NIGERIAN POSTAL SERVICES V. IRBOK NIGERIA LIMITED
(2006)LCN/1867(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of January, 2006
CA/IL/49/01
RATIO
APPEAL: WAYS AND HOW AN CAN WITHDRAW A GROUND OF APPEAL
In case of abandonment of grounds of appeal, the abandoned grounds are simply ignored and the appeal is decided only on the basis of the grounds in respect of which issues have been distilled and arguments canvassed. At the highest, the court would merely observe in passing that such grounds have been abandoned, and then move on with the more serious business of deciding the appeal without the unnecessary distraction of having to listen to or read lengthy and alas, sometimes, convoluted arguments and writing a ruling thereon. The Supreme Court made much the same point in Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 at 699, where Katsina-Alu, J.S.C., said: “An appellant is at liberty to withdraw or abandon any of his grounds of appeal. He may withdraw a ground of appeal by applying to the court to do so. In that case the court will then strike out the ground in question. However where an appellant does not formulate an issue in his brief of argument to cover a ground of appeal, that ground will be deemed abandoned….” PER IKONGBEH, J.C.A.
COURT PRACTICE: WHEN A COURT IS EMPOWERED TO ENTERTAIN APPLICATION FOR WRIT OF SUMMONS MEANT FOR PLACEMENT ON THE UNDEFENDED LIST
It can be seen from the italicised words that it is only in respect of claims to recover “a debt or liquidated money demand” that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list. If the action is not for the recovery of a debt or liquidated money demand then no application for placement of the matter on the undefended list can be entertained by the court.PER IKONGBEH, J.C.A.
What then is a debt? I think a useful guide may be found in Jowitt’s Dictionary of English Law, where the following definition and explanation as to the nature of “debt” are given. A debt is said to be- … A sum of money due from one person to another … An action of debt lay where a person claimed the recovery of a liquidated or certain sum of money affirmed to be due to him; it was generally founded on some contract alleged to have taken place between the parties, or on some matter of fact from which the law would imply a contract between them. This was debt in the debet, which was the principal and only common form. There is another species mentioned in the books, called debt in the detinet, which lay for the specific recovery of goods, under a contract to deliver them… A debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor). Hence, ‘debt’ is properly opposed to unliquidated damages …; to liability, when used in the sense of an inchoate or contingent debt; and to certain obligations not enforceable by ordinary process … ‘Debt’ denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment. Debts are of various kinds, according to their origin… “Debts may be created under the provisions of various statutes ….”PER IKONGBEH, J.C.A.
JUSTICES
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEH Justice of The Court of Appeal of Nigeria
TIJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
NIGERIAN POSTAL SERVICES Appellant(s)
AND
IRBOK NIGERIA LIMITED Respondent(s)
IKONGBEH, J.C.A. (Delivering the Leading Judgment): This is an appeal by the defendant against the judgment of the Federal High Court given at Ilorin on the undefended list. The respondent, as plaintiff before the lower court, had applied for a writ of summons on the undefended list in terms of its particulars of claim, which read:
“(a) A sum of N75, 000.00 (seventy-five thousand naira) only being the outstanding indebtedness owed to the plaintiff by the defendant when sometime in 1993 the plaintiff supplied some printing materials to the defendant at the defendant’s request which said sum the defendant has failed, refused and neglected to pay inspite of repeated demands.
(b) Interest at the rate of 21% per annum from July, 1993 till the date of judgment and 10% post judgment interest until the total indebtedness of the defendant are finally and totally liquidated.”
In support of the application for the issue of the writ of summons, it filed a 20-paragraphed affidavit sworn by its Chairman. Paragraphs 1 – 9 of the affidavit were devoted to describing the parties as to their businesses and addresses. The crux of the plaintiff’s case is contained in paragraphs 10 – 19 in which the deponent swore:
“10. That sometime in 1993, the defendant’s representatives from the defendant’s head office and its Ilorin branch office came to me at No. 62, Amilegbe Street, Ilorin with Local Purchase Order No. 00089 dated 30/7/93 that the plaintiff should supply 1,000 copies of P2 at N75.00 each for a total sum of N75,000.00. Copy of the LPO dated 30/7/93 is hereby attached and marked as exhibit 1.
