The plaintiffs, R. Lauwers Import - Export, sued the defendant Company, Jozebson Industrial Co. Ltd., in the High Court of Justice of Anambra State in the Onitsha Judicial Division in 1984 for the sum of N1, 176,382.54 being the amount due from the defendant to the plaintiff on various bills of exchange. The claim by the plaintiff against the defendant was clearly headed "Claim on the Undefended List”. Pursuant to this claim a civil summons with suit No. 0/123/84 between the plaintiff and the Defendant was issued in the Onitsha High Court registry on 16th March 1984. The summons was marked on the top of it "Undefended List" and the return date of the summons was 20th March, 1984. The claim of the plaintiff which as I have just said was head “claim on the undefended List" was attached to the summons. The summons with its annexture was served on the Defendant who on 17th March 1984 filed in the Onitsha High Court registry a notice of intention to defend the plaintiff's suit.
The suit was called in court on the return date, 20th March, 1984.
Judgement was entered by Nwokedi J. for the plaintiff on the admission of liability by the defendant in the sum of N904,644 plus costs assessed at N2,500.00.
The scenarios which emerged after this judgement were as follows in chronological order:-
By an application dated 30th April, 1984 the defendant by its counsel, H.G. O., Okwudili Esq., moved the Onitsha High Court for an order of that court that the judgement debt be liquidated by installments. The application was heard on 29th May 1984. The court gave its ruling on it on the same day in the following terms:-
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1
Defendant/Applicant is to make a down payment of N250,000.00 and thereafter from 1st July to pay N30,000.00 monthly until the whole debt is paid off. Failing which the plaintiff/respondent will be left to fall back to his legal remedies."
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ii
There was an application in June 1984 by the defendant in the Onitsha High Court for leave to appeal against the ruling on the application for an order for installmental payments. The application was struck out on June 15, 1984 for non-appearance of parties or their counsel.
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iii
There was an application again by the defendant for an order of court varying the order for installmental payments of 29/5/84. The application was heard and determined as follows on 5/7/84: -"Court: Having heard application for Defendant to vary the earlier order by this Court for the company to pay N250, 000.00 and N30, 000.00 monthly until the debt is liquidated and after considering the arguments of both sides especially the present economic hardship in the country, the Court decided to vary it's order by ordering Defendant to make a down payment of N70, 000.00 and thereafter N20, 000.00 monthly until the debt is finally paid off."
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iv
There were appearances in court for the determination of the issue of the proper interest rate, to which the judgement of 20/3/84 was subject, on 10/12/84, 21/3/85 and 21/5/85. It does not appear from the record of proceedings in this appeal how the issue was resolved. Nothing turns on this issue in this. So I need not dwell any more on this aspect of the matter.
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v
During the period between 20/3/84 and 23/9/86, the defendant paid to the plaintiff a sum of N432, 851.05 in liquidation of the judgement debt pursuant to the order for installment payments thereof.
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vi
Subsequently, upon default by the defendant in making further instalmental payments, the plaintiff caused execution to be levied for the balance of the judgement debt. Whereupon the defendant applied to the Onitsha High Court for the writ of execution to be discharged. Ruling on the application on 28/4/86, Awogu J., as he then was, refused it.
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vii
Pursuant to an application by the defendant, the Court of Appeal, Enugu Division granted the defendant leave to appeal against the ruling of Awogu J. (as he then was) of 28/4/86 and a stay of execution of the judgement in suit No. 0/123/84, the judgement debt to which the application before Awogu J. related.
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viii
Thereafter by an application dated 8th July, 1986 the defendant moved Court of Appeal, Enugu Division for the following reliefs: -
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1
To enlarge the time within which to appeal against the judgement of Hon. Mr. Justice F.O. Nwokedi of the Onitsha High Court in the above suit dated 20/3/84.
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i
To dispense with settlement of records and regard the documents containing records of proceedings herein exhibited containing the claim marked under undefended list, notice of intention to defend judgement and applications and orders for instalmental payment as sufficient for purpose of this appeal as no oral evidence or any document was taken or tendered.
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ii
To regard the Notice and Grounds of Appeal exhibited herein with this application as being proper Notice of Appeal and deemed as properly filed and served on the plaintiff/respondent subject to payment of proper fees.
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iii
For STAY OF further Execution of the judgement debt or any further payments of any installments of the said judgement debt as ordered to be paid, till the determination of the Appeal."
The reasons for the delay in appealing within the period prescribed by law were numerous.
Being of opinion that the judgement in question was a consent judgement, the appellant contended that the Court of Appeal was in breach of section 220(2)(c) of the constitution by which an appeal against a consent judgement must be by leave of court.
