3PLR – BEN THOMAS HOTEL LTD. V. SEBI FURNITURE CO. LTD
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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BEN THOMAS HOTEL LTD.
V.
SEBI FURNITURE CO. LTD.
SUPREME COURT OF NIGERIA
S.C. 252/1988
3PLR/1983/13 (SC)
OTHER CITATIONS
(1989) NWLR (Pt.123)523
BEFORE THEIR LORDSHIPS
KAYODE ESO, J.S.C. (Read the Lead Judgment)
MUHAMMAdo LAWAL UWAIS, J.S.C.
ANDREWS OTUTU Obaseki, J.S.C.
ABDUL GANIYU OLATUNJI AGBAJE, J .S.C.
AUGUSTINE Nnamani, J.S.C.
REPRESENTATION
Wole Olanipekun……For the Appellant
Ademuyiwa Adeniji……For the Respondent
EDITORS
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
MAIN ISSUES
CIVIL PROCEDURE- Mode of service on a company – Order 5, rule 8(2) of the High Court of Kwara State (Civil Procedure) Rules, 1975, Suffices to be left at the registered office of the company and no more.
CIVIL PROCEDURE- Undefended list procedure- under Order 3, rules 8-12 of the High Court of Kwara State (Civil Procedure) Rules, 1975,
CIVIL PROCEDURE-Setting aside judgment obtained under the undefended list
Eso. J.S.C delivering the judgement of the Court
This matter started as a judgment of the High Court, Kwara State, Lokoja judicial division, coram Leslie, J. But the history before that judgment is equally interesting. The action was brought by motion for judgment under the undefended list. The claim which the plaintiff had brought was an action for what he termed:-
“outstanding balance of N68,000.00” as “Cost of furniture items thus supplied to the defendant” and 10% interest per annum.”
The motion on the undefended list came before the court on 2nd December, 1987. The defendant company was not represented and the ruling was entered in favour of the plaintiff on 8th December. The judgment of the court then was:-
“The result is that the judgment is entered in favour of the plaintiff as per writ of summons for the sum of N68.000.00 vides Order 3 Rule 12 of the High Court (Civil Procedure) Rules, 1975. The defendant shall also pay 10% interest on the stated sum until judgment debt is finally liquidated: – vide Order 27 Rule 8 of the High Court (Civil Procedure) Rules 1975.”
Costs of N700.00 were also awarded.
On 22nd December 1987, an application was brought before the court to;
“set aside or vary the judgment”
After an exhaustive argument, ruling was given thereupon on 19th February, 1988. The court (Leslie, J.) dismissed the motion.
The defendant, Ben Thomas Hotels Ltd., appealed to the Court of Appeal. The main plank upon which the appeal was hung was that there was no proof before the learned trial judge that hearing notice was served on any official of the defendant company.
In a judgment delivered by Akpabio, J.C.A., the court held in regard to the complaint on service not having been effected: –
“In resolving this question, I must agree with the submission of learned counsel for the respondent that the answer to this question must be looked for within the four walls of Order 5 rule 8(2) of the High Court (Civil Procedure) Rules of Kwara State, 1975, and nowhere else. Under that rule, there is no provision for the writ or other document to be delivered to a named official of the defendant company. It is merely to be left at the registered office of the defendant company and no more. There was no suggestion by the learned counsel for the appellant that the address, Kabba-Ajaokuta New Road, Kabba, Kwara State, which appeared on the writ of summons, was not the “registered office” of the defendant/appellant. In my view, once the writ of summons has been shown to have been left in the premises of the registered office of the appellant, the provisions of Order 5 Rule 8(2) has been complied with even though the name of the official of the appellant company to whom the document was delivered was not stated.”
