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Maakuna vs. Saawuan

TERHEMBA MAAKUNA

V

CELESTINE SAAWUAN

COURT OF APPEAL

( JOS DIVISON )

OLULADE O. OBADINA, JCA ( Presided and Read the Lead Judgment )

ISA ABUBAKAR MANGAJI, JCA

IFEYINWA CECILIA NZEAKO, JCA

CA/J/222/2000

MONDAY, 13TH MAY, 2002

COURT - Undefended list procedure - Application to place suit thereunder -  What court must consider - Order 23, rule 1 Benue State High Court (Civil Procedure) Rules

COURT - Undefended list procedure - Date for hearing - Duty on court before fixing

COURT - Undefended list procedure - Discretion of court to place suit thereunder - Nature of - How exercised - Condition precedent thereto

FAIR HEARING - What amounts to - Importance of - Ingredients of - How determined

PRACTICE AND PROCEDURE - Undefended list procedure - Application thereunder - How to bring - Duty on Judge - Order 23, rule 1 of the Benue State High Court (Civil Procedure Rules) Edict 1988

PRACTICE AND PROCEDURE - Undefended list procedure - Date for hearing - Duty on court before fixing

PRACTICE AND PROCEDURE - Undefended list procedure - Discretion of court to place suit thereunder - Nature of - How exercised -

Condition precedent thereto

PRACTICE AND PROCEDURE - Undefended list procedure - Placement of suit under - How to initiate summons issued thereunder - When valid - When a nullity

PRACTICE AND PROCEDURE - Undefended list - Proper and valid placement of a writ of summons thereon - What constitutes

Issue:

Whether or not the procedure adopted by the learned trial Judge in placing the respondent’s suit on the undefended list and hearing same, had satisfied the requirements of the law under Order 23, rule 1 of the Benue State High Court (Civil Procedure) Rules, Edict 1988.

Facts:

The respondent as plaintiff sued the defendant/appellant at the High Court of Benue State for the sum of N34,500 which the appellant purportedly removed from the respondent’s car. The case of the plaintiff was that he gave a lift to the appellant in his official car. In the vehicle, plaintiff claimed he had N34,350 given him by his wife for delivery to the sales boy at the wife’s shop. While in the shop, according to the respondent, the appellant removed the money from the vehicle and disappeared before the respondent came back to the vehicle and discovered the disappearance of the appellant as well as the money from the vehicle. The respondent reported the incident at the Police Station. The appellant was arrested and he made statements admitting stealing the sum in issue.

On the basis of the admission of the applicant, the respondent brought an action against the appellant for the recovery of the said money under the undefended list procedure claiming the said sum. The learned trial Judge entered judgment for the plaintiff as prayed while ignoring appellant’s application for adjournment to enable him file a notice of intention to defend. Dissatisfied with the judgment, appellant appealed.