MONEY LINE INVESTMENT LTD & ANOR v. OBIOMA ENTERPRISES NIG. LTD & ANOR
(2019)LCN/13750(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of August, 2019
CA/OW/40M/2014
RATIO
EQUITY MUST COME WITH CLEAN HANDS: NATURAL JUSTICE
To say, that there is a mix up in a Statement on oath is preposterous.
I am of the view that there is nothing to show that the Court below breached the principle of natural justice. EMEKA v. STATE (2014) 13 NWLR (PT. 1425) PAGE 114. It was the Appellants who did not do equity, but sought equity. PER RITA NOSAKHARE PEMU, J.C.A.
DEFAULT JUDGMENT: THE DUTY OF AN APPLICANT WHO WANTS A DEFUALT JUDGMENT SET ASIDE
Decidedly, an applicant who is desirous of setting aside a default judgment, should give to the Court which gave the judgment, the most important reason why the Applicant was not in Court LASCO ASSURANCE PLC v. DESERVE SAVINGS & LOANS LTD (2012) 2 NWLR (PT. 1283) Page 95 at 98. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. MONEY LINE INVESTMENT LTD
2. O. N. CHIONUMA Appellant(s)
AND
1. OBIOMA ENTERPRISES NIG. LTD
2. MR. OBIOMA OKORIE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the default judgment of the High Court of Abia State, holden at Umuahia, delivered on the 27th of March, 2013. ? Pages 193 ? 295 of the Record of Appeal.
SYNOPSIS OF FACTS
The Abia State Government had entered into a private Public Partnership Project agreement with the 1st Respondent, for the construction of 27 Unit of Houses in the Abia City Estate, Adelabu Street, Umuahia, Abia State.
In executing the Housing Project, the 1st Appellant had engaged an architect, three sub-contractors and the 1st Respondent, with an understanding between the parties that the 1st Appellant would be funding the Estate project within its capacity, while the sub-contractors continue the construction works and the suppliers (1st Respondent) provides the building materials until completion of the Estate Project and the Sales of the Housing Units commences.
This arrangement was working well until Abia State Government terminated the PPP Agreement accepting to pay the 1st Appellant for all work done at the project site.
With the consent of the Respondents and other sub-contractors to the Estate Project, the 1st Appellant agreed to accept the Abia State Government offer to pay the sum of N134,012,564.88 for the work done at the project site on instalment basis, and to liquidate payment on or before 31st March 2010. ? Pages 126 ? 129 of the Record of Appeal.
The Respondents and other sub contractors to the Estate Project agreed that as payment is made to the 1st Appellant by Abia State Government, disbursements will be made to all the contractors and suppliers i.e. Respondents herein on pro-rata ? Pages 312 and 319 of the Record of Appeal.
The 1st Appellant received only five (5) installment payments from Abia State Government in the total sum of N65,000,000.00.
The 1st Appellant has been keeping to the understanding, it reached with the Respondents and other sub-contractors to the Estate project. It had made five (5) installment payments to all the sub-contractors and suppliers, to which the Respondents have received same on pro rata basis as agreed ? Pages 314 ? 317 and 320 of the Record of Appeal.
Abia State, to the knowledge of the Respondents, is yet to pay the outstanding sum of N62,820,734,88 to the 1st Appellant despite all the efforts and reasonable demands for further payments since October 2011. ? Pages 252 ? 258 of the Record of Appeal.
The Respondents, prior to initiating this matter in Court have been involved in pursuing the installment payments from Abia State government, and has received necessary assistance from the 1st Appellant towards facilitating prompt installment payments by the State Government.
On the 12th of September, 2012, the Respondents filed their Writ of Summons, Statement of Claim, and other Court processes together with a motion ex-parte to serve the Writ of Summons on the Appellants outside jurisdiction, which order was made by the lower Court on the 9th of October 2012 ? Pages 1 ? 22 of the Record of Appeal. On the 9th of October 2012, the 2nd Appellant filed a Statement of Defence and stated inter alia therein that he does not know or have any dealings or relationship with Moneyline Nig. Ltd sued as 1st Defendant by the Respondents.
