IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA
DATE: 30th January 2020 SUIT NO. NICN/LA/395/2019
MR. OPUTA NWABUEZE … CLAIMANT/APPLICANT
MORISON INDUSTRIES PLC … DEFENDANT/RESPONDENT
1. By motion on notice dated and filed on 20th September 2019 brought pursuant to Orders 9 rule 5, 35 rules 2, 3 and 6 and 17 rule 1, National Industrial Court of Nigeria [Civil Procedure] Rules, 2017 and under the inherent powers of the Court, the Claimant prayed this Court for:
a. An order entering judgment for the Claimant/Applicant for the sum of
N6, 138,333.22 being a refund of pension of N3, 136,666.54 and outstanding salary of N3, 002,666.68 together with interest at 21% per annum up to judgment and 10% per annum until final payment as per the originating process in the forms of complaint attached hereto as Exhibit A-A45.
b. An order setting down the rest of the claim in the forms of complaints namely:
N100 million general damages and declaratory reliefs for trial and determination.
Grounds for the application:
Default of appearance and default of defence and on the further grounds stated in the supporting affidavit.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstance of the case.
The application is supported with 10 paragraphs affidavit deposed to by the Claimant. Attached to the affidavit is exhibit A-A45. In compliance with the Rules of the Court, the Claimant filed a written address dated 20th September 2019. In opposition to the application, the Defendant filed a counter affidavit dated 2nd October 2019 sworn to by Mr. Ezekiel Archibong, a legal practitioner in the law firm of Aina Blankson LP, Defendant’s Solicitors. Attached to the affidavit is one exhibit marked as exhibit A. In compliance with the Rules of the Court, the Defendant filed a written address dated 30th September 2019. The Claimant filed a reply on point of law dated 14th October 2019 which learned counsel did not adopt or advert to in his oral submission.
2. Arguing the application on 22nd January 2020, Mr. Esezoobo, learned counsel for the Claimant relied on the affidavit in support and adopted the written address as his argument in support of the application. He noted that only paragraph 28 of the defence refers to the motion. In opposition, Mr. Nwosu, learned counsel for the Defendant adopted the counter affidavit together with the attached exhibit and written address and urged the Court to dismiss the application.
In the written address filed in support of the application, learned counsel for the Claimant raised one issue for determination to wit:
“Whether this is not an appropriate case for the Court to enter final judgment in favour of the Claimant as per the originating process and the accompanying documents including the witness statement and other exhibits?”
Counsel submitted that on the facts before the Court, this is an appropriate case for invocation of the final judgment procedure under Orders 17 rule 1, 35 rules 1, 3 and 6 as well as order 9 rule 5 of the Rules of this Court to the extent that the sum claimed is a debt or a liquidated money demand. He referred to some cases including Akpan v. Akwa Ibom Property & Investments Co. Ltd  12 NWLR [pt.1368] 377 at 400 and Nishizawa v. Jetwani  12 S.C 234. He argued that the same principle as in summary judgment and undefended list applies with respect to debt or liquidated money demand as in this case. He urged the Court, upon the pleading and supporting exhibit, to hold that the Claimant’s claim is worthy, upon the Defendant’s default, to be granted. It was further argued that from the perspective that the claim is a debt or liquidated money demand, the Court should be favourably disposed to the application for judgment in default of appearance and defence. Akpan v. Akwa Ibom Property & Investments Co. Ltd [supra] was cited in support. He contended that in determining the issue the Court will look at the pleading together with the documents marked exhibits and quip why no appearance and no defence. The Court was urged to grant the application.
Learned counsel for the Defendant also submitted one issue for determination, viz:
“Whether, considering the Respondent’s motion on notice for extension of time and statement of defence already filed and served, this application should not be dismissed by this Honourable Court?”
Arguing this issue, counsel submitted that it is now settled law that a party’s right to fair hearing is of fundamental and constitutional significance and should not be whittled down except in deserving circumstances. He noted that a hearing cannot be fair if a party is denied the opportunity to be heard or to present his case. He cited a number of authorities including Ogundoyin v. Adeyemi  13 NWLR [pt.730] 403. He conceded that this Court has power to enter judgment in default of appearance, but noted that in exercising that power the Court is bound to act judicially and judiciously, taking into cognizance the relevant principles of law, facts and the circumstances of the case and the need to do justice to the parties. He argued that the grant of the application will go against the principle of law which enjoins the Court to keep cases alive and hear it on the merits. S & D Construction Company Limited v. Ayoku & Anor.  LPELR-SC.52/2003 was cited in support. The Court was urged to dismiss the application.
In his reply on point of law, the Claimant raised four points of law arising for determination namely:
a. Whether the Defendant/Applicant’s counter affidavit is admissible and if admissible whether it is credible and discloses any reasonable grounds for failure to enter appearance/file defence within time?
b. Whether the mere filing of a motion for extension of time precludes the Court from granting a motion to enter final judgment for part of the claim before it?
c. Whether in the competing rights of the parties to a fair hearing it will not amount to a denial of a fair hearing of the Claimant within a reasonable time?
d. Whether it is not oppressive and scandalous in the circumstances to refuse the motion for judgment on the ground that the applicant has paid the Court the prescribed penalty and filed a motion for extension of time to file defence?
The Claimant’s reply on point of law is actually a fresh argument of his motion for judgment and response to the Defendant’s motion for extension of time to file the defence processes and dwelt extensively on facts.
