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  • Simetequip (Nig) Ltd v. Omega Bank Plc
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  • 2002-10-28
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Simetequip (Nig) Ltd v. Omega Bank Plc

SIMETEQUIP (NIG) LTD.

T.O. ADEJORO

V

OMEGA BANK PLC

( COURT OF APPEAL )

( BENIN DIVISION )

RAPHAEL OLUFEMI ROWLAND, JCA ( Presided )

BABA ALKALI BA’ABA, JCA ( Read the Lead Judgment )

KUMAI BAYANG AKAAHS, JCA

CA/B/289/99

MONDAY 16TH JULY, 2001

APPEAL - Fresh issue on appeal - How raised - Duty on party seeking to raise issue to obtain leave of appellate court

APPEAL - Ground of appeal - Need to relate to decision of trial court Impropriety of using ground of appeal to challenge ratio of

COURT - Court of Appeal - Power to interfere with exercise of discretion by trial court - When to exercise

COURT - Rules of court - Application of - Duty on court to ensure that Rules are applied in the interest of justice

PRACTICE AND PROCEDURE - Discretionary power of court - Exercise of discretion by trial court - Interference with by appellate court When proper

PRACTICE AND PROCEDURE - Rules of court - Essence of - Rules not to be applied to defeat justice

Issue:

Whether affidavit evidence of the appellant disclosed sufficient evidence on the merits to warrant listing the suit under the normal cause list instead of the undefended cause list under which it was heard and determined.

Facts:

The respondent as plaintiff commenced an action against the appellants as defendants at the Ondo State High Court, by a writ of summons dated 23rd January, 1991 supported by a 20-paragraph affidavit. The action was brought under Order 23, rule 1 of the Ondo State High Court (Civil Procedure) Rules 1987 under the undefended list procedure. Upon being served with the writ of summons with the supporting affidavit, a notice of intention to defend dated 25/2/91 accompanied by a 19-paragraph counteraffidavit was filed on behalf of the appellants.

Subsequently, the trial court ruled that the defendants had no good grounds of defence to the action and ordered that the suit be entered in the undefended list for hearing as such and the case was adjourned for hearing. In the end, after observing that the notice of intention to defend did not provide enough defence to the action, judgment was entered for the plaintiff/ respondent by the trial Judge as per the writ of summons.

Dissatisfied with the judgment, the defendants/appellants appealed.