The appellant also complained of discrepancy between the names of the parties on the writ of summons and those in the affidavit of service. The learned justice of the Court of Appeal answered:-
“I agree with the submission of learned counsel for the respondent that whatever omissions or error there might be in the nomenclature of the parties in the affidavit of service, cannot have any bearing on the validity of the service of the writ on the appellant as the affidavit of the service was not a document intended for service on the appellant. Rather, it was only a document intended to satisfy the court that the writ has been duly served. As long as the suit number on the affidavit of service was the same as that on the case file, it was clear the parties were the same. Besides, the difference between the names on the writ and those on the affidavit of service cannot even be said to be misnomers. Rather one was an abbreviation of the other, so as to bring the name within the space available on the form judicial C.27. We are all very familiar with the abbreviation of such names as “Union Bank,” in place of the full name of “Union Bank of Nigeria Ltd.” or “Savanah Bank” in place of “Savanah Bank of Nigeria Ltd.” or “Leventis Motors” in place of “Leventis Motors Ltd.” or “S.C.O.A. Motors” in place of “S.C.O.A. Motors (Nig.) Ltd,” In view of these, I think that the objection of learned counsel for appellant in this regard was nothing but a mere quibble.”
And he held:-
“On the totality of the foregoing, I am satisfied, as did the learned trial judge, that the appellant was effectively served with the writ of summons and the affidavit in support in this case, but deliberately refused to show up in court as a delaying tactics. Grounds 1, 2, and 3 of this appeal therefore, fail.”
I have tried to quote the judgment of the learned Court of Appeal in ex-tenso as there seems a lot of logic in the reasoning of the learned justice of the Court of Appeal and the grounds of appeal before that court would appear to have been repeated and relied upon in this court.
There was another point made by the appellant in the Court of Appeal, and that was that when a case comes up for the first time in a court, it should not be heard. The Court of Appeal had no difficulty too in dismissing this ground.
He concluded:-
“The above judgment in my view, did not replace the general rule laid down under order 3 rule 8 as follows:-
“…. the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
“From the above provision of order 3 rule 8 coupled with Rules 9-12 of the Kwara State High Court (Civil Procedure) Rules, 1975, it is very clear that when a case entered on the “Undefended List” comes to court on the return date, the court has one and only one duty, namely to see whether the defendant has filed a notice of intention to defend and an affidavit. If no such notice and affidavit has been filed within five days before the return date, the court has no choice in the matter but to proceed to judgment. Since no pleadings are required to be ordered in a case under the “Undefended List” it cannot be said that a case on that list coming to the court for the first time is coining for mention. According to order 3 rule 8 set out above, it is coming for hearing.”
And so, on the totality of the case put before the Court of Appeal, by both sides, the court held: –
“1. That the defendant/appellant was effectively served with the writ of summons in accordance with the Laws of Kwara State.
- That the learned trial judge was right in hearing and determining the case on the date he did.
- That the learned trial judge was right in entering judgment for the respondent based on the provisions of Order 3 rule 12 of High Court (Civil Procedure) Rules of Kwara State, 1975; and finally
- That the learned trial judge was right in refusing to set aside the said judgment of 8/12/87 because he was “functus oficcio.”
The court dismissed the appeal and an appeal there from has been lodged in this court. I have earlier said that the grounds of appeal in the Court of Appeal have been duplicated here.
Learned Counsel for the appellant, Mr. Wole Olanipekun, in a full brief, urged on grounds I, II and III of his grounds of appeal that:
“The service of the writ and statement of claim was on Ben Thomas Hotel whereas the name of the appellant was Ben Thomas Hotel Ltd.”
He in fact seemed to have made a real heavy weather of this point. But with respect, there is no weight, heavy or light in the argument.
Order 5 rule 8(2) of the High Court (Civil Procedure) Rules of Kwara State, 1975 provides:-
“Service on a company may be effected by leaving the document a or sending it by registered post to, the registered office of the Company”
The affidavit of the manager of the plaintiff company provides: –
“That Alhaji Ibrahim Dasuki, a bailiff in the Lokoja High Court served the applicant in my presence on 28th September 1987, at about 11.00 a.m. whilst I acted as a pointer with the processes in suit No. KWS/LO/16/87 and also a police constable No. 113324, Uwenu C. of Kabba Police Station was in attendance and he wrote a testimony of the service.”
