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RULING
By a motion filed on the 28th July 2016, the 2nd defendant in this matter seeks an order of the court “staying further execution of the judgment of this court dated the 20th day of July 2015 and to set aside the said judgment pursuant to the inherent jurisdiction of the court and Order 13 rule 8 of the High Court (Civil Procedure) Rules, 2004, CI.
47. The application is supported by an affidavit.
The plaintiff is opposed to the application.
The applicant admits that he was served with the plaintiff’s writ of summons.
Indeed, the writ was served on the applicant as far back as 23rd January, 2015. The applicant is the Managing Director of the 1st defendant.
After the service of the process on the defendants, the defendants filed a statement of defence on the 21st day of April, 2015. However, the said defence was rejected by the court in view of the fact that the purported statement of defence was not signed by anybody at all as required under Order 11 rule 6 (5) of CI 47. At any rate, the 1st defendant being a limited liability company could only defend the suit against it by a lawyer as provided for under Order 4 rule 1 (2) which provides that: “(2) A body corporate shall not begin or carry on proceedings except by a lawyer, unless permitted to do so by an express provision of any enactment. ”After the court had entered interlocutory judgment against the defendants, a date was fixed for the plaintiff to prove its claims against the defendants who were notified of the date but the defendants again failed to attend the trail.
The plaintiff gave evidence and on the 14th August 2015 final judgment was entered against the defendants.
Hence, an application cannot be brought under Order 13 rule 8 to set the judgment aside.
Such judgments could only be set aside under Order 36 of the rules of court and specifically within fourteen days after the trial as stipulated under Order 36 rule 2. A defendant like the applicant herein, who had had notice of a date fixed for hearing of his case and who decides to absent himself from the hearing, cannot seek to set aside a judgment given after the hearing after more than one year after the judgment has been given by the court.
A grant of such an application would render otiose the provisions under the rules of court for expedited hearing of cases before the courts and the quest by the Judiciary to dispose of cases before it with minimum or no delay.
This application must therefore fail.
Moreover, the affidavit depo