OANDO (NIG.) PLC. (FORMERLY, UNIPETRO (NIG) PLC.) V. MR. AMEME NWACHUKWU (2010)

OANDO (NIG.) PLC. (FORMERLY, UNIPETRO (NIG) PLC.) V. MR. AMEME NWACHUKWU

(2010)LCN/4127(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of December, 2010

CA/PH/109/2005

RATIO

DUTY OF THE COURT: WHETHER WHERE THE ISSUE OF JURISDICTION OF THE TRIAL JUDGE IS RAISED ,THE TRIAL COURT HAS A DUTY TO RESOLVE THE ISSUE TIMEOUSLY BEFORE GOING INTO THE OTHER ISSUES

It is settled principle of law that where the jurisdiction of the trial judge is raised, it was necessary for the trial judge to have resolved the issue timeously before going into the other issues, see the case of OkwonKwo v. FRN (2006) 14 NWLR (Pt 1000) 566; F.M.C.T Vs. Eze (2006) 12 NWLR (Pt. 995) 483 and Adeleke vs. O.S.H.A. (2006) 16 (NWLR) (Pt 1006) 608.

RULES OF COURT : WHETHER RULES OF COURT ARE MEANT TO BE COMPLIED WITH

Rules of court are meant to be complied with. Strict compliance with the rules of court makes administration of justice quicker. See SOLANKE v. SOMEFUN (1974) 1 ALL NLR 586 at 592; FIRST BANK OF NIGERIA PLC v. ABRAHAM (2008) 362 NSCQR 1058 at 1076. PER EJEMBI EKO, J.C.A.

UNDEFENDED LIST PROCEDURE: CIRCUMSTANCE UNDER WHICH THE COURT SHOULD NOT PROCEED WITH THE JUDGMENT OF A MATTER UNDER THE UNDEFENDED LIST

The reason why this appeal should succeed in my respectful view is the fact that the trial court in spite of being aware of the application of the defendant for extension of time to file notice of intention to defend and to deem same filed as properly filed, proceeded to enter judgment. The trial judge gave this reason. “The undefended list procedure does not allow for such dilatory anties (sic) as preliminary objection or extension of time. On the return date whatever defendant submits is deemed to be his defence.” Such a similar reason was given by the trial court in GUBERGINE COL. LTD. & ANOR. VS HABIB NIG LTD (2002) NWLR 4 (PT.75) page 338 at 352, Musdapher JCA (as he then was) had this to say. “It has been stated that the rules have provided for adequate protection in favour of a defendant and if a defendant allowed judgment to be entered against him, he must have acted deliberately by doing nothing. Even if he takes an improper step, such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him a chance to take a proper step to enable the court to consider the notice of intention to defend. See John Holt & Co. (Liverpool) Ltd. V. Fajemirokun, U.T.C (Nig.) Ltd V. Pamotie supra. Thus, even when a defendant neglects to deliver the notice of intention to defend and an affidavit as required by the rules within the time prescribed before judgment is delivered, he may on filing an affidavit disclosing a defence on the merit and on satisfactorily explaining the delay and the neglect be allowed to defend the action. It must be stressed that the rules under the undefended list procedure do not automatically relieve a plaintiff from establishing his case. The court must examine the evidence.” PER T. O. AWOTOYE, J.C.A.

JUSTICES

HON. JUSTICE ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

HON. JUSTICE EJEMBI EKO Justice of The Court of Appeal of Nigeria

HON. JUSTICE TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

OANDO (NIG.) PLC. (FORMERLY, UNIPETRO (NIG) PLC.) Appellant(s)

AND

MR. AMEME NWACHUKWU Respondent(s)