Ibrahim Dasuki, the bailiff, filed an affidavit of service, which was part of the evidence in the case. He said:-
“On the 30th day of October, 1987, at 9.30 a.m. I served a writ of summons, a true copy whereof is hereunto annexed issued out of this court Lokoja upon the Ben Thomas Hotel Kabba a complement of civil summons by delivering the same personally to Manager to Ben Thomas Hotel Kabba………..”
I think the rule had been adequately complied with. The bailiff, Dasuki, could even have just left the summons on the premises. He did not do so. He left it with a person he referred to as manager. To my reasoning, this is good service and the trial court had sufficient facts before him to have made the decision that the defendant was:-
“duly served as evidenced by the affidavit of service sworn to on the 4th day of November 1987 by the senior bailiff on judicial form…”
The Court of Appeal after a brilliant summation affirmed this finding as j Akpabio, J.C.A., who said: –
“Finally, on this question of whether there was or was no effective service, I should like to make at least three other observations, which clearly justified the learned trial judge in holding that there was effective service on the appellant. First, the case was one of one oath against two oaths. We had the oath of Dada Olorunfemi, appellant’s supervisor against the oath of senior bailiff (an independent court official) as well as the oath of one Sefunmi Adekunle, a Manager of respondent company who swore to a counter-affidavit that he acted as a pointer to the bailiff, Alhaji Ibrahim Dasuki, and was present when the writ of summons was served on the manager of appellant on the 30th October, 1987 at 9.30 a.m. prompt. Secondly, there was the fact that the said appellant’s affidavit was sworn to by a relative junior employee of the appellant who knew next to nothing about the matter, instead of by the chairman/chief execute Mr. B.A. Sesere, who ordered the furniture in dispute, and had personal knowledge of the matter. Appellant’s supervisor paragraph two of his affidavit stated that:-
“I know of the facts of this case,” and yet turned round at paragraph 12 to say:-
“That up till now, the applicant does not know what the action or claim which culminated in the judgment of 8/12/8 is all about.”
There was also no indication as to how they came to know of the existence of the said judgment, e.g., whether there was an attempted execution or attachment on them, as was the case Wimpey Ltd. v. Balogun (supra).
Thirdly, throughout the whole affidavit, of appellant’s supervisor, there was no where it was alleged that the appellant had good defence to the action and so should be allowed to defer neither was any indication whatsoever given about what such defence would be. He merely wanted the judgment set aside for nothing.”
With respect, I cannot fault this reasoning. Indeed, I agree with the reasoning and conclusion of the Court of Appeal.
On ground IV of the grounds of appeal, the learned counsel for the appellant attacked in his brief the decision of the trial court that it held it was, functus officio and could not set aside its own judgment. Learned counsel relied upon Order 3 rule 14 of the Kwara State High Court Rules.
However, in the argument before the court, learned counsel seemed to have abandoned this point.
After my decision in regard to grounds I, II, III and having regard the attitude of the learned counsel for the appellant it is my view that a decision upon this point is no longer necessary. The important point in this case is that the action was brought under the undefended list. It has been held that the defendant was properly served. The court had every right to try the matter on the first day of its coming before it. The defendant failed to show up after service. The court gave judgment upon the facts before it to the plaintiff and rightly in my view.
Despite the voluminous and detailed submissions of learned counsel, there is no substance of any sort in this appeal. It is hereby dismissed. The order of the trial court, which was affirmed by the Court of Appeal, is hereby further affirmed. Costs of N500 are hereby awarded to the respondent.
Obaseki. J.S.C.
I have had the privilege of reading in advance the draft of the judgment just delivered by my learned brother, Eso, J.S.C., and I find that his opinions and mine agree on all the issues raised for determination in this appeal. I therefore adopt his opinions as mine and agree with him that there is no substance in this appeal.
