Lawrence Scott-emuakpor Vs J.i. Ukavbe (1975)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

We allowed this appeal on 17th November, 1975. We set aside the order made by Atake J. on 1st September, 1972 striking out the application by way of Motion on Notice filed by the appellant/defendant on 19th July, 1972 seeking an order granting him extension of time within which to file his Statement of Defence (hereinafter referred to as the appellant’s Motion).

We also set aside the judgment in the sum of 1,000 and the order as to costs given to the respondent/plaintiff upon his Motion on Notice filed on 29th July, 1972 praying for judgment in default of defence (hereinafter referred to as the Respondent’s Motion). We remitted the case to the High Court, Mid Western State, Warri, for rehearing of the appellant’s and respondent’s motions before a judge other than Atake, J.

The only issue for determination in this appeal is whether or not the appellant or his counsel was given notice of the date, to wit 1st September, 1972, on which his Motion and that of the respondent were heard and determined by the court below in the absence of the appellant and in the absence of his counsel.

In the substantive action, the respondent claimed the sum of 1,000 being the amount paid by him to the appellant together with incidental expenses for a purported sublease of a piece of land for which there had been a total failure of consideration. The records of proceedings in the court below show that the writ of summons was duly served on the appellant and thereafter order for pleadings was made on 29th July, 1971.

The statement of claim was filed on 11th august, 1971. Thereafter, there were several adjournments, most of them unrecorded in the court’s record book because the court was not sitting, up to 29th June, 1972, when the respondent filed his Motion for judgment in default of defence. The motion was supported by an affidavit in which he deposed that he had filed his Statement of Claim within the time ordered by the court and that the appellant had failed to file his Statement of Defence as ordered by the court. On 19th July, the appellant filed his Motion asking for extension of time within which to file his statement of defence.

The respondent’s and the appellant’s Motions were fixed for hearing on 20th July, 1972. The counsel for both parties were present in court on the said day but the court did not hear either motion and adjourned the same to 27th July, 1972. Only counsel for the appellant appeared in court on 27th July, 1972 and the Motions were further adjourned to 17th August, 1972 at his request.

This appeal hinges on the correct assessment of what actually happened on the 17th August, 1972 in the court below whose record of proceedings on that day is very short and, we may as well, quote it in full.

“AT WARRI: ON THURSDAY THE 17TH OF AUGUST, 1972

PARTIES PRESENT:

AKPEDEYE FOR PLAINTIFF:

IDEH FOR DEFENDANT.

COURT: Motion on Notice adjourned to 1/9/72. (Not recorded)”

On the 1st September, 1972, neither the appellant nor his counsel was present in court. On the application of the respondent’s counsel, the court struck out the appellant’s motion for extension of time within which to file his Statement of Defence, granted the respondent’s motion for judgment in default of defence and entered judgment against the appellant.