ISTIFANUS THOMAS, J.C.A.: (Delivering the Leading Judgment): The appeal is against the decision of the High Court of Justice, delivered by M. Kobani, judge, on 22nd February, 2005, in which the plaintiff now respondent was granted the sum of N22,834,902.00 being the money paid by the plaintiff to the defendants, now appellants for petroleum products as per receipts numbers 30606639 of 20-4-04; 30608601 of 28-04-04; 30608600 of 28-4-04 and 3061108 of 07-09-04 which money the appellants had received but refused, failed, neglected and or ignored to deliver to the respondent in spite of repeated demands.
The brief fact of this case is that the respondent as plaintiff sued the appellants under the undefended list. The writ of Summons was for the sum of N22, 834,902 being the money paid for the petroleum products to the appellants as per the receipts listed above plus accrued interest at the rate of 21% from the date of first payment of 20-01-04 till judgment and interest on judgment debt at the rate of 21% per annum from the date of judgment until the total judgment debt is fully liquidated.
At the lower court, leave to enter the suit on the undefended list was granted on 28th January, 2005 and the matter was adjourned to 22nd February, 2005, with an order, that, the writ be served on the defendant, but now appellant. On the hearing date, the appellant moved his motion on notice praying the court to set aside the respondents’ suit for incompetence and also, praying for extension of time within which to file and serve its Notice of Intention to Defend and to deem the said notice of intention to defend and affidavit disclosing defence on the merit as properly filed and served. It is to be noted that the appellants motion afore said was filed on the 22nd February, 2005, namely the hearing date. This is contained at page 16 of the record, and the notice of intention to defend supported by a 29 paragraph affidavit disclosing the defence are contained at pages 19-24 of the record. On the hearing date, the appellant’s motion and the notice of intention to defend were yet to be filed and the trial court granted the respondents oral application to enter judgment in accordance with Order 23 Rule 4 of the High Court of Rivers State (Civil Procedure) Rules 1987. The appellant orally applied for an adjournment as it was very clear that the appellants were served with the suit on 9th February, 2005, but they could not file the notice of intention to defend within the stipulated period of 5 days before hearing date. The trial court found that the appellants were served on 9th February, 2005, that is 13 days before hearing date. The trial court summarily gave judgment in favour of the plaintiff/respondent are per his writ of claim.
Dissatisfied with the judgment, the appellant filed on 23-02-2005 its notice of appeal containing 5 grounds of appeal.
Distilled from the grounds, the appellant has raised 2 issues for determination as follows:
1. “Whether the lower court was in breach of the appellant’s constitutional and fundamental right to fair hearing when it refused to hear the defendant/appellants motion for:
(i) Preliminary objection to competence of the suit,
(ii) Extension of time to file Notice of intention to defend.
(iii) An order deeming the Notice of intention to defend with affidavit disclosing a defence on the merits as properly file and served; And proceeded to pronounce on its merits, and therefore found against the defendant/appellant giving judgment against it without hearing its motion and therefore the merits of the case.
2. Whether the requirements of Order 23 Rule 1 of Rivers State Rules of High Court (undefended list procedure) were met before the lower court placed the suit under undefended list and if so, was the lower court right to have entered judgment in favour of the respondent for the sum of N22,000,00 plus interest”
On the part of the respondent, the brief was filed on 1st November, 2007 but with the leave of court, it was deemed filed and served on 22nd April, 2008. The respondent has raised 3 issues for determination and they read as follows:-
“1. Whether the lower court was wrong in entering judgment for the plaintiff in the absence of Notice of intention to defend under Order 23 Rule 4 of the High Court Rules 1987 of Rivers State.
2. Whether the defendant’s motion on Notice for extension of time to file Notice of Intention to defend was before the lower court when the suit was heard and judgment was entered under the undefended list.
3. Whether the hearing of the suit under the undefended list and entering judgment in the absence of the defendant’s notice of intention to defend and or motion for extension of time from the case filed amount to denial of fair hearing”
I have carefully considered the parties respective issues for determination, and I am of the considered view that determination of the appellants issue number 1 reproduced above is sufficient to fully dispose of the appeal.
To determine the appeal effectively there is needed to scrutinize filed at the lower court at page 15 of the record, the trial judge made an enrolled order as follows: –
“APPLICATION EXPARTE TO ENTER THE SUIT UNDER THE UNDEFENDED LIST.
ORDER
…..
…..
IT IS ORDERED that this suit be and is hereby entered for is hearing Under the Undefended list and for the Writ of Summons to be marked accordingly.
IT IS FURTHER ORDERED that this case stands adjourned to 22nd day of February, 2005 for hearing.
GIVEN AT PORT HARCOURT Under the seal of the court and the hand of the presiding Judge this 28tn day of January, 2005.
ADDRESS FOR SERVICE.
1. Oando Plc
2. Unipetrol Nig. Plc both of Reclamation Road Port Harcourt.”
The above enrolled order of the trial court had shown the addresses of the appellants and the adjourned hearing date is 22nd February, 2005. By the rules of the trial court, 1987, as from the date of service on the defendants/appellants, they had 5 days period within which to file their notice of intention to defend the claim in the undefended list. By Order 23 Rule 3(1), time is of essence. It is provided as follows:-
“3-(1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intendeds 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.”
On pages 16 to 24 of the record, the defendants/appellants filed on the exact hearing date of 22nd February, 2005, filed simultaneously, two motions on notice, and on their own volition, and without the hearing or consent of the trial judge, the simultaneous motions were fixed for hearing on the same filing date of 22nd February, 2005. The first motion at page 16 of the record is for (1) an order setting aside this suit for incompetence; (2) an order for extension of time within which to file and serve notice of intension do defend the suit and (3) an order to deem the said notice of intention and affidavit disclosing defence on the merit as properly filed and served. The relevant paragraphs affidavits in support of the motion are on pages 17 and 18 of the record they read thus:-
