The respondent in this appeal took out a writ of summons in the undefended list claiming against the appellant, the sum of N120, 430.00 being balance of payment due to the respondent in respect of a sub contract of N370, 000.00 awarded by the appellant to the respondent.
The respondent further claimed 35% interest pa on the said sum of N120, 430.00 from 17/12/92 to 17/12/93 and 10% p a thereafter to the date of judgment and final liquidation of the judgment sum.
Going by the information contained in the record, the writ of summons was served on the clerk of the appellants firm of solicitors on 11/10/94. The returned date fixed by the trial court was 19/10/94. On 18/10/93 one of the principal officers of the solicitors of the appellant filed a motion on notice seeking for extension of time within which to file notice of intention to defend the suit. The proposed notice of intention to defend together with a supporting affidavit was attached to the motion seeking for extension of time.
The motion for extension of time was moved on the 19/10/94, which was the return date fixed by the trial court.
The reasoning of the learned trial judge in doing what he did is as follows:-
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"The court of Appeal held in the case of Agueze v PAN African Bank Ltd. (supra) that when a case which is entered on the undefended list comes up on the return date, the court has only one duty namely to see whether (sic) the defendant has filed a Notice of Intention to defend and an affidavit. If no such notice and an affidavit have been filed the court has no choice but to enter judgment for the plaintiff. The undefended list procedure is a specie of its own, in this (sic) class different from the normal procedure that obtains in the ordinary case whereby the plaintiff and the defendant are heard before judgment is entered for the successful party. It is not amenable to the principles of natural justice of the audi alteram partem rule or the provisions of section 33(1) of the constitution of the Federal Republic of Nigeria 1979. Therefore once the defendant has been given enough or ample time to file his notice of intention to defend at least 5 days before the date of hearing of the matter and he refuses or neglects to do that, he cannot have the time extended for him to file such Notice. Once the defendant has failed to exercise his right within the stipulated time, he cannot be heard in court, even if he is present when the trial takes place. The defendant/applicant was served with the Writ of summons on the 11th October 1994. It never filed any notice of intention to defend at least 5 days before the return date which was 19/10/94. Instead it filed an application for extension of time on the 18/10/94 and annexed the notice and the affidavit to same. Even if the defendant has filed a notice of defence together with an affidavit on the 18/10/94 that would still not be a notice of defence in law as same had not been filed at least 5 days before the return date. It is my view that from the 11/10/94 to the 19/10/94 the defendant had two clear days within which to file a notice of intention to defend the suit together with an affidavit so as to comply with the provisions of Rule 3(1) i. e at least 5 days before the date of hearing of the suit. Since the defendant neglected to do so it must take or bear the consequence of its default in sum, I hold that the application cannot be granted and that the defendant has no defence to the plaintiffs claim (sic)"
The appellant was not happy with the judgment of the trial court hence filed an appeal to this court.
