The plaintiff was an employee of the defendant. In the course of his employment he suffered severe injuries on his wrist. After an operation, the wrist became virtually useless. When all attempts by the plaintiff to convince the defendant to pay compensation failed he took out a Writ of Summons accompanied by statement of claim against the defendant claiming the sum of N5,000,000.00 (Five Million Naira) as Special and General damages for the Negligence and injuries he suffered while in the course of duty in the defendant company. After these originating processes were served on the defendant, the defendant entered Conditional Appearance on the 1st of November 1999. Notwithstanding the fact that defendant's appearance was unresolved the plaintiff filed a Motion on Notice on 4/1/99 under order 27 rule 7 of the High Court (Civil Procedure) Rules of Bendel State 1988 (applicable in Delta State) for:
On the 17th day of November, 1999 apparently oblivious to the conditional appearance entered by the defendant, the learned trial judge, after hearing learned counsel for the plaintiff, F.K. Ogbimi Esq., entered final judgment for the plaintiff in default of the defendant to file its statement of defence.
The Court ordered as follows:
-
"Application granted as prayed. Final judgment is hereby entered in favour of the plaintiff/applicant in whose favour judgment is hereby entered in the sum of N5, 000,000.00 (five Million Naira) against the defendant based on Special and General damages for negligence and injuries suffered by the plaintiff in the course of his employment as an employee in the defendant's company, in other words judgment is entered for the plaintiff as per paragraph 37 of the statement of claim."
In rapid succession, the defendant filed applications asking for extension of time to set aside the default judgment. To set aside writ of attachment, to stop further execution etc. Finally on the 23rd of January 2010 the trial judge heard a motion on Notice brought under order 37 rule 9, order 47 rule 1 of the High Court Rules, Section 30(1) of the 1999 Constitution for:
-
1
Extension of time within which applicant can apply to set aside the default judgment dated 17/11/99.
-
2
Setting aside the said default for suit (sic)
-
3
An order setting aside the writ of attachment or execution, include attachment of applicants vehicles, in execution of default judgment.
-
4
An order discontinuing further execution of applicants properties.
And on 11/4/2001 the learned trial judge found the application to be unmeritorious and struck it out with costs of N1,000 in favour of the plaintiff/respondent. Dissatisfied with the refusal of the learned trial judge to set aside the default judgment the defendant/appellant lodged an appeal. The Court of Appeal (Benin City Division) heard the appeal and in a considered judgment delivered on the 6th day of December, 2005 allowed the appeal and ordered as follows:
-
"The default judgment of the lower court dated 17/11/99 and the orders dated 11/4/2000 are hereby set aside. The suit No. HCH/14/99 is sent back to the High Court of Delta State for trial de novo by a judge other than Onajite-Kuejubola J.
This appeal is against that judgment
