Emerald Engineering Services Limited & Anor V. Intercontinental Bank Plc. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. – FCT/HC/CV/784/05 delivered on the 30th day of November 2005.

The Respondent as Plaintiff by an action commenced at the lower Court claimed against the Appellants who were Defendants the following reliefs:-

“(1) The sum of =N=18,035,089.63 (Eighteen Million, Thirty Five Thousand, Eighty Nine Naira and Sixty-Three Kobo) being the balance due and owing to the Plaintiff from the Defendants as principal sums borrowed with interest accruing thereon on account number 1071400000468, maintained by the Defendants with the Plaintiff.

(2) Interest at the rate of 19% (nineteen percent) per annum on the above figure of =N=18,035,089.63 (Eighteen Million, Thirty Five Thousand, Eighty Nine Naira and Sixty-Three Kobo) from the 1st day of February 2005 until Judgment is delivered and thereafter interest at the rate of 10% per annum until Judgment debt is finally liquidated.

(3) The sum of =N=11,238,291.27 (Eleven Million, Two Hundred and Thirty Eight Thousand, Two Hundred and Ninety One Naira and Twenty Seven Kobo) being the balance due and owing to the Plaintiff from the Defendants as principal sum borrowed, with interest accruing thereon on account number 1071400000468, maintained by the Defendants with the Plaintiff.

(4) Interest at the rate of 19% (nineteen percent) per annum on the above figure of =N=11,238,291.27 (Eleven Million, Two Hundred and Thirty Eight Thousand, Two Hundred and Ninety One Naira and Twenty Seven Kobo) from the 1st day of February 2005 until Judgment is delivered and thereafter interest at the rate of 10% per annum until Judgment debt is finally liquidated.”

According to the Record of Appeal the Defendants now Appellants were served with the Writ of Summons on the 28th day of October 2005 by substituted service.

As a result of the failure of the Defendants/Appellants to appear in the Court, the Court entered Judgment against the Defendants as per the Writ of Summons on the 30th day of November 2005.

The Defendants/Appellants dissatisfied with the said Judgment now appealed to this Court.

The Learned Counsel for the Appellants formulated three issues for determination set out as follows:-

“(1) Whether having regard to the Provisions of Order 11 Rule 28 and 31 of the High Court of the Federal Capital Territory (Civil Procedure Rules), the 1st and 2nd Appellants could be said to have been served with the Writ of Summons in this action (Ground 1).

(2) Whether from the materials before the Court, the learned trial Judge was right to have heard and delivered Judgment in this case under the undefended list (Grounds 2, 3 and 4).

(3) Was the learned trial Judge right when he awarded interest at the rate of 19% per annum on either of the Judgment sum with effect from the 1st day of February 2005?”