In 1970 the plaintiff (respondent) agreed to extend the tenancy of the appellant company for additional six years. The plaintiff claimed that he could not read and write in the English language or any other language. He was paid a sum of £2,880 (N5,760) by the appellant as rent for the six years from 1975 to 1981. Some documents were sent to him in an envelope which he never cared to have them read or interpreted to him. On further inquiry he later learnt that the documents sent to him were lease which was registered in E the land registry. He denied executing the said lease or authorising any body to negotiate or agree on its terms on his behalf The plaintiff further averred that the alleged execution and registration of the said lease contravened the provisions of the Land Instrument Registration Law.

On the other hand the defendant company’s (appellant's) case at the lower court was that a supplemental lease was executed by the parties on 24th August, f 1970 in respect of the land and buildings situate at Mission Road Benin-City for a period of 94 years. It is also the case of the defendant that the plaintiff was literate or that by his act or omission intentionally caused the defendant to believe that he was literate and to act upon such belief to its detriment. The defendant further averred that the plaintiff signed the said supplemental lease without any pressure whatsoever from it. Also based upon written correspondence the plaintiff is literate or in the alternative he knowingly permitted his oldest son Lt. Col. N.A.E. Anyaru to represent him that the plaintiff was literate. In a considered judgment dated 2219/89 the learned trial judge granted the declaration demanded by the plaintiff (respondent) and held that he was an illiterate who could not read or write in any language and that he was not bound by the deed of lease. The plaintiff died after the lower court delivered its judgment hence on 24/9/96 this court ordered that he be substituted by his son Lt. Col. Nicholas Anyaru (Rtd) as respondent in this appeal. Dissatisfied with the lower court's judgment the appellant appealed to this court.

"Make Oath and say that on the 23rd day of November 1993 at 11,30a.m, I pasted upon the Defendant's doors the Writ of Summons/Statement of Claim, a true copy whereof hereunto annexed issued out of this Court, High Court Registry, Aba upon the Defendant by pasting the same personally to the Defendants' address No.102 School Road, Aba, xxxxxxxxxxxxxxxxxxx"

The return date earlier ordered by the Court was 7/12/1993. It was however on the 16/12/1993, that the Plaintiff moved the trial Court that since the Defendants were not in Court, to enter judgment in favour of the Plaintiff Hon. Justice G.U Kalunta granted the prayer and entered judgment as follows:-

"The suit which was brought on the Undefended List was served on the Defendants by pasting at the last known address at No.102, School Road, Aba. The suit was served on the Defendant on the 23/11/1993. After service of the Writ of Summons, none of the Defendant(s) sic filed an intention to defend the suit consequently counsel for the Plaintiff has now applied for judgment.

The Plaintiff subsequently applied for the execution of the judgment and on Friday, 7th January 1984, the execution was levied on the Defendants' properties in the presence of the Plaintiff accompanied by the Court bailiffs and several policemen. After the execution, the Defendants filed an application in the Court of trial seeking to set aside the judgment and the execution, claiming that they were never served with the Writ of Summons and that they only became aware of the suit when the Writ of FIFA was served on them.

The Defendants/Appellants asserted that there was no pasting of the writ of summons at their office at any time.

The learned trial Judge held that a Court could not entertain an application to set aside its own judgment delivered under the undefended list on the merits.