Nigerian Breweries Plc. V. Philiph Ajah (1997)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A 

This is an appeal against the judgment of the Kaduna High Court in Suit No. KDH/KAD/325/94. In the court below, the respondent as the plaintiff filed a writ of summons on the undefended list claiming against the defendant/appellant as follows:-

“The plaintiffs claim against the defendant is for the sum of N1,158,239.50 being the cost of loading and offloading of empties and the price of empties – cartons of empty bottles of Guilder, Star, Maltina and Legend worked out in and with the defendant’s Memo Ref. No. 4/9/469 dated 28th October, 1993. These cartons of empty bottles were personally returned by the plaintiff to the defendant on 24th August, 1993, 17th November, 1993, 24th November, 1993, and 15th December, 1993.

The plaintiff has on several occasions demanded for payment for these empty cartons (empties) returned but the defendant has refused, failed and or neglected to pay.

Interest at the rate of 30% from the date of delivery monthly until judgment and thereafter at the rate of 10% monthly until the whole judgment sum is fully liquidated. Dated this 27th day of May, 1994.”

The plaintiff along with his application for a writ of summons filed 2 affidavits in support. The first affidavit dated 31st May, 1994 contained 6 paragraphs while the further affidavit contained 8 paragraphs and was dated 16th day of June, 1994.

A litigation clerk in the firm of the defendant’s solicitors made an affidavit of 7 paragraphs, dated 14th July, 1994. He deposed to the fact that he had the authority of the defendant and that of his employers to swear to the affidavit which is also headed “Affidavit in Support”. On the return date the plaintiff was absent from court and counsel for plaintiff asked for another date for mention. The court then adjourned the case for 13/7/94. On 13/7/94 the plaintiff and his counsel were present in court but the defendant was absent.

Plaintiffs counsel then asked the Court to enter Judgment in his favour for the outstanding balance of N49,939.71k with interest on the main sum of N1,158.240.30 at 30% from 17th March 1993 up to 8th June, 1994. He also asked for interest on the balance i.e. N49,939.71 at the rate of 30% from 8th June 1994 to date and thereafter at 10% until the entire judgment is liquidated. The learned trial Judge then proceeded to give judgment as follows:-

“This action was brought on the undefended list by the plaintiff who claimed N1,158,249.30 against the defendant. Before the matter was first mentioned, the defendant paid over 1 Million Naira leaving a balance of N49,939.71.

The defendant has not filed any Notice of Intention to defend the suit. I therefore enter judgment against him for the balance of N49,939.71 in favour of the plaintiff. The plaintiff is awarded interest at the rate of 21% on the said judgment sum of balance of N49,939.71 from June, 1994 to date and thereafter at 10% until the entire judgment sum is liquidated. I am not persuaded to grant interest on the over 1 Million Naira only paid to the plaintiff. Plaintiff is awarded N752.00 costs.”

After the judgment, the defendant/appellant brought a motion before the learned trial Judge wherein he sought for an order to set aside the judgment on the ground that it is a nullity. On 28/7/94 the learned trial Judge delivered his ruling wherein he dismissed the application with costs. The learned trial Judge refused to set aside his judgment delivered on 13/7/94.

The appellant is dissatisfied with both the judgment delivered on 13/7/94 and the Ruling delivered on 28/7/94 refusing to set aside the judgment, hence he has appealed to this court.

The respondent has also cross-appealed against part of the judgment of the learned trial Judge Abiriyi J, wherein he refused to award interest on over N1,158,242.52 paid to the plaintiff/respondent after the institution of the suit. He has also quarreled with the learned trial Judge’s decision for reducing the rate of interest claimed by him on the judgment/debt.

The appellant in this case has filed 3 grounds of appeal and formulated 3 issues for determination. The following are the grounds of appeal along with their particulars.