3PLR – G. CAPPA PLC V. ABMINE AND SONS (NIG) LTD
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com nd info@lawnigeria.com or text 07067102097]
G. CAPPA PLC
V.
ABMINE AND SONS (NIG) LTD
IN THE COURT OF APPEAL
[CALABAR DIVISION]
CA/C/38/2000
3PLR/2001/133 (CA)
OTHER CITATIONS
22 WRN 75
BEFORE THEIR LORDSHIPS:
DENNIS ONYEJIFE EDOZIE, JCA (Presided)
OKWUCHUKWU OPENE, JCA (Delivered the leading judgment)
SIMEON OSUJI EKPE, JCA
REPRESENTATION
Livinus Udofia Esq. for respondent.
Chief B. O. Asaboro for appellant.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL – Issue not related to a particular ground of appeal – how treated.
PRACTICE AND PROCEDURE – APPEAL – Judgment against the weight of evidence – meaning of.
PRACTICE AND PROCEDURE – APPEAL – Preliminary objection to the hearing of an appeal – procedure for raising same under order 3 rule 15(1) of the Court of Appeal Rules, 1981 (as amended).
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – “Judgment on the merit” – what constitutes same – judgment obtained under the undefended list procedure – whether is a judgment on the merit or a default judgment.
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment on the merit – proper mode of challenging same.
PRACTICE AND PROCEDURE – JURISDICTION – Competence – when is a court competent to adjudicate.
OKWUCHUKWU OPENE, JCA (Delivered the following judgment):
This is an appeal against the ruling of the High Court of Akwa Ibom State holden at Eket, delivered by Etim J. on 10/6/99, dismissing the defendant/appellant’s application for an order to set aside the judgment delivered on 1/3/99 under the undefended list.
Earlier, the respondent as the plaintiff had filed an action against the appellant as defendant claiming as follows:
“(1) The plaintiff claims against the defendant the sum of N300,000.00 being sum owed the plaintiff by the defendant for supply of sharp sand and plastering sand as at 30/11/98.
(2) Interest on the sum above at the rate of 12% per annum till judgment and thereafter 10% per annum until final liquidation of judgment debt.
On 27/1/99, the plaintiff/respondent had moved an application for leave to issue and mark the writ of summons in the suit as undefended list. The application was granted and the matter was then adjourned to 1/3/99 for hearing. The writ of summons, the exhibits and the enrolled order of the trial court placing the matter under the undefended list were served on the appellant on 17/2/99.
On 1/3/99 when the matter came up for hearing, the counsel for both parties were in court when the learned trial Judge, Etim J. entered judgment for the plaintiff/respondent. It was after this that appellant on that same day filed a motion to set aside the judgment. This motion was argued by both sides and then dismissed by the learned trial Judge in her ruling delivered on 10/6/99.
Aggrieved and dissatisfied with the said ruling, the appellant has appealed to this court. In accordance with the rules of this court, both parties through their counsel filed their briefs of argument. The appellant also filed a reply brief.
In the appellant’s brief of argument, four issues were identified for determination by the court and they read as follows:
“(1) Whether the judgment of the trial Judge delivered on the 1st March, 1999, by virtue of order 23 of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State, was a judgment on the merit or a default judgment which can be set aside by an application to set aside the judgment having regard to the fact that the notice of intention to defend together with the affidavit disclosing defence which was already filed was not considered by the court.
(2) Whether the trial Judge was right in dismissing the application to set aside the judgment delivered on the 1st March, 1999, on ground that such judgment can only be set aside by a fresh action on appeal.
(3) Whether the combined effect of order 27 rule 10 and order 37 rule 9 can be applicable to set aside the judgment under undefended list having regard to the circumstances of this case.
(4) Whether the trial Judge enjoyed no jurisdiction to entertain the case at the time the judgment was delivered on the 1st March, 1999.”
The respondent in his brief of argument formulated two issues and they are:
“(1) Whether the learned trial Judge was not right in dismissing the application to set aside a judgment entered under the undefended list.
(2) Whether the learned trial Judge was bereft of jurisdiction to hearing and entering judgment for the plaintiff in the undefended list suit.”
Before going into the merits of this appeal, I will like to dispose of the preliminary objection filed by the respondent on 6/3/2001 and it reads as follows:
“NOTICE BY RESPONDENT OF INTENTION TO RELY UPON PRELIMINARY OBJECTION.
