Mr Oluyemi Modahunsi V. Kwara Investment & Property Dev. Co. Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of the Kwara State High Court of Justice coram (R. O Elelu-Habeeb), Acting Chief judge (as she then was) delivered on 29th January, 2008 wherein she held thus:

“The application herein is hereby granted in compliance with Order 17 Rule 8 of the 2005 High Court Civil procedure Rules.

Accordingly Judgment is hereby entered for the claimant as per his claim”

The application which is the subject matter of the decision set out supra reads as follows:

“TAKE NOTICE that this Honourable court shall be moved on the …day of September, 2008 at the hours of 9 O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the Claimant/Applicant for the following.

AN ORDER of this Honourable giving Judgment in this case to the applicant in default of appearance by the defendant/respondent.

ALTERNATIVELY

AN ORDER setting down for hearing the suit of the applicant, the Respondent having failed and/or neglected to put up appearance within time.

AND for such further or other orders as this honourable court (sic) may deem fit to make in the circumstance.

Dated this 24th day of January, 2008”

The application of the Claimant/Respondent reproduced above, needless to say is supported by a 15 paragraph Affidavit. I consider the under listed paragraphs of the supporting Affidavit germane to the just determination of this appeal and they are:

4. That I know as a fact that the applicant issued out the writ in this case against the Respondent on the 17th of May, 2007.
5. That I know as a fact that the applicant did cause the said writ to be served on the Respondent through the bailiff of this Court at the Respondent’s address with the applicant.
6. That I know as a fact that the bailiff of this Court by the name Mr. Issa Gbadamosi, a senior bailiff was unable to effect service of the processes of this Court on the applicant.
7. That I know as a fact pursuant to paragraph 6 above an affidavit of non service was deposed to by the said bailiff stating therein the reason for non service. The said affidavit of non-service is hereby attached and market as Exhibit A.
8. That sequel to the above paragraph the applicant applied and was granted the leave of this Court to serve by substitution. Hereby attached and marked Exhibit B is a drawn up order of this Court to that effect.
9. That I know as a fact that the applicant did comply with the order of this court as above through the same bailiff of this court.
10. That I know as a fact that the bailiff of this Court did carry out the order of this court through an affidavit dated 19th of June, 2007 the said affidavit is hereby attached and marked as Exhibit C.
11. That I know as a fact that despite the applicant’s compliance with the order of this Court by effecting service on the Respondent through substituted means, the Respondent has failed and /or neglected to put appearance.
12. That I know as a fact that in addition to comply with the order of this Court as above the applicant also caused the notice of pendency of this suit to be advertised in the HERALD and PUNCH news papers of 12th and 28th November 2007 respectively. Attached herewith are photocopy (sic) of the said News Papers marked as Exhibit D and E.
13. That M.H Adeniyi Esq. of Counsel told me in our office on the 29th December, 2007 at about 3;00 pm and I verily believe him that the time within which the Defendant should put up appearance has elapsed.
14. That unless this application is granted the applicant may not be able to get justice in this case.

The endorsement of claim on the writ of summons upon which all other process are premised are:

INDORSEMENT OF CLAIM