3PLR – AKPABUYO LOCAL GOVERNMENT V. G.O. DUKE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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AKPABUYO LOCAL GOVERNMENT

V.

G.O. DUKE

COURT OF APPEAL CALABAR DIVISION

30TH JANUARY 2001

CA/C/17/2000

3PLR/2001/38 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

DENNIS ONYEJIFE EDOZIE, J.C.A

OKWUCHUKWU OPENE, J.C.A

SIMEON OSUJI EKPE, J.C.A

 

BETWEEN

AKPABUYO LOCAL GOVERNMENT

2. O. DUKE (TRADING UNDER THE NAME AND STYLE OF GIFFOBASS VENTURES)

 

REPRESENTATION

Joe Agi – Esq., – for the appellant.

Essien H. Andrew Esq., – for the respondent.

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Grounds of appeal – splitting a ground of appeal and formulating more than one issue therefrom – propriety of.

PRACTICE AND PROCEDURE – CONTRACT – Interest on debt or loan – principles governing when interest can be claimed thereon.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Undefended list procedure – judgment thereunder – nature of – whether could be set-aside by the High Court.

PRACTICE AND PROCEDURE – JURISDICTION – Appearance – where period within which to enter appearance is specified – whether court has jurisdiction to enter judgment before the expiration of same.

 

MAIN JUDGMENT

DENNIS ONYEJIFE EDOZIE, J.C.A (delivering the leading judgment):The respondent and appellant herein were respectively plaintiff and defendant in suit No. C/157/99 wherein by a writ of summons dated 26th April 1999 and filed the same date at the Calabar High Court the respondent as per the claim endorsed thereon claimed against the appellant thus:-

 

“1.     N150.000 due to the plaintiff for the execution of a contract to grade eight kilometeres of rural road at Ifiong Nsung, Akpabuyo Local Government Area.

 

2. 21% interest on the contract sum from 1st August, 1993.”

 

It would appear that the respondent, by his counsel filed a motion exparte for the suit to be placed on the undefended list and in the affidavit in support of that motion, the facts giving rise to the claim were outlined and for their brevity they read as follows:-

 

“I, Prince Effiom Duke, male, Nigerian, businessman of No. 17 Iman street, Calabar, hereby make oath and state that:-

 

1. I have the authority of my cousin the plaintiff to swear to this affidavit as the person most conversant with the facts.

 

2. In 1992, I applied with my cousin for a contract to grade rural roads in Akpabuyo Local Government Area, we used my cousin’s business name Giffobass Ventures, a registered contractor with the Local Government.

 

3. Our company Gifftobass Ventures was eventually awarded a contract to bulldoze and grade 8 kilometeres of rural road at Ifiong Nsung, Akpabuyo Local Government Area for N150,000. The jobbing order awarding the contract is here marked exhibit A.

 

4. We executed the contract successfully and was (sic) given a final payment certificate signifying our completion of the contract on 10th July, 1993. The certificate is here marked exhibit B.

 

5. We were not paid the agreed contract sum inspite of repeated demands.

 

In frustration, I retained a lawyer in October, 1997 to give the defendant notice of our intention to sue for the money. The said notice is here marked exhibit C.

 

6. On receiving the notice, the defendant promised to pay the contract sum in two instalments of N100,000 and N50,000 each and approval was given in December, 1997 to pay the first N100,000. My demand carrying the minutes of the defendant’s officials approving the payment is here marked exhibit D.

 

7. The defendant did not comply with the agreed instalmental payment as even the first instalment was not paid as approved. Consequently, we retained another lawyer in October, 1998 to give them (sic) a second notice of our intention to sue. The notice is here marked exbihit E.

 

8. The defendant has no defence to our claim for the unpaid contract sum plus interest at 21 % per annum for depriving us of the use of our funds from 1st August, 1993 till date.