“3. That the transaction leading to suit took place in Aguata L.G.A of Anambra State and Enugu State outside the jurisdiction of this honourable court.
4. That the processes of the suit were served on the defendant at its Divisional office along Reclamation Road, Port Harcourt.
5. That the Divisional office immediately contacted its Enugu Area office situate along Enugu/Onitsha Express way to provide the facts and documents relating to the transaction.
6. That due to the re-organization going on in the defendant, it took some time getting their response as some of the officers who handled the transaction are now on transfer outside Enugu State.
7. That the delay in filing our notice of intention to defend with affidavit disclosing defence on merit is not intentional but occasional as a result of logistics.
8. That we are ready to defend the case on its merit, moreso as our notices of intention to defend with affidavit disclosing defence on the merit is exhibited herein and marked Exhibit ZAI”.
The other motion on notice is dated and filed on the same 22nd February, 2005. It is contained at page 19 of the record. The motion is to defend the action on an affidavit disclosing defence on merit. The supporting 29 paragraph affidavit is at page s 20-24 of the record. The appellant’s affidavit disclosing defence, pursuant to order 23 rules 3(1) of 1987, is stated in paragraph 24 at page 23 of the record. It reads, thus:-
“24. That paragraph 9 and 10 of plaintiff affidavit in support of writ of summons is false and misleading. In answer thereof, the defendant shall rely on paragraphs 13, 14, 15, 16, 17, 18, 19, 20 and 21 of its affidavit disclosing defence on the merit and shall contend that the defendant is a petroleum marketing company and eager to and desirous of selling its products to bonafide purchasers.”
I have carefully considered the trial courts’ judgment contained at pages 29-30 of the record which the judge gave as his reasons why the appellants two motions could not be “‘entertained on the 22nd February, 2005. At page 30 of the record, his Lordship found as follows:-
“Defendants were served on 9th February, 2005 13 days ago. Under the rules they ought to have filed their notice of intention to defend 8 days ago or at least, the motion for extension of time. They defaulted and filed the motion dated and filed today the return date. Of course plaintiff’s counsel says he has not been served and even it he admits it, the rules require at least 5 days. The undefended list procedure does not allow for such dilatory antics as preliminary objection or extension of time. On the return date, what ever the defendant submits is deemed to be his defence. In the circumstances, where defendants motives of intension to defend is not properly before this court I hold that the defendant has failed to comply to the rules and the law under the Undefended list procedure must take its course. I therefore enter judgment for the plaintiff in terms of the Writ of summons except prayer 2…”
By the above noted passages in the judgment, the trial judge was aware that already at the registry, the appellants had filed two motions seeking for an extension of time to file their intention to defend the suit and also for notice of intention to raise the issue of jurisdiction of the court to entertain the undefended list.It is settled principle of law that where the jurisdiction of the trial judge is raised, it was necessary for the trial judge to have resolved the issue timeously before going into the other issues, see the case of OkwonKwo v. FRN (2006) 14 NWLR (Pt 1000) 566; F.M.C.T Vs. Eze (2006) 12 NWLR (Pt. 995) 483 and Adeleke vs. O.S.H.A. (2006) 16 (NWLR) (Pt 1006) 608.
I totally disagree with the reasoning of the trial judge when he made his opinion in the judgment, that: –
“The undefended List procedure does not allow for such dilatory antics as preliminary objection or extension of time.”
The appellant at the trial court had orally informed the judge that their motions served on the hearing date ought to be heard and determined before the ruling; that is on the right of fair hearing. At that stage, the trial court should have granted an adjournment to another date to enable not only the court itself, but also the plaintiff/respondent on the issue of jurisdiction of the court to hear the claim. The trial judge did not consider the oral application for adjournment but wrongly made a ruling or decision entering judgment in favour of the respondent. I am of the view that it was not fair on the appellant who, though concede, that the time to file notice of intention to defend had elapsed. The trial court’s refusal to adjourn the matter to another date for hearing of the appellants two motions was not done judiciously and judicially.
I entirely agree with the appellants reliance on the case of Dantata & Sawoe Construction Coy Ltd vs. Hassan (2001) 5 NWLR (Pt. 705) 129 and UBN Plc vs. Ekulo Farms Ltd (2001) 7 NWLR (Pt 711) 21 that their motions must have been heard and determined before the judgment.
In the case of Etim vs. Registered Trustees (PCN) (2004) 11 NWLR (Pt. 883) 84 the court considered the question of whether or not a matter should be adjourned for hearing to another date, and it was established that it depends on the discretion of the trial judge, which must be considered judicially and judiciously, that the exercise must not be a capricious or made in such a way that injustice would result to either party. Parties should enjoy fairness and justice, as it is not a one way traffic. As earlier found, the appellants disclosed good defence in their intention to defend.
Based on the above findings, I hold that the appeal is meritorious and is allowed by me. I set aside the decision of the trial judge delivered on 22nd February, 2005 in which it entered judgment in favour of the respondent. In its place, I order that there was a valid motion for extension of time to contend that the trial court had no jurisdiction to hear the matter, which was not heard and determined. That there was also an application for an extension of time to file notice of intention to defend the undefended list, which was already filed at the registry of the lower court having paid the necessary filing fees.
I order that the case be sent back to the Chief Judge of Rivers State High Court to assign the case to be heard on merit before another judge. Parties to bear their costs.

