ALSTHOM S. A. V. CHIEF DR. OLUSOLA SARAKI
June 10, 2025EGEVAFO EKPETO V IKONO WANOGHO & ORS
June 10, 2025Legalpedia Citation: (2004) Legalpedia (CA) 14990
In the Court of Appeal
Fri Dec 24, 2004
Suit Number: CA/L/72/02
CORAM
MUHAMMAD LAWAL GARBA, JUSTICE, COURT OF APPEAL
PARTIES
I.F.A. INTERNATIONAL LIMITED BABASHOLA A. ADEBAJO APPELLANT(S) / APPLICANT(S)
LIBERTY MERCHANT BANK PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/Respondent instituted an action through a writ of summons claiming the sum of N24,124,205.31 being payable by the Defendants/Appellants as money lent to the Defendants/Appellants by the Plaintiff/Respondent, and with interest at the rate of 30% per annum as agreed upon to be paid as at 31/ 3 /2000 until the liquidation of the whole debt . The Defendants/Appellants by a motion dated 16/6/2000 sought an order entering final judgment jointly and severally against the Defendants/Appellants for default of appearance and pleading. Consequently the trial judge entered judgment in default of appearance and defence for the Plaintiff/Respondent against the Defendants/Appellants for the sum. The Defendants/Appellants subsequently brought an application for stay of execution and for an order that the default judgment be set aside. The Court refused the application. Dissatisfied with the refusal, the Defendants/Appellants appealed to the Court of Appeal.
HELD
Appeal Dismissed
ISSUES
Whether the learned trial judge was right in refusing to set aside the default judgment of the court in the light of the statement of defence filed by the appellants. Whether the learned trial judge was right in refusing to set aside the default judgment even though the Defendants were never served with the original process-writ of summons and statement of claim. Whether there was sufficient material evidence placed before the court to enable it award interest at the rate of 30% per annum in a default judgment in favour of the Respondent.”
RATIONES DECIDENDI
EVIDENCE- A STATEMENT MADE BY A PARTY TO AN ACTION IS EVIDENCE AGAINST HIM.
‘‘A statement, written or oral, made by a party to a civil proceeding is evidence against him of the truth of the facts asserted on the statement’’. PER SALAMI JCA
RECORD OF COURT – WHETHER A COURT CAN TAKE JUDICIAL NOTICE OF ITS RECORD
‘‘There is nothing in law and practice preventing a court from taking judicial notice suo motu of its record’’ PER SALAMI JCA
RELISTING A CASE – POWER OF A TRIAL COURT TO RELIST A CASE
‘‘In relisting a case in which judgment was given in default of appearance or default of pleadings, a trial court, generally has power to set aside its decision and relist the matter for hearing where judgment had been given not on consent of parties nor on the merit. The power exercisable is discretionary and must be exercised judiciously and judicially”. PER SALAMI JCA
RELISTING A CASE – GUIDING PRINCIPLES IN CONSIDERING AN APPLICATION RELISTING A CASE FOR HEARING
“Superior courts of record have laid down some guiding principles to be followed while considerating such application. The principles are:
(a) the reasons for the applicant’s failure to appear at the hearing or trial of the suit or case that resulted in judgment given in his absence;
(b) Whether there has been an undue delay in making the application to set aside the judgment so as to prejudice the party in whose favour the judgment subsists;
(c) Whether the party in whose favour the judgment subsists would be prejudiced or embarrassed upon an order for rehearing the case being made so as to render such a course inequitable;
(d) Whether applicants case is manifestly unsupportable; and
(c) Whether applicant’s conduct throughout the proceedings, that is from the service of the writ upon him to the date of judgment has been such as to make his application worthy of sympathetic consideration.’’ PER SALAMI JCA
CASES CITED
Abraham v Olorunfunmi (1991) 11 N W L R (Pt. 165) 53, 78;Doherty v Doherty (1975) N M L R 144, 145Khwan vs Elias 1960 SC N L R 516 Madam Salami v Oke (1987) 4 N W L R (Pt. 63) 1.Mamoh v Gulf Insurance Corporation 1975 N N L R 184;Ugwulu v Aba 1961 All N L R 438;;Williams v Hope Rising Voluntary Funds Society 1982) 1- 2 145 (1982) 13 NSCC 36 Seismograph Services (Nig) Ltd vs Chief Keke O. Eyuafe (1976) 9 – 10 SC 132, 146.
STATUTES REFERRED TO
High Court of Lagos State (Civil Procedure) Rules 1994