The Respondents applied to Court by motion on Notice for leave to substitute Moneyline Nig. Ltd with the name Moneyline Investment Ltd. Same was granted on the 19th December, 2012.
The 1st Appellant, on the 18th of April, 2013, filed a joint Statement of Defence with the 2nd Appellant together with other Court processes.
Subsequently, the Appellants filed Hearing Notice for Pre-trial Proceedings in forms 12 and 13, issues for determination and a motion for an order extending the time allowed the Appellants to file their Statement of Defence.
He was informed by the Registrar of the Court that the default judgment was delivered by the Court below on the 27th of March, 2013 ? Pages 105 ? 158, 160 ? 192 and 299 ? 300 of the Record of Appeal.
The Appellants on the 6th of September, 2013, filed and served a motion seeking inter alia, an order of Court to set aside the default judgment delivered on the 27th of March, 2013. The Court below refused same on the 2nd of December, 2013 without regard to the issues of non-service of hearing notice and jurisdiction raised by the Appellants. ? Pages 193 ? 295; 304 ? 354; 371 ? 375 and 391 ? 394 of the Record of Appeal.
The Appellants filed an application for stay of execution together with a reply on point part of law. The Court below granted the conditional stay of execution of its default judgment, making it a condition that the judgment sum be deposited with the Court Registrar, who will in turn pay it into an interest yielding account, to await the outcome of the appeal. ? See Pages 402 ? 413, 398 ? 401 and 424 ? 439 of the Record of Appeal.
The Appellants are dissatisfied with this decision, and filed a Notice of Appeal on the 13th of December 2013. ? Pages 395 ? 397 of the Record of Appeal. Same was amended on the 26th of January 2017.
The Appellants filed their brief of argument on the 23rd of October 2015, but same was deemed filed on the 26th of January 2017. It is settled by ALEX IKONO ESQ.
The Respondents filed their brief of argument on the 3rd of October 2017, but same was deemed filed on the 17th of January 2018. It is settled by K. I. OLEH ESQ.
The Appellants filed a Reply brief on the 30th of January 2018. On the 21st day of May 2019, the parties adopted their respective briefs of argument.
The Appellants distilled a sole issue for determination from the Grounds of Appeal. It is:-
1. WHETHER THE LEARNED LOWER COURT FULLY CONSIDERED AND APPLIED THE PRINCIPLE OF NATURAL JUSTICE IN THIS MATTER AND WHETHER THE COURT HAD DUE REGARD TO THE FUNDAMENTAL NATURE OF JURISDICTION.?
The Respondents proffered a sole issue for determination from the Grounds of Appeal. It is:-
1. WHETHER THE lower Court was JUSTIFIED IN THE CIRCUMSTANCES OF THE CASE IN REFUSING ON 02.12.2013 TO SET ASIDE THE JUDGMENT HE ENTERED FOR THE RESPONDENTS ON 27-3-2013.”
It seems to me that the respective sole issues proffered by the parties coalesce, I shall determine the appeal based on the sole issue proffered by the Appellant.
SOLE ISSUE
The Appellant contends that a party should be given an opportunity to state his case without let or hindrance, citing inter alia SALAU v. PARA-KOYI (2001) 13 NWLR (PT. 131) AT 602.
He submits that before a Court decides on a matter, it is duty bound to ensure service of due Court processes and hearing notice on the respective parties, notifying them of the date of the proceedings, in order to ensure their presence in Court. Failure to do this gives the party the right to apply to Court to have any order set aside, on ground of non fulfillment of one of the conditions precedent to the granting of the order or decision. Citing ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (PT. 109) 250; MENAKAYA v. MENAKAYA (2001) 12 SCM 107 @ 133; ATSER v. GACHI (1997) 6 NWLR (PT. 570) 609; MARK v. EKE (2004) ALL FWLR (PT. 200) 1455 @ 1476 ? 1477 paras h-c.
He submits that in the instant case, the record of the Court below indicates that one Miss Lydia Ifeoma Anya holding brief for Alex Ikono Esq for the Appellants was in Court on the 19th of December, 2012. When the lower Court granted the Respondents motion for amendment of the originating process, and that indeed the Court below ordered that the amended processes are to be filed on or before the 18th of January 2013. That no further date of adjournment was communicated to him by the Court below ? Page 386 of the Record of Appeal.