Take notice that the respondent herein named intends, at the hearing of this appeal, to rely upon the preliminary objection as stated in pages 3 – 5 of the respondent’s brief of argument.
And take notice that the grounds of the said preliminary objection are therein stated, dated this 6th day of March, 2001.”
Order 3 rule 15(1) of the Court of Appeal Rules 1981, (as amended) stipulates:
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with seven copies thereof with the registrar within the same time.”
By virtue of order 3 rules 15(1) above, a respondent intending to rely upon a preliminary objection at the hearing of an appeal should give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection. He shall file such notice together with seven copies thereof with the registrar within the same time.
It cannot be said that the respondent has complied with the above provisions of the rules of this court, as he did not set out the grounds of the said objection. He rather referred to the pages 3 – 5 of the respondent’s brief which he had earlier filed where it was stated as follows.
“Incompetence of Ground Two of the Amended
Grounds of Appeal
The particulars given in support of ground two of the amended ground of appeal dated 18/10/2000 and filed on 19/10/2000 do not in any manner whatsoever relate to the said ground of appeal.
The misdirection alleged in the said ground of appeal is not given. The ground of appeal in itself does not disclose particulars of misdirection. I humbly submit that the said ground two is liable to be struck out. See order 3 rule 2(2) of Court of Appeal Rules; Mumu v. Agor (1993) 8 NWLR (Pt. 313) 573 at 580 para. D-G; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285 at 296 para. E; Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267 Ratio 3.
Incompetence of issue No. 4 of appellant’s brief Issue No. 4 of the appellant’s brief of argument is shown to relate to ground 3 of the appellant’s amended grounds of appeal. (See page 14 of the appellant’s brief of argument).
Issue No. 4 of the appellant’s brief need no critical and serious consideration to deduce that it has not the vaguest connection with ground 3 or with any other ground of the amended ground of appeal.
Ground 3 complains that the judgment of the trial court dismissing the application for setting aside was given against the weight of evidence.
But the issue for determination formulated by the appellant and which is expressed to be tied to the said ground 3 poses the question of jurisdiction. This is a far cry from the weight of evidence.
“When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.”
See Olowoake v. Salawu (2000) 19 WRN 93; (2000) 11 NWLR (Pt. 677) 127 at 149 paragraphs B-C. Even with the greatest pains, one cannot see the connection between ground 3 and issue No. 4. It follows therefore that where an appellant formulates an issue for determination in his brief of argument and that issue, though expressed to relate to a particular ground, but in fact does not relate thereto such issue is liable to be struck out.
A quick glance at the above does not show that he clearly set out the grounds of the preliminary objection, it is rather an argument of the said preliminary objection. How be it, I will proceed to consider the objection for it’s worth.
The amended grounds of appeal read as follows:
“1. The learned trial Judge erred in law when she dismissed the application of the defendant/applicant/appellant brought to set aside judgment delivered on 1st day of March, 1999, on the ground that being a matter under the undefended list such a judgment can only be set aside on appeal and thereby came to a wrong decision.
Particulars of error.
- By the special provision for bringing an action under the undefended list judgment delivered in the case without the notice of intention to defend and an affidavit disclosing a defence is likened to default of appearance or pleadings under order 27 rule 10 and order 37 rule 9 of the High Court (Civil Procedure) Rules, 1989 of Akwa Ibom State.
- Under the aforementioned rules of court any judgment obtained in default of pleadings or appearance can be set aside upon good cause shown be it under the undefended list.
iii. The condition where a judgment of the court can be set aside only on appeal under the undefended list relate to a situation when a notice of intention to defend has been filed and the court after considering an affidavit showing a defence comes to the conclusion that there is no good defence and thereafter enter judgment under the undefended list.
- Whereas in this case the defence of the appellant which was already In the Court’s file or registry but not looked at by the trial Judge because her attention was not drawn to it such a judgment can be set aside by the trial Judge without the necessity of filing an appeal.
- The learned trial Judge misdirected herself in law to have delivered the said judgment without jurisdiction and therefore liable to be set aside by a motion to the court without the necessity of appealing against the judgment.
