 of the Rules is a judgment on the merit. He urged the Court to resolve the lone issue against the appellant.

He urged the Court to dismiss the appeal and affirm the ruling of the Court below.

Learned Counsel for the appellant prevaricated on the nature of judgment in undefended suit. Initially, he argued that it was not a judgment on the merit and so could be set aside but later conceded it was a judgment on the merit but it could be set aside in circumstances set out in UKPONG & ANOR v. UDOBONG (supra). It has to be emphasized that a judgment on an undefended suit is not the same as a default judgment. While a default judgment can be set aside on the appropriate application, a judgment on undefended suit is a final judgment. It cannot be set aside as judgment given in default of appearance of the defendant. In the circumstances of this case the appellant has two courses open to him – he has to institute a fresh action or appeal against the judgment obtained against him by the Respondent. See the case of BANK OF THE NORTH LTD v. INTRA BANK S.A. (1969) 1 ALL HCRP.91 AT 98.

Even the arguments that the Court was denied opportunity to consider the notice filed on the same day judgment was entered or that it was not brought to the attention of the Court before judgment was entered or that the judgment would have been different if the trial Court had considered the notice will not avail the appellant as these are issues that can be raised on appeal or in a fresh suit. Even if the issue of filing of notice of intention to defend could be properly raised herein which is not conceded appellant cannot rely on the speculation

“that taking cognizance of the order of events in the Court’s Registry the notice of intention to defend must have been filed before the judgment was entered and not afterwards.”

The judgment in question was read on 30/4/07 and the notice was allegedly filed on the same date. Appellant was represented in Court by its Litigation Officer who was said to have filed the notice. He kept silent when learned Counsel informed the trial Court that there was no notice of intention to defend. Contrary to the speculation that the notice was filed before the judgment on 30/4/07 the facts support the view that the notice was filed after the entry of judgment. Any doubt as to whether or not the notice was filed before or after the judgment on 30/4/03 can only be resolved by evidence of the time of filing, which the appellant who filed it should provide.

In any case, as I said earlier the judgment of 30/4/03 is a judgment on the merit and it cannot be set aside on any ground. Appellant has to commence a fresh action or appeal against the judgment.

I agree with the Respondent that the appeal is bereft of merit, and it is hereby dismissed. Appellant to pay costs assessed at N10,000.00 to the Respondent.

Other Citations: (2008)LCN/3005(CA)