Cletus Umagwu V. Peter Adalikwu (2006)
LawGlobal-Hub Lead Judgment Report
NWALI, SYLVESTER NGWUTA, J.C.A.
This is an appeal against the Judgment of Obi J. of the High Court of Justice, Obudu Judicial Division of the Cross River State High Court. The Judgment was delivered on 5th day of April 2004.
The originating process was a writ of summons marked “undefended list” Endorsed on the writ of summons are the following claims made by the Respondent (as plaintiff) against the appellant (then defendant):
“1. The sum of N500,000.00 (five hundred thousand naira) being money borrowed by the Defendant from the plaintiff on the 11th day of October, 1996.
- N20,000.00 (Twenty thousand naira) being solicitors fees incurred in maintaining this suit.
- 10% interest on the Judgment sum till the sum is fully liquidated.”
The writ of summons served on the defendant (now appellant) commanded the defendant now appellant thus:
“You are hereby commanded that within eight (8) days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action at the suit of the plaintiff and TAKE NOTICE that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.”
The order placing the suit in the undefended list, dated 18/3/04 adjourned the matter to 1/4/04 for hearing. However the matter did not come up until 5/4/2004, the date of the judgment.
In the judgment, the Court below noted that “there is affidavit of service dated 29th March 2004 …” As of the date of the judgment (5/4/04) the respondent did not file a notice of intention to defend and affidavit disclosing a defence on the merit. The lower court was of the view that the appellant has no defence and entered judgment in the sum of N500,00.00 as claimed, 20% P.A interest on the judgment sum till the sum is fully liquidated and 5,000.00 being solicitors fee incurred in prosecuting the suit.
Aggrieved by the judgment the appellant appealed to the court on one ground. The lone ground of appeal is hereunder reproduced, shorn of its particulars:
“GROUND ONE. ERROR IN LAW:
The learned High Court Judge erred in law in entering judgment before the expiration of the period limited by the writ of summons for entering of appearance.”
In compliance with order 6 rules 2 & 4 (1) of the Court of Appeal Rules 2002 the parties herein filed and exchanged briefs of argument.
In his brief the appellant framed the following issue for determination:
“Whether the lower court was right in entering judgment before the expiration of the time limited in the writ of summons for entering appearance.”
In his own brief the Respondent presented the following issue for resolution by the court:
“Whether or not the lower court’s judgment was given in breach of order 23 rule 1 of the High Court (Civil Procedure) Rules of Cross River State 1987 and thereby denying Defendant a fair hearing.”
At the hearing of the appeal learned counsel for the parties adopted and relied on their briefs each urging the court to enter judgment for his client.
In his oral argument on the lone issue in this appeal, learned counsel for the appellant cited Eneji V. International Transactions Ltd (2000) 11 NWLR (pt 678) 225 at 234-235, to support his argument that proceedings in the undefended list are subject to the relevant High Court Rules, in this case the Cross River State Civil Procedure 1987. Learned Counsel referred to the time limited in the writ for the entering of appearance and the court finding that the writ was served on the appellant on 29th March 2004 and submitted that the judgment was delivered on the 7th day after service of the writ of summons on the appellant. Counsel relied on S. 15(2) of the Interpretation Act 1990 and Order 22 of the Cross River State High Court (Civil Procedure) Rules 1987.
Learned Counsel referred to the phrase “inclusive of the day of service” in the writ and submitted that the phrase does not ipso facto exclude the application of the Interpretation Act of/or the High Court Rules. Counsel emphasized that the writ of summons is a form for commencement of actions while Order 22 of the High Court Rules makes specific provisions fop the computation of time. Counsel contended that where there is a conflict between a form and a specific provision of a rule, the rule would prevail. It was further contended on behalf of the appellant that where there is a conflict between section 15(2) of the Interpretation Act, an act of the National Assembly and the High Court rules of Cross River State which owes its existence to Edict No 7 of 1987 the provision of the Act would prevail. He referred to the doctrine of covering the field and contended that a State Legislature cannot validly legislate on a matter on the concurrent legislative list on which the Federal legislature has already made a law. He relied on A-G Osun State Vs. International Breweries Plc (2001) 7 NWLR (pt 713) 647 at 663 Nwangwu V Ukachukwu (2000) 6 NWLR (pt 662) 674.
