BASHIR & ORS v. MAUTECH MICRO-FINANCE BANK LTD
(2020)LCN/14494(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Monday, July 20, 2020
CA/YL/147/2019
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1) YAHAYA BASHIR 2) VINCENT JOSHUA 3) UMAR HAMMAWA 4) VALLA MULTI-PURPOSE COOPERATIVE SOCIETY LTD. APPELANT(S)
And
MAUTECH MICRO-FINANCE BANK LTD. RESPONDENT(S)
RATIO
THE ISSUE OF COMPUTATION OF TIME IN SERVICE OF WRIT OF SUMMONS
The issue for determination is whether in computation of time of service of writ of summons and the date to enter appearance and file defence, the date of service is inclusive or excluded? In the case of Laga v. Hama & Anor. (2019) LPELR – 48140 (CA) it was held thus:
“By Section 15 (2) (a) of the Act, a reference in an enactment to a period of days shall be construed-
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs; this section makes it crystal clear that the day of the occurrence of the event is excluded in the computation of time. The count begins the day next following the event and includes the last day of the period. In other words, the day of the event is excluded and the last day of the period is included in the reckoning. This principle of the exclusion of the day of the happening of the event which has now become a principle of general acceptance as the mode of calculating the time for the taking of any action or step within the time stipulated by any statute or Rule, was enunciated in the case of Akeredolu & Ors VS Akinremi (1985) LPELR – 327 (SC). In the said case Aniagolu, JSC (of blessed memory) referred to MAXWELL ON INTERPRETATION OF STATUTES 12th Edition P. 309 and cited in approval the case of Lester Vs Garland (1808) 15 yes, 248 and stated thus: –
Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.
See also Etsako West Local Government Council v. Christopher (2014) 14 NWLR (Pt. 1426) 73 at 90 A-D. PER BAYERO, J.C.A.
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): By a writ of summons dated 22/01/2019, the Respondent claimed against the Appellants as follows:
a) The sum of One Million, Five Hundred and Twenty Six Thousand, Eight Hundred and Eighty One Naira, Twenty Four Kobo (N1,526,881.24) only being the outstanding balance of the credit loan facility granted to the defendants with accrued interest as at 31st December, 2018 which remains unpaid.
(b) 18% interest per annum commencing from January, 2019 till judgment and 10% annual interest from judgment till final liquidation.
(c) The sum of Three Hundred Thousand Naira (N300,000.00k) only being the legal expenses incurred by the Plaintiff to recover the said facility from the Defendants.
(d) The cost of this suit.”
The Appellants were also served with the Respondent’s motion on notice for summary judgment together with the affidavit in support and the written address. The motion which was brought pursuant to Order 22 Rules 1 & 5(2) and Order 10 Rule 2 of the Adamawa State High Court (Civil Procedure) Rules 2013 prayed for the following:-
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“1. An Order entering summary judgment in favour of the Plaintiff/Applicant against the Defendants/Respondents in terms of her claim as contained in the statement of claim.”
In response to the documents served on them on 26th February, 2019, the Appellants had on 28th March, 2019 filed the following documents, namely:-
(i) Joint statement of defence of all the defendants and the counter-claim by the 1st, 2nd and 4th Defendants only;
(ii) List of witnesses and their statements on oath;
(iii) List of documents relied on;
(iv) Counter-affidavit to the motion for summary judgment; and
(v) Written address in reply to the application for summary judgment.
When the matter came up for hearing of the motion on notice for summary judgment on 3rd April, 2019, both Counsel to Respondent and Appellants moved and adopted their written addresses. It was in the course of moving the Respondent’s motion for summary judgment that the Counsel to the Respondent raised the issue that the Appellants’ defence papers were filed out of the time stipulated by Order 22 Rule 4. Counsel to the Appellants also joined issues on same that the
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documents were not filed out of the 30 days stipulated by the said Rule 4 of Order 22. Meanwhile, the Respondent’s Counsel at the lower Court never joined issues with the Appellants on their defence, counterclaim and written address in reply but rather chose to object on their incompetence. In its brief ruling delivered on 4th April, 2019 the Lower Court upheld the Respondent’s Counsel submissions that the defence documents filed by the Appellants’ Counsel were outside the time stipulated. Furthermore, that since no leave of the Honourable Court was obtained before filing the defence papers, same were discountenanced. Consequently, judgment was given for the Respondent and against the Appellants only in terms of its relief No. 1 as follows:-
“1) That the Defendants jointly and severally to pay to the Plaintiff the sum of N1, 526, 881.24 being the outstanding balance of credit/loan facility granted to the Defendants with accrued interest as at 31/12/2018.”