Submits that the Respondents? amended processes were filed on the 14th of January, 2013. The Respondents on the 28th of February, 2013, filed their pre trial information sheet fixing pretrial session for the 27th of March 2013. These Court processes was not served on the Appellants, neither was hearing notice issued by the Court to notify the Appellants of the date fixed for pretrial proceedings.
That this matter came up in the Court below for the first time on the 9th of October, 2012, when the Respondents? motion ex parte, to serve the Appellants outside jurisdiction was granted by the Court. That upon service of the processes on the Appellants, the 2nd Appellant filed his Statement of Defence wherein he averred that he does not know, or have any dealings or relationship whatsoever with Money Line Nig. Ltd sued as the 1st Defendant. The Respondent then filed an application for leave to, inter alia amend their Statement of Claim. ? Pages 385, 22 ? 24 and 33 ? 35 of the Record of Appeal.
That the Appellants were neither served with the pre-trial information sheet issued by the Court below on the 28th of February, 2013, nor hearing notice by the Court notifying the Appellants that the pre-trial session was fixed for hearing on the 27th of March 2013.
That the Court below without any certification or affidavit of service, or any document indicating service or notification of hearing date, entered default judgment against the Appellants. ? Pages 101 ? 105; 299 -300 and 386 of the Record of Appeal.
Submits that there is nothing to show that there is service of the pre-trial information sheet on the Appellants, not even the copy purportedly signed by Barrister E. C. Loveth as collecting for the Appellants, admitted as Exhibit ?A?. But that the Court below, however proceeded with the pre-trial session on the 27th of March, 2013. That this was a violation of the principle of audi alteram partem, which has occasioned huge injustice to the case of the Appellants.
Urges Court to set aside the default judgment, as it occasioned a miscarriage of justice and same should be declared a nullity, citing YAKUBU v. GOV. KOGI STATE (1995) 8 NWLR (PT. 414) 396; UBN LTD v. NWAOKOLO (1995) 6 NWLR (PT. 400) 127.
The Appellants submit that pre-trial information sheet is a Court process, which by the Provisions of Order 9 Rules 1 and 23 of the Rules of Abia State High Court, is required to be served by the Sheriff or Deputy Sheriff, Bailiff or any other officer of the Court, and affidavit of service filed by same officers of the Court as prima facie evidence of service.
Submits that only the 2nd Appellant?s defence was before the Court as at the 27th of March 2013, when the Court below conducted pre-trial session and entered default judgment against the 1st and 2nd Appellants; contrary to the express Provisions of Order 14 Rule 1 of the Abia State High Court (Civil Procedure) Rules 2009.
He submits that as at the time the Court below entered judgment against the Appellants, on the 27th of March 2013, pleadings had not closed. Moreso that there was application by the Respondents for judgment in default of defence as prescribed by the Provisions of Order 35 Rules 1 of the Abia State High Court (Civil Procedure) Rules 2009.
That assuming, but without conceding that pleadings closed as at 14th of January, 2013, when the Respondents filed the amended originating processes, they submit that the Respondents pretrial session notice was incompetent, having been issued on the 28th of February 2013, contrary to the Provisions of Order 14 Rule 1 (1) of the Rules of Court which stipulates a period of 14 days after close of pleadings, whereby the Claimant shall apply to the Registrar for the issuance of pre-trial session notice as in Civil Form 12 in the appendix.
They submit that the pre-trial session notice, was not filed within 14 days, neither was there any leave of Court to file out of time.
Submits that the Provisions of Order 38 Rule 1 (1) and (2) of the Abia State High Court (Civil Procedure) Rules is a condition precedent to setting a matter down for pre-trial session, particularly when placed in juxtaposition with Order 14 Rule 3 (b) which makes formulation and settlement of issues one of the matters to be considered at the pre-trial session.
Submits that the Court below lacked the jurisdictional competence to entertain the matter as it did.