Particulars of Misdirection
- From the application before the court to set aside the judgment it was shown that at the time judgment was being read the defendant had already filed a motion to regularise it’s position by filing a motion to put its notice of intention to defend and an affidavit showing a defence.
- It was also shown that learned counsel to the plaintiff/respondent in this appeal was already served with appellant’s processes all aimed to contest the case on the merit before the judgment was read.
iii. Having regard to particulars i and ii above the trial Judge erred when she delivered the said judgment, acted without jurisdiction in that by the provision of order 23 of the High Court (Civil Procedure) Rules of Akwa Ibom State, the application filed by the defendant/appellant ought to have been considered first before the court can have jurisdiction to deliver the judgment in the suit.
Page 86
- The ruling which dismissed appellant’s application to set aside the judgment was delivered against the weight of evidence,”
In respect of ground 2, the respondent’s complaint is that the particulars given in support of that ground do not in any manner whatsoever relate to the said grounds, that the misdirection in the said ground is not given and that the ground of appeal itself does not disclose the particulars of misdirection.
I have examined this ground of appeal and I think that the objection raised borders more on form rather than substance. The appellant’s complaint is that the learned trial Judge delivered the judgment without jurisdiction and that the judgment is liable to be set aside without the necessity of appeal against the judgment. He then gave particulars of the misdirection. It is true that the ground of appeal has not been elegantly drafted. No doubt, a better word that would have been used there is “error in law”. This ground of appeal can stand on its own whether or not the particulars stated therein to support it or not. The ground of appeal is not vague or general in terms and it has disclosed a reasonable ground of appeal which is to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding that it did not comply with a particular form. What is important in a ground of appeal, and the test that the court should apply is whether or not an impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection or as the case may be, error of fact. See: Alh. Salami O. Aderounmu & Anor. v. Emmanuel Olajide Olowu (2000) 4 NWLR (Pt. 652) 253 and Nteogwuija v. Ikuru (1998) 10 NWLR (Pt. 569) 267.
In respect of issue No. 4, the objection against it is that in the appellant’s brief of argument it was shown to relate to ground 3 of appellant’s amended grounds of appeal and that it has not the vaguest connection with ground 3 or any other ground of the amended ground of appeal. Ground 3 complains that the ruling which dismissed the appellant’s application to set aside the judgment was delivered against the weight of evidence.
No doubt, issue 4 which raises the question “whether the trial Judge enjoyed no jurisdiction to entertain the case at the time the judgment was delivered on the 1st March, 1999,” does not in any slightest way relate to ground 3 but it relates to ground 2 which raises the issue of jurisdiction.
It is true that the appellant stated that issue 4 relates to ground 3 and it cannot be struck out if it is found that it relates to any of the grounds of appeal which is in this case ground 2.
I have considered the preliminary objection raised by the respondent and I do not see any merit in it and it is accordingly struck out.
I have had a perusal at the issues formulated in both the appellant’s and respondent’s briefs of argument and I am of the view that the two issues formulated in the respondent’s brief are more germane to the determination of this appeal and I accordingly adopt them.
Chief Asaboro, the learned counsel for the appellant in the appellant’s brief referred to the provisions of order 23 rules 1 and 3(1) of the High Court (Civil Procedure) Rules 1989 of Akwa Ibom State and stated that to determine whether a judgment is on the merit or a default judgment, that it is imperative to ascertain their meaning and then referred: U.T.C. (Nig) Ltd. v. Pamotei (2001) 43 WRN 63; (1989) 2 NWLR (Pt. 103) 244 at 251. He submitted that the fact that the learned trial Judge delivered the judgment on 1/3/99 without looking at the notice of intention to defend together with the affidavit disclosing defence, even though the appellant’s counsel did not mention to the court after announcing his appearance that the judgment delivered on 1/3/99 is not a judgment on the merit but a default judgment which can be set aside by an application to set aside the judgment.
Reference was also made to the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523 at 526, and also order 27 rule 10 and order 37 rule 9 of High Court (Civil Procedure) Rules.
He referred to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the affidavit in support of the motion to set aside the judgment, that paragraph 9 referred to exhibit BOA1, the notice of intention to defend together with the affidavit disclosing defence which were filed in the morning that judgment was entered against the appellant, that paragraph 6 of the reply to counter affidavit shows that the notice of intention to defend with the affidavit were filed on that morning before the court sat and that the court bailiff duly served the respondent’s counsel and that these averments were not controverted.
