Legalpedia Citation: (2014) Legalpedia (CA) 79505
In the Court of Appeal
HOLDEN AT BENIN
Tue May 20, 2014
Suit Number: CA/B/136/2005
CORAM
PARTIES
1. JOE-DEB VENTURES LIMITED
2. JOSEPH KAYODE TINUOYE
APPELLANTS
1. NIGERIAN DEPOSIT INSURANCE CORP.
2. LIQUIDATOR OF TRADE BANK PLC.
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents at the Ondo State High Court sitting at Akure, filed a suit against the Appellants claiming a sum of Forty-Six Million, Four Hundred and Twenty-Nine Thousand, Seven Hundred and Seventy-Four Naira and Eighty Kobo only (N46, 429,774.08) being debt owed to the Respondents by the Appellants; an interest of 20.5% per annum from 1st April, 2004 up to the date of judgment and interest of 5% per annum on the total debt from the date of judgment until final liquidation. Leave was granted to the Respondent on application to enter suit under the undefended list and the lower Court later delivered judgment on the 17th day of November 2004, in favour of the Respondents granting their reliefs as par their claim. Aggrieved by the judgment, the Appellants have brought a motion on notice praying that the trial court set aside the judgment on the ground that it was obtained by fraud and setting aside the Writ of Summons marked “undefended” as it was irregular and was not properly served on the appellants. The lower Court in dismissing the application, held that it had not the power to revisit the judgment being a judgment on the merit and having become functus officio. Further aggrieved, the Appellants appealed to the Court of Appeal vide a Notice of Appeal.
HELD
Appeal Allowed
ISSUES
1. Whether or not the High Court was right in refusing to set aside its own judgment dated 17th June, 2004 which was obtained by fraud and misrepresentation?
2. Whether the order of the lower court dated 1/6/04 which is Exhibit ‘D’ slating this case for hearing on 17th day of June, 2004 supersedes the 8 (eight) days period (as commanded by the Writ) within which the appellants should enter their Memorandum of Appearance and file their notice of intention to defend to the undefended writ in this suit.?
RATIONES DECIDENDI
SETTING ASIDE OF JUDGMENT – STATUS OF JUDGMENT OBTAINED UNDER THE UNDEFENDED SUIT AND CIRCUMSTANCES WHEN IT CAN BE SET ASIDE
“To this assertion, I am in complete disagreement, in as much as I agree that a judgment obtained under the undefended list is a judgment on the merits or final judgment and once the judgment has been entered in favour of the plaintiffs, it means that the case has come to an end, the court becomes functus officio, this is only to the extent that such judgment is not irregularly obtained, if it is, that court that gave the judgment may set it aside. Also, the defendants seeking to set aside the judgment must come by way of motion on notice specifying in the affidavit attached, the nature of the irregularity, how it arose and disclosing a defence on the merits. See: Bendel Construction Co. Ltd. Vs. Anglo Development Co. (Nig.) Ltd. (1992) ALL NLR (pt. 1) p.25.
Though, the Supreme Court held a similar view in Ben Thomas Hotel Ltd. Vs. Sebi Furniture Ltd. (1989) 5 N.W.L.R. (pt. 123) 523. In that instant case, the trial Judge while dismissing the application to set aside judgment entered under the undefended list held that once judgment had been given in an action under the undefended list, the court had become functus officio and therefore could not set aside the judgment. However, Agbaje, JSC at page 537 paragraph C held the view that the learned trial Judge was in error in holding that once he had given a judgment in an action on the undefended list, he was functus officio and would not set the same aside. He explained that in an action brought under the undefended list, pleadings are not required to be filed and as such a case is coming for the first time on the list and it is not coming to the court for the first time for mention but hearing. –
SETTING ASIDE OF JUDGMENT – CIRCUMSTANCES WHEN A COURT WOULD SET ASIDE ITS JUDGMENT
“In any case, the courts have held severally that a court has inherent jurisdiction to vary its order so as to carry its own meaning or in cases where the language used is doubtful, in order to clarify the position or correct a clerical error. See: Orukumkpor v. Itebu&Ors. 15 W.A.C.A. 39. Also, as in this instant case, that a court has also inherent power to set aside its own judgment which is a nullity such as where it acted without jurisdiction. In the case of Rossek vs. A.C.B. Ltd. (1993) 8 NWLR (pt. 312) @ p. 471, Bello, (as he then was) observed thus:
“…A judgment of a court of law remains valid and effective unless it is set aside by an appeal court or by the lower court itself if it acted without jurisdiction or in the absence of an aggrieved party.”
