The gist of the case of the respondent as pleaded in his 12-paragraph statement of claim is that he is the owner of a Nissan C.20 Bus No. KD 3902 BR which was destroyed as the result of an accident when the appellant's M.A.N. Diesel Tanker No. LA 6614 DC negligently and recklessly driven by its driver along Zaria – Kaduna road crossed to the other side of the High way and hit and destroyed the respondent's bus. That while the matter was being investigated by the police, the Kaduna branch Manager of the appellant agreed to repair the respondent's vehicle and on that basis the two vehicles involved in the accident were released to their respective owners. That when the respondent's efforts to have his vehicle repaired by the appellant failed, he decided to institute the present action claiming reliefs against the appellant.

The suit came before Makeri J, at the Zaria High Court on 10-10-95 when pleadings were ordered by the court on being satisfied that the defendants were duly served and the case was adjourned to 7-12-95 for hearing. On that date, after hearing a preliminary objection raised by Triumph Assurance Company Ltd. which was the 2nd defendant in the action, the name of the 2nd defendant was struck out and the case proceeded against the remaining defendant who is now the appellant. There and then, learned counsel to the respondent Mr. Madaki informed the court that since the appellant had been duly served with the processes of the court including the statement of claim but had failed to take any step to defend the action, he was applying under Order 26 rule 4 of the Kaduna State High Court of Justice (Civil Procedure) Rules 1987 for judgment to be entered for the respondent in the sum of N500,000.00 as claimed in the suit. On being satisfied from his own records that the appellant had in fact been duly served with the statement of claim but had failed to file and serve his statement of defence, and after quoting and relying on rule 4 of Order 26, the learned trial Judge granted the respondents application by entering judgment against the appellant in the following terms: -

'I am satisfied from the above provision that the plaintiff having complied with the requirement of the law by effecting service of both the writ of summons and the statement of claim on the defendant and the latter having failed to take steps to defend, the only option open to the court is to grant the prayer of the plaintiff and enter judgment in his favour.

To this end the judgment is entered in favour of the plaintiff as against the defendant in the sum of N300, 000.00 (Three hundred thousand naira) being the cost of the plaintiff's C.20 Bus at the time of accident.

Total sum awarded is N500, 000.00 which is payable by the defendant to the plaintiff.'

Being dissatisfied with this judgment, the defendant now appellant appealed to the Court of Appeal.