He submitted that from the affidavit evidence it is clear that at the time that the court called the case on 1/3/99 that the notice of intention to defend and the affidavit disclosing defence were already before the court and that the court did not look at it.
He also argued that it is the duty of the court to satisfy itself whether there is a defence or not by looking at all the papers filed by the parties and that it follows that the learned trial Judge enjoyed no jurisdiction to entertain the case at the High Court, Eket or elsewhere.
He finally referred to Macgregor Associates v. N.M.B. Ltd. (1996) 2 SCNJ 72; Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587 at 589.
In the respondent’s brief, it was stated that where there is a proof of service of the processes on the defendant in a case placed under the undefended list and the defendant takes no step to enter defence that the plaintiff is entitled to judgment as per his claim by virtue of order 23 rules 1, 2, 3(1) and 4 of the High Court Rules 1989 of Akwa Ibom State, that in the instant appeal that after the leave of the court was sought and obtained to issue and place the suit under the undefended list that the appellant was served with all the processes on 17/2/99 as against the date of hearing which was fixed for 1/3/99.
It was also stated that on 1/3/99 that the counsel for both parties appeared In the Court and that the court indicated that the defendant having not filed any defence that it would proceed to enter judgment for the plaintiff/respondent and thereupon entered judgment for plaintiff/respondent, that the appellant’s counsel never indicated to the court that a defence was filed even when the court said that it was entering judgment and that it was after the judgment was given on 1/3/99 at about 9.05 am that the appellant filed a notice of intention in anticipation to anchor an application to set aside the judgment on it and that that attitude savours of fraud and professional misconduct and reference was made to rules 21, 22 and 24 of the Rules of Professional Conducts in the Legal Professional 1979.
It was argued that order 27 rules 2(1) and 10 of the High Court Rules contemplates a situation where a party defaults in filing his pleading in consequence of which judgment is entered against him, and that order 37 rule 9 of the High Court Rules contemplates a situation where after the institution of an action, the parties have filed and exchanged pleadings and at the hearing one of the parties is absent and judgment obtained under such circumstances could be set aside. Reliance was placed on the following cases: Akunnuli v. Ayo-Odugbesan (1992) 8 NWLR (Pt. 258) 172; Williams v. Hope Rising Voluntary Fund Society (2001) 34 WRN 171; (1982) 1 All NLR (Pt. 1) 1 (Reprint); and First Bank of Nig. Ltd. v. Khaladu (1993) 9 NWLR (Pt. 315) 44 at 55.
It was submitted that the special procedure under order 23 of the High Court Rules does not contemplate the bringing of an application to set aside judgment given under it and that the learned trial Judge was right in dismissing the application to set aside the judgment.
It was further argued that the appellant did not advance any argument of want of jurisdiction as being its reason for wanting to set aside the judgment. The case of African Continental Bank v. Rossek (1993) 8 NWLR (Pt. 312) 382 was cited and relied upon. It was then submitted that there is no feature whatsoever divesting the trial court of the jurisdiction that it exercised in trying the case and that the trial court is competent to adjudicate on the matter.
After a careful perusal at the records of the proceedings and the statement of facts by both parties, it appears to me that the following facts are not in dispute; that the plaintiff/respondent on 27/1/99 prayed the trial court for leave to issue and mark the writ of summons as undefended, that the application was granted and the matter was then adjourned to 1/3/99 for hearing; the writ of summons, all the exhibits and the enrolled order of the trial court placing the matter under the undefended list were served on the defendant/appellant on 17/2/99.
Further, that on 1/3/99 when judgment was entered for the respondent that counsel for both parties were in court and that Chief Asaboro, the appellant’s counsel was in court and also announced his appearance for the defendant/appellant and that he did not inform the court that they had filed a notice of intention to defend either before the court read its judgment or after the judgment had been entered in the respondent’s favour.
It therefore appears to me that the most important issue to be resolved in this case is whether the judgment entered by the learned trial Judge on 1/3/99 is a default judgment or a judgment on the merit. This is so because if the judgment entered under the undefended list is a judgment on the merit, the appellant cannot apply to set it aside the only option open to him is to appeal against that judgment or by another action in case of fraud.
