Nature of a Judgment Delivered upon Deliberate Refusal of a Party to Take Part in Proceedings Despite Due Service of Court Process(es)

INTRODUCTION:

This appeal borders on Setting Aside Judgment.

CASE TITLE: GENESYS INTL LTD & ANOR v. NDIC (2023) LPELR-60605(CA)

JUDGMENT DATE: 26TH JUNE, 2023

PRACTICE AREA: COURT (JUDGMENT AND ORDER)

LEAD JUDGMENT: ABUBAKAR SADIQ UMAR, J.C.A. 

SUMMARY OF JUDGMENT:

FACTS:

This appeal emanated from the decision of the Lagos State High Court delivered by Honourable Justice Y.A. Adesanya on the 22nd May, 2009.

The fact of the case is that Trade Bank Plc. as the Claimant commenced this suit on the 20th February, 2003 and by its amended statement of claim, it prayed against the Defendants/Appellants jointly and severally for judgment in the sum N27,334,245.89 and 30% interest thereon being outstanding debit balance payable as at 25/11/2002 to the Claimant on account of a finance facility granted to the 1st Defendant/Appellant and guaranteed by the 2nd Defendant/Appellant as well as recovery expenses and fees in the sum of N2,850,000. Following the Liquidation of Trade Bank Plc, the present Respondent as the liquidator was substituted for Trade Bank Plc as the Claimant in the suit by an order of the lower Court on the 4th December, 2006.

Trial in the suit commenced on the 3/5/2004. After a series of adjournments in the matter at the instance of the Defendants/Appellants, the trial Court on the 19th June, 2007 foreclosed the defence and adjourned the matter for the adoption of the Respondent’s Written Address. Adoption of the Claimant/Respondent’s Final Written Address hitherto served on the Appellant’s counsel took place on 15/11/2007 in the presence of the Appellants’ counsel and the judgment was delivered on 24/1/2008 wherein the trial Court granted all the Respondent’s claims.

The Appellants by their motion on notice dated the 18th April, 2008 prayed the trial Court for sundry reliefs principally for an order setting aside the judgment delivered on the 24th January, 2008. The Respondent vide their counter-affidavit deposed on the 3rd October, 2008 opposed the application.

In a considered ruling delivered on the 22nd May, 2009, the lower Court dismissed the application. Dissatisfied with the ruling, the Appellants appealed.

ISSUES FOR DETERMINATION:

The Court determined the appeal on a sole issue, viz:

“Whether the trial Court was right or otherwise justified in law in refusing the Appellant’s application to set aside its judgment, entered against the Appellant on the 24th January, 2008?”

DECISION/HELD:

In conclusion, the Court of Appeal dismissed the appeal.

RATIOS:

• JUDGMENT AND ORDER – DEFAULT JUDGMENT/JUDGMENT ON THE MERIT – Distinction between a “default judgment” and a “judgment on the merits”
• JUDGMENT AND ORDER – DEFAULT JUDGMENT/JUDGMENT ON THE MERIT – Whether the judgment delivered after a deliberate refusal of a party to take part in proceedings despite due service of process is a default judgment or judgment on the merit
• JUDGMENT AND ORDER – SETTING ASIDE JUDGMENT/ORDER – Principles considered by a court in setting aside a judgment obtained in the absence of a party
• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING – Meaning of fair hearing; whether a party who has been given the opportunity to present their case can complain of lack of fair hearing
• PRACTICE AND PROCEDURE – PRELIMINARY OBJECTION – Whether a preliminary objection raised on appeal must be resolved before hearing the substantive appeal