 

9. And I swear to this affidavit in good faith believing the facts to be true and accurate.”

 

On 3rd May, 1999, the motion ex parte to place the suit on the undefended list which was filed pursuant to order 23 rule 1 of the Cross River State Civil Procedure Rules hereinafter to be referred as the High Court Rules was heard and granted and the suit adjourned to 20th May, 1999 for hearing. Although the writ of summons directed that the appellant should cause appearance to be entered within 8 days after service, the writ together with the relevant processes, to wit , the supporting affidavit and the drawn up order placing the writ in undefended list was not served on the appellant until the 14th May 1999, that is six days before the return date of 20th May 2000. On this latter date, there being no notice of intention to defend filed by the appellant, the learned trial Judge, Ilok J, on being moved by counsel for the respondent entered judgment against the appellant in the following terms:-

“Court: Since there is proof of service of the process in this suit on the defendant and they have neither filed notice of intention to defend nor entered appearance, judgment is hereby entered for the plaintiff in the sum of N150,000.00 being contract sum due to the plaintiff and 21% interest thereon annually from 1st August, 1993, pursuant to order 23 rule 4 of the High Court (Civil Procedure) Rules, 1987 of Cross River State.”

 

In its dissatisfaction with that judgment, the appellant by its counsel on 20/9/2000 filed a notice of appeal to which were subjoined the following four grounds of appeal:

 

“1.     ERROR IN LAW

 

The learned trial Judge erred in law when he entered judgment for the respondent before the date allowed for the appellant to enter appearance.

 

PARTICULARS OF ERROR

 

(a)     The period of ‘ 8 days after service’ of writ was allowed the appellant to enter appearance as contained on the writ served, but the learned trial Judge entered judgment within 6 days.

 

(b)     The writ and the affidavit were served on the14th May 1999 at 2.30p.m, as shown on the affidavit of service but the Judge entered judgment on the 20th May, 2000.

 

2. The learned trial Judge misdirected himself in law by entering judgment and awarding 21% per annum ad infinitum.

 

PARTICULARS OF MISDIRECTION

 

(a)     By order 40 of the Cross River State High Court Rules, a maximum of 10% is allowed post dating judgment.

 

(b)     The claim for interest from August 1993 simpliciter in the writ is incompetent and the learned trial Judge ought to have refused same.

 

3. The learned trial Judge erred in Law in relying on inadmissible documents to enter judgment for the respondent.

 

PARTICULARS OF ERROR

 

The respondent’s exhibits A, B, C and D are all public documents and so ought to be certified for them to be used in evidence or even admitted at all.

 

4. The judgment is against the weight of evidence”.

 

Pursuant to the notice of appeal, parties filed and exchanged briefs of argument. An appellant’s brief was filed and subsequently a reply brief. Similarly a respondent’s brief was also filed and subsequently a supplementary list of authorities. On 30th November, when the appeal came up for hearing, counsel adopted their respective briefs of argument. Respondent’s counsel drew our attention to the three cases in the supplementary list of authorities which he relied on in respect of the first issue for determination. In the appellant’s brief of argument, the following two issues were identified for determination:-

 

“1.     Whether a judgment delivered by a court before the expiration of time allowed on the writ of summons for defendant to enter appearance is valid.

 

2. Whether the claim for interest at 21% per annum on the contract sum without stating the basis of the interest claim and awarding same till liquidation of the judgment debt is valid.”

 

For the respondent, three issues were raised, viz:-

 

“1.     Whether the failure by the registry to serve the writ of summon on appellant at least eight clear days before the hearing date rendered the trial a nullity?

 

2. Whether the respondent’s claim for interest was vague and consequently bad in law?

 

3. Whether the trial court had any basis to award the respondent the interest claimed.

 

A careful comparison of the ground of appeal and the issues formulated in both briefs of argument reveals that no issues were formulated to cover grounds 3 and 4 of the grounds of appeal. The implication is that those grounds of appeal on which no issues for determination are formulated are deemed to have been abandoned and liable to be struck out. See Modupe v State (1988) 4 N.W.L.R. (Pt.87) 130 at p.138; Olowosoga v . Adebanjo (1988) 4 N.W.L.R. (Pt.88) 275; Osifile v. Odi (1994) 2 N.W.L.R. (Pt. 325) 134, Ogunlade v. Adeleye (1998) 8 NWLR (Pt. 260) 409 at 419 Ogunjumo v. Ademola (1995) 4 N.W.L.R. (Pt. 389) 254 at 265. There being no issues raised in respect of grounds 3 and 4 of the grounds of appeal, they are hereby struck out. It is also observed that the respondent formulated his second and third issues for determination from the appellant’s second ground of appeal. Fragmentation of a ground of appeal leading to proliferation of issues for determination is not permissible in brief writing. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable but also confusing to split a ground of appeal into more than one issue.