–
SERVICE OF COURT PROCESSES – STATUS OF JUDGMENT OBTAINED AGAINST A PARTY WHO WAS NOT SERVED WITH THE INITIATING PROCESS
“There is no doubt the proper service of the writ or other initiating process is one major factor that may vitiate a judgment. See Madukoku vs. Nkemdilim (1962) 1 ALL NLR 587, 595; Skenconsults Nig. Ltd. & Anor vs. Ukey (1981) 1 S.C. 6; Okoye vs. Central Point Merchant Bank (supra) @ 268.
A judgment obtained against a party who was never served with initiating process is void. Also, non-service is a product of jurisdiction and the issue of jurisdiction being the life blood of adjudication can be raised at any time in the proceedings even on appeal at the Supreme Court and even suo motu.-
UNDEFENDED LIST PROCEDURE – TIME LIMIT WITHIN WHICH A DEFENDANT UPON BEING SERVED WITH A WRIT OF SUMMONS MARKED “UNDEFENDED LIST” CAN FILE HIS DEFENCE
“A careful perusal of the Ondo State Rules of the High Court 1987 does not categorically spell out a limitation period. However, Section 13.1 states that a defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereafter prescribed.
Though, in truth, after a defendant has been served with a Writ of Summons marked “undefended list”, if he intends to challenge such a defence should be filed before the return date i.e. hearing date specified on the writ.
In the instant case, the writ was supposedly served on the 14th June, 2004, and a return date of 17th June, 2004 was penned down on it but the writ commanded that a Memorandum of Appearance be made eight days from service of the writ, in such a scenario, there could be conflict as it is. In Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (1999) 2 NWLR (pt. 590) p.228 and Akpabuyo vs. Duke (2001) 7 NWLR (pt. 713) p. 557, the courts have held that where the writ commands the defendant to enter an appearance within a limited time, though the writ is marked undefended list, judgment cannot be entered in the suit or arguments considered before the expiration of the period stipulated on the writ. From my own understanding therefore, the return date is not meant to rob a party of the legal right of time as given by the command of eight days of the writ, rather it is supposed to act as an ancillary, assisting the courts and all the parties involved in a suit in achieving substantial justice in the case. In the case of Crown Merchant Bank Ltd. Vs. Leadway Assurance Co. Ltd. (1997) 11 NWLR (pt. 529) 405; Bullet Int. (Nig.) vs. Adama (1997) 3 NWLR (pt. 493) 348 the courts held that the defendant must be prepared to file his defence at least five days before the day fixed for hearing. By the defendant’s entry of appearance, he indicates his willingness to contest the action and that he also submits to the jurisdiction of the court. This also serves as a proof that the writ has been served. –
UNDEFENDED LIST PROCEDURE – DUTY OF COURT WHEN A CASE IS ENTERED ON THE UNDEFENDED LIST
“When a case entered on the undefended list comes to the court on the return date, the court has the duty to ensure that the defendant has filed a notice of intention to defend and an affidavit of defence. It is when the court has exhausted itself of this duty of proper service and ample opportunity of response in accordance with the principle of fair hearing, in line with the latin maxim of ‘Audi Alterem patem’ that the court in the absence of a defence may proceed to judgment.”
CASES CITED
Not Available
STATUTES REFERRED TO
1. Companies and Allied Matters Act (CAMA)
2. Ondo State High Court Rules,1987.