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  • F.M.F. Ltd. vs. Rivers State Polytechnic, Bori
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  • 2005-05-23
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F.M.F. Ltd. vs. Rivers State Polytechnic, Bori

FEDERAL MORTGAGE FINANCE LTD.

V

RIVERS STATE POLYTECHNIC, BORI

COURT OF APPEAL

( PORT HARCOURT DIVISION )

VICTOR AIMEPOMO OYELEYE OMAGE JCA ( Presided )

JOHN AFOLABI FABIYI JCA ( Read the Lead Judgment )

PIUS OLAYIWOLA ADEREMI JCA

CA/PH/364/99

MONDAY, 15TH NOVEMBER, 2004

COURT - Rules of court - Need for court not to be slavish to

COURT - Undefended list procedure - Jurisdiction of court thereunder -  Scope of

COURT - Undefended list - Duty on court on the return date in respect of matter entered thereunder

EVIDENCE - Fraud - Allegation of without particulars in support - Impropriety of - Insufficiency of to constitute triable issue

JURISDICTION - Court - Jurisdiction of under the undefended list

PRACTICE AND PROCEDURE - Rules of court - Need for court not to be slavish to

PRACTICE AND PROCEDURE - Undefended list - Duty on court on the return date in respect of matter entered thereunder

PRACTICE AND PROCEDURE - Undefended list - Judgment obtained thereunder -  Nature of

PRACTICE AND PROCEDURE - Undefended list procedure -

Allegation of fraud by defendant without particulars in support -  Impropriety of - Insufficiency of to constitute a triable issue

PRACTICE AND PROCEDURE - Undefended list procedure Defendant served with a writ marked “undefended” - What should do - Failure to - Effect

PRACTICE AND PROCEDURE - Undefended list procedure -  Notice of intention to defend - Need for to show triable issue

PRACTICE AND PROCEDURE - Undefended list proceedings - Procedure for

Issue:

Whether the trial court properly exercised its discretion in refusing the appellant’s application for extension of time to file notice of intention to defend and entering judgment for the respondent having regard to the affidavit filed by the parties.

Facts:

The respondent is said to be a customer of the appellant and maintained account No. 11-4107042-4. The respondent instructed the appellant to collect tuition and accommodation fees from its students on its behalf for the 1997/98 academic session. The appellant was to charge a commission of N200.00 per student. The appellant was further instructed to collect the said fees through its Bori cash office and lodge same into the respondent’s account No. 253100016 at All States Trust Bank Limited, Eleme Branch. The appellant carried out the instructions but failed to lodge a total of N5,561,045.50 in the plaintiff’s account at the All States Trust Bank Limited. Officials from both parties reconciled account and agreed that the appellant was owing the respondent about N5,358,495.00. On 12th February, 1998, the respondent stopped the appellant from further collection of fees on its behalf. The appellant continued to collect fees and this raised the total amount owed to the respondent to N5,561,045.50. By a letter dated 20th February, 1998 - exhibit ‘A’, the respondent requested the appellant to lodge the money but it ignored the request. This was followed by another letter, in response to which the appellant pleaded for time.

Subsequent to the respondent’s letter of demand vide its solicitors to the appellant, the respondent caused a writ to be issued at the trial court under the undefended list claiming the sum of N5,561,045.50 as well as interest. The appellant in an application it filed for extension of time within which to file and serve a notice of intention to defend did not attach a formal notice of intention to defend but rather an affidavit said to be in support of notice of intention to defend.

The learned trial Judge considered the affidavit put in by the appellant who did not file the requisite notice of intention to defend. He found that no tenable defence was shown and then entered judgment in favour of the respondent as claimed in the writ. The appellant dissatisfied with the judgment, appealed to the Court of Appeal.