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DEFAULT OF ENTERING AN APPEARANCE BY THE DEFENDANT

Dictum

The significance of entering an appearance by a defendant, as provided by the rules of the court, is very important and it cannot be over-emphasized. The consequences of failure to enter an appearance by a defendant to a writ of summons or an originating process include a plaintiff having a judgment against such a defaulting defendant and or the defendant being denied the right to be heard.

– Adumein JCA. Adewoyin v. Executive Governor (2011)

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WHERE PARTY HAS COUNSEL, PARTY’S PHYSICAL APPEARANCE IS NOT NECESSARY

I think the law has for long been settled that where a party to a proceeding before a court is represented by a counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the court conducting the proceedings, orders otherwise. See: Akinnuli v. Odugbezan (1992) 3 NWLR (Pt.258) 172, Kehinde v. Ogunbumi (1967) 1 All NLR 306.

— T. Muhammad, JSC. VAB Petroleum v. Momah (2013) – SC.99/2004

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EFFECT OF ANNOUNCING APPEARANCE IN COURT

I would like to quickly say here that when a counsel announces appearance or appears before, or in a court, he is not only presumed to be seized of the case, as submitted by the appellants’ counsel, but also presumed to have the authority of the party for whom he appears or on behalf of whom he announced appearance. See Tukur v. Govt. of Gongola State (1988) 1 NWLR (Pt.68) 39 and Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477.

— Garba, JCA. Shona-Jason v Omega Air (2005) – CA/L/418/2000

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ENTRY OF APPEARANCE IS A FORMAL STEP

INAKOJU & ORS VS. ADELEKE (2007) 4 NWLR (PT. 1025) 423, Ogbuagu, JSC, held that: “Entry of an appearance is said to be a formal step taken by a Defendant to an action after he has been served. See ADEGOKE MOTORS LTD. VS. D.J. ADESANYA & ANOR. (1989) 3 NWLR (PT. 109) 250 @ 292, 296 (1989) 5 SCNJ 80 @ 90 where it was held that entering of an appearance, is a technical expression and a formal step taken by a Defendant in civil proceedings. Therefore, a Defendant, shall before he is heard enter appearance and if he fails to do so, he is not entitled to be heard by the Court”.

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IMPORTANCE OF PUTTING GOOD REPRESENTATION IN ARBITRAL PROCEEDINGS BY PARTIES

587. Notwithstanding Nigeria’s allegations, I have not found Nigeria’s lawyers in the Arbitration to be corrupt. But the case has shown examples where legal representatives did not do their work to the standard needed, where experts failed to do their work, and where politicians and civil servants failed to ensure that Nigeria as a state participated properly in the Arbitration. The result was that the Tribunal did not have the assistance that it was entitled to expect, and which makes the arbitration process work. And Nigeria did not in the event properly consider, select and attempt admittedly difficult legal and factual arguments that the circumstances likely required. Even without the dishonest behaviour of P&ID, Nigeria was compromised. 588. But what is an arbitral tribunal to do? The Tribunal in the present case allowed time where it felt it could and applied pressure where it felt it should. Perhaps some encouragement to better engagement can be seen as well. Yet there was not a fair fight. And the Tribunal took a very traditional approach. But was the Tribunal stuck with what parties did or did not appear to bring forward? Could and should the Tribunal have been more direct and interventionist when it was so clear throughout the Arbitration that Nigeria’s lawyers were not getting instructions, or when at the quantum hearing Nigeria’s then Leading Counsel, Chief Ayorinde, was failing to put necessary points to experts to test their opinion and Nigeria’s own experts (for whatever reason) had not done the work required? Should the Tribunal have taken the initiative to encourage exploration of new bounds of contract law and the law of damages that may today be required where major long term contracts are involved?

— R. Knowles CBE. FRN v. Process & Industrial Developments Limited [2023] EWHC 2638 (Comm)

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WHAT IS AN APPEARANCE BEFORE A COURT?

I use the word “appearance” as, “A coming into Court as a party or interested person, or as a lawyer on behalf of a party or interested persons; esp., a defendant’s act of taking part in a law suit, whether by formally participating in it or by an answer, demurrer, or motion, or by taking post judgment steps in the law suit in either the trial Court or an appellate Court.” See Blacks Law Dictionary, 9th edition, page 113.

— J.T. Tur, JCA. Abdulkardir Abacha v Kurastic [2014] – CA/A/406/2010

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MEMORANDUM OF APPEARANCE MUST BE SERVED

The word “shall” used here is a word of command. A peremptory command that must be carried out. It follows that the requirement of the law is for a Respondent served with originating processes to file a memorandum of appearance. – Jonah Adah, JCA. Eshiet v. Effiong (2018)

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