Ikpala Estates Hotels Ltd. V. National Electric Power Authority (2003)

LawGlobal-Hub Lead Judgment Report

RAPHAEL OLUFEMI ROWLAND, J.C.A. 

This is an appeal against the decision of Emilia Ibok, J. in suit No. HC/53/2002 delivered at the High Court of Cross River State, Calabar Division, dated the 27th May, 2002.

The plaintiff took out a writ of summons against the defendant in the following terms:
“1. The sum of N351, 095.00 (Three hundred and fifty one thousand and ninety five Naira) only being debt owed the plaintiff since 25th September, 1997 arising out of the Hotel accommodation and feeding provided for one Mr. A. O. Enang, a staff of the defendant at the instance of the defendant which the defendant has failed to settle despite repeated demands.
2. 10% interest on the said N351, 095 .00 from the 25th September, 1997 until judgment is delivered.
3. 10% interest on the judgment sum from the day of delivery of judgment till liquidation.
4. N5, 000.00 being out of pocket expenses.”

The facts of the case are not in dispute and they are straightforward. On the 27th day of August, 1997, the respondent as defendant wrote a letter to the manager of the appellant as plaintiff requesting that the appellant provide hotel accommodation and feeding for one of its staff, Mr. A. O. Enang for twenty eight days.

Accordingly the appellant provided hotel accommodation and feeding for the said Mr. A. O. Enang and family for 28 days. A bill of N351, 095 .00 was incurred by the said Mr. A. O. Enang on behalf of the respondent. The appellant submitted the said bill to the Calabar office of the respondent for settlement. However, the bill was never settled in spite of its acknowledgement by the respondent.
On the 12th day of February, 2002 the appellant filed a writ of summons and an affidavit praying the lower court to enter the suit for hearing under the undefended list.

The writ of summons and the affidavit were served on the respondent. The respondent reacted by filing a notice of intention to defend and an affidavit disclosing a defence. The respondent in paragraphs 3 – 4 of its affidavit admitted the fact that it was indebted to the appellant to the tune of N351,095.00 however, the learned trial Judge ruled that the affidavit of the respondent has disclosed a defence on the merit because contentious issues are raised therein which require a full hearing.

Dissatisfied and aggrieved by the ruling of the learned trial Judge that the affidavit of the respondent raised contentious issues which can only be determined through a full trial, the appellant has appealed to this court.

The notice of appeal has only one ground of appeal. From the ground of appeal the appellant formulated one issue for determination as follows:
“Whether or not the learned trial Judge was right to hold that the affidavit accompanying the respondent (sic) notice of intention to defend has raised triable issues in view of the unequivocal admission of the principal claim of the appellant by the said affidavit?”

The respondent also formulated one issue for determination. It reads:
“Whether, notwithstanding the admission by the respondent of part of the appellant’s claims, the learned trial Judge was in the circumstances of this case right to transfer the entire claims for hearing under the general cause list?”

Learned counsel for the respondent raised a preliminary objection at page 2 of the respondent’s brief. The preliminary objection was filed in the Registry of this court on 12/11/2002.
Before I consider the lone issue for determination in both briefs, I should consider the preliminary objection and the reply to it in the reply brief of the appellant. The preliminary objection impeaches the competence of this appeal.

The main threshold of the respondent’s objection to the competence of the appeal is two fold namely:-
1. Non-compliance with section 25 subsection 2(a) of the Court of Appeal Act, and
2. Section 242 subsection 1 of the 1999 Constitution.

In respect of non-compliance with section 25 subsection 2(a) of the Court of Appeal Act, it was submitted that proceedings leading to this appeal were in the undefended list. It was argued that the nature of the verdict reached, whether in favour of the plaintiff or defendant determines whether the verdict was final or interlocutory.

It was contended that where the decision refuses leaves to the defendant to defend the action, and judgment is given in favour of the plaintiff, the decision being on the merit is final, and the remedy open to an aggrieved defendant is to invoke such appellate remedies as enure to its benefit, or conversely commence a fresh suit to set aside such a decision. Reference was made to the case of Bank of the North Ltd. v. Intra Bank S.A. (1969) All NLR 88 at 93; Mark v. Eke (1997) 11 NWLR (Pt.529) 501 at 524.

