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  • Aubergine Collections Ltd v. Habib Nig. Bank Ltd
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  • 2002-11-11
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Aubergine Collections Ltd v. Habib Nig. Bank Ltd

AUBERGINE COLLECTIONS LTD

MRS.  FARIDA TARFA

V

HABIB NIGERIA BANK LTD

COURT OF APPEAL

( ABUJA DIVISION )

DAHIRU MUSDAPHER, JCA ( Presided and Read the Lead Judgment )

MUHAMMAD-SAIFULLAHI MUNTAKA-COOMASIE, JCA

ALBERT GBADEBO ODUYEMI, JCA

CA/A/26/2000

TUESDAY, 4TH DECEMBER, 2001

COURT - Appellate court - Duty of to review and correct errors made by trial court

COURT - Duty not to visit blunder of counsel on litigant

COURT - Issues for determination - Duty of court to treat all issues raised before it

LEGAL PRACTITIONER - Counsel - Blunder of counsel - Need not to visit on litigant

PRACTICE AND PROCEDURE - Undefended list action - Defendant whose affidavit shows a good defence - Need to permit same to defend the action

PRACTICE AND PROCEDURE - Undefended list action - Defendant who takes improper steps to defend - Need to be allowed to defend

PRACTICE AND PROCEDURE - Undefended list action - Failure of defendant to defend action - Whether ipso facto renders plaintiff’s claims proved


PRACTICE AND PROCEDURE - Undefended list procedure - Defendant having a defective application of intention to defend - Whether can be allowed to defend

Issues:

1.            Whether the lower court has jurisdiction upon the application of a party to wit the appellants herein to extend time within which to file notice of intention to defend.

2.            Whether on the face of the defendant/appellant’s motion on notice dated 15th February, 2000 to which the proposed notice of intention to defend was annexed, the trial Judge was right in refusing the appellants’ application for extension of time and proceeded to enter judgment against the appellants thereby denying them the right to defend the suit.

Facts:

The respondent herein as plaintiff filed an action at the High Court of the Federal Capital Territory, Abuja against the defendants/appellants claiming N1,845,073.40k being the total outstanding debt owed, 10% of the sum claimed as interest and cost of the action.

The suit was placed on the undefended list. The defendants being out of time in filing their notice of intention to defend the action filed on the 15th February, 2000 a motion on notice seeking for extension of time and attached to the motion was notice of intention to defend the action. The affidavit in support of the motion disclosed and explained the reasons for the inability to file the notice of intention to defend within the stipulated period. With the leave of the trial court, the defendants’ motion was moved in the absence of the plaintiff’s counsel.

The learned trial Judge Bukar J., refused the application and proceeded to hear the action on the undefended list in the absence of the plaintiff’s counsel and entered judgment in favour of the plaintiff/ respondent.

Being dissatisfied, the defendants/appellants brought this appeal to challenge the said decision.