It is against the said ruling that the Appellants herein filed the Notice of Appeal on 10/04/2019, the record of Appeal was compiled and transmitted on 7/08/2019, the
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Appellant’s Brief was filed on 9/08/2019, the Respondent’s Brief was filed on 18/09/2019 and the Appellant’s Reply Brief was filed on 2/10/2019. In the Appellants’ Brief of argument, a lone issue was formulated for determination:-
“Were the documents filed by the Appellants on their intention to defend the suit before the lower Court out of the time stipulated by the Rules of the said Court? If the answer is in the negative, whether leave ought to be given the Appellants to defend the suit on the merits.”
It was submitted that the documents filed by the Appellants before the lower Court in their bid to be given leave to defend the suit on the merits were validly filed within the time. Counsel referred to Order 22 Rule 4 and Order 9 Rule 1 of the Adamawa State High Court (Civil Procedure) Rules, 2013 governing computation of time and submitted that the Appellants filed their papers within time. He also cited the case of Etsako West Local Government Council v. Christopher (2014) 14 NWLR (Pt. 1426) 73 Ratios 5 and 6 as to computation of time and argued that, it is apparent in the case of the Appellants before the
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Lower Court that the day they were served with the Respondent’s processes, that is, 26th of February, 2019 is to be excluded from the period of 30 days to be reckoned with. That the counting starts on 27th of February, 2019. According to Counsel, since 2019 is not a leap year and February ends on the 28th day, the last day of the 30 days limited by the said Rule 4 of Order 22 will expire on 28th of March, 2019 which day the processes of the Appellants could be validly filed. He urged us to hold that the Appellants’ processes filed on 28th of March 2019 was done within time, it being the last day of the limited time. That if the lower Court had held that the Appellants’ processes were filed within time, it would have granted leave to the Appellants to defend the suit on the merit taking into cognizance the weighty issues raised in their defence/counterclaim– Adeleke & Ors. v. Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 108. He urged the Court to allow the Appeal and grant all the reliefs sought by the Appellants in Paragraph 4 of their Notice of Appeal dated and filed on 10th April, 2019.
The Respondent adopted the
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issue formulated by the Appellant for determination thus:-
“Whether the Appellants ought to be granted leave to defend this suit having regard to their incompetent processes filed out of the stipulated time.”
It was submitted that the Appellants statement of defence, witness statement on oath, counter affidavit and reply to the application for summary judgment filed on 28/03/2019 are incompetent. That the Appellants/Defendants were served with the Respondent’s originating processes on 26/02/2019 and they had 30 days to file their processes which expired on 27/03/2019. Reference was made to Order 22 Rule 1 of the Adamawa State High Court Civil Procedure Rules 2013. According Counsel Paragraph 2 of Form 1, the writ of summons served on the Appellants/Defendants stated thus:
“You are hereby commanded that within 30 (Thirty) days after the service of this writ on you inclusive of the day of such service on you do cause an appearance to be entered for you in an action at the suit of…”
Counsel cited the cases of C.C.C.T. & C.S. Ltd v. Ekpo (2008) AFWLR (Pt. 418) 198 at 206 Ratio 9 and Worlu v. Wocha (2011) AFWLR (Pt.
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602) 1778 at 1779 Ratio 2 in support of his assertions. According to Counsel, Order 9 Rule 1 of the Adamawa State rules is inapplicable to the instant case as the period stipulated in the writ of summons is mandatory. That the filing of the Appellants/Defendant’s processes was not made pursuant to any Court order; as such the case of Etsako West Local Government Council v. Christopher (Supra) cannot be an authority on the issue. That the period for computation of time under Order 9 Rule 1 is also not applicable to the procedure for summary judgment. He urged this Court to dismiss the Appeal. In the Reply Brief, it was submitted that the attempt by the Respondent’s Counsel to wriggle out of the limitation of 30 days as provided by Order 22 Rule 4 by seeking recourse to Order 1 Rule 3 is not only evasive and illusive, but a brazen violation of one of the cardinal rules of interpretation of statutes.
That having undertaken the special procedure of summary judgment under Order 22 of the said Rules, it is within the same Order 22, especially Rule 4 which deals with the limitation of time and the said Oder 9 Rule 1 dealing with computation of time
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that the Respondent’s Counsel must seek recourse to the interpretation thereof. That Counsel cannot add to, or subtract from the plain words used in the statute. That the special provisions of Order 22 Rule 4 excludes or restricts the general provisions of Order 1 Rule 3 and Order 10 Rules 1 & 2. According to Counsel, Order 9 Rule 1 being the specific provisions dealing with computation of time under the Rules of the Court, it is the governing and applicable provision to interpret Order 22 Rule 4.
