2
Opposing the application, the learned Plaintiff’s counsel
submitted that issue of interlocutory applications are governed by
Order 7 of the Rules of this court and that they should be by motion.
He gave the case of G. M. O. N & S Co. Ltd v. Akpata (2010)9 NWLR
(pt.1200) 443 at pp. 474 – 475 arguing that in cases entered under
the undefended list, the court has only one duty on the return date.
That is, to see whether the defendant had filed a notice of intention
to defend and an affidavit. That if no such notice and affidavit are
filed, the court has no option but to proceed to judgment. In the
instant case, the learned counsel argued that there is no such notice
and affidavit properly filed before the court and oral application is not
contemplated by the Rules of this court.
He therefore urged the
court to refuse the oral application and enter judgment in their
favour.
Undefended list procedure is simple, it is technical and it is a
special procedure. Failure to comply with any aspect of the procedure
renders the act ineffective and it cannot be classified as a mere
irregularity which the court can gloss over. See National Assembly v.
C. C. I. Co. Ltd (2008)5 NWLR (pt.1081) 519 at 541 – 542. In the
instant case, the defendant filed his notice of intention to defend and
affidavit today for which Revenue Collector Receipt no. 2009965331
was issued. Service of the said notice was handed to the Plaintiff’s
counsel in the open court and the court’s copy was given to the
Registrar. The learned counsel admitted he was out of time but went
ahead and orally applied for leave to extend time to file the notice
and for a deeming order. What the learned counsel seem to
conveniently gloss over is the fact that the act for which the leave