11. That since the execution of the contract by the plaintiff, the defendant has refused and/or neglected to pay the said sum of N75,000.00 to the plaintiff.
12. That vide letter dated 19/3/94, the plaintiff wrote to the defendant for the payment of the said sum of N75, 000.00. Copy of letter dated 19/3/94 is hereby attached and marked as exhibit 2.
13. That inspite of exhibit 2, the defendant did not pay the plaintiff the said sum.
14. That the defendant, promised the plaintiff severally to come for payments but the defendant still refused to pay despite the plaintiffs several visits.
15. That vide letter dated 26/2/97, plaintiff wrote to the defendant to pay the said sum of N75,000.00 but to no avail. Copy of the letter dated 26/2/97 is attached hereto and marked as exhibit 3.
16. That the defendant has the means to pay the said sum but refused to pay.
17. That the plaintiff is now indebted to her banker – Afribank Plc as a result of the loan the plaintiff secured to execute the said contract.
18. That the plaintiff has lost her goodwill amongst customers as a result of the defendant indebtedness to the plaintiff and the plaintiff’s parent company.
19. That I know that the defendant has no defence to the plaintiff’s action.”
Exhibited with the affidavit were three documents. The first was the local purchase order by which the defendant/appellant had allegedly ordered some items from the plaintiff/respondent. It shows ex-facie that it came from the defendant/appellant. It bears its logo and name and was signed by someone described as its head of division/department. It set out the total number of items ordered by the defendant/appellant and the cost price of each item. The other two documents were letters written by the plaintiff/respondent to the defendant/appellant demanding payment.
Counsel on behalf of the plaintiff sought and obtained leave ex-parte to place the writ of of summons on the undefended list. Upon seeing proof that all the relevant processes had been duly served on the defendant and seeing that the latter had filed no notice of intention to defend, counsel for the plaintiff moved the court on 28/10/97 for judgment in terms of the plaintiff’s endorsement on the writ. On 17/12/97, the learned trial Judge, A. Bello, J., delivered a ruling in which he entered judgment for the plaintiff in terms of its endorsement on the writ of summons. It is not a very long ruling so I shall set out the entirety of it:
“RULING
This action was initiated by a writ of summons under the undefended list procedure. The application for the writ made to the registrar of this court was supported by an affidavit of 20 paragraphs deposing to the facts that the defendant has no defence to the action. Attached to the affidavit are three annexures marked exhibits 1 – 3.
The court granted an order formally granting leave to the plaintiff to issue and serve the writ of summons under the undefended list on the 8th of July, 1997 pursuant to the ex-parte application filed by the plaintiff. The claim of the plaintiff against the defendant is for the sum of N75,000. 00 (Seventy five thousand Naira) only which is a claim of debt owed by the defendant to the plaintiff.
The court adjourned the case to 28th of October, 1997 for hearing. On this return date, the defendant was absent in court and was not represented by any counsel. To make matters worse for the defendant, it failed or neglected to deliver to the registrar of this court a notice in writing that it intended to defend the suit together with an affidavit setting out the grounds of its defence as is required by Order III rule 11 of the rules of this court which prompted learned counsel for the plaintiff Mr. R. Otaru, to ask me to enter judgment in favour of the plaintiff in view of Order III rule 13 of the rules, to which I made reference in my earlier rulings in the two sister cases and in line with the decision of the Supreme Court in the case of Ben Thomas Hotels Ltd. cited by him.
I have carefully considered the antecedents of this case and after examining the affidavit in support and the exhibits and in view of the submissions of the learned counsel for the plaintiff and the rules of this court dealing with the procedure on the undefended list, I am absolutely satisfied, that the plaintiff has done all that is required of him under Order III rules 9 – 13 to enable me enter judgment infavour of the plaintiff I accordingly enter judgment in favour of the plaintiff in the sum claimed in the writ of summons. The rate of interest payable will be as per the claim of the plaintiff.”
By order of this court, time was extended for the defendant to seek leave to appeal and leave to appeal was also granted. The appeal was duly filed. The hearing of this appeal is based on the amended notice and grounds of appeal deemed filed by the order of this court made on 10/05/04. Briefs of argument were later filed and exchanged.
