LawPavilion Online



(2019) LPELR-47987(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2019


Before Their Lordships

MONICA BOLNA'AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria





Other Citations

; ;


This appeal borders on civil procedure.
This appeal is against the judgment of the High Court of Anambra State, Onitsha Judicial Division, delivered by M.N.O Okonkwo J., on the 8th day of June, 2016. wherein learned trial judge pursuant to Order 10 Rules 2&3 and Order 20 Rule 1 of the High Court of Anambra (Civil Procedure) Rules, 2006, granted the Respondent's prayer for judgment in default of appearance.

At the High Court by a Writ of Summons dated 29th January, 2016, the Respondent as Plaintiff claimed against the Appellant as defendant for the following:

a. "The sum of N1,550,000.00 (One Million, Five Hundred and Fifty Thousand Naira only) being the total value of the 1,000,000 white 28mm caps supplied to the Defendant at a unit price of N1.55k.

b. The sum of N4,739,700.00 (Four Million, Seven Hundred and Thirty-Nine Thousand, Seven Hundred Naira) being the total balance owed the Plaintiff for the supply of Drug Dispensing Cups it has supplied to the Defendant for the period commencing from the 28th of October 2010 to the 12th of August, 2013.

c. 27% annual interest on the total sum of N6,289,700 (Six Million, Two Hundred and Eighty Thousand, Seven Hundred Naira) payable from the date of the institution of this case until the date of delivery of judgment.

d. 20% interest on the cumulative judgment debt (as enumerated under paragraphs 1-3 above) from the date of delivery of judgment until the debt is fully liquidated.

e. The sum of N2, 000,000 (Two Million Naira) being legal cost of this action.

f. The sum of N10, 000,000 (Ten Million Naira) being general damages."

Upon the fact that the Appellant was resident outside the jurisdiction of the High Court, the Respondent via a motion ex-parte dated 15th January 2016 and filed on the 29th January, 2016, applied to the High Court praying for leave to issue and serve the Writ of Summons together with the accompanying processes on the Appellant. The said application was taken and granted on the 9th February, 2016. Despite the service of the processes on the Appellant, the Appellant for a couple of times, had no legal representation but subsequently filed its Statement of Defence dated 25th April 2016 and filed on 27th April, 2016 and was duly represented for the first and only time before the High Court on the same 27th April, 2016.

On the 8th June, 2016, the Counsel to the Appellant was absent but that of the Respondent was duly represented. The High Court after being satisfied that the hearing notice and the Pre-trial Conference Forms were duly served on the Appellant, set down the suit before it for trial since there was no application before it. However, before counsel to the Respondent went ahead to prove the case of the Respondent, he prayed the Court to discountenance the statement of defence and the motion for extension of time both dated the 27th April, 2016 on the ground that both processes were incompetent and not proper before the Court. The Respondent's prayers were hinged on the fact that the Appellant was out of time, did not as a matter of fact pay the default fees and that counsel to Appellant had failed to file the memorandum of appearance despite the Court's instruction on the 27th April, 2016 to the contrary. 

The High Court granted the prayer as prayed and struck out the Appellant's statement of defence and motion for extension of time.

Thereafter counsel to the Respondent informed the Court of his pending motion, which is the subject matter of the instant appeal. The Court after being satisfied that the said motion was served on the Appellant allowed the Respondent to move same. The said motion was brought pursuant to Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State Civil Procedure Rules, 2006. The motion on the face of it prayed the High Court to enter judgment in default of appearance. After moving the said motion, the High Court delivered its ruling and held thus:

"In the light of the above, I hold the view that this application having satisfied the requirements of our High Court Civil Procedure Rules 2006, has merit. Same is hereby granted. For clarity purposes, I hereby enter final judgment in favour of the Plaintiff as per paragraphs 1, 2, 3, 4. With respect to paragraphs 5 and 6, I award the sum of N500, 000.00 (Five Hundred Naira) and N2, 000,000.00 (Two Million naira) as legal costs of this action and general damages respectively in favour of the Plaintiff. I award N50, 000.00 (Fifty Thousand naira) cost against the Defendant in favour of the Plaintiff."

Dissatisfied with the decision of the High Court, the Appellant appealed to the Court of Appeal.

The Court determined the appeal on the following issues:
a. Whether the striking out of the Appellant's Statement of Defence and Motion on Notice for Extension of Time can be said to have constituted a breach of the Appellant's right to fair hearing.
b. Whether the trial Court was right to enter default judgment for the Respondent having regard to the provisions of Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006.
c. Whether the Lower Court had jurisdiction to entertain the action considering the defective nature of the Originating and other processes filed by the Respondents?

In conclusion, the Court allowed the appeal in part. The part of the judgment of the High Court granting reliefs 1, 2, 4 and 6 was affirmed while the part granting reliefs 3 and 5 was set aside. The award of N50,000.00 as cost against the Appellant by the High Court was also affirmed. 

Read Full Judgment