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(2018) LPELR-44272(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of May, 2018


Before Their Lordships

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria





Other Citations

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This appeal borders on the issue of setting aside a default judgment.
This appeal is against the decision of Abia State High Court in Suit No. A/88/2009, delivered on 22nd April, 2013 by Hon. Justice O.A.K. Ogwe, wherein the learned trial Judge dismissed the Application by the Appellant to set aside the judgment of the Court, delivered on 17/10/12, in default of defence.

The claim at the trial Court was filed by the Respondent herein by way of an undefended writ action, on 13/3/2009, seeking:

"The Sum of N165,688,305.12, being an amount due from the defendants jointly and severally to the Plaintiff, in respect of top White Tallow and other raw materials for soap and detergent production, delivered to the 1st defendant at Abia by the Plaintiff, at the defendants' request, upon the 2nd defendant's guarantee."

The 1st and 2nd Defendants were served the originating process on 1/4/2009 at 1st Defendant's registered office at No.1 Nicholas Street, Aba Abia State, the 2nd Defendant being a staff of the 1st Defendant. They entered appearance on 15/4/2009 and filed Notice of intention to defend the Suit, and in the said Notice to defend and affidavit thereof, the Defendant (Appellant) admitted owing N21,890,436.81 (page 24 of the Records, paragraph (d)). The Court, on 28/1/2010, delivered judgment in the 1st Respondent's application and gave judgment to it, in respect of the admitted sum of N21,890,436.81, and transferred the balance of N143,979,874.94 to the general cause list for hearing. Pleadings were ordered and 1st Respondent filed its pleadings on 10/3/2010. Appellant brought a motion to pay the admitted debt by installments, which was granted on 17/5/2011.

Appellant later brought another Counsel, E.M. Orjiako Esq., who filed a motion, dated 22/12/2010, seeking to set aside the admitted judgment of N21,890,436.81, for which the Appellant had also received permission to pay by installments. In the Affidavit in support of the application, Appellant alleged that "other Directors" that admitted liability were not Directors; that Appellant was not aware of the Suit. The said motion was contested and the trial Court dismissed the same on 17/5/2011. That Ruling, dismissing the motion, was not appealed against.

???On that 17/5/2011, Appellant was granted extension of time to comply with Order 2 Rule 8(1) of Rule of the Court to file:

(a) Statement of defence/counter claim;

(b) List of witnesses to be called at the trial;

(c) Written statement on oath of witnesses;

(d) Copies of documents to be relied upon at the trial, upon motion filed on 14/3/2011.

There is no indication that Appellant filed any appeal against the refusal to set aside the admitted judgment debt, entered on 28/1/2010. But it filed a motion, CA/OW/426M/2013, in this Court, seeking order to vary the leave granted Appellant by the Lower Court on 29/7/10 to pay the judgment debt by installments. But there was no appeal upon which the motion was predicated, as there was no appeal against the said judgment of 28/1/2010, or that of 17/5/2011, dismissing the Application to set aside the judgment of 28/1/10.

There are facts by Respondent to show that hearing of the remaining claims (which had been transferred to the general cause list) had continued, without the Appellant, despite being issued with hearing notices, and judgment was entered by the trial Judge, Lilian Abai J., who heard the case, for the 1st Respondent on 17/10/12.

Appellant again filed a motion on 6/12/12 for order to set aside the judgment of 17/12/12 and for leave to file statement of defence/counter claim, out of time. That motion was dismissed by the trial Court on 22/4/2013. The learned trial Judge (K.O. Ogwe J,) who dismissed the Motion to set aside the judgment of 7/10/12 was not the Judge who gave the judgment sought to be set aside.

The Respondent said there is no appeal against the decision 17/10/12 in respect of the substantive case, as this appeal is against the refusal of 22/4/13 to set aside that judgment of 17/4/12.

The Records of Appeal was transmitted to this Court on 31/5/13, and on 13/5/14 and 1/12/16 the Supplementary Records of Appeal and Further Additional Records, respectively, were regularized. Appellant filed Amended Notice of Appeal on 18/2/16, wherein it specified that the Appeal is against the decision of 22/4/13, refusing to set aside the Judgment of 17/10/12.

The appeal was determined on the following issues:

(1) Whether the Lower Court had the requisite jurisdiction to entertain and proceed with trial when there was no proof of service of the originating processes, statement of claim, hearing notices and other processes on the Appellant. If not, was the Lower Court right to have refused to set aside its judgment.
(2) Whether the Lower Court was right to proceed to trial and take evidence without a statement of claim and proof of service of a statement of claim on the Appellant.
(3) Whether or not the judgment of 17th October, 2012 was a default judgment and if so, whether the Lower Court was right to have refused to set it aside.

The appeal was dismissed for lack of merit.

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