U.T.C. (Nig.) Ltd V. Chief J.P. Pamotei & Ors (1989)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

When this appeal was heard on the 5th day of December, 1988 it was summarily allowed with N500.00 costs to the appellant. We then intimated that the reasons for the judgment would be given today. I now state my reasons.

In the High Court of Lagos State holden at Ikeja, the Respondents brought an action against the appellant and one other. The writ of summons, which commenced the suit, was filed together with a statement of claim on the 9th day of June, 1984. The appellant together with the other party, as defendants, filed a memorandum of appearance on the 16th day of May, 1984. The defendants then took no further action.

Pursuant to the provisions of Order 10 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of the Laws of Lagos State 1973, the Plaintiffs applied to the High Court for judgment to be entered for them. The application was granted and judgment was accordingly entered for the plaintiffs by Longe J. Part of the judgment reads as follows-

“The plaintiffs have filed their summons for judgment under order 10 of our Rules and supported by an Affidavit.

I have read all these documents and have listened to their counsel, Mr. M. A. Apampa, for the Judgment Summons. (sic)

I am satisfied that this is proper case where final judgment can be entered for the Plaintiffs in the absence of the Defendants filing any affidavit of Intention to defend.

Judgment is therefore, hereby entered in the sum of N54,991.00 in favour of the plaintiffs against the Defendants being money had and received by the Defendants on diverse dates between September and November, 1983 for the purchase of certain brands of vehicles which were never delivered.

The judgment sum shall carry 6% interest rate until it is paid.”

Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 of Laws of Lagos State, 1973 provides-

“1(a) Where the defendant appears to a writ of summons specially indorsed with or accompanied by a statement of claim under Order 3, rule 4, the plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amounts claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge in Chambers for liberty to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to. The Judge thereupon, unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed.”

On the 27th day of June, 1984, the defendant (now appellant) brought a motion in the High Court under Order 24 rule 15 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52 for leave to set-aside the judgment entered for the plaintiffs. The affidavit in support of the application was sworn to by one Muyiwa Tugbobo, and it reads as follows-

1. That I am a Solicitor in the Chambers of Debo Akande & Okonjo as such I am conversant with the facts of the case.
2. That the pleadings of this suit were served on us by our client on the 18th day of June, 1984.
3. That we had difficulty in reaching our client to enable us prepare a statement of defence.
4. That on the 25th day of June, 1984 we in fact filed a Motion on Notice for extension of time within which to file our Statement of Defence out of time. The receipt of payment is hereby attached and marked exhibit “A”.
5. That on the 25th day of June, 1984 Counsel for the 1st defendant arrived late in Court due to the unusual traffic hold-up along Airport Road, Ikeja on his way to court, hence, Judgment was entered against the 1st defendant in default of defence.
6. That the reason for the 1st defendant’s Counsel coming late to Court that morning was not deliberate or intended to show disrespect to the Honourable Court but for the unavoidable traffic hold-up. Moreover, the suit was listed as No.4 on the cause List that morning.
7. That the 1st defendant has a real defence to the suit and that the 1st defendant’s statement of Defence is herewith attached and marked exhibit “B”.
8. That in view of the defence filed and the triable issue raised therein there is need to hear the matter on merits.”

Paragraphs 3 to 7 of the Statement of Defence exhibited to the quoted affidavit in support of the motion on notice state thus –

“3. In answer to paragraphs 4 and 5 of the statement of claim, the 1st defendant states that they were unaware of any transaction pleaded therein because none of their receipts show any sale of cars to any of the said plaintiffs.