Mr. S. M. Tenku, for the appellant, has formulated the following two issues for determination:
1. Whether having regard to the provisions of Order III rule 9 of the Federal High Court (Civil Procedure) Rules, Cap. 134 of the Laws of the Federation of Nigeria, 1990, the respondent complied with the undefended list procedure to justify or sustain the judgment of the trial court.
2. Whether in the particular circumstances of this case, the learned trial Judge properly exercised his discretion in accordance with principles of law and practice governing procedure under the undefended list.”
For the respondent Mr. R. Otaru has formulated the following one Issue:
“Whether the learned trial Judge was right in giving judgment in favour of the respondent under the undefended list, having regard to the liquidated claim of the respondent and for failure on the part of the appellant to file notice of intention to defend the suit.”
I think the issue as formulated on behalf of the respondent; more accurately highlights the main controversy that needs to be resolved in this appeal. The second issue formulated on behalf of the appellant is an unnecessary replication of the first. The two boil down to the same single question posed in the respondent’s brief. I only need to point out, however, that the respondent’s issue needs to be slightly recast. As framed, it assumes a fact that is still being hotly contested. As framed, it assumes that the fact has been established, that the plaintiff’s claim was for a liquidated money demand. From the arguments advanced in support of the issues formulated on behalf of the appellant, it is clear that the appellant is challenging the fact that the respondent’s claim was for liquidated money demand. I shall, for the reason I have given, consider the issue, not on the footing that the claim was for liquidated money demand. Whether or not it was so, is one of the questions that must be answered in the course of the appeal. I shall, therefore, replace the word “liquidated” with the words “nature of the”. The respondent’s issue will thus be reframed to read –
“Whether the learned trial Judge was right in giving judgment in favour of the respondent under the undefended list having regards to the nature of the claim of the respondent and for failure on the part of the appellant to file notice of intention to defend the suit.”
Another matter that I must dispose of quickly is the preliminary objection taken on behalf of the respondent. Learned counsel gave notice of objection, which he argued in the brief. The objection relates to grounds 1, 4, 5, 6 & 7 of the grounds of appeal. Counsel has urged us to strike them out because they have been abandoned, no issues for determination having been distilled from them.
With all due respect to learned counsel, I think the objection is so much waste of materials and time. If the appellant chooses to abandon any grounds of appeal, by refusing or failing to formulate any issues based on them, I do not see how that becomes a matter for objection by the respondent. An objection is called for only when the appellant seeks to take advantage of grounds of appeal that are incurably defective or are not, for any other reason, properly before the court. Where, as in this case, an appellant chooses not to pursue an otherwise valid ground, there is no occasion for objection by the respondent. Such objection will only unnecessarily give rise to the time-consuming process of taking argument and writing a ruling. In case of abandonment of grounds of appeal, the abandoned grounds are simply ignored and the appeal is decided only on the basis of the grounds in respect of which issues have been distilled and arguments canvassed. At the highest, the court would merely observe in passing that such grounds have been abandoned, and then move on with the more serious business of deciding the appeal without the unnecessary distraction of having to listen to or read lengthy and alas, sometimes, convoluted arguments and writing a ruling thereon. The Supreme Court made much the same point in Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 at 699, where Katsina-Alu, J.S.C., said:
“An appellant is at liberty to withdraw or abandon any of his grounds of appeal. He may withdraw a ground of appeal by applying to the court to do so. In that case the court will then strike out the ground in question.
However where an appellant does not formulate an issue in his brief of argument to cover a ground of’ appeal, that ground will be deemed abandoned…”
This objection is frivolous in the extreme. I say no more on it.
In the main, learned counsel for the appellant has contended that, of the three conditions required by Order III, rule 9 of the Federal High Court (Civil Procedure) Rules, 1976, applicable then to be fulfilled before a matter could be placed on the undefended list, only the first one, namely, that the plaintiff must come by way of ex-parte application, was complied with in the present case. The other two, which are mandatory in terms, namely, that the affidavit in support of the application for placement of the writ must set forth good grounds on which his claim is based and that the plaintiff’s claim must be for the recovery of a debt or liquidated money demand, were not.
On the second condition, learned counsel, relying on Kaduna State Transport Authority v. Ofodile (1999) 10 NWLR (Pt. 622) 259; Kabiru v. Ibrahim (2004) 2 NWLR (Pt. 857) 326; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 at 744; S & T M. P. C. S. Ltd. v. Emenue (2002) 10 NWLR (Pt. 776) 509 at 520, argued in paragraphs 4.08 and 4.09 of the appellant’s brief.