The sole issue for determination before this Court is:
“Whether the documents filed by the Appellants/Defendants of their intention to defend the suit before the lower Court was done out of the time stipulated by the Rules of the lower Court or not.”
From the record of proceedings of the lower Court as reflected at Page 141 of the Printed record, the Appellants/Defendants were served with all the frontloaded documents to wit: writ of summons, statement of claim, witness statement on oath and list of documents to be relied on including the motion for summary judgment were served on the Appellants on 26/02/2019.
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Order 22 Rule 4 of the Adamawa State High Court Civil (Procedure) Rules, 2013 provides:-
“Where a party served with the processes and documents referred to in Rule 1 intends to defend the suit, he shall not later than 30 days, file his statement of defence, depositions of his witnesses, the exhibits to be used in his defence and a written address in reply to the application for summary judgment.”
It was the argument of the Appellants at Paragraph 4.03 of their brief that by Order 9 Rule 1 of the lower Court’s Rules which is on computation of time and the case of Etsako West Local Government Council v. Christopher (Supra), the date they were served with those processes should be excluded in counting the 30 days within which they should file their defence. That since they were served with the processes on 29/02/2019, this date should be excluded in computing the 30 days. That they were within the 30 days when they filed their documents on 28/03/2019. On the side of the Respondents/Plaintiffs, they argued that by Order 1 Rule 3 of the Rules of the lower Court the writ of summons shall be in Form 1. That Form 1 indicates that the 30 days within which
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appearance shall be entered include the day of service of the writ. That the Appellants who were served with the Respondents claim on 26/02/2019 filed their defence on 28/03/2019, after 31 days with the date of service inclusive. The issue for determination is whether in computation of time of service of writ of summons and the date to enter appearance and file defence, the date of service is inclusive or excluded? In the case of Laga v. Hama & Anor. (2019) LPELR – 48140 (CA) it was held thus:
“By Section 15 (2) (a) of the Act, a reference in an enactment to a period of days shall be construed-
(a) Where the period is reckoned from a particular event, as excluding the day on which the event occurs; this section makes it crystal clear that the day of the occurrence of the event is excluded in the computation of time. The count begins the day next following the event and includes the last day of the period. In other words, the day of the event is excluded and the last day of the period is included in the reckoning. This principle of the exclusion of the day of the happening of the event which has now become a principle of general
10
acceptance as the mode of calculating the time for the taking of any action or step within the time stipulated by any statute or Rule, was enunciated in the case of Akeredolu & Ors VS Akinremi (1985) LPELR – 327 (SC). In the said case Aniagolu, JSC (of blessed memory) referred to MAXWELL ON INTERPRETATION OF STATUTES 12th Edition P. 309 and cited in approval the case of Lester Vs Garland (1808) 15 yes, 248 and stated thus: –
Where a statutory period runs “from” a named date “to” another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of Parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently the last day will be included.
See also Etsako West Local Government Council v. Christopher (2014) 14 NWLR (Pt. 1426) 73 at 90 A-D.
It is thus clear that the day of the happening of an event is excluded where a period is reckoned from that event. The computation starts from the day next following the event and not from the day of
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the event.”
It therefore follows that the lower Court was in error when it held at Page 141 of the Printed record thus:
“It is not in doubt that the Plaintiff served Defendants with all processes in this case on 26/2/2019 while it is also not in doubt that the Defendants filed their statement of defence and other processes on 28/3/2019. A simple calculation shows that Defendants filed their process 31 days upon been served with processes of the Plaintiff. By that the Defendants did not file their processes within the 30 days as prescribed by Order 22 Rule 4. That means that the processes filed are incompetent before the Court as rightly submitted by counsel to Plaintiff.” Based on the decision of this Court in the case of Laga v. Hama (Supra) the Appellants filed all their processes within time. The Appeal is meritorious and is accordingly allowed. The Ruling of the lower Court delivered on 4/04/2019 is hereby set aside. Pursuant to Section 15 of the Court of Appeal Act 2004, the Appellants/Defendants are hereby granted leave to defend the suit No. ADSY/9/2019 before the lower Court. Parties to bear their respective costs.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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CHIDI NWAOMA UWA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I agree.
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Appearances:
M. Agan, Esq., holding brief of A. B. Panyi, Esq. For Appellant(s)
Olu Adebambo, Esq., with him, F. O. Oluwadare Kenneth Bathodo, Esq. For Respondent(s)