Learned counsel for the respondent stated that where, however, the defendant is granted leave to defend the action, such a verdict is interlocutory, since there still remains some steps to be taken by the trial court in the resolution of the dispute. It was argued that the interlocutory nature of such a verdict draws constitutional support from section 241(2)(a) of the 1999 Constitution which debars a plaintiff from appealing against such a decision. See case of Ifediora v. Ume (1988) 2 NWLR (Pt.74) 5 at page 17.

Learned counsel for the respondent also argued that by virtue of section 25(2)(a) of the Court of Appeal Act, an appellant intending to appeal against an interlocutory decision has 14 days to do so. It was contended that where the 14 days allotted such an appellant expires, to render her appeal competent, such appellant must apply and obtain orders for extension of time within which to appeal against such a decision.

It was submitted that the interlocutory ruling in this proceeding was delivered on 27/5/2002, while appellant lodged its appeal on 14/6/2002, 18 days after the interlocutory ruling and in breach of section 25(2)(a) of the Court of Appeal Act. It was contended that no motion for extension of time to file the said appeal was filed and entertained, and afortiori, no order for extension of time was granted the appellant to lodge this appeal. It was concluded therefore that the appeal is incompetent. Reference was made to the case of Tsokwa Oil Marketing Company (Nig.) Ltd. v. Bank of the North Ltd. (2002) 11 NWLR (Pt. 777) 163, (2002) FWLR page 1. It was also concluded that there is a non-compliance with section 242(1) of the 1999 Constitution.

The reply brief of the appellant dated 11th day of March, 2003 was filed on 12th March, 2003.
Learned counsel for the appellant in the reply brief stated that the respondent had submitted that the appellant’s notice of appeal filed on the 14th day of June, 2002 was a contravention of section 25 subsection 2(a) of the Court of Appeal Act. It was contended that the order or decision of the lower court appealed against was made on the 27th day of May, 2002. Learned counsel for the respondent had argued strenuously that the notice of appeal was filed 18 days after the decision or order appealed against was made instead of 14 days allowed by section 25 subsection 2(a) of the Court of Appeal Act.

Learned counsel for the appellant submitted that the appellant did not contravene section 25 subsection 2(a) of the Court of Appeal Act. It was conceded that then notice of appeal was filed eighteen days (on the 14th day of June, 2002) while the decision appealed against was delivered on the 27th May, 2002. It was submitted however that the respondent in computing the time, which it put at 18 days, counted Saturday, Sunday and public holidays, which by the High Court of Cross River State (Civil Procedure) Rules, 1987, he ought not to have included in his computation.

It was submitted that the appellant was right to have filed its notice of appeal on 14th June, 2002.
It was stated that the second of the objection of the respondent to the competency of the notice of appeal is that the appellant did not comply with the provisions of section 242(1) of the 1999 Constitution, which is to the effect that where a ground of appeal is of mixed law and facts, the appellant requires the leave of either the High Court or the Court of Appeal to lodge such an appeal.

It was submitted that it is the submission of the respondent that the appellant’s sole ground of appeal is of mixed law and facts which places a duty on it to have sought the leave of the lower court or the Court of Appeal before filing the notice of appeal.

It was argued that where a ground of appeal questions the wrong application of law to the facts of a given case by a Judge, such ground of appeal is that of law. Conversely, where a ground of appeal questions the wrong application of the law to undisputed fact or facts which are not in controversy or fact which has been admitted by the other side – it is one of law.

It was submitted that in the instant case, the appellant’s sole ground of appeal is challenging the decision of the learned trial Judge that the affidavit of the respondent accompanying its notice of intention to defend had raised contentious issues” in spite of the clear and unequivocal admission of part of the claim of the appellant by the said affidavit.

It is clear from the brief of the respondent that its objection to the competence of the appeal is as follows:
1. Non-compliance with section 25 subsection 2(a) of the Court of Appeal Act and
2. Section 242 subsection 1 of the 1999 Constitution.

I should start with (1) above, that is, non compliance with section 25 subsection 2(a) of the Court of Appeal Act. Section 25 subsection 2(a) of the Court of Appeal Act provide as follows:-
“The periods for the giving of notice of appeal or notice of application for leave to appeal are:
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.”

