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  • 2015-05-11
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Joe-Deb Ventures Ltd v. N.D.I.C.

  1. JOE-DEB VENTURES LTD
  2. JOSEPH KAYODE TINUOYE

V

  1. NIGERIAN DEPOSIT INSURANCE CORP.
  2. LIQUIDATOR OF TRADE BANK PLC

COURT OF APPEAL

( AKURE DIVISION )

SOTONYE DENTON-WEST JCA ( Presided and Read the Lead Judgment )

MOJEED A. OWOADE JCA

C. IFEOMA JOMBO-OFO JCA

CA/B/136/2005

WEDNESDAY, 21 MAY 2014

JUDGMENT AND ORDERS - Judgment obtained by a party who was not served with initiating process - Incompetence of

JUDGMENT AND ORDERS - Order or judgment - Inherent power of court to vary or set aside - When may be exercised

JUDGMENT AND ORDERS - Undefended list - Judgment obtained under - Whether is a judgment on the merit that cannot be set aside by a trial court - Defendant who seeks - Onus on

PRACTICE AND PROCEDURE - Service of initiating process - Party who was not served - Judgment obtained against - Incompetence of

PRACTICE AND PROCEDURE - Undefended list - Defendant under Notice of intention to defend - Proper time within which must file -  What constitutes

                     Joe-Deb Ventures Ltd v. N.D.I.C.

PRACTICE AND PROCEDURE - Undefended list - Judgment obtained under - Whether is a judgment on the merit that cannot be set aside by a trial court - Defendant who seeks - Onus on

Issues:

  1. Whether the High Court was right in refusing to set aside its own judgment dated 17 June 2004, which was obtained by fraud and misrepresentation.
  2. Whether the order of the lower court dated 1 June 2004, which is exhibit ‘D’, slating this case for hearing on 17 June 2004, supersedes the 8 (eight) days period (as commanded by the writ) within which the appellants should enter their memorandum of appearance and file their notice of intention to defend to the undefended writ in this suit.

Facts:

The respondents commenced an action in the High Court of Ondo State, under the undefended list procedure against the appellants claiming the sum of N46, 429, 774.08 (forty-six million, four hundred and twentynine thousand, seven hundred and seventy-four naira, eight kobo), being the debt owed the respondents, which the appellants have refused to pay despite repeated demands for with pre and post judgment interests. On the adjourned date, the trial court granted the reliefs claimed by the respondents and aggrieved, the appellants filed a motion seeking orders setting aside the judgment on grounds that it was obtained by fraud and setting aside the writ of summons marked undefended, which was issued by the respondents on grounds that the said writ was irregular and it was not properly served. The trial court held that the judgment being sought to be set aside was a judgment on the merit and that it had no power to set same aside. Not satisfied, the appellants appealed to the Court of Appeal, contending that the trial court erred by holding that it lacked jurisdiction to grant the application.