If a defendant properly served with a writ of summons decides to stay away from court on the hearing day, he cannot, under the rules, be heard to say that the trial judge should not have heard the case on that day particularly when the case was put on the “undefended list.”
There was evidence and there has been concurrent finding that the appellant was properly served; and having failed on the issue of service, the appellant has no legs to stand on.
The appeal fails and is hereby dismissed with N500.00 costs to the respondent.
Nnamani. J.S.C.:
I had a preview of the judgment just delivered by my learned brother, ESO, J.S.C. and I entirely agree with his reasoning and his conclusions.
The case arose from a contract for the supply of furniture between the parties. The appellant had taken delivery of the furniture ordered but the respondent claimed there was an unpaid balance of N68, 000.00, which it sued for on the undefended list. When the appellant failed to set aside the judgment given by the High Court against it, a series of complaints were made in the Court of Appeal. These included complaint about service of the writ of summons, difference between the name on the summons and the name of the appellant; hearing of the case on the day which was for mention etc.
After full argument, the Court of Appeal in a well considered, and well-reasoned judgment, rejected all the complaints. My learned brother has drawn attention to the highlights of the judgment of the lower court, as well as examined the relevant provisions of the Civil Procedure Rules of the Kwara State High Court. I see nothing that needs any further emphasis or amplification.
The appellant appears to have woken up from slumber too late. I too find no merit in this appeal and I dismiss it. I abide by all the orders made by Eso, J.S.C.
Uwais. J.S.C.
I have read in advance the judgment read by my learned brother Eso, J.S.C. I entirely agree with the reasoning and conclusion therein. Accordingly, I adopt the judgment as mine. The appeal fails and it is hereby dismissed with N500.00 costs to the respondent.
Agbaje. J.S.C.
I have had the opportunity of reading in draft the lead judgment of my learned brother, Kayode Eso, J.S.C. I entirely agree with his conclusions and reasoning.
The facts leading up to the appeal now before us have been adequately set down in the lead judgment of my learned brother, Kayode Eso, J.S.C. For the purposes of the short contribution I propose to make to the judgment I will only state that on the application of the plaintiff, Sebi Furniture Co. Ltd., the suit in respect of which the writ of summons was issued against the defendant, Ben Thomas Hotels Ltd. for the recovery of an outstanding balance of N68, 000.00 being costs of furniture items supplied by it to the defendant was entered in the undefended list and the writ of summons itself was accordingly marked. All this was in compliance with Order 3 rule 8 of the High Court (Civil Procedure) Rules 1975 of Kwara State. One of the annexure to the application of the plaintiff to issue the writ of summons under the undefended list was the affidavit of one Sefunmi Adekunle, general manager of the plaintiff Company, the material parts of the affidavit were as follows:-
“4. That I know the defendant, who contracted the supply of several furniture items to the plaintiff, letter of contract is attached as exhibit ‘A’.
- That the plaintiff supplied the said items to the defendant but the defendant refused and or neglected to pay the contract price.
- That by virtue of exhibit ‘A’ the defendant covenanted to pay the sum of N68, 000.00 to the plaintiff.
- That the said sum or any other sum has not been paid in spite of repeated demands.
- That the plaintiff also claims 10% interests in respect of contract price.
- That the defendant has no defence to this.” It is by Order 3 rule 9 provided that the writ of summons together with copies of the plaintiff’s application for it and of the annexure to it shall be served on the defendant. The writ of summons was issued on 29/10/87. The return date of the summons was 2nd December 1987. Prominent on the face of the summons is the following:-
“Take notice. That if you fail to attend at the hearing of the suit or at any continuation or adjournment thereof, the court may allow the plaintiff to proceed to judgment and execution.” On the 2nd December, 1987, the return date, the record of proceedings of the day says:-
“Plaintiff represented by Mr. Shefunmi Adekunle, the plaintiffs’ general manager.
Mr.A.A.Adeniyi for the plaintiff.
Defendant absent though served.
Court: Affidavit of service seen.”