Further learned counsel argued that even if time is computed from the date of service the judgment would still be incompetent in view of the fact that the date of the judgment 5th, April 2004 was the 8th day. He argued that 5th April 2004 commenced at midnight of 4th April and expired at midnight. According to learned counsel a valid judgment could not have been entered earlier than 6th April 2004. He relied on Akpabuyo local Government Vs. Duke (2001) 7 NWLR (pt 713) 557 at 571. Learned Counsel contended that the 8 days period delimited for the entry of appearance is fundamental and any judgment obtained before the expiration of the said period is void. Learned counsel urged the court to resolve the lone issue in favour of the appellant, allow the appeal on the grounds that the judgment was entered within the period limited for the entry of appearance and that the appellant was denied the right to enter appearance and file his notice of intention to defend within the period allowed by law.
In arguing the lone issue he formulated, which in substance, appears the same as the issue framed by the appellant, learned counsel for the Respondent referred to “LAW AND PROCEDURE IN SUIT ON THE UNDEFENDED LIST” by C.C Nweze at page 2 where Kayode Eso JSC was quoted thus:
“the rules are for the purpose of obtaining summary judgment without proceeding to trial. They are for disposing with dispatch cases which are virtually unconsisted.”
Counsel stated that the writ marked undefended was served on the appellant who ignored the date of” hearing herein endorsed.
Appellant did not react to the process served on him except by way of this appeal after the execution of the lower court’s judgment, counsel maintained. He submitted that matters on the undefended list are sui generis and not governed by the pedestrian rules that apply to matters on the general list. Counsel argued that inspite of its wordings a suit on the undefended list is to be construed differently from the same writ of summons in respect of matters in the general list. He referred to Order 4 of the High Court (Civil Procedure) rules of Cross River State 1987 to the effect that forms provided by the rules are to be used with such variations as the circumstances of the particular case permit. Counsel further submitted that even though the writ of summons is in form 1 as per order 5 r.1 of the High Court rules it should not be strictly viewed as a writ appropriate for use in Ord. 23 of the rules. He said the law maker had intended by order 5 r.8(2) of the High Court rules that other forms be made to carter for special proceedings like the proceeding in the undefended list. He said where the form had not been provided “Order 4 of the foregoing law applies.” He said the respondent had to use form 1 because of failure of the Chief registrar to frame an appropriate form as required by order 5 rule 8(20 and failure of a Court Official cannot be visited on a litigant. He relied on Famfa Oil Ltd Vs Attorney-General of the Federation & Anor (2003) 11 MJSC 66 at 78. He urged the court to look at the substance, not the form of the action. In the alternative he argued that if the command in the writ must prevail the general provision therein must be superceded by the specific provision of Ord 23 of the rules. He said there is nothing in order 23 to suggest that the phrase “enter appearance” is synonymous with the filing of a Notice of intention to defend. It will be wrong, counsel argued, to import into order 23 the phrase “enter appearance within 8 days” when it is not provided in the order. He refers to Ojukwu Vs Obasanjo (2004) 10 M.JSC 1 at 33 where the court held that “a court of law is without power to import into the meaning of a word, clause or section of a statute something that it does not say.”
Counsel further submitted that to hold that the Defendant is to enter appearance within 8 days as provided by order 13 of the rules in a matter on the undefended list will mean that order 25 requiring pleadings is activated and that will make nonsense of order 23. According to learned counsel if order 13 is called into play the order 25 must apply and the court cannot pick and choose in the circumstance. Counsel conceded, that Ord. 23 does not make provisions for time within which appearance is to be entered but argued that from the wording in the order it is clear that the law maker intended that the defendant should be accorded reasonable time within which to make up his mind whether to defend the suit or not. He urged the court to hold that 8 days in the con of this suit is reasonable.
