CORAM

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YEKINI OLAYIWOLA ADIO (Read the Leading Judgment), JUSTICE, SUPREME COURT

OGUNDARE, JUSTICE, SUPREME COURT

SIR UDO UDOMA, JUSTICE, SUPREME COURT

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PARTIES

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OLUBUSOLA STORES APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent Bank had sued the appellant as defendant in the trial court where the writ of summons was endorsed for a claim of an amount money loaned by the plaintiffs to the defendants at the request of the latter and which the latter had failed to repay. The action as filed was meant for the Undefended List and the plaintiffs writ was accompanied by an affidavit which set out, inter alia, the facts of the case and stated that the defendant was still owing.

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HELD

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The Supreme Court held that the learned trial Judge clearly erred in law as the entry of judgment on that day was in breach of the provisions of Rule 13 of the Supreme Court Act.

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ISSUES

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Whether the judgment entered by the trial court was in clear inadvertence to the provisions of the rules dealing with actions on the undefended List

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RATIONES DECIDENDI

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WHERE A DEFENDANT IS UNABLE TO COMPLY WITH ORDER 11 OR 12

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“Where a defendant is unable to comply with Rule 11 or otherwise fails to comply with Rule 12, then the provisions of Rule 13 apply and in that case the suit shall be heard as an Undefended Suit and judgment given thereon without calling upon the plaintiff to summon witnesses before the court to prove his case formally.” Per G. B. A. COKER, JSC

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SERVICE OF WRIT UNDER THE UNDEFENDED LIST

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“If a writ marked for the Undefended List is to be properly served at all, it should be served in such a way as to give the defendant more than five days before the return dated on the writ or rather before the day fixed for the hearing of the action.” Per G. B. A. COKER, JSC

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CASES CITED

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STATUTES REFERRED TO

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Supreme Court Act (Cap. 211 in the 1948 Edition of the Laws of Nigeria)

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