Counsel for the plaintiff then asked for judgment under Order 3 Rule 12 of the rules. The learned trial judge reserved ruling and judgment till 8th December, 1987. Giving his ruling and judgment on the latter day the learned trial judge said as follows:-
“The defendant is duly served as evidenced by the affidavit of service sworn to on the 4th day of November, 1987 by the senior bailiff on judicial form, reference No.JUD.C.27. Indeed, on the 2nd day of December 1987, the date fixed for hearing of the application, the defendant was not represented even though it was duly served. The defendant had 32 days between the date it was served and the return date to take positive steps. But none was taken. The defendant, which had ample opportunity to file a notice to defend, if in fact it has any defence, and affidavit depicting its defence, failed to do so . ………………………………………
This the defendant who had 32 days for same, refused, failed or neglected to do. It cannot therefore be let in to defend as there is, in my considered view, no basis for such indulgence. The plaintiff’s claim is for outstanding debt in which the sum is certain N68, 000.00 with 10% interest. As per the affidavit attached, it is clear that the defendant in this current case before me has no defence to the action. …….The result is that the judgment is entered in favour of the plaintiff as per writ of summons for the sum of N68, 000.00 vide Order 3 Rule 12 of the High Court (Civil Procedure) Rules 1975.
The defendant shall also pay 10% interest on the stated sum until judgment debt is finally liquidated: – vide Order 27 Rule 8 of the High Court (Civil Procedure) Rules 1975.” The affidavit of service referred to by the learned trial judge reads in
part thus:-
“Affidavit of service Suit No.KWS/LO/20/1987 Sebi Furniture Company plaintiff between Ben Thomas Hotel Kabba Defendant. I, Ibrahim Dasuki High Court of Justice, Lokoja make Oath and say that on the 30th day of October 1987 at 9.30 am. O’clock I served upon Ben Thomas Hotel Kabba a writ of summons, a true copy whereof is hereunto annexed issued out of this court at Lokoja upon Ben Thomas Hotel Kabba. Upon the Ben Thomas Hotel Kabba complaint of civil summons by delivering the same personally to manager to Ben Thomas Hotel Kabba at Ben Thomas Hotel Kabba before the day I served the summons, I did not know.”
It is to be noted that the address of the defendant for service of the writ of summons is Kabba Kwara State.
An application by the defendant to set aside the judgment in favour of the plaintiff dated 22nd December, 1987 was refused by the teamed trial judge on 19/2/88.’ Relevant to the appeal in hand are the following passages in the ruling of the learned trial judge of February, 1988:-
“Before the motion could be moved the respondent/plaintiffs learned counsel raised a preliminary objection on point of law. He contended that the motion is incompetent because (a) the ground being relied upon is an attack on this court’s own judgment. The applicant should have gone to the Court of Appeal in Kaduna ; …………………………………..
Learned Counsel for the applicant submitted that this application is being brought under Order 3 Rule 14 of the High Court (Civil Procedure) Rules 1975 which provides:-
’14. The court may, on such terms as it thinks just set aside or vary any judgment entered in pursuance of Rule 12.’ ……….. This current matter before this court does not deal with default proceedings in the absence of a party or parties. On the contrary it deals with a case categorised as undefended list and is governed by Order III Rules 9 -14 of the High Court (Civil Procedure) Rules 1975.
In view of the above, I hold that this preliminary objection should be upheld because though a court can correct or modify its judgment or order on the ground that it did not represent its intention, like typographical or clerical errors, it has no power to correct a mistake of law, if any, even though apparent on the fact of it. The exercise to review a final judgment on merit is appellate jurisdiction, which can only be conferred by Statute or Decree or Edict. This court has become functus officio and therefore cannot review its own judgment.
