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.

2. N20,000.00 (Twenty thousand naira) being solicitors fees incurred in maintaining this suit.
3. 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.”