Usi Enterprises Limited V. The Kogi State Government & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

The appellant on 5th July, 2002 by a motion ex parte applied under Order 23 rule 1 of the High Court of Kogi State (Civil Procedure) Rules, 1991 for a writ of summons marked ‘undefended list against the defendants jointly and severally as indicated hereunder –

“1. The plaintiff claims a total sum of N5,491.008.09 (five million, four hundred and ninety-one thousand and eight Naira) being the unpaid balance of the contract sum awarded to the plaintiff by the defendants on the 30th of April, 1997.

2. The plaintiff claims interest on the sum at the rate of 21% per annum from the year 1998 when the entire contract sum became due for payment until judgment is given in this case and thereafter at the rate of 10% until the entire judgment sum plus interest thereon are fully paid.”

As provided by the rules of court, the application was accompanied by an affidavit in support containing 5 paragraphs.

There were attached to the affidavits in support 9 exhibits numbered B1 – B9.

Also, as required, paragraph 4 of the affidavit in support read:

“That I know as a fact that the defendants have no defence to the plaintiff’s claim.”

The application ex-parte was heard on 16th July, 2002. It was granted as prayed.

The return date was fixed at 15th October, 2002.

The defendants filed in the Registry of the court on 11th July, 2002 a joint memorandum of appearance.

On 19th September, 2002, the defendants again filed a joint notice of intention to defend the suit which was brought under the undefended list.

The notice was, as required by rules of court accompanied by an affidavit of 5 paragraphs which indicated the defence of the defendants.

It must be mentioned at this stage that the defence of the defendants was two pronged viz –

(a) a defence on the merit – paragraph 3;