It seems to me that the answer to this problem can be found in Order 22 rule 1 of the High Court (Civil Procedure) Rules of Cross River State, 1987 which provides as follows:
“Where by any written law or any special order made by the court in the course of any proceedings, any limited time from or after any date or event it appointed or allowed for the doing of any act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply:
(a) The limited time does not include the day of the date of or the happening of the event, but commences at the beginning of the day next following that day.
(b) The act or proceeding shall be done or taken at least on the last day of the limited time.
(c) Where the time limited is less than five days, no public holiday, Saturday, or Sunday shall be reckoned as part of the time.
(d) When the time expires on a public holiday, Saturday or Sunday, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards not being a public holiday, Saturday or Sunday.”

Thus by Order 22 rule 1(1) of the High Court (Civil Procedure) Rules (supra) time would begin to run on the 28th May, 2002, when the decision appealed against was made. By section 74(g) of the Evidence Act, 1990, this court can take judicial notice of the fact that on the 29th May, 2002, the Federal Government of Nigeria declared a public holiday in commemoration of the third anniversary of the return of government from military to civilian in the country.

It follows therefore that May 29th, 2002 would not count in the computation of time for the purpose of the filing of the notice of appeal.

It is not in doubt that between 28th May, 2002 when time began to run and 14th June, 2002, when the notice was filed there were two Saturdays, that is, 1st June, 2002 and 8th June, 2002.

Conversely, between 28th May, 2002 when time started to run and 14th June, 2002, when the notice of appeal was filed there were two Sundays, that is, 2nd June and 9th June, 2002 respectively. It follows therefore that in a proper computation of time for the filing of the notice of appeal, 2nd June, 2002 and 9th June, 2002 would not be counted. I have no doubt in my mind that Saturday in the contemplation of Order 22 rule 1 of the High Court (Civil Procedure) Rules (supra) is a public holiday or work free day which would not be counted in the computation of time for the doing of any act or the taking of any step in any proceeding under the rules.

It is also not in doubt that Sunday is considered a public holiday or work free day, which would not be counted in the computation of time for the doing of any act or the taking of any step in any proceedings. See Order 22 rule 1 of the High Court (Civil Procedure) Rules (supra). See also section 15(5) of the Interpretation Act, 1990 and section 1 of Public Holidays Act, Cap. 378, 1990. It seems to me that by virtue of section 15(5) and section 1 of the Public Holidays Act, Saturday does not qualify as a public holiday. See also the case of Balogun v. Odumosu (1999) 2 NWLR (Pt.592) 590 at 593.
However, since the statute that regulates the practice and procedure of the High Court of Cross River State, the High Court (Civil Procedure) Rules, 1987 contemplates that Saturday is a public holiday or a work free day, section 15(5) of the Interpretation Act and section 1 of the Public Holidays Act would not be applicable to the facts and circumstances of this case.

In the light of the foregoing, I hold a strong view that the appellant was in order to have filed its notice of appeal on 14th June, 2002. I should therefore discountenance the objection of the respondent on the ground of non-compliance with the provision of section 25 subsection 2(a) of the Court of Appeal Act, Cap. 75, 1990.

The second ground of the objection of the respondent to the competency of the notice of appeal is that the appellant did not comply with the provision of section 242 subsection 1 of the 1999 Constitution, which is to the effect that where a ground of appeal is of mixed law and facts, the appellant requires the leave of either the High Court or the Court of Appeal to lodge such an appeal.

It is the submission for the respondent that the appellant’s sole ground of appeal is of mixed law and facts, which places a duty on it to have sought the leave of the lower court or the Court of Appeal before filing its notice of appeal.

I consider it pertinent at this juncture to reproduce the appellant’s sole ground of appeal.

It reads:
“1. The learned trial Judge erred in law when he held that the affidavit of the defendant/respondent accompanying her notice of intention to defend had raised contentious issues for trial”

Particulars of error
“1. The affidavit of the defendant/respondent accompanying her notice of intention to defend had clearly and categorically admitted part of the claims of the plaintiff/appellant.
2. The learned trial Judge had the discretion to enter judgment for the plaintiff/appellant against the defendant/respondent to the extent of the admission of the plaintiff/appellant’s claim by the defendant/respondent.
3. The defendant/respondent’s affidavit accompanying her notice of intention to defend did not in anyway disclose a defence on the merit as contemplated by Order 23 rule 3(1) of the High Court (Civil Procedure) Rules of Cross River State.”