EJEMBI EKO, J.C.A.: This appeal is against the judgment of the River state High court delivered on 22nd February, 2006 in the suit of the Respondent, who was the plaintiff. The Respondent’s claim, on the undefended List procedure, was for N22, 834,902.00 liquidated sum, being money paid for petroleum products by the Respondent to the Appellant.
The Appellant was served on 9th February, 2005 the writ of summons on the undefended list. Hearing in the matter was set down for 22nd February, 2005. Order 23 Rule 3 (1) of the Rivers State High Court (Civil Procedure) Rules, 1987 obligated the defendant, sued on the Undefended List procedure, to deliver his Notice of his Intention to Defend, together with an affidavit disclosing a defence on merit, to the Registrar “not later than five days before the day fixed for hearing”. The Appellant, as a defendant, was duty bound to deliver his Notice of Intention to Defend on or before 17th February, 2005.
On the day fixed for hearing, that is 22nd February, 2005, the Appellant filed two processes namely: The Notice of Intention to Defend, and a Motion on Notice with three reliefs-
“1. An order setting aside this suit for incompetence;
2. An Order for Extension of Time within which to file and serve our Notice of Intention to Defend.
3. An Order deeming the said Notice of Intention and affidavit disclosing defence on the merit as properly filed and served.”
Reliefs 1 and 2 on the motion paper appear to me to be inconsistent as a Preliminary objection to the competence of the suit and steps taken to defend an incompetent suit on merit are mutually inconsistent.
On 22nd February, 2005 Appellant’s counsel made some effort to mislead the court. He had submitted that his client was served only on 14th February, 2005. The court’s record showed they were served on 9th February, 2005. The trial court was not impressed by this gimmick. It dismissed the antics of counsel and the processes filed that same day as “dilatory antics”. Of course, every court is entitled to frown at such “dilatory antics” to frustrate trial, particularly processes filed mala fide on the day of hearing with the ulterior purpose of foisting an adjournment. The practice is unwholesome some. But many a counsel indulges in this reprehensible tactics almost on daily basis. This, however, will not warrant a court to in frustration and anger, jettison all fair hearing procedure. Doing so, no doubt, will be rash and the result is an irrational decision.
Rules of court are meant to be complied with. Strict compliance with the rules of court makes administration of justice quicker. See SOLANKE v. SOMEFUN (1974) 1 ALL NLR 586 at 592; FIRST BANK OF NIGERIA PLC v. ABRAHAM (2008) 362 NSCQR 1058 at 1076. It was on the basis of doing quick justice that the trial court proceeded and entered judgment on the undefended List procedure, which is quite expeditious against the Appellant. Every rule has exceptions. Doing justice hastily and rashly is antithetical to justice. I think that the trial court has not exercised his discretion correctly in this case. He ought to have heard and determined the extant application for extension of time to file Notice of Intention to defend first before proceeding to the merits of the suit on the undefended List. I agree with the Appellant’s counsel that the Defendant/Appellant was unfairly shut out at least as regards the subsisting motion for extension of time to file Notice of Intention to Defend. This clearly violated the rule of fair hearing, especially audi alteram partem. This stance I have taken does not preclude me from condemning, in very strong terms, the equally unfair gimmicks or antics of the Defendant and his counsel at the trial court.
Having said all these I have nothing further to add to the lead judgment just delivered by my learned brother ISTIFANUS THOMAS, JCA which I hereby adopt, including all the consequential orders therein.