 

See Aja v. Okoro (1991) 7 N.W.L.R. (Pt.260) 273; A.G. Bendel State v. Adigun (1989) 4 NWLR (Pt. 118). (118) 646; Ogbunyinya v. Okudo (1990) 4 N.W.L.R. (Pt. 146) 551; Maduagwu v. State (1988) 5 N.W.L.R. (Pt.92) 60; Agbakoba v. Lagos State Executive Council (1991) 4 N.W. L.R. (Pt. 188) 664. In appropriate cases, where it is not convenient to formulate an issue from a combination of grounds of appeal, one issue and no more may be raised from one ground of appeal. It is for the foregoing that I prefer the two issues formulated by appellant. I therefore adopt them for the consideration of this appeal. The appellant’s first issue which poses the question whether a judgment delivered by a court before the expiration of time allowed on the writ of summons for defendant to enter appearance is valid, covers the corresponding issue in the respondent’s brief. It is unarguable and indeed common ground that the respondent’s writ of summon commencing the action the subject-matter of this appeal allowed the appellant eight clear days after the service to enter appearance. It is also crystal clear that the writ of summons was served on the appellant on 14th May 1999 and judgment entered in favour of the respondent on 20th May 1999, that is six days after the appellant was served with the writ of summons. In other words, judgment was entered against the appellant before the expiration of the eight days within which it was allowed to enter appearance. Learned counsel for the appellant has submitted that the suit having been heard before the expiration of eight days as ordered by the court after service makes the whole proceedings invalid. He craved in aid the case of Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (1999) 2 N.W.L.R. (Pt.590) 228 at 233. Responding, counsel for the respondent argued that there is no law or rules of court which stipulates that the return date of a writ of summon must be at least eight days after service. The eight days, it is pointed out is stated only in the form for a writ of summons in the appendix to the Cross Rivers State High Court (Civil Procedure) Rules. Counsel referred to section 4 of the High Court (Civil Procedure) Edict of 1987 which provides:-

 

“The forms in this appendix to the schedule shall be used where applicable with such variations as the circumstances of the particular case required.”

He then submitted that the eight days stated in the rules is therefore a matter of form and does not go to the validity of the writ or its service and that its application is subject to the circumstance of each case. Citing the case Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd (1989) 5 N.W.L.R. (Pt.123) 523. Counsel submitted that since the entry of appearance within eight days was a matter of form to the peculiar circumstance of each case the appellant who was served with a drawn up order of court specifying the 20th of May 1999 as the hearing date cannot be heard to complain if it failed to appear for the hearing just because the return date was less than eight days. Learned counsel referred to the case of Adegoke Motors Ltd. v. Adesanya. (1988) 3 N.W.L.R. (Pt. 103) 250 and submitted that a challenge to the issuance or service of a writ of summon ought to be made in the lower court as without that, it cannot be raised as fresh issue on appeal. Learned counsel made reference to order 2 rule 2(9) of the High Court Rules to submit that the irregularity in the service of the writ of summons complained of not having been raised in the court below and the appellant having proceeded to file a motion for instalmental payment of the judgment debt and later for payment en bloc by April 2000 it is deemed to have waived the irregularity.

 

To begin with, I think it is a misconception for the respondent’s counsel to argue as indeed he did that the irregularity complained of ought to have been raised in the lower court. This is so because a judgment on the undefended list is a judgment entered on its merits and not judgment in default. Therefore no motion to set it aside may be entertained as it can only be set aside on appeal unless the particular rule of court provides otherwise: See Bank of the North (Nig.) Ltd. v. Intra Bank S.A. (1968) ALL NLR 91; UTC (Nig.) Ltd. v. Pamotei (1989) 2 N.W.L.R. (Pt. 103) 244 at 299; J. Baerthie AND Co. Ltd v. Lima Services Ltd. (1992) 1 N.W.L.R. (Pt. 217) 273. There does not appear a provision under Order 23 of the Cross River State High Court Rules providing for the setting aside by the High Court of a judgment entered on the undefended list. The case of Adegoke Motor’s Ltd. v. Adesanya (supra) cited by the respondent’s counsel was a case of summary judgment for failure to file a statement of defence and is not authority for a case such as this which deals with the undefended list procedure.