“4.08. The second condition we submit was that the affidavit in support of the motion must set forth grounds upon which the claim was based and must state that in the deponent’s belief there was no defence to the action or claim. This fact must be specifically declared or deposed to in the affidavit.
4.09. In instant case, the affidavit in support of the respondent’s motion ex-parte quite aside from merely stating that the action arose as a result of various contracts which the respondent executed for the appellant, did not set forth the terms of the contracts nor were the documents constituting the contracts exhibited with the affidavit. Again, the affidavit did not set forth ground for the claim of interest. The respondent’s affidavit we submit, did not show prima facie ground which could enable the learned trial Judge to come to the conclusion that the claim was not liquidated nor stated the premises upon which the claim for interest at the rate claimed was based.” (Italics mine).
On the third condition, it was learned counsel’s submission that, from the affidavit evidence before the learned trial Judge, the case was not one that, under Order Ill, rule 9 of the rules, could go on the undefended list. In paragraphs 4.12 and 4.13 of the appellant’s brief of argument. counsel argued thus:
“4.12. The third condition or requirement of rule 9 of Order III of the Federal High Court Rules is that the application for writ of summons the undefended list procedure must be to to recover a debt or liquidated money demand. A claim under the undefended list procedure is by its very nature, an action for liquidated sum which is an amount previously agreed by the parties or which can be precisely determined or ascertained from the terms of agreement.
4.13 In the instant case, learned counsel to the respondent while moving the motion ex-parte for leave to issue writ of summons under the undefended list specifically intimated the trial court that he was relying on the 8 paragraph affidavit in support of the motion. There was nothing on the face of the motion paper or on the affidavit in support of it that the claim was for liquidated sum which was an amount previously agreed by the parties or which could be precisely determined from the terms of any agreement …. (Italics mine).
As a general conclusion learned counsel submitted that –
“4.16 The learned trial Judge, with due respect, erred in his finding and conclusion that the respondent complied fully with the undefended list procedure provided for under Order III rule 9 of the Federal High Court Rules and which finding and conclusion led him into placing the action on the undefended list and thereby occasioned a miscarriage of justice to the appellant.”
For the respondent, Mr. Otaru submitted that Order III, rule 9 was fully complied with and the action was, therefore, properly placed on the undefended list. The plaintiff’s/respondent’s claim was for a debt or liquidated money demand and the deponent swore in the affidavit in support of the application for placing the writ on the undefended list that the defendant/appellant had no defence to the claim, As to the propriety or otherwise of entering judgment for the respondent as the court did, counsel pointed out that, although the defendant was served with all the necessary papers, it did not see fit to enter appearance or file a notice of intention to defend or be present in court .. In the circumstances, the learned trial Judge was right in entering judgment for the plaintiff/respondent as he did.
Now, from the arguments for and against the appeal just reviewed, it is clear that the the first question that needs to be answered is whether or not the appellant is justified in its contention that the affidavit in support of the application for the placing of the writ on the undefended list “did not set forth the terms of the contracts nor were the documents constituting the contract exhibited with the affidavit”. We also need to find out whether or not the affidavit did not set forth grounds for the claim of interest.
We have seen the affidavit and taken note of the attachments to it. With all due respect to the appellant’s counsel, I cannot share his view that the terms of the contract between the parties were not set out. The averments in paragraphs 10 of the affidavit and exh. 1 thereto, i.e., the L.P.O., show clearly that the terms of the contract were clearly spelled out. The defendant/appellant, by exh. 1, promised to pay N75.00 to the plaintiff/respondent for each of the 1,000 pieces of P2 if the latter would supply them. By taking exh. 1 from the defendant/appellant, the plaintiff/respondent tacitly undertook to make the supplies. It is my view, therefore, that the plaintiff/respondent placed enough materials before the court to show that the parties to the contract perfectly understood what their obligations and duties to each other were.
The next question is whether or not the plaintiff’s/respondent’s action against the defendant/appellant was for the recovery of a debt or liquidated money demand within the contemplation of Order III, rule 9, to make the plaintiff’s claim suitable for placement on the undefended list. This question is relevant because of the requirements of Order III, rule 9, which specifies the type of claims that qualify for placement on the undefended list. The rule provides:
“9. Whenever application is made to the court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.” (Italics mine).