That the 1st Appellant?s defence was not before the Court below as at 27th March, 2013. The pleadings had therefore not closed, they submit, as required by the Provisions of Order 14 Rule 1 of the Abia Stat High Court (Civil Procedure) Rules 2009 as to set the matter down for pre-trial session.
Urges Court to set aside the Ruling of the Court below of 2nd December 2013.
The Respondents submit that the main plank of the Appellants? contention at the Court below that the judgment of 27.03.2013 be set aside is non service of the Pre-trial Proceedings Notice. That their Counsel admitted that indeed, they were served with the pre-trial Notice.
That an Applicant deserving to set aside a default judgment should give to the Court that gave the judgment the most important reasons why the Appellant was not in Court ? citing LASCO ASSURANCE PLC v. DESERVE SAVINGS & LAONS LTD (2012) 2 NWLR (PT. 1283) Pg 95 at 98; THE FEDERAL POLYTECHNIC IDAH v. ENGE AKOH SAMUEL ONOJA (2012) 2 NWLR (PT. 1313) Pg 72.
Submit that there is no appeal against the judgment of 27th March, 2013, and that a default judgment is a regular judgment and an appellant wishing to set same aside, must show grounds why the discretion of Court to set it aside should be exercised in his favour OHAJI/EGBEMA/OGUTA LG v. ETITI (2001) FWLR (PT. 45) at 644.
That the judgment of the Court below was given under Order 14 Rule 7 (b) of the then Abia State High Court (Civil Procedure) Rules of 2009, which Provisions were adopted in the current Abia State High Court (Civil Procedure) Rules 2014.
That the Appellants argued against the proceedings of 27th March, 2013 (which was not appealed) instead of arguring against the proceedings of 2nd December, 2013 (The Ruling that is being appealed.) That the admission of Onyiro Esq on the 2nd of December 2013 closed all argument on refusal to set aside the judgment of 27th March 2013.
Submit that Onyiro Esq., for the Appellants admitted that the Pre-Trial Notice was received by their office. This confirmed that the sole issue on lack of fair hearing should be discountenanced.
In his Reply brief, the Appellants had argued that in Paragraph 4:12 ? 4:17 of their Appellants? brief of argument, that as at the 27th of March, 2013, when the Court conducted pre-trial session and entered default judgment against the Appellants, pleadings have not closed as the 1st Appellant had not filed his Statement of Defence. That they also had argued that the Respondents did not comply with the Provisions of Order 14, Rule 1; Order 35 Rule 1; and Order 38 Rules 1 (1) and (2) of the Abia State High Court (Civil Procedure) Rules 2009, and therefore the Court below lacks the jurisdiction to entertain the matter as it did.
That the Respondents failed, refused and neglected to respond to this argument in their Respondents? brief. That failure by the Respondents to proffer argument to counter those made by the Appellants on the jurisdiction of the Court is taken as hawing admitted those arguments. DONALD v. SALEH (2015) 2 NWLR (PT. 1444) 529; OLLEY v. TUNJI (2013) 10 NWLR (PT. 1362) 275.
Submit that failure of the Respondents to argue and establish that the 1st Appellant was served with the pre-trial information sheet, amounts to admission that the Appellants particularly the 1st Appellant was not served with hearing notice for the proceedings of the 27th March, 2013.
That as at 27th of March, 2013, its only the Statement of Defence of the 2nd Appellant that was before the Court. The 1st Appellant had not filed its Statement of Defence. Therefore, pleadings had not closed, and the Court below was wrong to proceed to pre-trial, in the absence of any order foreclosing the 1st Defendant from filing its Statement of Defence.
That having not served the originating processes (as amended) on the 1st Appellant, the proceedings of 27th March, 2013 is against the principle of fair hearing.
That on the 19th of December, 2012, one Miss C. T. Anya, held brief for Alex Ikono for the 2nd Appellant only ? Page 386 of the Records. There was no appearance entered for the 1st Appellant.
That the Court below was therefore wrong when it held that he was satisfied that the 1st Appellant was served, and that he was represented in Court on the 19th of December 2012.
RESOLUTION OF THE LONE ISSUE
Noteworthy is that the date of judgment appealed is not stated in the Record of Appeal.