In U.T.C. Nig. Ltd. v. Chief J. P. Pamotei & Ors. (2001) 43 WRN 63;(1989) 2 NWLR (Pt. 103) 244 at page 268, Uwais JSC (as he then was) observed;
“What constitutes a judgment on the merits had been defined by Oputa JSC in Paul Cardoso v. John Bankole Daniel & Ors. (1986) 2 NWLR (Pt. 20) 1 at page 45 where he observed as follows:
‘A judgment is said to be on the merits, when it is based on the legal rights as distinguished from mere matters of practice, procedure, jurisdiction or form. A judgment on the merits is therefore a judgment that determines on an issue either of law or facts, which party is right.”
At page 299, Nnaemeka – Agu, JSC opined as follows:
“Under undefended list, an application is made to the court for issue of a writ of summons in respect of a claim to recover a debt or liquidated demand. The application is supported by an affidavit which is filed along with the writ, and which sets out the grounds of the claim and states that in the deponent’s belief, the defendant has no defence to the action. Once the court is satisfied that there are good grounds for believing that there is no defence thereto, it shall enter the suit for hearing under undefended list and it will be marked accordingly. A copy of the affidavit is served with each copy of the writ. If the defendant is not disputing the claim, he does not need to do anything. In that case, on the date fixed for hearing, judgment will be given to the plaintiff without his calling evidence in proof of his claim, unless the court, of its own discretion in the interest of justice, calls for oral or documentary evidence. Even if the defendant is present in court, he cannot take part in the proceedings at the hearing: See U.A.C. (Technical) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR 349, per Ikpeazu J., (as he then was). Such a judgment is one on the merits which can be set aside only on appeal or by another action, say, in the case of fraud: U.A.C. Technical Ltd. v. Anglo Canadian Cement Ltd. (supra).”
See also First Bank (Nig) Ltd. v. Khaladu (1993) 9 NWLR (Pt. 315) 44 at 55.
The above decisions have clearly settled the point that a judgment obtained under the undefended list procedure is a judgment on the merits and not a default judgment as has been canvassed by the respondent.
Chief Asaboro in the appellant’s brief had referred to U.T.C. (Nig.) Ltd. v. Pamotei (supra) at page 251 paragraphs. 17 and 19 where judgment on the merits and default judgment were defined but most surprising he stopped there. If he had read the whole judgment he would have seen that a judgment delivered on a case placed under the undefended list is a judgment on the merits and he would have seen that this is the end of his case, as he cannot apply to set aside the judgment.
It is relevant to observe that it is not proper for a counsel to pick and choose the only part of the judgment that seems favourable to his case, any judgment of the court should be read as a whole because the whole theory of our system of judicial precedent is that the decision of the Supreme Court is binding on all the lower courts.
In the instant case, the plaintiff/respondent obtained the order of the trial court to place the matter under the undefended list and the case was fixed for hearing on 1/3/99. The appellant was duly served with all the court processes and on 1/3/99 when the case was fixed for hearing, the appellant’s counsel, Chief Asaboro who appeared with Akpan Michael Akpan announced their appearance for the appellant while Livinus Udofia Esq. appeared for the respondent. Chief Asaboro did not tell the learned trial Judge that they had filed a notice of intention to defend the action that morning. The learned trial Judge was not in any way informed that a notice of intention to defend had been filed by the appellant and there is nothing to show that she was aware of the appellant’s filing a notice of intention to defend. She delivered the judgment which the appellant filed a motion to set aside the said judgment which she rightly in my view refused to set aside. The judgment delivered by the learned trial Judge on 1/3/99 is a judgment on the merits and not a default judgment as the appellant had contended.
The only course open to the appellant was to appeal against the said judgment or bring another action in the case of fraud. The learned trial Judge was perfectly right in dismissing the application to set aside as the law does not empower her to set aside a judgment under the undefended list which is a judgment on the merits.
Further, as to issue whether the learned trial Judge enjoyed no jurisdiction to entertain the case at the time the judgment was delivered on 1st March, 1999, it is the contention of the appellant that he filed a notice of intention to defend in the morning of 1/3/99 before the court sat and delivered its judgment and that it is the duty of the court to satisfy itself whether there is a defence or not by looking at all the papers filed by the parties.