The respondent has argued vigorously that particular 3 of the appellant’s ground of appeal is one of facts in so far as it seeks to question the wrongful assessment, appraisal and evaluation of facts by the learned trial Judge. The cases of Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at491 and Maigoro v. Garba (1999) 10NWLR (Pt. 624) 555 at 21 were cited in support of the respondent’s proposition. I am of the view that the two cases cited by the respondent are not applicable to the facts and circumstances of the present case. I hold the view that particular 3 of the appellant’s ground of appeal is of law simpliciter in so far as it seeks to impeach the learned trial Judge’s interpretation of the provisions of Order 23 rule 1 of the High Court (Civil Procedure) Rules, 1987.

I am also of the view that particular 3 of the appellant’s lone ground of appeal reveals that the appellant is questioning the learned trial Judge’s interpretation of the affidavit of the respondent vis-a-vis the applicability of Order 23 rule 3(1) of the High Court (Civil Procedure) Rules.

It seems to me that where a ground of appeal questions the wrong application of law to the facts of a given case by a Judge, such ground of appeal is that of law. Conversely, where a ground of appeal questions the wrong application of the law to undisputed fact or facts which are not in controversy or fact which have been admitted by the other side, it is one of law. See Shanu & Anor v. Afribank (Nig.) Ltd. (2000) 13NWLR (pt. 684) 392, (2000) FWLR (pt.23) 1221.

In the case of Shanu & Anor. v. Afribank (Nig.) Ltd. page 1221 at 1232 (supra), the Supreme Court per Ayoola, J.S.C. had this to say:
“Where the ground of appeal complains that the tribunal has failed to fulfill an obligation cast upon it by law in the process of coming to a decision in the case, such a ground would involve a question of law, namely; whether or not there is such obligation or whether what the tribunal did amounted to an infraction of law of such obligation provided that all the facts needed are there on record and are beyond controversy. A ground of appeal involves a question of law alone where in answering the question raised by the ground of appeal the appellate tribunal can determine the issue on the admitted or uncontroversial facts without going beyond a direct application of legal principles. Where it is contended by the other party that the principle of law on which the complaint is based is non-existed or misconceives, that goes to the merit of the complaint and not to the threshold question as to whether or not the question involved is one of law. The question of the merit of a ground of appeal is to be distinguished from one as to the nature of question involved in the ground.”

I have no doubt in my mind that the above statement of Ayoola, J.S.C. holds good for the present case.

It seems to me that to determine whether a ground of appeal involves a question of law or fact or of mixed law and fact, what is required is to closely and carefully examine the ground of appeal to see whether it reveals a misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted, in which case, it would be a question of law. Where, however, the grounds are such that it would reveal or are grounds that would question the evaluation of facts by the lower tribunal before the application of the law that would amount to question of mixed law and fact. See Ogbechie v. Onochie (1986) (Pt.23) 484; Shanu & Anor. v. Afribank (Nig.) Ltd. (supra).

In the instant case, the appellant’s sole ground of appeal is challenging the decision of the learned trial Judge that the affidavit of the respondent accompanying its notice of intention to defend had raised “contentious issues” in spite of the clear and unequivocal admission of part of the claim of the appellant by the said affidavit. It is pertinent at this juncture to reproduce the affidavit of the respondent:
“I. B. U. Agwu, male, Christian, District Admin. Officer of the defendant of Calabar Road, Calabar make oath and state as follows:
1. That as aforestated, I am the District Admin.  Officer of the defendant by virtue of which status I am conversant with the facts of the case.
2. That I have the authority and consent of the defendant to depose to this affidavit for and on her behalf.
3. That paragraphs 1-8 of the plaintiff’s affidavit are true and correct.
4. That defendant’s solicitor, Dafe Diegbe, Esq. of counsel informs (sic) and I verily believe him that the plaintiff is not entitled to any interest on her principal sum of N351 ,095.00 owed her as parties herein did not agree that interest should attach to the principal debt.
5. That I depose to this affidavit conscientiously believing the contents to be true and correct according to any information and belief and in accordance with the Oaths Act, 1990.”

I have taken a hard look at the affidavit and I have no doubt in my mind that the respondent had absolutely and unambiguously admitted that it was indebted to the appellant. Surprisingly, and quite curiously the learned trial Judge held that the respondent had raised “contentious issues” in its affidavit reproduced above. I hold a strong view that in so far as the sole ground of appeal seeks to question the misapplication of the law by the learned trial Judge to the facts already admitted by the respondent it would be a question of law.

I have no doubt in my mind that the transfer of a case by a trial Judge from the ‘undefended list’ to the general cause list is an exercise of discretion on the part of the trial Judge but the discretion must be exercised judiciously and judicially and should not occasion a miscarriage of justice to any of the parties.

