Application to set aside judgment and for extension of time.

The plaintiff/respondent sued the defendants/applicants for the return of 63,000 Benson and Hedges Cigarettes and 49,000 State Express Cigarettes wrongfully detained by the defendants/applicants or their value assessed at £952 and for unliquidated damages for wrongful detention of the said goods.

Pleadings were ordered. The statement of claim was duly filed and served. No statement of Defence being filed the plaintiff/respondent moved the court for judgment to be entered against the defendants/applicants for failure to file their Statement of Defence.

On the day pleadings were ordered the court made a further order compelling the defendants/applicants to deposit the aforesaid goods in Court pending the decision of the court. The goods were not so deposited. An order for the defendants/applicants to show cause why the Deputy Preventive Commandant should not be committed to prison for contempt was made.

The Deputy Preventive Commandant swore to an affidavit stating, inter alia, that the goods had been removed by the Armed Forces of the Federation.

When the suit came up as an undefended suit, no defence having been filed, Counsel for the defendants/applicants informed the court that a motion for extension of time to file a Defence had been filed. The reasons he gave for not filing the Defence in time were that the case file was missing and that efforts would be made to locate the file to enable a Defence to be filed.

The court allowed the motion of the plaintiff/respondent for judgment to be given in the absence of a Defence. Thereupon, the present application was brought by the defendants/applicants seeking an order to set aside the judgment in the above suit and an extension of time within which to file a statement of Defence. In the affidavit filed by the Counsel for the defendants/applicants he pleaded section 6 and 8(1) of the Requisition and other Powers Decree, 1967.

HELD:

(1)     In these applications, one very important requisite to warrant the exercise by the court of its discretion in the applicant's favour, is an affidavit of merits. In this case, the affidavit of merit filed had no merit whatsoever and seemed to be no more than attempts to delay a payment of the judgment debt; consequently the application would be dismissed.

(2)     A perusal of Section 6 together with section 7 of the Requisition and other Powers Decree, 1967, makes it clear that the requisition can only be done either by notice or publication in the Gazette. There had been no plea of this notice and its date, or the Gazette and its date. Requisitioning does not take place by goods being removed from warehouses by members of the Armed Forces without the notice or publication in the Gazette. It is no defence to say that the file is missing for if such a notice were ever sent a copy could be available from the source from whence it came.

(3)     The court found extreme difficulty in giving section 6 an interpretation which would have the effect of saying that the Armed Forces were thus empowered to requisition "Court exhibits" without the notice and leave of the court of first instance, or where the matter is pending on appeal, the Appeal Court. Such exhibits, except possible in cases coming within the fourth Schedule section 2 of the Customs and Excise Management Act, are in the court's custody until determination. Section 263(1) of the Criminal Procedure Act is relevant in this consideration.

Application dismissed.

Acts referred to:

Requisition and other Powers Decree 1967 Section 6, 7, 8.

Criminal Procedure Act Section 263(1).

APPLICATION TO SET ASIDE JUDGMENT AND FOR EXTENSION OF TIME.

Ijomah, for the Defendants/Applicants.

Aka-Bashorun, for the Plaintiff/Respondent.

Taylor, C.J.:-The present plaintiff/respondent sued the defendants/applicants on a writ filed on the 31st October, 1969, for the return of 63,000 Benson and Hedges cigarettes and 49,000 State Express Cigarettes wrongfully detained by the defendant/applicants or their value assessed at £952. Unliquidated damages are also claimed for the wrongful detention of the said goods.

On the 1st day of December, 1969, I ordered pleadings to be filed in this matter. The plaintiff was to have 15 days to file the Statement of Claim and the defendant 30 days thereafter for the filing of the Statement of Defence. The Statement of Claim was duly filed and served. No Statement of Defence being filed the plaintiff/respondent moved the court by virtue of a motion filed on the 24th January, 1970, for judgment to be entered against the defendants/applicants for failure to file their Statement of Defence. I should at this stage also mention that on the day pleadings were ordered I made a further order compelling the defendants/applicants to deposit the aforesaid goods in Court pending the decision of the court. The goods were not so deposited when the matter came up for mention on the 26th January, 1970, and an order for the defendants' applicants to show cause why the Deputy Preventive Commandant should not be committed to prison for contempt was made accordingly.

On the 31st January, 1970, the Deputy Preventive Commandant swore to an affidavit stating, inter alia, that:-"5.         That the goods seized totalled 137,600 cigarettes.

6.      That the said goods were transferred to the Government Warehouses, Apapa, after the seizure.

7.

8.      That on reading this, I instructed the Exhibits Officer one Alajo to proceed to the Government Warehouse Apapa and collect the exhibit that is the said goods.

9.      That I was informed by the said Alajo and I verily believe that the goods had been removed by the Armed Forces of the Federation."

In short, then the subject matter of the action has been consumed and the plaintiff/respondent will be unable if she succeeds to have her goods returned to her. She must rely on the claim for their value and damages for their detention.

On the second of February, 1970, the suit came up as an undefended suit, no defence having been filed and no counter affidavit being filed to the motion filed by the plaintiff for judgment to be entered in the absence of a defence on the file. Mr Ijomah for the defendants during the course of the motion brought it to my notice that a motion for extension of time to file a defence had been filed. He gave as their reasons for not filing the defence in time the following:-

1.      The case file was missing.

2.      It is hoped that every effort will be made to locate the file to enable a tentative defence to be filed.

As a result he asked for 30 days within which to file this tentative defence whatever that might mean. In allowing the motion of the plaintiff for judgment to be given in the absence of a defence I stated, inter alia, that:-

"... the affidavit filed in support of the motion for extension of time to file Statement of Defence out of time does no more than say the defendant 'has a good defence'. It does not say what the nature of that defence is and it is illuminating to note that the file in the case has been missing since 1967, and it is from this file that the defence would be based."

Now on the 9th March, 1970, the present application is brought seeking the following order:-

(1)     Setting aside the judgment in the above suit entered as aforesaid, and

(2)     An extension of time up to 90 days to enable a Statement of Defence to be filed, which Statement of Defence it should be noted Mr Ijomah stated on the 2nd February, 1970, would be filed within 30 days, a copy of which was in fact attached to the motion paper.