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BENTWORTH FINANCE (NIG) LTD
Brown-Peterside, – for the Plaintiff
Fiebai, – for the Defendant
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
The plaintiff company seeks to recover a debt from the defendant. For this purpose the company applied for the issue of a writ of summons in the Undefended List. A writ issued. Before the return day, no notice of intention to defend was delivered. On the return day, the defendant appeared by his counsel. Mr. Brown-Peterside for the plaintiff company asked for summary judgment in accordance with the Supreme Court (Civil Procedure) Rules, Order III, r.13. Mr. Fiebai for the defendant opposed this on the ground that the writ has not been marked in accordance with rule 9 of the same Order; and has never been served upon the defendant.
I observed that there is no return of service on the file and no proof of service. Mr. Fiebai informed me from the Bar that the defendant is in possession of a writ of summons but that he received it from a person other than a bailiff. With the consent of both counsel I have looked at the documents in the possession of the defendant and find them to consist of a writ of summons in this case, a copy of that part of Order III which relates to the Undefended List procedure, and an affidavit. The writ and affidavit correspond to those on the file except that the writ produced by the defendant is not marked to show that it is in the Undefended List.
For the plaintiff company, it has been submitted that the failure to mark the writ is immaterial since the attachment to the writ of an affidavit and a copy of the rules relating to the Undefended List are enough to warn the defendant that the suit is m the Undefended List; and that there should be an adjournment to enable proof of service to be obtained.
I have come to the conclusion that the plaintiff company is not at this stage entitled to summary judgment in accordance with Order III, rule 13. My reasons are as follows. Before summary judgment may properly be given for the plaintiff several conditions must be satisfied. These include the entry of the suit in the Undefended List and the marking of the writ accordingly. Rule 9 does not provide expressly how the writ must be marked but it is obvious that it must be marked in such a way as to show the defendant that the suit is in the Undefended List. In addition the writ and the affidavit required by rule 9 must be served on the defendant more than five days before the day fixed for hearing so as to enable him to deliver, if he wishes, a notice of intention to defend as provided in rule II. In the present case there is no proof of service of the writ of summons on the defendant as required by Order IX. There is no certificate of service as required by Order IX, rule 17, and nothing whatever to show that, if service was effected, it was effected by any of the persons described in rule 1 of that Order. If the writ was served by any such person, there is nothing to show that it was served more than 5 days before the day fixed for hearing, i.e. the return day on the writ. Consequently the conditions upon which summary judgment may be entered have not been satisfied. In addition, if the defendant has been served with a writ of summons, there is no proof that the writ was marked as required by rule 9 of Order III. I do not say that the failure to mark the writ would by itself in all cases preclude the court from giving summary judgment but it is most desirable that the writ is marked so as to show clearly that the suit has been entered in the Undefended List.
I must also observe that, if there has been difficulty in effecting service on the defendant, it is not surprising in view of the fact that the plaintiff company has given as the defendant’s address for service a Post Office Box. plaintiffs should be careful to give as addresses for service only places where defendants may be found and served personally. A Post Office Box is not such a place.
Not only is there no return of service but the writ of summons issued for service has not been returned by the Deputy Sheriff, Makurdi to whom it appears to have been sent. I therefore direct that a copy of the writ duly marked and with a copy of the affidavit required by Order III, rule 9, shall issue immediately and shall be returnable on the 18th July, 1969. The bailiff, M. Aliyu, shall serve this writ at once upon Mr. Fiebai who appears for the defendant, and shall furnish a certificate of service.
Application refused: Copy of writ duly marked with copy of affidavit required by order III r.9 to issue and be returnable on 18th July, 1969: Bailiff to serve writ on Defendant’s Counsel and furnish Certificate of Service.