Learned counsel further argued that even if the entry of appearance is synonymous with the filing of notice of intention to defend the 8 day provided should include the day of service. He said the words are clear and therefore not amenable to interpretation. He referred to PDP Vs INEC (1997) 7 SC (pt 11) 30 at 87 and Okotie-Eboh Vs. Manager (2005) 2 MJSC 176 at 157. He urged the court to discountenance the recourse to the interpretation Act or any other aid to determine the import of form 1 prescribed by order 5 of the Rules. In addition, counsel said the 8 days in the writ will expire at the close of the official working day which is 4 pm or 6 pm in case of over time. ‘However counsel did not state the date the 8 day period would expire at 4pm or 6pm. Counsel urged the court not to hold that the period would expire by midnight as no one will be around to receive precesses around 7pm or 11.30pm. He relied on Ojukwu Vs. Obasanjo supra at 33.
Counsel urged the court to depart from the decision reached by this court in Akpabuyo Local Government Vs. Duke (supra) which he said was erroneous. He urged the court to affirm the judgment of the court below:
On a closer scrutiny the issue presented by the Respondent is quite different in substance from that of the appellant. The appellant’s issue is on the propriety of the Court entering judgment before the expiration of the time limited in the writ of summons for entering appearance. On the other hand the Respondent’s issue is as to whether or not the judgment was given in breach of Order 23 rule 1 of the high Court (Civil Procedure) Rules of Cross River State 1987 thereby denying the appellant fair hearing. Order 23 rule 1 deals with entry of a Suit for hearing in Undefended List, marking the Writ of Summons accordingly and entering a date thereon for hearing. The appellant is not questioning the procedure leading to the placing of the Suit in the Undefended List. The appellant’s case is that the judgment was entered against him before the expiration of the 8 day period limited for him to enter appearance in the Writ of Summons marked Undefended List and served on him. In the circumstances the issue framed by the Respondent is not appropriate for the determination of the appeal. The respondent did not cross appeal. The issue he framed is not related to or based on the appellant’s ground of appeal. The said issue is not only incompetent but completely valueless in the determination of the appeal and so must be ignored. See Orno V. J.S.C. Delta State (2000) 7 Sic. (pt.11) page 1.
I will therefore determine the appeal on the lone issue formulated by the appellant.
It is necessary to sanitize the records in this appeal. In a motion on notice dated 20th June 2005 and filed on 24th June 2005 the applicant, Patrick umagwu prayed the court that his deceased brother Cletus Umagwu (the appellant) be substituted with himself, Patrick Umagwu. The said application was granted on 18th October, 2005, consequently the name of the applicant Patrick Umagwu should have been entered as the appellant. Cletus Umagwu cannot be listed as the appellant in this matter for a dead man cannot appeal or prosecute an appeal before a court on this plane. The appellant in this appeal is therefore Patrick Umagwu and not Cletus Umagwu.
In dealing with the lone issue in this appeal I will start with reference to the dictum of Coker JSC in Olubusola Stores v. Standard Bank (1975) ALL NLR (pt.1) 125 at 130.
Hear His Lordship:
“The provisions dealing with actions on the Undefended List are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those rules injustice is being avoided to a defendant whose freedom to defend is restricted. The provisions of the rules are designed as they are in order to ensure the safe guards which must necessarily be available to a defendant if the rules are followed strictly: and if the rules are complied with, the defendant need suffer no prejudice in his defense if he himself and on his part has complied with the rules.”
