BEN THOMAS HOTELS LTD. V. SEBI FURNITURE CO. LTD.

• Pages: 416-426

416

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NIGERIAN SUPREME COURT CASES

[1989] 3 N.S.C.C.

BEN THOMAS HOTELS LTD. V. SEBI FURNITURE CO.

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LTD.

BEN THOMAS HOTELS LIMITED

V

SEBI FURNITURE CO. LIMITED

APPELLANT

RESPONDENT

SUIT NO. SC 252/1988

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SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

ESO,



J.S.C.

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

AGBAJE,



J.S.C.

15th December 1989

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Practice and Procedure - Service of writ of summons - Failure to put the whole name of

defendant in the affidavit of service - Effect - Judgment - Undefended list - Order 3 Rule

12 High Court Civil procedure Rules 1975.

ISSUES

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1.

What are the rules governing service of writ of summons and how can it be proved

that a party has been properly served.

2.

What is the effect of failure on the part of the bailiff to put down the whole of the

3.

Whether when a case entered on the undefended list comes up for the first time

name of the defendant in the affidavit of service.

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30

in the court, it should not be heard.

4.

Whether by virtue of Order 3 Rule 12 of the High Court Civil procedure Rules 1975,

a court has no option than to give judgment for a plaintiff irrespective of the merit

of his case once the defendant fails to file a notice of intention to defend.

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FACTS:

The plaintiff filed his writ of summons under the "undefended list" claiming the

sum of N68,000.00 being the price of various furniture items sold and delivered to

th'e defendant by the plaintiff at its request on the 25th of November, 1983 and which

said sum the defendant has refused and neglected to pay despite repeated demands 40

by the plaintiff. The plaintiff also claimed 10% interest on the judgment debt until date

of liquidation thereafter.

The motion on the undefended list came before the court on 2nd December, 1987.

The defendant company was not represented and the ruling was entered in favour

of the plaintiff on the 8th of December for the sum of N68,000.00 and interest at 10% 45

until judgment debt is finally liquidated.

On the 22nd of December, 1987, the defendant brought an action before the High

court to set aside or vary the judgment. The court gave a ruling dismissing the motion.

The defendant/Appellant dissatisfied appealed to the court of Appeal on the

ground

inter alia

that there was no proof before the learned trial judge that hearing 50

notice was served on any official of the defendant company.

The Court of Appeal held that the defendant/Appellant was effectively served with

the writ of summon and affidavit in support but deliberately refused to show up in

court as a delaying tactics.

The Appellant still dissatisfied with the judgment of the

court of Appeal, appealed to the Supreme Court.

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