CAN DECLARATORY RELIEFS BE GRANTED ON MERE ADMISSION OR DEFAULT OF DEFENCE?

CASE TITLE: DANGOTE FLOUR MILLS PLC v. SAMAGADA INDUSTRIES LTD (2019) LPELR-48084(CA)

JUDGMENT DATE: 15TH JULY, 2019

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: JOSEPH EYO EKANEM, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Civil Procedure.

FACTS

This is an appeal against the decision of the High Court of Benue State, Makurdi, which was delivered by Igoche, J.

The respondent sued the appellant for declaratory, injunctive and monetary reliefs. On 23/9/2011, the trial Court, based on a motion, entered judgment for the respondent in respect of some reliefs in the statement of claim. This included the sums of N227,921.00 and N6,876,080.00. The respondent, in its ex – parte application was granted a garnishee order nisi attaching the judgment debt in the account of the appellant with the Guaranty Trust Bank Plc.

On 17/10/2011, when appellant and its counsel were absent at the pre-trial conference, the trial court entered final judgment against the appellant in respect of relief number 30 (a) and (b) which included the sum of N30,668,900.00. The trial Court also awarded general damages of N500,000 against the appellant. When there were moves to enforce the judgment, the appellant filed a motion seeking to set aside the default judgment and to stay action on the garnishee proceeding. The application was heard by the trial Court and was dismissed on 7/2/2012. Immediately thereafter the trial Court made the garnishee order in motion No. MHC/1296M/2011 absolute against the Guaranty Trust Bank.

Aggrieved, the appellant appealed to the Court of Appeal against the decision of the trial Court in Motion No. MHC/1402M/2011 delivered on 7/2/2012 in which the trial Court dismissed its application to set aside the default judgment. The appeal is numbered CA/MK/89/2012. Again, the appellant with the leave of Court filed a notice of appeal against the judgments of the trial Court delivered on 23/9/2011 and 17/10/2011, respectively. The two appeals were consolidated by the order of Court.

The respondent then raised a preliminary objection, urging the Court to dismiss the appeal.​
The argument of the respondent in respect of the preliminary objection was that:
(i) The appellants filed two separate appeals arising from the suit No. MHC/280/2010 instead of one;

(ii) The parties, the subject matter and the issues in the two appeals are the same, so also the arguments in the two appeals;

(iii) The later appeal, id est, the instant appeal is an abuse of Court process.

ISSUES FOR DETERMINATION

The Court considered whether the appeal constitutes an abuse of process of Court.

As a penultimate Court, and considering the merits of the appeal, the Court adopted the following issues distilled by the respondent:

“1. Whether or not the judgments are a nullity for lack of fair hearing or jurisdiction.
2. Whether or not in the circumstances of this case the lower court was wrong to grant relief 30 (a).”

DECISION/HELD

In conclusion, the Court of Appeal upheld the preliminary objection and dismissed the appeal. Considering the appeal on its merits, the Court resolved issue one partly in favour of the appellant and issue two in favour of the appellant.

RATIOS:

• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: What the concept of fair hearing entails; effect of a breach of the right to fair hearing.
• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Instance where it cannot be said that a right to fair hearing has been breached
• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: Whether failure to serve hearing notice is a breach of the right to fair hearing
• LEGAL PRACTITIONER- DUTY OF COUNSEL: Duty of counsel not to mislead the Court
• PRACTICE AND PROCEDURE- ABUSE OF COURT/JUDICIAL PROCESS(ES): Ingredients that must co-exist to sustain a charge of abuse of process.