From the above dictum it is clear that the defendant in a suit in the Undefended List is not on a level play ground with the plaintiff as the defendant’s “freedom to defend the case has been rather restricted” See supra. In the circumstances it is the duty of the court to ensure speedy disposal of cases in the Undefended List where there is no express or implied intention to contest such cases and at the same time avoid injustice, particularly a denial of the right to the heard, to the defendant over whom the plaintiff, has, by the rules, an edge in the litigation. This can be achieved by subjecting the parties, with particular reference to the plaintiff who initiated the proceedings, to strict compliance with the particular rules as well as the general rules of Civil Procedure where applicable.
The issue in this appeal, narrow and simple, stands on a tripod:
(1) Is the Notice of Intention to defend together with an affidavit disclosing a defence on the merit in Order 23 rule 3(1) of the High Court Rules (supra) inter changeable with the entry of appearance in order 13 rule 1 (1) of the rules?
(2) Could the Court deliver a valid judgment within the time limited in the writ of summons in the undefended list for the defendant to enter appearance?
(3) In view of express terms of the command on the writ could the court resort to the Interpretation Act for determination of the expiration of the time limited on the writ?
My Lords, I will deal with the three legs of the issue seriatim.
In a matter on the general cause list entry of appearance is the first step a defendant takes on being served the writ of summons. A part from motions and perhaps the statement of claim no step will be taken in the matter until the entry of appearance or the expiration of time for so doing. The period within which the defendant is to enter appearance is stated in the writ as a standard form. In a suit in the Undefended List the first step the defendant takes on being served the writ marked undefended list is to file his notice of intention to defend along with an affidavit disclosing a defence on the merit if he desires to defend the Suit. Until he files such notice or time for filing it expires the plaintiff cannot take any further step in prosecuting the matter. It follows that in a case on the undefended list filing of a notice of intention to defend coupled with affidavit disclosing a defence on the merit serves substantially the same purpose entry of appearance serves in a matter on the general cause list. For all practical purposes the entry of appearance in a suit in the general cause list is inter-changeable with the filing of intention to defend a matter placed on the Undefended List and marked accordingly.
Whether it is by design or error of omission order 23 of the Rules does not limit the time within which a defendant served with the Writ of Summon in the Undefended List can file his Notice of Intention to defend.
Two possibilities arise:
(1) The defendant must file his Notice of Intention to defend within the time limited on the writ served on him or
(2) He file the notice before the hearing date stated in the writ.
In my view to insist that the defendant files his notice before the date for hearing appears speculative and must yield place to the express command contained in the writ of summons. And since I have determined that the two are interchangeable it makes no difference that the command on the writ on the undefended list relates not to the filing of notice of intention to defend but entry of appearance as in suit in the general cause list. I hold the view that a defendant served with a writ on the undefended list must file his notice of intention defend and affidavit disclosing a defence on the merit within the time limited by the writ for entry of appearance as in cases on the general cause list.
The second leg deals with the validity nel non of a judgment delivered in a matter on the Undefended List within the period limited for entry of appearance in the writ. It follows logically that since Order 23 of the High Court rules provides no time frame within which the defendant can file his notice of intention defend and the defendant has to comply with the command on the writ, the court cannot enter judgment in the matter within the period limited for entry of appearance on the writ. The plaintiff, having served on the defendant the writ on the Undefended List which required the defendant to enter appearance within a stipulated time, which I have determined is the same in substance as requiring him to file his notice of intention to defend within the said period, cannot proceed to judgment against the defendant within the said time frame. The Court is a court of law and equity. The plaintiff and the court cannot, in good conscience, derogate from the time limited on the writ for the defendant to react to the process served on him.
On the principles of equity the apex Court, per Aniagolu JSC stated thus:
“Equity, as we all know, inclines itself to conscience, reason and good faith and implies a system of law disposed to a just regulation and mutual rights and duties of men in a civilized society. It does not envisage sharp practice and undue advantage to honour reciprocal liability arising therefrom. It will demand that a person will enter into a deal as a package enjoying the benefits thereof and enduring at the same time the liabilities therein.”