T. O. AWOTOYE, J.C.A.: I have gone through the draft of the judgment just delivered by my learned brother THOMAS JCA.The Plaintiff’s claim in the trial court reads as follows:-
“The Plaintiffs claim against the Defendants is for the sum of N22, 834,902 (Twenty Two Million, Eight Hundred and Thirty Four Naira, Nine Hundred and Two Kobo), being the money paid by the plaintiff to the Defendants for petroleum product as per receipts numbers 30606639 of 20/01/2004, 30608601 of 28/04/2004, 30608600 of 28/04/2004 to 30611088 of 07/09/2004 which money the defendants received but refused, failed, neglected and or ignored to Deliver to the Defendants in spite of repeated demands and the accrued Interests thereon.
21% interest from the date of first payment 20/1/2004 till judgment AND Plaintiff claim interest on the judgment debt at the rate of 21% per annum from the date of judgment until the total judgment Debt is fully liquidated.”
Pursuant to the requirements of the Rules of Court the filed affidavit in support of the writ of summons.
Paragraphs 7 – 12 of the supporting affidavit are very pertinent.
They read:-
“7. That I booked various petroleum products and paid the Defendants various sums at various dates which monies the Defendants collected, issued official receipts for but failed to supply the Products.
8. That on 20/1/2004, 28/4/2004, 28/4/2004 and 7/9/2004. I paid for four (4) trucks of PMS (petrol) and DPK (Kerosene) and paid N1, 434,140.00 and was issued with Oando/Unipetrol Nig. Plc No. 30606639 of 20/1/2004, 28/4/2004, 28/4/2004 and 7/9/2004 which are hereto attached and marked exhibit ‘R1’, ‘R2’, ‘R3’, and ‘R4’ respectively.
9. That the defendants refused to supply the products I paid for and made me lose money to the tune of N22, 834,902.
10. That the capital with which I paid for the products is borrowed with monthly interest of 21%.
11. That I finish each truck of petroleum product between 7 and 14 days with a weekly profit from turnover.
12. That as a result of the defendants deliberate refusal to supply the goods I paid for I lost both my capital, profit on turnover and have not paid the interest which accrued on the loan which as at today amount to N22, 834,902.”
What paragraph 12 of the affidavit means is that the sum of N22, 834,902 claimed by the plaintiff included the capital, profit and turnover and interest on the loan he obtained? This does not include the additional claim of 21% interest from date of first payment 20/1/2004 till judgment and 21% per annum form the date of judgment till total judgment debt is fully liquidated.
It is evident from the receipt issued to him and exhibited to the affidavit that he paid the follow sun or money to the defendant.
(1) N753, 640 see page 12 of record
(2) N208, 660 see page 13 of record
(3) N340, 000 see page 14 of record.
The total of the receipts does not amount to what the plaintiff has claimed except with the inclusion of “profit and turnover and interest” as stated in paragraph 12 of the supporting affidavit.
The defendant’s at being served with the processes filed by the plaintiff failed file notice of intention to defend no less than five days before the date fixed for hearing as required by Order 11 Rule 10 of the High court of Rivers State (Civil Procedure) Rules.
However, the defendants filed an application for extension of time to file notice of intention to defend the suit and deeming the said notice of intention and affidavit disclosing the defence and the merits as properly filed and served.
From the proceedings on 22/2/2005 when the matter came up for hearing the processes filed were brought to the notice of the trial court.
The learned trial judge in his judgment ruled as follows:-
“I have listened to the submissions of counsel on both sides, both of whom are equally persuasive. I must therefore remind myself that this is a matter under the undefended list which prescribes its own procedure which rather strict and summary. Defendants were served on 9th February, 2005 13 days ago. Under the rules they ought to have filed their notice of intention to defend a day ago or at least, the motion for extension of time. They defaulted and filed the motion dated and filed today the return date. Of course plaintiff counsel says he has not been served and even if he admits it, the rules require at least 5 days. The undefended list procedure does not allow for such dilatory anties as preliminary objection or extension of time. On the return date whatever defendant submits is deemed to be his defence.”
His Lordship then proceeded to enter judgment for the plaintiff in terms of the Writ of summons and awarded 10% interest per annum on the judgment sum from judgment until liquidation.