In the instant case, the learned trial Judge did not exercise her discretion properly in view of the total and absolute unequivocal admission of part of the claim of the appellant by the respondent. It therefore follows as far as the sole ground of appeal of the appellant seeks to question the exercise of discretion by the learned trial Judge based upon a misconception or wrong application of the law to admitted facts which are not in controversy, it is a question of law alone.

From the foregoing, I hold that the sole ground of appeal of the appellant involves a question of law which does not require the appellant seeking leave of either of the High Court or Court of Appeal before it could lodge its notice of appeal.

Thus on all fronts, the preliminary objection of the respondent as to the competence of this appeal has no merit and it is therefore dismissed by me. Having said that, I now move on to the consideration of the lone issue in both briefs formulated for the determination of this appeal.
The learned counsel for the appellant submitted that in its affidavit in support of its claim, the appellant made a graphic and cogent case of how the indebtedness to it by the respondent arose.

It was contended that the appellant backed up its assertion in its affidavit with documents that established positively that the respondent has no defence to the action. It was submitted that paragraphs 3 and 4 of the respondent’s affidavit admitted its indebtedness to the appellant. It is the contention of the appellant that the respondent’s affidavit did not deny the claim of the appellant and infact admitted it.

Learned counsel for the appellant argued that paragraphs 3 and 4 of the affidavit of the respondent had admitted the claim of the appellant in the sum of N351, 095.00 as per its writ of summons and therefore, judgment ought to have been entered for the appellant against the respondent by the lower court.

The only issue formulated in the respondent’s brief is akin to that in the appellant’s brief. Learned counsel for the respondent submitted that a trial Judge has the discretion to transfer a case placed on the undefended list to the general cause list and write one judgment to cover everything. It is his contention that learned trial Judge was not in error to do what she did. It was submitted that the affidavit of the appellant in support of its claim raised contentious issues for trial. It was argued that Order 23 rules 4 and 5 of the High Court (Civil Procedure) Rules of Cross River State, 1987, contemplate a single trial and a single judgment.

I consider it pertinent to reproduce here paragraphs 1 – 8 of the appellant’s affidavit in support of its claim. It reads:
“1. I am a Manager in the Ikpala Hotel, the plaintiff and as such the facts of this case are within my personal knowledge. I have the consent of the plaintiff to depose to this affidavit.
2. By letter dated the 27th August, 1997 the plaintiff’s district officer in Calabar requested the plaintiff to provide hotel accommodation for one of its staff, Mr. A. O. Enang and family (wife and four children) attached here with and marked as exhibit AA is the said letter.
3. The hotel accommodation and feeding was provided for the said Mr. A. O. Enang and family for 28 days from 27th August, 1997 to 26th September, 1997.
4. The plaintiff thereafter submitted to the defendant’ office in Calabar bills accumulated by the said Mr. A. O. Enang and family totaling N351,095.00 attached herewith are the bills, which are marked exhibits BB; EC; DD and EE respectively.
5. The defendant did not settle the bills.
6. The plaintiff wrote to the district manager of the defendant’s office in Calabar urging him to settle the bill. The letter was duly serve on the defendant. Attached herewith and marked as exhibit 2 is the said letter.
7. The defendant did not react.
8. The defendant has acknowledged its indebtedness to the plaintiff but has refused to liquidate the debt.

Attached herewith and marked as exhibit 3 is an internal memo of the defendant acknowledging indebtedness to the plaintiff.”

The respondent in paragraphs 3 and 4 of its affidavit stated as follows:
“3. That paragraphs 1- 8 of the plaintiff’s affidavit are true and correct.
4. That defendant’s solicitor Dafe Diegbe, Esq. of counsel informs him that the plaintiff is not entitled to any interest on her principal sum of N351,095 ,00 owed her as parties herein did not agree that interest should attach to the principal debt.”

For the avoidance of doubt, the above paragraphs 3 and 4 of the affidavit of the respondent are in support of the notice of intention to defend the action before the trial court. It must be mentioned that the suit was placed on the undefended list by virtue of Order 23 rule 1 of the High Court (Civil Procedure) Rules, 1987, of Cross River State.

I have no doubt in my mind that paragraphs 3 and 4 of the respondent’s affidavit have clearly admitted paragraphs 1-8 of the appellant’s affidavit in support of its claim.