 

It is conceded that fresh issues are not permitted to be raised on appeal except under special circumstance. As was stated in the case of Jadesimi v. Okotie-Eboh (1996) 2 N.W.L.R. (Pt. 428) 128 at 144, it is a general rule that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court but where the question involves substantial points of law whether substantive or procedural and it is plain that no further evidence could have been adduced that would affect the decision on the points, then the court will allow the question to be raised and the point taken to prevent an obvious miscarriage of justice: See Shonekan v. Smith (1964) 1 All NLR 168; Akpena v. Barclays Bank of Nig. (1977) 1 S.C. 47; Government of Oyo State v. Fairlakes Hotel Ltd. (1988) 5 N.W.L.R. (Pt. 92) 1. This principle of law about the raising of a fresh issue on appeal which the respondent’s counsel heavily relied on does not appear to me to be relevant in this appeal. It is not every issue canvassed on appeal that must have been raised at the trial. For instance, where a Judge in the course of writing a judgment raises an issue suo motu and without hearing counsel on the point proceeds to decide the issue, an appeal can be entertained on it. As the issue arose as a consequence of the judgment there is no way it could have been raised at the trial. So, too, in the instant case, where the substance of the appellant’s complaint is that the court below entered judgment before the expiration of the period for entering appearance. This complaint could not have arisen until judgment was delivered. The court was not obliged to enter judgment on 20/5/99. It was open to it to adjourn the judgment to a subsequent date after the expiration of the period for entering appearance. Had that been done, the complaint under consideration could not have arisen. Therefore, the question that the complaint was not raised in the court below is not tenable.

 

It is conceded that the High Court Rules do not stipulate any period within which a defendant may enter appearance after service of the writ of summons, however, since in the instant case where the writ served on the appellant directed it to enter appearance within eight days of service, that was a representation that judgment would not be entered against it before that period elapses. It had within that period to enter appearance and file its notice of intention to defend pursuant to Order 23 Rule 3(1) of the High Court Rules. It is my considered opinion that until that period of eight days had expired, the court was without jurisdiction to enter judgment against the appellant. In circumstances not too dissimilar, the Jos Division of this court in the case of Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (Supra) held per Oguntade, J.C.A:-

 

“This appeal can be disposed of on a narrow issue of law covered by the appellant’s 4th issue for determination. The undisputed evidence is that the writ of summons was served on the appellant on 7/2/94. On 14/2/94 the lower court gave judgment against the appellant. This was only a period of 7 days after the appellant was served the writ of summons. The writ of summons served on the appellant directed him to enter appearance to the suit “within 8 days after service………. inclusive of the day of……. service”. The earliest date by which the suit could have been validly heard was 15/2/94. On this score alone, the judgment of the lower court is invalid and ought to be set aside.”

 

I am in complete agreement with the above reasoning. Although unlike in the instant case the appellant before appealing had unsuccessfully tried to set aside the judgment of the lower court, nevertheless that case is on all fours with the one in hand and I feel bound by the decision in that case and hold that the judgment of the court below delivered on 20/5/99 before the expiration of the eight day period within which the appellant was directed to enter appearance to the suit is a nullity. It has been stressed that the appellant by filing a motion for instalmental payment of the judgment debt and later asking for time to pay in en bloc by April, 2000, it is deemed to have accepted the judgment and had waived any irregularity attendant to it. We were also referred to the following additional authorities contained in the respondent’s supplementary list of authorities:- Igbokwe v. Nlenchi (1996) 2 N.W.L.R. (Pt.429) 185 on the attitude of courts to technicalities, Obasi Bros (Nig) Ltd v. Wilbros (Nig) Ltd (1991) 3 N.W.L.R. (Pt.181) 606 on the effecf of non-observance of a rule of practice which does not occasion any injustice and finally the case of Lauwars Import-Export v. Jozabzon Ind. Ltd. (1988) 3 N.W. L.R. (Pt. 83) 429 on the effect of admission of liability by a defendant. Let me say straight away that the respondent’s contentions are untenable and the authorities are irrelevant.