It is against this judgment that the Appellant being dissatisfied filed notice of appeal containing 5 grounds of appeal.
Parties to this appeal later exchanged briefs of argument.
The Appellant formulated two issues which are:-
1. Whether the Lower Court was in breach of the Appellant’s Constitutional and fundamental right to fair hearing when it refused to hear the defendant/Appellant’s motion for:
i. Preliminary objection to the competence of the suit.
ii Extension of time to file Notice of intention to defend.
iii. An order deeming the Notice of intention to defend with affidavit disclosing a defence on the merits as properly filed and served.
And proceeded to pronounce on its merits and therefore found against the defendant/Appellant giving judgment against it without hearing its motion and therefore the merits of the case.
2. Whether the requirements of Or 23 Rule 1 RIVERS STATE RULES OF HIGH COURT (Undefended list procedure) were met before the lower court placed the suit under undefended list and if so was the lower court right to have entered judgment in favour of the respondent for the sum of N22, 000,000.00 (Twenty-Two Million Naira) plus interest.”
The Respondent on the other hand formulated three issues for determination to wit:
“1. Whether the lower court was wrong in entering judgment for the plaintiff in the absence of Notice of Intention to defend under Order 23 Rule 4 of the High Court Rules 1987 of Rivers State.
2. Whether the Defendants Motion on Notice Extension of time to file Notice of intention to Defend was before the lower court when the suit was heard and judgment was entered under the undefended list.
3. Whether the hearing of the suit under the undefended list and entering judgment in the absence of the defendant’s notice of intention to defend and or motion for extension of time from the case file amount to denial of fair hearing.”
I am of the view that issue 2 as formulated by appellant and issue 1 of the Respondents should cover all the issues raised in this appeal.
The Respondents issue 1 reads:-
“1. Whether the lower court was wrong in entering judgment for the plaintiff in the absence of Notice of Intention to defend under order 23 Rule 4 of the High court Rules 1987 of Rivers State.”
I wish to consider the above issue from the following angle. Should the trial court have entertained this claim under the undefended list procedure without considering the motion on notice filed by defendant?
The reason why this appeal should succeed in my respectful view is the fact that the trial court in spite of being aware of the application of the defendant for extension of time to file notice of intention to defend and to deem same filed as properly filed, proceeded to enter judgment. The trial judge gave this reason.
“The undefended list procedure does not allow for such dilatory anties (sic) as preliminary objection or extension of time. On the return date whatever defendant submits is deemed to be his defence.”
Such a similar reason was given by the trial court in GUBERGINE COL. LTD. & ANOR. VS HABIB NIG LTD (2002) NWLR 4 (PT.75) page 338 at 352, Musdapher JCA (as he then was) had this to say.
“It has been stated that the rules have provided for adequate protection in favour of a defendant and if a defendant allowed judgment to be entered against him, he must have acted deliberately by doing nothing. Even if he takes an improper step, such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him a chance to take a proper step to enable the court to consider the notice of intention to defend. See John Holt & Co. (Liverpool) Ltd. V. Fajemirokun, U.T.C (Nig.) Ltd V. Pamotie supra. Thus, even when a defendant neglects to deliver the notice of intention to defend and an affidavit as required by the rules within the time prescribed before judgment is delivered, he may on filing an affidavit disclosing a defence on the merit and on satisfactorily explaining the delay and the neglect be allowed to defend the action. It must be stressed that the rules under the undefended list procedure do not automatically relieve a plaintiff from establishing his case.
The court must examine the evidence.”
I hold that the trial judge ought to have considered the merit of the application of the defendant before entering judgment in favour of the plaintiff.
It is for the above reason that I agree with my learned brother THOMAS JCA, in his lead judgment that this appeal should be allowed.
In the light of the above this appeal succeeds. I hereby set aside the judgment and order of the High court Rivers State in suit No. PHC/4/205.
In its place I order that suit No PHC/4/2005 be remitted back to the High Court Rivers state to be heard by another judge.
I abide with costs as assessed in the lead judgment.