I am therefore at a loss why the learned trial Judge failed to enter judgment for the appellant in the sum of N351, 095.00 the principal sum in the writ of summons. If there is any dispute as to the claim of interest on the principal sum, that aspect of the claim could be transferred to the general cause list for proof.

Section 75 of the Evidence Act, 1990 provides as follows:
“No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.”

It seems to me that the clear admission of paragraphs 1 – 8 of the appellant’s affidavit in support of its claim by the respondent in paragraphs 3 and 4 of its affidavit is that those facts in paragraphs is of the appellant’s affidavit are proven and do not need any further proof.

See section 75 of the Evidence Act (supra). See also the following cases: Agbanelo v. Union Bank of Nigeria (2000) 7 NWLR (Pt. 666) 534, (2000) FWLR (Pt.13) 2197; Idakula v. Richards (2000) FWLR (Pt.14) 2439.

In the case of job Charles v. Okonkwo (2002) 20 WRN 25 at 29, this court enunciated the procedure to be followed by a trial court in the event that the defendant has admitted part of the claim thus:
“Whether the respondent fell within or outside any of these categories was a matter that could only be resolved after a full scale trial on pleadings. So, the learned trial Judge should have entered judgment in respect of the N300,000.00 admitted by the defendants/appellants, and then transfer the claim of N600,000.00 for interest or ‘benefit’ for provision of funds to the general list for hearing on pleadings.”

See also the case of Pavlovic Ivan v. Bilante International Ltd. & Anor. (1998) 5 NWLR (Pt.550) 396 where this court held inter alia as follows:
“If there are two or more items of claim in a suit, and the defendant raises a triable issue in respect of one item, but failed to do so in the other or others, nothing stops the trial Judge from entering judgment in respect of the item for which no bona fide defence has been raised, and then sending the other for trial on pleadings.”

In the instant case, the facts of the unambiguous admission of the kernel of the appellant’s claim by the affidavit of the respondent renders otiose the view of the learned trial Judge that a fall and comprehensive hearing be heard because the affidavit evidence of the respondent discloses defence on the merit as contentious issues are raised therein.

The pertinent question at this juncture is what are the contentious issues raised in the affidavit of the respondent? I hold a strong view that there are no contentious issues raised in the affidavit of the respondent. There cannot be contentious or triable issues in the fact of the clear admission of the principal claim in the sum of N351, 095.00 by the appellant.

I am of the view that triable issues under the ambit of Order 23 rule 3(1) of the High Court (Civil Procedure) Rules of Cross River State, 1987 is where the affidavit of the defendant discloses a defence on the merit (not a technical or sham defence) which goes to establish that the claim of the plaintiff is beyond the contemplation of a debt or liquidated monetary claim. See Ataguaba & Co. v. Gura (2000) FWLR (Pt.24) 1522 at 1531-1535; Macaulay v. NAL Merchant Sank Ltd. (1990) 4 NWLR (Pt.144) 283.

In the circumstances of the present case, the learned trial Judge would have entered judgment for the appellant to the extent of the admission of the appellant’s claim of the respondent and then order a hearing to be conducted in respect of the claim by the appellant for 10% pre-judgment interest and 10% post judgment interest on the sum claimed in the writ of summons.

Before I conclude this judgment, I would like to point out that the respondent raised dust of legal technicalities in its brief. The Supreme Court has said in a number of cases that “justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.” See The State v. Gwonto & 4 Ors. (1983) 1 SCNLR 142, (1983) 3 SC 62 at 76; Okonjo v. Odje (1985) 10 SC 267; Nwosu v. Imo State Environmental Sanitation Authority (1990) 6 NWLR (Pt.135) 668 at 717; U.S.A. v. Europharm (Nig.) Ltd. & Anor. (1990) 6 NWLR (Pt.155) 239 at 242. I should not allow legal technicalities to defeat the end of the justice of this case.

In the result, as I have said above, I dismiss the preliminary objections of the respondent as they are devoid of merit. By virtue of section 16 of the Court of Appeal Act, I enter judgment for the appellant in the sum of N351, 095.00 against the respondent. I remit to the court of trial claims 2 and 3 in the writ of summons for 10% pre-judgment interest and 10% post judgment interest on the judgment sum.

I award N5, 000.00 (Five thousand Naira) costs in favour of the appellant against the respondent.

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Other Citations: (2003)LCN/1417(CA)