 

I am aware that there are certain circumstances in which a defect in the issuance or service of a writ of summons is treated as an irregularity that does not render the writ a nullity. These are cases where a defendant on becoming aware of the defect waives it by taking further steps in the proceedings. See Ezomo v. Oyakhire (1985) 1 N.W.L.R. (Pt. 2) 195; Adegoke Motors Ltd. v. Adesanya (1989) 3 N.W.L.R. (Pt.103) 250. In the instant case, the appellant on being served the writ of summons on 14/5/2000 took no further steps in the proceedings from which waiver of the irregularity could have been inferred before judgment was entered on 20/5/2000. Being of the view that that judgment was given without jurisdiction and therefore a nullity, subsequent admission of liability by the appellant cannot validate that judgment. For as was stated in the case of Macfoy v. U.A.C. (1962) A.C. 152 at 152; (1969) All E.R. 1169, nothing can be put on nothing. See also Iyamu v. Aigbiremwan (1992) 2 N.W.L.R (Pt. 222) 234 at 242. Furthermore, it is settled law that admission are not estoppel and therefore not conclusive against a party against whom they are tendered. Such a party always has the right to prove the circumstances or to show that they were due to erroneous conception of the law or ignorance of the real facts or other circumstances which sufficiently explain them: See Okoli II v. Ayikasi II (1946) 12 W.A.C.A 21; Insurance Brokers of Nigeria v. Atlantic Textiles Manufacturing Company Ltd. (1996) 8 N.W.L.R. (Pt. 466) 316 at 329. It is therefore my view that the purported admissions of liability by the appellant of indebteness to the respondent on the basis of the judgement in the face of the judgment held to be a nullity is of no moment. From the foregoing, I entertain no doubt in my mind that the first issue for determination must be resolved in favour of this appellant against the respondent. This determination is sufficient to dispose of the appeal in favour of the appellant but in the event I am in error, I will now proceed to hazard an opinion in regard to the appellant’s second issue for determination which at the risk of repetition, is reproduced thus:-

 

(2)     Whether the claim for interest at 21% per annum in the contract sum without stating the basis of the interest claim and awarding same till the liquidation of the judgment debt is valid?”.

The contentions of the appellant on this issue are three pronged. Firstly, it is submitted that the claim for interest in the writ of summons is vague as there was no indication as to whether the rate of interest claimed was calculated weekly, monthly or annually, and whether at compound or simple interest and that the court cannot by its award make a case for the parties. Secondly, it was contended that the basis upon which interest ante-dating judgment was claimed was not spelt out in the writ of summons. The cases of Ekpan v. Uyo (1986) 3 N.W.L.R. (Pt.26) 63; REUBEN N. A. EKWUNIFE V. WAYNE (WEST AFRICA) LIMITED (1989) 5 N.W.L.R. (Pt. 122) 422 at 442 were alluded to. Thirdly, it was argued that the award of 21% interest post-dating the judgment is contrary to order 40 Rule 7 of the High Court Rules and for this proposition the following cases were cited in support: Himma Merchants v. Alhaji Inuwa Aliyu (1994) 18 LRCN p. 97; Ekwunife v. Wayne (W.A) Ltd. supra. In response to the above submissions, it was contended on behalf of the respondent that the complaint that the claim for interest was vague and the basis of it not disclosed was made without regard to the clear averments in the affidavit in support of the writ of summons. Counsel cited the following case Ndidem Usang Iso v. Ansa Eno (1999) 2 N.W.L.R. (Pt. 590) 204; Adeyemi v. Lan and Baker (Nig) Ltd (2000) 7 N.W.L.R. (Pt. 663) 33; Kano Textile Printers v. Tukur (1992) 2 NWLR (Pt.589) 78; N.G.S. Co. 1 N.W.L.R. (Pt. 129) 741 and NBN v. Savol (W.A.) Ltd. (1994) 1 N.W.L.R. (Pt. 333) 145.

