Prof. Dupe Olatunbosun V. Anthony Anenih (2000)

LawGlobal-Hub Lead Judgment Report

AKAAHS, J.C.A.

The defendant/applicant brought this application under Order 3 Rule 4(1) of the Court of Appeal Rules and Section 18 Court of Appeal Act praying for the following reliefs namely:-

(i) Extending the time within which the applicant may apply for stay of execution; and

(ii) Staying the execution of the judgment of Benin High Court delivered on 8/2/96 pending the hearing and determination of the defendant/applicant’s/appellant’s appeal filed on 14/4/97.

The application is supported by a 46 paragraph affidavit sworn to by one Oluseun Abimbola, a legal practitioner in the firm of Akeredolu and Olujimi & Co. to which were annexed three exhibits namely the Writ of Summons in Suit No. 8/505/95 affidavit of service by pasting and a ruling delivered on 17/12/96. The respondent deposed to a 27 paragraph counter-affidavit in opposition and annexed five exhibits marked exhibits “A”- “F”. The applicant in response to the respondent’s counter affidavit deposed to three further and better affidavits with the second and third further affidavits titled “Further Affidavit No 2” and “Further Affidavit No. 3″. The ruling/judgment sought to be stayed was annexed to the Further Affidavit No.3

The Writ of Summons carried the following endorsements:

The plaintiff’s claim against the defendant:

(a) N1,800,000.00 (One Million, Eight Hundred Thousand Naira) being money had and received by the defendant, vide an agreement of 10th November, 1992 for the use of the plaintiff: and

(b) 21% interest per annum on the said N1,800,000.00 from the 26/12/92 until the judgment of this Honourable court…”

The affidavit of service by pasting sworn to by one Gbenga Obesesan, Senior Bailiff of the High Court of Justice Ring Road, Ibadan is dated 7/2/96. The following day, the matter came before Sadoh J. and having satisfied himself that all the processes were duly served as ordered by the court on the defendant entered judgment in favour of the plaintiff in the sum of N1.8 Million against the defendant with interest of 21% on the said sum from 26/12/92 to 8/2/96. Interest of 10% was further awarded until the judgment debt was paid with N3,000 costs against the defendant.

On 14/4/97 the defendant filed a notice of appeal. Two grounds of appeal were filed along with the notice of appeal as follows:-

(1) The learned trial Judge erred in law when he refused to set aside the judgment entered in default against the defendant on 8th February, 1996.

Particulars of Errors of Law:

(i) Since on the materials before the learned trial Judge it was clear that the defendant was not afforded a fair hearing, the judgment in default ought to have been set aside.