The appellant was given some contract jobs by the respondents. Dispute arose later on and the appellant issued out a writ of summons claiming the sum of N79, 930.00 plus interest jointly and severally against the respondents.

Somewhere along the line, there was a proposition for settlement of the matter out of court. Some correspondences were exchanged between the respective counsel to the parties.

The matter came up for mention on 12/4/95. On this day the respondents were not in court and they were not represented. The counsel for appellant informed the court that the matter was settled between the parties, by a term of settlement contained in a letter addressed to him by the counsel for respondents, and requested the court to enter judgment against the respondents as per the contents of the letter inspite of the absence of the respondents.

The trial court acceded to the request of the counsel and entered judgement against the respondents jointly and severally in the sum of N71, 130.00 plus cost assessed at N312.00

Armed with this judgment, the appellant as judgment/creditor went on to levy execution.

The respondents then became aware of what had happened.

On 27/4/95, the respondents filed a motion on notice praying for an order of the trial court to set aside the judgment delivered on 12/4/95, on the grounds that the judgment was a nullity as same was entered on the day the suit was only set down for mention. Also there was no personal service on 1st respondent with the writ of summons on the date of judgment and no order for substituted service of same on him was obtained. In the circumstances the judgment entered against the 1st respondent was a nullity since the court lacked jurisdiction to enter the judgment against him.

The application also prayed for an order directing the refund of the judgment debt already paid to the appellant.

The learned trial judge took full arguments on the motion on 28/6/95. At the end of the day that is the same 28/6/95, the learned trial Judge granted the application and made the following order.

“The judgment of this court delivered on the 12/4/95 against the defendants and in favour of the plaintiff respondent in the sum of N71, 000.00 plus cost assessed at N312.00 is hereby set aside. The said judgment sum shall be refunded to the defendants/applicants. The appellant was not happy with this decision and he appealed to this court on four grounds of appeal. Briefs of argument were also filed by the counsel to the parties.