Reference was made to the following cases: Magregor Associates v. N.M.B. Ltd (supra); Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587 at 589. The rationale behind the appellant’s argument is that he filed a notice of intention to defend the action in the morning before the court sat and delivered its judgment. Chief Asaboro who was in court and announced his appearance did not inform the court that he had filed a notice of intention to defend the suit and there was no way that the attention of the court was drawn to the fact that any notice of intention to defend was filed by the appellant.
It is wrong for the appellant to blame the learned trial Judge for not acting on a document which was not placed before her. A court is competent to adjudicate when:
(a) It is properly constituted as regards numbers and qualification of members of the bench, and no member is disqualified for one reason or another;
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (supra) and African Continental Bank v. Rossek (1993) 8 NWLR (Pt. 312) 382.
The appellant’s submission that the entire proceedings at the High Court, Eket, on 1/3/2000 was null and void is baseless and without any substance as he had failed to show that there is any defect in competence of the court to adjudicate on the suit.
On the whole, I do not see any merit in the appeal and it ought to be dismissed and it is accordingly dismissed by me. The respondent is entitled to costs which I assess and fix at the sum of N5,000.00.
DENNIS ONYEJIFE EDOZIE, JCA: I had a preview of the judgment just delivered by my learned brother Opene J.C.A. and I entirely agree with him that the appeal is bereft of any substance. It is now well settled beyond any controversy that a judgment given under the undefended list procedure is a judgment on the merits which can only be set aside on appeal or by another action in the case of fraud. There is a plethora of case law on this principle: see the cases of First Bank (Nig) Ltd v. Khaladu (1993) 9 NWLR (Pt. 315) 44 at 55; U.T.C. (Nig) Ltd v. Pamotei (2001) 43 WRN 63; (1989) 2 NWLR (Pt. 103) 244 at 298; Agueze v. P. A. B. Ltd. (1992) 4 NWLR (Pt. 233) 76 at 89 to mention but a few. Learned counsel to the appellant does not appear to dispute this well settled principle of law. His contention appears to be that since the court below did not consider his notice of intention to defend, the case did not fall within the ambit of the rules dealing with suits on the undefended list and a writ of summons marked accordingly is served on the defendant, the suit will be dealt with under that procedure unless it is subsequently transferred to the general cause list. It is obvious from the record of proceedings that the suit leading to this appeal was commenced under the undefended list procedure and that there being no notice of intention to defend, the court below entered judgment in favour of the respondents. It was justified in so doing and in subsequently refusing to set aside that judgment.
I also dismiss the appeal and abide by the consequential orders made in the leading judgment of my learned brother Opene, JCA.
SIMEON OSUJI EKPE, J.C.A: I agree.
Cases referred to in the judgment
Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253.
A.C.B v. Rossek (1993) 8 NWLR (Pt. 312) 382.
Agueze v. P. A. B. Ltd. (1992) 4 NWLR (Pt. 233) 76.
Akunnuli v. Ayo-Odugbesan (1992) 8 NWLR (Pt. 258) 172.
Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267.
Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523.
Cardoso v. Daniel. (1986) 2 NWLR (Pt. 20) 1.
F.B.N Ltd. v. Khaladu (1993) 9 NWLR (Pt. 315) 44.
Macgregor Associates v. N.M.B. Ltd. (1996) 2 SCNJ 72.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587.
Mumu v. Agor (1993) 8 NWLR (Pt. 313) 573.
Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.
Nteogwuija v. Ikuru (1998) 10 NWLR (Pt. 569) 267.
Olowoake v. Salawu (2000) 19 WRN 93; (2000) 11 NWLR (Pt. 677) 127.
U.A.C. (Technical) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR 349.
U.T.C. (Nig) Ltd v. Pamotei (2001) 43 WRN 63; (1989) 2 NWLR (Pt. 103) 244.
Williams v. Hope Rising Voluntary Fund Society (2001) 34 WRN 171; (1982) 1 All NLR (Pt. 1) 1.
Rules of court referred to in the judgment
Court of Appeal Rules 1981 or. 3 rr. 2(2)& 15(i).
High Court (Civil Procedure) Rules of Akwa Ibom State, 1989 or. 23 rr. 1,2,3(1), 4, or. 27 r.10 & or. 37 r.9.