 

Just as pleadings in a substantive suit, it is settled that an applicant is bound by the prayers in his motion. See Commissioner for Works, Benue State AND Anor. v. Devcon Dev. Consultants Ltd AND Anor (1988) 7 S.C.N.J. (Pt. 1) 1 at 11. A trial court cannot and ought not to envolve a case for either party and proceed to give judgment thereon. In the case of Nwafor Orizu v. Francis E.A. Anyaegbunan (1978) 5 S.C. 1 at 36, the Supreme Court observed.-

 

“This court has stated times without number that it is not within the province and competence of a Judge to evolve a case for the parties.”

 

See Onu v. Agbase AND Anor (1989) Q.L.R.N. Vol. II P.54 at l83; Adakri v. Ojo-Osagie (1994) 6 S.C.N.J. (Pt. II) 192 at 204. In the instant case, the respondent’s claim with regards to interest reads:- “21% on the contract sum from 1st August 1993”. But the judgment of the court below in that regard was “21% interest thereon annually from 1st of August, 1993 pursuant to order 23 rule 4 of the High Court (Civil Procedure) Rules, 1987 of C.R.S.” The drawn up order however concluded “and 21% thereon annually from 1st of August, 1993) until final liquidation of the judgment debt.” Appellant’s grouse is on the inclusion of the word annually in the judgment of the court and the words “until final liquidation of the judgment debt” as those words did not appear in the claim. it is manifest from paragraph 8 of the respondent’s affidavit in support of the writ which reads:-

 

“8.     The defendant has no defence to our claim for the unpaid contract sum plus interest at 21% per annum for depriving us of the use of our funds from 1st August 1993 till date.”

 

That the interest rate being claimed was per annum. Therefore the court by awarding interest on that basis cannot be said to have made a case for the parties which they did not make or granting a relief not claimed. I do not think it is the practice to indicate expressly on the judgment whether interest awarded is upon simple or compound interest. Nor do I think that the omission of the words “till the date of judgment” from the claim is per se fatal to the award: See the case of Ndidem Usang Iso v. Ansa Eno supra. It is therefore my view that though the respondent’s claim was inelegantly worded it is tolerably good enough and not per se fatal to the judgment.

 

A more substantial line of attack against the judgment is whether there was any basis in law to ground the award of interest claimed. In the case of Alfatrin Ltd. v. A.G. Fed (1996) 9 N.W. L.R. (Pt. 475) at p. 663; the Supreme Court held that at common law and as a general rule, interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. See London Chatham and Dover Railway v. South Eastern Railway (1893) A.C. 429. Thus, in the absence of express stipulation, interest was held not payable on money due on contract for work done by the plaintiff payment for which was in arrears: See Hill v. South Staff Railway (1874) L.R. 18 E.C. 154.” The court went further to say that interest will be payable where there is an express agreement to that effect and that such an agreement may be inferred from a course of dealing between the parties. See also the case of Ekwunife v. Wayne (W.A.) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 445.” Guided by these authorities, it seems clear that since neither the supporting affidavit to the writ nor the writ itself disclosed any agreement between the parties as the basis for the award of interest, the award of interest on the principal sum cannot be sustained . In regard to the award of interest on the judgment debt, it need not to be specifically claimed before it is awarded. The award is at the discretion of the court and is regulated by the rules. In this regard, order 40 rule 7 of the High Court Rules enacts:-

 

“The court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done…………. and may order interest at a rate not exceeding ten naira percentum per annum to be paid upon any judgment commencing from the date thereof or afterwards as the case may be.”

 

Interpreting an identical provision in the Bauchi State High Court Rules in the case of Himma Merchantile Ltd. v. Aliyu (1994) 5 N.W.L.R. (Pt. 347) 667 Uwais, J.S.C. (as he then was) commented thus:-

 

“It is clear from the foregoing that the rate of interest to be awarded is fixed at 10% per annum at the highest. The court may award a lesser rate but certainly not higher than 10% per annum.”