It can be seen from the italicised words that it is only in respect of claims to recover “a debt or liquidated money demand” that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list. If the action is not for the recovery of a debt or liquidated money demand then no application for placement of the matter on the undefended list can be entertained by the court.
I think a useful guide may be found in Jowitt’s Dictionary of English Law, where the following definition and explanation as to the nature of “debt” are given. A debt is said to be-
… A sum of money due from one person to another …
An action of debt lay where a person claimed the recovery of a liquidated or certain sum of money affirmed to be due to him; it was generally founded on some contract alleged to have taken place between the parties, or on some matter of fact from which the law would imply a contract between them. This was debt in the debet, which was the principal and only common form. There is another species mentioned in the books, called debt in the detinet, which lay for the specific recovery of goods, under a contract to deliver them…
A debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor). Hence, ‘debt’ is properly opposed to unliquidated damages …; to liability, when used in the sense of an inchoate or contingent debt; and to certain obligations not enforceable by ordinary process … ‘Debt’ denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.
Debts are of various kinds, according to their origin…
“Debts may be created under the provisions of various statutes …”
As we saw a short while ago, the defendant/appellant initiated an arrangement, by issuing exh. 1 to the plaintiff/respondent, whereby the latter was to supply to it 1,000 copies of P2 at the unit price of N75.00 and undertook to pay the cost price to the latter if and when the latter made the supplies. As we also saw, the plaintiff/respondent went to court, claiming that it made the supplies and expected to be paid a total of N75, 000.00, but with which sum, unfortunately and unjustifiably, the defendant/appellant was not forthcoming. From the definition and explanation we just saw of and concerning “debt”, I have no doubt at all in my mind that the first relief sought by the plaintiff/respondent was a claim to recover a debt created in its favour against the defendant/appellant by contract, exh. 1. The plaintiff/respondent was, therefore, justified in its application to the court below for the placement of that claim on the undefended list and the learned trial Judge was justified in entertaining the application and concluding it in favour of the plaintiff/respondent by placing it on the undefended list.
What of the second relief, which was for an order enjoining the defendant/appellant to pay a pre-judgment interest at the rate of 21% per annum, from July, 1993 to the date of the judgment and a post-judgment interest at 10% per annum till the judgment debt was liquidated?
There is nothing in the supporting affidavit or anywhere on record to indicate by what authority the plaintiff/respondent claimed it to be entitled to the pre-judgment interest and how its rate was arrived at. That claim was clearly, therefore, not one to recover a debt.
Was it then a claim for the recovery of a liquidated money demand?
On the term “liquidated demand” and the distinction between it and the term “unliquidated demand,” Iguh, J.S.C., had this to say in Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 at 102:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a “penalty” and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute. In Eko Odume and Others v. Ume Nnachi and Others (1964) 1 All N.L.R. 329 at 333 this court stated per Idigbe, J.S.C., as follows:
“We think, however, that the description by learned counsel of a claim for ?300 damages for trespass, as one for “liquidated damages” is erroneous. A claim for damages does not become one for “liquidated damages” merely because a specific amount of money is claimed”.
But in every other case, where the court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated. So, too, when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate or what may be judged reasonable, the damages are said to be ‘unliquidated’. See Eko Odume and others v. Ume Nnachi and Others, (supra). Accordingly, the amount ultimately recoverable in a claim for unliquidated damages is incapable of prior ascertainment and may only be known at the end of the trial as the same is based on the estimate or opinion of the trial court. It is also right to say that because of the subjective nature of the assessment of unliquidated damages, two different courts can hardly award the same amount in the same claim.”
In the appeal before us, there is no doubt in my mind that the plaintiff’s/respondent’s claim for pre-judgment interest is for the recovery of an unliquidated money demand. It is, therefore, outside the purview of Order III, rule 9. The Judge was, therefore, wrong to have placed it on the undefended list. He should have transferred it to the general cause list for hearing in the normal way.
Finally, there was the claim for post-judgment interests. Should this have been placed on the undefended list?
