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(2018) LPELR-43513(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of January, 2018


Before Their Lordships

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria


DAEWOO (NIG) LIMITED - Appellant(s)



Other Citations

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This appeal borders on Civil Procedure.

This is an appeal against the Ruling of the High Court of Justice, Delta State of Nigeria, Effunrun Judicial Division in Suit No. - EHC/436/2000 between - MACFRANKLYN ENGINEERING SERVICES LTD VS (1) DAEWOO NIGERIA LIMITED (2) CHRIS IHEAGWARA delivered on the 8th day of April 2011.

By an amended statement of claim, the 2nd Respondent who was the Plaintiff at the trial Court sued the Appellant who was the Defendant before the trial Court in the following terms: -
"(i) The sum of (N3,939,006.90) Three Million, Nine Hundred and Thirty-nine Thousand and Six Naira, Ninety kobo, being the cumulative unpaid invoices due but not paid by the Defendant.
(ii) 22% interest on the unpaid sum from 1988 till final Judgment, and thereafter 10% till when actual payment is made."

Pleadings were duly exchanged between the parties and the case was eventually fixed for hearing to commence on 4/1/2006. ???On the said 4/1/2006, when hearing of the case was supposed to commence, the Plaintiff and its Counsel were absent from Court and as a result, in accordance with the Rules of Court the suit was struck out, thereby bringing the suit to an end at that stage. Subsequently, information got to the Appellant who was the Defendant that a default Judgment had been given against it and that garnishee proceedings had been commenced against it.

By a motion on notice filed by the Defendant/Applicant at the trial Court on 4/1/2010, the Appellant sought for An order staying further execution and the garnishee proceeding in the suit pending the hearing and determination of this application and An order setting aside the Judgment of the trial Court among others.

At the Conclusion of hearing, the application was dismissed in its entirety.

The Appellant was dissatisfied with the Ruling of the trial Court, appealed to the Court of Appeal.
The Learned Counsel for the Appellant formulated two issues for the determination of the appeal which were adopted by the Court. The issues are:-
(1) Whether the Learned trial Judge was right in law to refuse to set aside the Judgment when the Judgment was obtained without compliance with all the conditions precedent to the exercise of Jurisdiction.
(2) Whether the learned trial Judge was right in Law when she declined to set aside the said Judgment on grounds that same would amount to sitting on appeal over the Judgment of a brother Judge.

In the final analysis, the Court of Appeal held that there was merit in the appeal and it was accordingly allowed.

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