Tuoyo Holdings Limited V. Niger-benue Transport Company Limited & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the ruling of Onajite Kuejubola J. sitting at Warri High Court in Suit No. W/312/97 delivered on the 23rd March 1999 setting aside a default judgment delivered by that court against the 2nd respondent on the 23rd June 1998. The appellant as plaintiff had brought the suit against the respondents claiming the sum of N250,000.00 and interest thereon at 21% per annum for outstanding rent. Following the failure of the 2nd respondent to enter appearance and file a statement of defence, the appellant filed a motion for judgment against the 2nd respondent on the 27th April 1998. On the 23rd June 1998, the learned trial Judge entered judgment against the 2nd respondent.

On the 21st October 1998 the 2nd respondent filed a motion to set aside the judgment on the premise mainly that the mandatory forty eight hours notice as required by law had not been given to it before the motion for judgment was moved and granted as the said motion for judgment was served on the 22nd June 1998 and granted on the 23rd June 1998. In its ruling the court granted the 2nd respondent’s motion and set aside the default judgment entered in favour of the appellant. It is against that ruling setting aside the default judgment that the appellant has now appealed to his court upon a Notice of Appeal filed on the 24th February 2000. The Grounds of appeal are as follows-

GROUND 1

The learned trial Judge erred in law when he heard and allowed the 2nd respondent application of 20/10/99 without first granting leave to the 2nd respondent to move the application.

GROUND 2

The learned trial Judge misdirected himself when he held that he had no jurisdiction to entertain the plaintiffs application of 29 April 1998, without first resolving the conflicts in the 2nd respondent’s affidavit.

GROUND 3:

The learned trial judge misdirected himself in fact and in law when he granted the 2nd defendants application of 20 October 1998 on the ground of lack of fair hearing and failed to take congnisance of the Supreme Court’s decision of F.A.T.B. V. EZEGBU (1993) 6 NWLR (pt.297) pg. 1 at ratio 4.

GROUND 5:

The learned trial Judge misdirected himself on the facts when he held that the appellant’s motion for judgment dated 29th April 1998

was served on the 2nd respondent on 23/6/98 being the very day the motion was heard and granted.

GROUND 6:

The ruling is not contemporaneous with the weight of evidence and relevant authorities cited in the matter.