Planwell Watershed Ltd. & Anor. V. Chief Vincent Ogala (2003)
LAWGLOBAL HUB Lead Judgment Report
M. A. BELGORE, J.S.C.
The respondent in this appeal was also respondent at the Court of Appeal and plaintiff at the trial High Court of Bendel State. The claim against the present appellants jointly and severally was “for the sum of N768,850.00 being money paid for a consideration that has wholly failed in that between 17/11/92 at Benin City within Benin Judicial Division the plaintiff paid to the defendant the said sum of N768,850.00 for supply of general goods but the defendants have failed to deliver any of the goods to the plaintiff or at all despite repeated demands”. Also claimed is interest at 25% before judgment and 10% after judgment. The claim was brought under undefended list supported by an affidavit in accordance with Order 23 High Court (Civil Procedure) Rules, 1988 of Bendel State.
The appellants were duly served with the writ of summons. But within the time set by the rules aforementioned the appellants as defendants did not file any notice of intention to defend. On 15th day of July, 1993, the return date, neither the appellants nor their counsel were present in court. The respondent in accordance with the rules of that court testified to prove his case and judgment was accordingly entered for him as claimed on 22nd day of July, 1993.
On 8th September, 1993, the appellants filed a motion praying for:
- extension of time within which to set aside the judgment delivered on 22nd July, 1993;
- setting aside the said judgment; and
- setting aside the writ of summons or alternatively granting the defendants extension of time to file notice of intention to defend.
The application was supported by a seventeen paragraph affidavit sworn to by counsel to the appellants. The main plank of the affidavit is that the defendants were in a criminal matter and therefore in prison custody and that the office of 1st defendant was then closed, even though there is clear admission that the defendants were served with the writ of summons on 8th July, 1993. But despite the length of the supporting affidavit, there is no hint of what the proposed defence to the action was. To baldly state that there was intention to defend is certainly not enough. The trial court refused the application.
Court of Appeal heard the appeal against refusal of trial court to relist the matter by setting aside the judgment; the appeal was dismissed and thus the appeal to this court. The sole issue formulated for determination by the appellants is:
“Whether the learned Justices of the Court of Appeal were right in law and on the facts in affirming the decision of the lower court which refused to set aside the judgment obtained against the appellants and in default of the appellants filing a notice of intention to defend the suit.”
The appellants submitted that by their affidavit supporting their application at trial court to set aside the judgment, they clearly stated that they “are willing and ready to defend the suit” without more was enough for trial Judge to set aside his judgment. It should be pointed out that the rule governing the suit is clear in its purport by providing Order 23(3)(1):-
“If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days, before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms, as the court may think just.”
The application to set aside the judgment, to say the least, is bereft of any defence to the action. It was not sworn by the defendants but by their counsel. The application must not only be supported by an affidavit but also by the proposed defence to the suit filed in undefended cause list. Merely stating that the defendant has a defence is not enough; the proposed defence must on the face of the affidavit be clear and such defence must be attached to the application. The attached affidavit did not satisfy these conditions. The case of UTC Nigeria Ltd. v. Pamotei & Others (1989) 2 NWLR (Pt. 103) 244; (1989) 1 NSCC 523 the attached affidavit showed clearly a defence. In Essang v. Bank of the North (2001) 6 NWLR (Pt. 709) 384, 399, the affidavit supporting the application to set aside judgment clearly stated a defence even though the proposed defence was not attached whereby appellate court allowed the defendant to defend. These two cases do not help the appellants in this appeal. The reason for the rule is to obviate unnecessary wastage of time in trying a straightforward matter of debt or similar claim. Even where a defendant has entered a notice of intention to defend with the proposed defence, the plaintiff may as well move the court for judgment if that notice does not disclose a defence to the suit. In this appeal, no defence is disclosed in the two courts below and none has been disclosed in this court.
The appeal has no merit and I dismiss it with N10,000.00 costs to the respondent against the appellants jointly and severally.
SC.113/1998