See Nat, Insurance Corp. of Nig. Vs Power and Ind. Eng. C. Ltd. (1986) 1 NWLR (pt. 14) page 1 at 5. Applying the above to the fact of this case it will be unconscionable for the plaintiff to take the benefit of the summary procedure in Order 23 of the rules without compliance with the time frame in the writhe served on the defendant.The requirement that the defendant reacts to the process served on him within a stipulated time is a matter of procedure, and it has been held by the Supreme Court that;
“where procedure is ignored, justice is usually at a loss, the Judiciary in its image is worst in the encounter and the general public for whom the entire drama was meant to serve ends up with a low opinion of the Judiciary” See Bakara Vs Apenu (1986) 4 NWLR (pt 33) page 6.
In His Panil Construction Ltd. Vs Odoyiyan (1986)4 NWLR (pt. 35) 249 the court held that litigation is not a game of hide and seek. It is played in accordance with certain rules which are strictly predicated on fairness and equal opportunity to the contending parties. On the facts of this case any time other than the one stated on the writ for the defendant to react to the process served on him is speculative and not predicated on fairness and equal opportunity to the two contending parties. In my view a judgment delivered within the 8 day period limited in the writ for entry of appearance which is substance is the same as filing a notice of intention to defend “is a nullity.
The third leg is whether or not resort should be had to the Interpretation Act in the determination of the expiration of the 8-day period within which the appellant must react to the process served on him by filing a notice of intention to defend. Appellant’s contention is that the date of service of the writ is not included in the 8-day period and that time stated running the day after the date of service. Above is the purport of section 15 (2) (a) of the Interpretation Act as well as Order 22 Rule 1 (a) of the High Court Rules (supra).
On the other hand, learned counsel for the Respondent, in his well articulated presentation, contended that the wording of the command on the writ is so clear as to exclude the application of the Interpretation Act or any other aid to interpretation. He however failed to advert his mind to the real issue canvassed by learned counsel/or the appellant, which is the conflict between the command on the writ and section 15(2) (1) of the Interpretation Act and Order 22 Rule 1 (a) of the High Court Rules. While the writ says the period of 8 days within which the appellant should file his intention to defend runs from the date of service on the appellant of the writ of summons, both section 15 of the Interpretation Act and Order 22 of the High Court Rules are to the effect that time: started running on the date following the date of service. The Interpretation Act is an act of the National Assembly while the High Court Rules is a law of the Cross River State House of Assembly. On the other hand the form of the writ of summons is an appendage to the High Court rules subject to variation to meet the demands of changing circumstances. The conflict between the Act and the law on one side and the form of the writ on the other must be resolved in favour of the Act and the law. It follows therefore that the 8 day period on the writ served on the appellant on 29th March 2004 started to run the next day 30/3/2004 and expired on 6/4/04. I am inclined to the argument of learned counsel for the appellant that the judgment entered on 5th April, 2004 was entered on the 7th day of the 8 day period allowed the appellant to file his notice of intention to defend.
I find it an unnecessary academic exercise to discuss the issue raised by learned counsel for the Respondent as to whether a day ends at the close of work or at midnight.
I have considered the argument of each side as well as the authorities cited. I have come to the conclusion that the judgment entered against the appellant on 5/4/04 was entered within the 8 day period within which the appellant was to file his notice of intention to defend if he so desired. The court cannot conclude or assume that the appellant has no defence until the expiration of the time stipulated in the writ of summons for the appellant to react to the writ served on him. By entering judgment against the appellant before the expiration of the 8 day period in the writ the court below denied the appellant his right to be heard in his defence. I resolve the lone issue in the appeal in favour of the appellant. Consequently the appeal has merit and it hereby allowed.
The appellant urged the court to set aside the judgment of the court below. However, the judgment is a nullity as I have declared. There is therefore nothing to set aside.
It is hereby ordered that the matter be sent back to the High Court of Cross River State for trial de novo by a Judge other than Obi, J.
The Respondent is to pay costs, fixed at N10,000.00 to the appellant.
Other Citations: (2006)LCN/2021(CA)