 

The rate of interest awardable by the court under order 40 rule 7 of the High Court Rules is a maximum of 10% on the judgment sum. The award of 21% by the court below was not justified. If I had resolved the first issue for determination in favour of the respondent, I would have amended the judgment of the court below to read:

 

“It is hereby ordered that judgment be and is hereby entered is favour of the plaintiff as per the writ of summons for the sum of N150,000 together with interest thereon at the rate of 10% per annum from the date of judgment until the liquidation of the judgment debt.”

 

However, in view of the conclusion I had arrived at with respect to the first issue for determination the appeal is allowed. The judgment of Ilok J. in suit No.C/157/99 delivered on 25/5/99 is hereby set aside. The suit is remitted to the court below for retrial by another Judge. Costs shall abide the outcome of the trial.

 

OKWUCHUKWU OPENE, J.C.A.:I have had a preview of the judgment just delivered by my learned brother Edozie, J.C.A. I entirely agree with him that the appeal is meritorious and that it should be allowed.

 

We have had cause to observe several times in this court the speed with which the courts enter judgements in the matters placed in undefended list without caring whether or not it will be just and fair to both sides. The old maxim:

“Justice delayed is justice denied” is a good principle of law but a case that is rushed with all speed without hearing the other side is worse than justice delayed.

 

In the instant case, the appellant was served with the writ and other court processes on 14/5/99 and the writ of summons directed that the appellant should cause appearance to be entered within 8 days after service. But when the matter came up for hearing on 20/5/99 which is 6 days after the appellant was served, the trial court entered judgment against the appellant. The respondent’s counsel had very strenuously argued that since the entry of appearance within eight days was a matter of form to the peculiar circumstance of each case that the appellant who was served with a drawn up order of court specifying the 20th of May 1999 as the hearing date cannot be heard to complain if it failed to appear for hearing just because the return date was less than eight days. I see no merit in this submission. The eight days stated in the rule is not a matter of form but a matter which goes to the root or foundation of the case as non-compliance with it is fatal to the respondent’s case. When the matter came up on 20/5/99 and it was observed that the appellant was only served 6 days before the adjourned date, the only course open to the court was to have adjourned the matter and a hearing notice would be served on the appellant. As the matter stands now, nothing was achieved by that trial as it is just a fruitless exercise and the respondent has to go through the whole hog once more.
For these and the fuller reasons given in the leading judgment, I will also allow the appeal. I abide by the consequential order made in the leading judgment including the order as to costs.

SIMEON OSUJI EKPE,. J.C.A.: I have read before now the leading judgment just delivered by my learned brother, Edozie ,J.C.A. He allowed the appeal and I agree with him. Accordingly, I also allow the appeal and abide by the orders made by him in the leading judgment.

 

Cases cited in the judgment

A.G. Bendel State v. Adigun (1989) 4 NWLR (Pt. 118). (118) 646.
Adakri v. Ojo-Osagie (1994) 6 S.C.N.J. (Pt. II) 192.
Adegoke Motors Ltd. v. Adesanya (1989) 3 N.W.L.R. (Pt.103) 250.
Aderonke Bakery Ltd. v. M/S D. Onyejekwe Ltd. (1999) 2 N.W.L.R. (Pt.590) 228.
Adeyemi v. Lan and Baker (Nig) Ltd (2000) 7 N.W.L.R. (Pt. 663) 33.
Agbakoba v. Lagos State Executive Council (1991) 4 N.W. L.R. (Pt. 188) 664.
Aja v. Okoro (1991) 7 N.W.L.R. (Pt.260) 273.
Akpena v. Barclays Bank of Nig. (1977) 1 S.C. 47.
Alfatrin Ltd. v. A.G. Fed (1996) 9 N.W. L.R. (Pt. 475).
Bank of the North (Nig.) Ltd. v. Intra Bank S.A. (1968) All NLR 91.
Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd (1989) 5 N.W.L.R. (Pt.123) 523).
Commissioner for Works, Benue State AND Anor. v. Devcon Dev. Consultants Ltd AND Anor (1988) 7 S.C.N.J. (Pt. 1) 1.
Ekpan v. Uyo (1986) 3 N.W.L.R. (Pt.26) 63.
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Rules of Courts referred to in the judgment
Cross Rivers State High Court of Rules: Order 2; Order 23 rules 3(1); Order 40 rule 7; Order 23 rule 4.