I think the Judge proceeded correctly by so placing it. From its very nature and the authority for its payment, I think it can be classified as a debt, or liquidated money demand. The obligation for its payment and the rate thereof are imposed and authorized by statute. See Order XLV, rule 7, of the Federal High Court Rules, which provides:
“7. 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, reckoned from the date of the judgment or order or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding five per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards.”
The amount of a judgment debt is known once the judgment is delivered. It is only a matter of arithmetical calculation to work out 5% of it. A claim for it is, therefore, in my view, one for the recovery of a debt or liquidated money demand that can be pursued by the undefended list procedure. Indeed, it naturally follows the judgment, whether or not on the undefended list.
Now, was the learned trial Judge right in adopting the short-hand method he adopted of entering judgment against the defendant/appellant?
Considering the provisions of the rules, I think he was. See Order III, rules 11 – 13, which provide:
“11. If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds or his defence, then and in such case, the suit shall be entered in the general list for hearing.
12. Where any defendant neglects to deliver the notice of defence and affidavit, as described in rule 11 of these rules, within the time fixed by the said rule, the court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.
13. Where any defendant neglects to deliver the notice or defence and affidavit, prescribed by rule 11 of these rules, within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 12 of these rules, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally”
An obligation is clearly cast by these provisions on the defendant, if he intends to defend the action, to deliver to the registrar of the court within the stipulated time, his notice of intention to defend along with sufficient materials, introduced by affidavit, to convince the court that he does indeed have a defence to the action. In the present case, the plaintiff/respondent alleged, as has been seen, that he made the supplies requested and has not been paid for them. The defendant/appellant was served with all the necessary papers but failed to deliver the notice and other materials required of it to entitle it to contest the action. The Judge was, therefore, justified in the circumstances in acceding to the request by the plaintiff’s counsel to proceed to judgment.
For all the reasons that I have given I find that there is, subject to the comment I propose to make hereunder, no merit in the appeal as it relates to the decision of the trial court on the plaintiff’s/respondent’s main claim and is accordingly dismissed.
The only thing that requires to be done now is to modify the judgment of the court below to conform to the law and to the justice of the matter, having regard to what the affidavit evidence before the court shows the plaintiff/respondent to he entitled to. Accordingly, I make the following consequential orders:
1. The judgment of the lower court awarding the plaintiff/respondent N75,000.00 against the defendant/appellant is affirmed.
2. Affirmed also is the judgment awarding interests on this sum from the date of the judgment till the judgment debt is fully liquidated. The rate is, however, in accordance with the provisions of Order XLV, rule 7, of the Federal High Court Rules, reduced from 10% to 5%.
3. The judgment awarding pre-judgment interests in favour of the plaintiff/respondent is set aside. Subject to the plaintiff’s/respondent’s right of appeal against this particular order, the plaintiff/respondent shall, if it still wishes to pursue the matter, within 90 days from the date of this judgment, move the lower court to transfer the issue of the pre-judgment interest to the general cause list for hearing and determination. Should it fail to so move the court, that claims shall he deem abandoned and shall accordingly stand struck out.
4. There shall be no orders as to costs.
MUNTAKA-COOMASSIE, J.C.A.: I was opportune to read in draft form the erudite judgment of my learned brother Ikongbeh, JCA. I agree entirely with the decision that the appeal lacks merit. Same is hereby dismissed. I have nothing more useful to add. I abide by the consequential orders made in the lead judgment. I endorse the “no costs” order made by my learned brother.
ABDULLAHI, J.C.A.: I have had the honour to read before now, the lead judgment of my learned brother, Ikongbeh, JCA, just delivered, with which I entirely agree. In the aforesaid judgment, his lordship has meticulously dealt with all the issues canvassed by the parties. His Lord comprehensively discussed and decided lucidly all the issues submitted for determination of the case. I with respect adopt his reasoning and conclusions as mine.
I accordingly find no merit in the appeal and dismiss it. I abide by all the consequential orders made by my learned brother in the lead judgment.
Appeal dismissed.
Appearances
S. M. Tenku, Esq. (with him, S. O. Sangotayo, Esq.)For Appellant
AND
R. Otaru, Esq. (with him C. O. Roland-Otaru [Mrs.], V. O. Awomolo [Mrs.] and O. Jaiyeola [Miss])For Respondent