A cursory look at the Ruling of the Court below (at Page 394 of the Record of Appeal) is one of thirteen lines. It was delivered on the 2nd of December, 2013.
Assuming the Appellants were not served, it took them about six months, to seek to set aside the default judgment, and the law provides that you do that within 7 days.
It seems to me that the Appellants are at a loss as to why they are appealing as there is no appeal against the judgment on the 27th March 2013 which they consistently referred to.
This appeal is against the whole Ruling of the 2nd of December, 2013. And upon the Grounds set out in Paragraph 3 of the Ground of Appeal.
The originating Notice of Appeal had just one Ground of Appeal. But in the Amended Notice of Appeal deemed filed on the 26th of January, 2017, Paragraph 3 now has three Grounds of Appeal emanating from the Ruling of the 2nd of December 2013.
From records, in the further affidavit of the Appellant filed on the 12th of November 2013 ? Paragraphs 6-6 (II) (III) show that the pretrial notice was served on E. C. Loveth, who is neither a Counsel nor a Staff of Justice Law Firm Ibianabo Chambers and unknown to him ? Page 307 of the Record of Appeal.
At the proceedings of 2nd December 2013, Line 1 of Page 392, it shows that the Defendant/Appellant filed a motion on 6/9/13 to set aside the default judgment. The Claimant/Respondent filed a counter affidavit in response, to which the Defendant/Appellant filed a further affidavit and Reply on point of law.
In their further affidavit ? Paragraph 6 (II) (supra) they had denied the receiver of the Pretrial Conference Notice who is E. C. Loveth.
However, it was the same E. C. Loveth that received the counter affidavit of the Claimant/Respondent of which the Defendant/Appellant filed a further affidavit and Reply on point of law.
They cannot approbate and reprobate. This clearly shows that they lied on oath in their further affidavit.
As the application is seeking the discretion of the Court below to set aside the judgment that discretion must be predicated on truth and not lies. It must be exercised judicially and judiciously. Instead of the Appellant to come with clean hands, they came with lies thereby coming with dirty hands. The law and indeed the Courts deprecates this. In the Court proceeding of 2nd December 2013, one Onyiri Esq. specifically stated thus:-
?I now admit that the said Ehiwa Ohioma Loveth is indeed a member of staff of the Justice Law Office a.k.a. Ibinaukwu Chambers of No. 4 Aba Road, Umuahia. I therefore submit that Paragraph 6 (II) of the further affidavit filed by the Defendants/Applicants may have been a mix up. I say it is incorrect
To say, that there is a mix up in a Statement on oath is preposterous.
I am of the view that there is nothing to show that the Court below breached the principle of natural justice. EMEKA v. STATE (2014) 13 NWLR (PT. 1425) PAGE 114. It was the Appellants who did not do equity, but sought equity.
If the Court below had remarked thus:-
I am satisfied that all relevant processes have been served on the Defendants.? ? Pages 299 ? 300.
It did that based on the evidence before him and this Court cannot disturb same. Decidedly, an applicant who is desirous of setting aside a default judgment, should give to the Court which gave the judgment, the most important reason why the Applicant was not in Court LASCO ASSURANCE PLC v. DESERVE SAVINGS & LOANS LTD (2012) 2 NWLR (PT. 1283) Page 95 at 98.
There is no reason proffered by the Appellants. They only presented a lie to the Court, and the Court below was right to have exercised its discretion by refusing to set aside the default judgment.
?
The sole issue for determination based on fair hearing is misconceived and the Court below was right to have discountenanced same. At the expense of repetition indeed ONYIRO ESQ for the Appellants admitted that the Pretrial Notice was received by their office.
The Appeal is devoid of merit and same is hereby dismissed.
The Ruling of the High Court of Justice Umuahia delivered on the 2nd of December, 2013 in suit No. HU/143/2012 is hereby affirmed.
N50,000 costs in favour of the Respondents.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
Appearances:
ALEX IKONO, ESQ.For Appellant(s)
K. I. OLEH, ESQ.For Respondent(s)
Appearances
ALEX IKONO, ESQ.For Appellant
AND
K. I. OLEH, ESQ.For Respondent
