CAN A DEFAULT JUDGMENT BE SET ASIDE?

CASE TITLE: EYO & ORS v. JAMES (2019) LPELR-47936(CA)

JUDGMENT DATE: 1^ST JULY, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: MOJEED ADEKUNLE OWOADE, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Civil Procedure.

FACTS

This is an appeal against the decision/Ruling of Hon. Justice E. F. F. Obot sitting at the High Court of Akwa Ibom State Uyo Judicial Division delivered on the 24th day of June 2013 in Suit No. HU/MISC.36/2012. The said Suit No. HU/MISC/.36/2012 is an application by the Respondent Applicant consequent on the pre-trial default judgment in favour of the Appellants in Suit No. HU/250/2008 where Hon.  Justice Eno H. Isangedighi of the High Court of Akwa Ibom State entered judgment in favour of the appellants who were Defendants in Suit No. HU/250/2008.

The facts are that Suit No. HU/250/2008 was slated for the continuation of the pre-trial conference on the 17th January 2012, but the Court did not sit on that date. Respondent’s Counsel, therefore, took the 21st of February, 2012 which was one of the dates suggested to Counsel by the clerk of Court. After the Plaintiff’s/Respondent’s Counsel left the Court, the Appellants/Defendants Counsel came and took the other suggested date which was the 7th of February 2013.

​When the matter was mentioned on the 7th February 2012, the Plaintiff/Respondent and his counsel were absent because they were not aware of the date. The Court then gave judgment for the Defendants (now Appellants). On 29/10/2012, counsel to the Respondent brought a Motion on Notice praying the Court for an order extending the time to bring an application for the setting aside of default judgment delivered in Suit No. HU/250/2008 on the 7th of February, 2012.

The parties filed affidavit and counter-affidavit and on the 24/06/2013, the learned trial Judge granted the Respondent’s Applicant’s Motion on Notice as prayed and re-listed Suit No. HU/250/2008.

Dissatisfied with this decision/Ruling, the appellants appealed to the Court of Appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues viz:

1. Whether the learned trial Judge was right in granting the reliefs sought by the Applicant when the applicant did not comply with the mandatory provisions of Order 25 Rule 6 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009.
2. Whether the learned trial Judge was not in error in granting the applicant’s reliefs when he was aware that the subject matter of the litigation was no more in existence.

DECISION/HELD

On the whole, the Court of Appeal held that the appeal lacked merit and it was dismissed.

RATIOS:

• JUDGMENT AND ORDER – JUDGMENT OF COURT: Effect of a judgment that is a nullity
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER: Position of the law on the failure to accompany an application to set aside a judgment with an undertaken to participate in a pre-trial conference
• JUDGMENT AND ORDER – DEFAULT JUDGMENT: Whether the court can set aside a default judgment.