Order 3 Rule 14 of the High Court (Civil Procedure) Rules 1975 supra, the joker, amongst the cards which the applicant relies on, is in fact not mandatory but discretionary and it seems to me that this is not an appropriate situation where this application should be allowed in the interest of justice and fair play. Therefore this is not a situation where this court should allow this applicant to dribble and frustrate the respondent out of the judgment, he is legitimately entitled to, on merit in a case categorised as undefended list. It seems to me that by this motion the applicant merely wants to gain time within which he may continue to postpone meeting his obligations and indebtedness. See: NAL-Merchant Bank Limited vs. Mr. A.A. Macaulay (1986) 5 N. W. L. R. 216 atpp.218-223.”
The defendant appealed to the Court of Appeal against both the judgment in the suit on the undefended list against him and the refusal of the trial court to set aside the judgment. Its appeal on the two fronts were dismissed. This is a further appeal to us.
The issues said by the appellant to arise for determination in this case are as follows:-
- “Whether the appellant was effectively served with the writ of summons in this case.
- Assuming but not conceding that the appellant was even served with the writ of summons, whether the Court of Appeal was right in holding that judgment was properly given against the appellant on the return day.
- Whether having regard to Order 3 Rule 14 of the High Court (Civil Procedure) Rules 1975 the Court of Appeal was right in holding that the High Court could not set aside its judgment delivered on 8/12/87 as it had become functus officio.
- Whether by virtue of Order 3 Rule 12 of the High Court (Civil Procedure) Rules 1975, a court has no option than to give judgment for a plaintiff irrespective of the merits of his case once the defendant fails to file a notice of intention to defend.”
As to issue I the contention of counsel for the appellant appears to me to be that the learned trial judge was in error to have relied on the affidavit of service of the bailiff as sufficient proof of service of the writ of summons on the defendant, his contention being that the defendant’s name is Ben Thomas Hotels Ltd. a limited liability company whilst the defendant said to be served in the affidavit of service of the bailiff was Ben Thomas Hotel, Kabba. There can be no doubt that by the affidavit of service filed by the bailiff it was intended to show that it was the defendant to the writ of summons taken out by the plaintiff that was served. There is no dispute as to the suit number of the writ issued out by the plaintiff. In the writ of summons itself it was a plaintiff company, which was suing a defendant company. In the affidavit of service, which I have reproduced earlier on in this judgment, the word “limited” was left out in the bailiff’s description of the plaintiff in the case and also in the description of the defendant in the case.
There is no doubt that it behooves the plaintiff to see that the defendant is described in the writ by its proper name. The bailiff has in the affidavit of service indicated that the defendant in the case has been served. What the bailiff has not done is to add the word “Ltd.” to the defendant’s name. In other words, the bailiff has not completely or accurately put down the defendant’s proper name. To my mind, the failure of the bailiff to put down the whole of the name of the defendant in the affidavit of service is clearly covered by the maxim falsa demonstratia non nocet, which is express as follows – “the entirety which has been expressly and definitely given shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars of the specific gift.” See West v. Law Day (1811)HL CAS 375 at 383 and 384; and in Roe v. Vernon 5 East 51 it is stated thus – “a mistaken or false allegation will not affect a previously plain description.”
So I cannot for myself accede to the argument of counsel for the appellant that the omission of the word “limited” in the description or name of the plaintiff or defendant in the affidavit of service in this case will prejudice the otherwise efficacy of the affidavit of service in this case which is that the writ of summons taken out by the plaintiff has been served on the defendant in the suit. This, to my mind, is the most important point the counsel for the defendant made on ground I.
As to issue 2, the note on the writ of summons, which I have copied earlier on in this judgment, leaves no one in any doubt that on the return date in this case, 2/12/87 the case could proceed to trial. So there is no substance at all in the argument of the counsel for the appellant that the learned trial judge was wrong in taking the return date in the writ of summons as the date of the trial of the case.
I will take issue 4 next.
Order 3 rule 12 says as follows:-
“Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by rule 10 within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 11, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
Under this rule once the defendant in an action on the undefended list fails to deliver the notice of defence and affidavit and is not let in to defend the plaintiff is entitled to judgment once the affidavit in support of the application for writ of summons shows that the defendant has no defence to the action. In the instant case the affidavit in support of the application for the writ of summons in question in this case shows that the defendant has no defence to the action. I have referred above to the relevant portions of the affidavit.
