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  • 2004-01-12
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Planwell Watershed Ltd. vs. Ogala

PLANWELL WATERSHED LTD.

GOODAY AKHAINE

V

CHIEF VINCENT OGALA

SUPREME COURT OF NIGERIA

SALIHU M. A. BELGORE, JSC ( Presided and Read the Lead Judgment )

ALOYSIUS IYORGER KATSINA-ALU, JSC

UMARU ATU KALGO, JSC

SAMSON ODEMWINGIE UWAIFO, JSC

DENNIS ONYEJIFE EDOZIE, JSC

SC. 113/1998

FRIDAY, 12TH DECEMBER, 2003

PRACTICE AND PROCEDURE - Undefended cause list - Defendant merely stating that the defendant has a defence to an action begun thereunder -  Whether enough

PRACTICE AND PROCEDURE - Undefended cause list - Judgment entered thereunder - Application to set aside - Need not only to be supported by an affidavit but by the proposed defence to the suit

PRACTICE AND PROCEDURE - Undefended cause list - Object of rule of

PRACTICE AND PROCEDURE - Undefended cause list - Proposed defence filed thereto - Need for same to be clear on the face of the affidavit and need to attach such defence to the application

PRACTICE AND PROCEDURE - Undefended cause proceedings under Order 23 of the High Court (Civil Procedure) Rules, Bendel State applicable to Edo State - Application of


PRACTICE AND PROCEDURE - Summary judgment procedure - Order 10 , rule 1(a) of the High Court of Lagos State (Civil Procedure ) Rules, 1973 - Judgment obtained thereunder - Whether liable to be set aside

PRACTICE AND PROCEDURE - Summary judgment procedure - Requirements for setting same aside

Issues:

Whether the learned justices of the Court of Appeal were right in law and on the facts in affirming the decision of the lower court which refused to set aside the judgment obtained against the appellants and in default of the appellants’ filing a notice of intention to defend the suit.

Facts:

The respondent as plaintiff claimed from the appellants as defendants a liquidated sum of N768,850.00 as amended in the writ of summons which was filed in the High Court, Benin City, supported by affidavit for the purpose of listing the suit under the undefended list. The sum claimed was for supply of general goods but the appellants failed to deliver any of the goods to the plaintiff despite repeated demands. The respondent also claimed interest at 25% before judgment and 10% after judgment. The appellants were duly served with the writ of summons. But within the time set by the Rules aforementioned, the appellants as defendants did not site any Notice of Intention to Defend. On the return date on 15th July, 1993, neither the appellants nor their counsel were in court. The respondent in accordance with the Rules of that court testified to prove his case and judgment was accordingly entered for him.

Subsequent to the judgment and on 8th September, 1993 the appellants filed an application for setting aside the said judgment or alternatively granting the appellants extension of time to file Notice of Intention to Defend. The appellants’ counsel sworn to an affidavit in support of the application. The substance of the affidavit was that the defendants were in prison custody in respect of a criminal matter and that the office of 1 st appellant was closed. The appellants admitted being served with the writ of summons. However, the appellants did not provide any unit of what the proposed defence to the action was. The trial court consequently refused the application.

The appellants appealed to the Court of Appeal, which dismissed the appeal. The appellants thus appealed to the Supreme Court. The Supreme Court considered the following provisions of the Rules of court.

Order 23, rule 3(1) High Court (Civil Procedure) Rules, 1988 of the

then Bendel State -

“If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days, before the date fixed for hearing, a notice  in writing that he intends to defend the suit, together with an affidavit  disclosing a defence on the merit, the court may give him leave to defend upon

such terms, as the court may think just.” Order 37, rule 9:

“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

Order 14, rule 11, Rules of Supreme Court of England:

“Any judgment given against a party who does not appear at the hearing of an application under rule 1 or rule 5 may be set aside or varied by the court on such terms as it thinks just.”