Prof. Dupe Olatunbosun V. Mr. Anthony Annenih (2008)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME (Ph.D), J.C.A.

This is an appeal against the Judgment of the High Court of Edo State Benin Division in suit NO.B/505/95. The Judgment was delivered by Sadoh, J. on the 8/2/96.

The Respondent who was the plaintiff in the lower court filed a suit on the 12/7/95 claiming the sum of One Million, Eight Hundred Thousand Naira against the Appellant who was the Defendant at the lower Court. By an application dated the 2/11/95 which was granted, the Respondent issued and served the writ and statement of claim on the appellant who was resident outside the jurisdiction of the said Benin High Court.

The Respondent was also granted an order to serve the said writ of Summons, the statement of claim and other processes of Court on the Appellant by Substituted Service, the said processes were served on the Appellant. In spite of service of these processes on the Appellant, he never entered appearance and did not file a statement of defence to the suit.

At the expiration of the period provided by the Rules for entering appearance and filing statement of defence, the Respondent brought an application praying the Court for an order entering Judgment in his favour. The said motion and further affidavit of the Respondent in support were served on the Appellant.

Rather than take steps known to law in reaction to the motion and further affidavit served on him, the Appellant’s response was only by way of a counter affidavit and he was not in court in response to the motion for Judgment.

On the 8th of February 1996, the Court below delivered its final judgment and entered Judgment for the Respondent. On the 24/10/96, about Eight months later, the Appellant brought an application praying the lower court for the following reliefs:

“I. An order enlarging the time within which the defendant/Applicant may enter his appearance, the time allowed by the rules of court having expired.

2. An order deeming the memorandum of appearance attached to the affidavit herewith and marked Exhibit 1 as properly filed and served.
3. An order enlarging the time within which the Defendant/Applicant may apply to set aside the judgment of this Honourable Court dated 08/02/96.
4. An order setting aside the judgment of this Honourable Court dated 08/02196 entered against the Defendant/Applicant in default of Appearance and defence.
5. An order granting leave to the Defendant/Applicant to defend this suit.
6. An order relisting this suit for hearing and determination on its merit.
7. An order enlarging the time within which the Defendant/Applicant may file his statement of defence the time allowed by the rules having expired.
8. An order deeming the statement of defence attached to the affidavit herewith and served, the appropriate fees having paid”.

The above application was heard and on the 17th of December 1996, in its Ruling the lower court dismissed the application to set aside its Judgment delivered on 8/2/96.

Aggrieved by both decisions of the lower court, the Appellant filed this appeal seeking the following reliefs;

(a) An order allowing this appeal and setting aside the Judgment of the trial court complained of.

(b) An order sending this case back to the lower court for re-trial.

(c) Any further orders.

The Grounds of appeal are as follows;