As to issue 3, I am of the view that the learned trial judge was in error in holding that once he had given a judgment in an action on the undefended list he was functus officio and that he could not set the same aside even under the provisions of Order 3 rule 14 of the Rules in question, the provisions of which the trial judge himself quoted in his ruling.
If this were all to be considered in this appeal on the point in question I would have held that the learned trial judge and indeed the Court of Appeal had not considered the case of the appellant/defendant on its application to set aside the judgment on the erroneous ground that the trial court has no jurisdiction to entertain the application. However, the learned trial judge having held that he was functus officio, in fact proceeded to consider the application on its merits and on the ground that the provisions of Order 3 rule 14 gave him the jurisdiction to do so. For ease of reference I refer again to the following part of his ruling of 19/2/88 in this regard: –
“Order 3 rule 14 of the High Court (Civil Procedure) Rules 1975 supra, the joker, amongst the cards which the applicant relies on, is in fact not mandatory but discretionary and it seems to me that this is not an appropriate situation where this application should be allowed in the interest of justice and fair play. Therefore this is not a situation where this court should allow this applicant to dribble and frustrate the respondent out of the judgment, he is legitimately entitled to, on merit in a case categorised as undefended list. It seems to me that by this motion the applicant merely wants to gain time within which he may continue to postpone meeting his obligations and indebtedness.”
So, the learned trial judge has in fact considered the application on its merits and disallowed it. The defendant/appellant has not questioned in this appeal this aspect of the decision of the learned trial judge. For this reason, I am of the clear view that the erroneous view in my opinion of the learned trial judge that he had no jurisdiction to entertain the application has not occasioned a miscarriage of justice.
It is interesting to note that in the affidavit of Dada Olorunfemi in support of the defendant’s application of 22nd December, 1987 to set aside the judgment given in the suit in question there was no mention of any defence whatsoever which the defendant had to the plaintiffs claim against him. Paragraph 12 of the affidavit says:-
“12. That up till now, the applicant does not know what the action or claim which culminated in the judgment of 8/12/87 is all about.”
The judgment of 8/12/87, which the plaintiff wanted to set aside, opens as follows: –
“The plaintiff files his writ of summons under the “Undefended List” claiming the sum of N68, 000.00 being the price of various furniture items sold and delivered to the defendant by the plaintiff at its request and to its order at its registered head office at Kabba – Ajaokuta New Road, Kabba, Kwara State on the 25th day of November, 1983 and which said sum the defendant has refused and/or neglected to pay despite repeated demands by the plaintiff. The plaintiff also claims 10% interest on the judgment debt until date of liquidation thereafter.”
Obviously, the defendant at least had knowledge of this judgment and what it was all about. In the circumstance how can one take the defendant seriously when he said in para 12 of the affidavit that up to the time he filed the application to set aside the judgment he did not know what the action or claim which culminated in the judgment was all about. In view of this fact and the additional fact that the defendant’s affidavit in support of the application did not disclose any defence whatsoever to the claim can one seriously say that the learned trial judge was wrong when he said in his ruling: –
“It seems to me that this is not an appropriate situation where this application should be allowed in the interest of justice and fair play. Therefore this is not a situation where this court should allow this applicant to dribble and frustrate the respondent out of the judgment, he is legitimately entitled to, on merit in a case categorised as undefended list. It seems to me that by this motion the applicant merely wants to gain time within which he may continue to postpone meeting his obligations and indebtedness?”
I have no doubt that having regard to established principles, he was right.
Even if a judgment is to be set aside for irregularity in a situation like the one here, the irregularity must be stated in the notice of motion. The affidavit in support of the motion should also state the circumstances under which the default has arisen, and should disclose the nature of the defence. See Chitty and Jacob, Form 74; Chitty Arch., 333.
In the result I too dismiss the appeal with costs as assessed in the lead judgment.
