The Respondent in this appeal was also Respondent at the Court of Appeal and Plaintiff at the trial High Court of Bendel State. The claim against the present Appellants jointly and severally was “for the sum of N768,850.00 being money paid for a consideration that has wholly failed in that between 17/11/92 at Benin City within Benin Judicial Division the Plaintiff paid to the Defendant the said sum of N768,850.00 for supply of General Goods but the Defendants have failed to deliver any of the goods to the Plaintiff or at all despite repeated demands". Also claimed is interest at 25% before Judgment and 10% after judgment. The claim was brought under Undefended List supported by an affidavit in accordance with Order 23 High Court (Civil Procedure) Rules 1988 of Bendel State.

The Appellants were duly served with the writ of summons. But within the time set by the Rules aforementioned the Appellants, as Defendants did not file any Notice of Intention to Defend. On 15th day of July 1993, the return date, neither the Appellants nor their counsel were present in Court. The Respondent in accordance with the Rules of that Court testified to prove his case. Judgment was accordingly entered for him as claimed on 22nd day of July 1993.

On 8th September 1993, the Appellants filed a motion praying for;

The application was supported by a seventeen paragraph affidavit sworn to by counsel to the Appellants. The main plank of the affidavit is that the Defendants were in a criminal matter and therefore in prison custody and that the office of 1st Defendant was then closed, even though there is clear admission that the Defendants were served with the writ of summons on 8th July 1993. But despite the length of the supporting affidavit, there is no hint of what the proposed defence to the action was. To baldly state that there was intention to defend is certainly not enough. The trial Court refused the application.

Court of Appeal heard the appeal against refusal of trial Court to relist the matter by setting aside the judgment; the appeal was dismissed and thus the appeal to this Court.