3. The issue that calls for determination in this application is whether the Court should enter judgment in favour of the Claimant in default of appearance and defence having regard to the circumstances of this case? Orders 9 rule 5 and 35 rule 1 of the Rules of this Court provide as follows:
“9 Where a defendant or respondent fails to file a Memorandum of Appearance within the stipulated time, or fails to file appropriate processes in defence of the action within the prescribed time, and also fails to file a declaration of intention not to defend the action, the Court may proceed to hear the matter and give judgment.”
“35 If the Claim is for debt or liquidated demand only, and the Defendant does not within the time allowed for the purpose file a Defence, the Claimant may, at the expiration of such time apply for final judgment for the amount claimed with costs.”
Indisputably, this application calls for the exercise of the discretion of the Court which, in all cases, must be exercised judicially and judiciously. The learned authors of Black’s Law Dictionary, 10th edition by Bryan A. Garner, defined ‘judicial discretion’ as “The exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law”. In Union Bank of Nig. Plc v. Astra Builders [W.A.] Ltd.  2-3 S.C. [pt.1] 59 at 82-83, Adekeye, J.S.C., remarked that:
“An exercise of discretion is an act or deed based on one’s personal judgment in accordance with one’s conscience, free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by a previous decision of another Court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise of a judicial discretion by a Court for if that happens, a discretion becomes fettered.”
However, in exercising his discretion, the Court is to have regard to the facts, circumstances of the case and applicable law or principles; which moderate how the discretion is exercised.
4. What are the facts in support of the application for judgment in default of appearance and defence? The relevant facts are contained in paragraphs 5, 6, 7, 8 and 9 of the affidavit in support of the motion on notice. The Claimant’s case is that the originating processes were served on the Defendant on 5th August 2019 and it had 14 days from that day to enter appearance and file a defence. It neither entered appearance nor filed its defence and the time for doing so had elapsed. By the provisions of Orders 9 rule 5 and 35 rule 1 of the Rules of this Court the Claimant is entitled to apply to the Court for judgment in default of appearance and defence. This is what the Claimant has done. On its part, the Defendant, apparently upon receipt of the motion for judgment, filed its memorandum of appearance and defence processes together with an application for enlargement of time and a deeming order which has just been granted.
The duty of the Court, in these circumstances, is to balance the competing interests. Learned counsel for the Claimant relying on Akpan v. Akwa Ibom Property & Investments Co. Ltd [supra] urged the Court to enter judgment in favour of the Claimant for the liquidated sum. Counsel explained that the objective and intent of the rules as expressed in Order 1 Rule 4 is for easy and speedy resolution of civil matters. Relying on Elebanjo v. Dawodu  15 NWLR [pt.1001] 76 at 127 he argued that the essence of administration of justice is to make access to justice as quickly and as cheap as possible. On the other hand, counsel for the Defendant argued that the grant of the application will go against the principle of law which enjoins the Court to keep cases alive and hear it on the merits.
In Akpan v. Akwa Ibom Property & Investments Co. Ltd  5-6 SC [pt.II] 114 at 138, Galadima, J.S.C., who delivered the leading judgment held that:
“It is incorrect to contend that when a Defendant fails to file notice of intention to defend the suit the court must automatically enter judgment for the Plaintiff.”
In his contributing judgment, Ariwoola, J.S.C., at page 141 of the report, remarked that:
“Summary judgment therefore is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.”
Contrary to the argument of Claimant’s counsel, there is a clear distinction between default judgment and summary judgment or judgment under the undefended list procedure. What the Claimant prayed for in this application is default judgment and not summary judgment or judgment under the undefended list procedure. As the words imply, default judgment is judgment obtained by the Claimant in reliance on some omission on the part of the Defendant, in this case failure to enter appearance and file its defence within the time allowed by the Rules of Court. A default judgment is not a judgment on the merits, while a summary judgment is based on want of a defence to the Claimant’s claim and is a judgment on the merits. See Maduike v. Tetelis Nigeria Limited  LPELR-24288[CA] 19-21. The principles for grant of an application for summary judgment do not apply inexorably to an application for judgment in default of appearance and defence; the basis of the latter application being absence of memorandum of appearance and statement of defence. Also, the grant of an application for extension of time to file the defence processes obviates the need to hear the motion for judgment which should ordinarily be withdrawn. Where it is not withdrawn, as in this case, the Court cannot grant it in the face of the memorandum of appearance and statement of defence. This is the hallmark of a proper exercise of discretion. The motion for judgment in default of appearance and defence is self-limiting and the Court cannot ignore the memorandum of appearance and statement of defence filed by the Defendant albeit irregularly. See Mobil Producing Nigeria Unlimited & Anor. v. Monokpo & Anor.  12 SC [pt.II] 50 at 88 and United Parcel Service Ltd. v. Prince Obot Ufot  LPELR-7562[CA] 33-34. In the latter case, Omokri, J.C.A., held:
“Where a defendant had filed his statement of defence before the plaintiff’s application to enter judgment in default was taken, it would be wrong for the trial court to ignore such defence even if it was filed out of time…. The attitude of the court is always to lean towards the applicant to put in his defence so as to have the case decided on merit in order to avoid miscarriage of justice. The court has the unfettered discretion instead of proceeding to judgment to give leave to the defendant to perfect the default if justice demands that the court should take that course.”
In the instant case, it is my considered opinion that justice demands that the application for judgment be refused and, having granted the application to regularize the Defendant’s processes, to set the matter down for trial.
In the circumstance, the motion for judgment in default of appearance and defence fails and it is hereby dismissed.
Ruling is entered accordingly.
IKECHI GERALD NWENEKA