CALHORIE LIMITED & ANOR v. INTERCONTINENTAL BANK PLC
(2012)LCN/5267(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/L/713/2008
RATIO
ACTION: REQUIREMENT FOR A SUIT IS REMOVED AND TRANSFERRED FROM THE UNDEFENDED LIST AND PLACED ON THE ORDINARY CAUSE LIST
Before a suit is removed and/or transferred from the undefended list and placed on the ordinary cause list ordered for hearing, the notice of intention to defend, and the accompanying affidavit filed by the Defendant, must disclose a bonafide good defence on the merit. PER RITA NOSAKHARE PEMU, J.C.A.
APPEAL: WHETHER APPELLATE COURTS ENTERTAIN ACADEMIC ISSUES
It is trite that Appellate Courts do not entertain issues which will amount to embarking on an acedemic voyage – OLORI MOTORS CO. LTD VS. UNION BANK OF NIG. PLC (2005) 70 NWLR (Pt.989) 585 @ 606. PER RITA NOSAKHARE PEMU, J.C.A.
ACTION: DISTINCTION BETWEEN A STATEMENT OF CLAIM AND AN AFFIDAVIT
A Statement of Claim constitutes mere pleadings yet to be backed by evidence whereas an affidavit is sworn evidence which the Court is bound prima facie to believe and on which it can base its decision to put the case on the undefended list. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JURISDICTION: WHO HAS JURISDICTION IN RESPECT OF BANKER CUSTOMER RELATIONS
Let me say that the issue of who has jurisdiction in respect of strictly banker and customer relations has been settled beyond peradventure in NDIC VS OKEM cited Supra by learned Respondent’s Counsel. The full Court led by Kutigi JSC (as he then was) came unanimously to the conclusion that the Federal High Court can exercise concurrent jurisdiction in the area stated or mentioned in the proviso to S.251 of the 1999 Constitution. At Pg. 183 of the NWLR Uwaifo JSC who wrote the lead judgment held thus:
“The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Courts and completely taking away the jurisdiction of the Federal High Court to entertain causes and matters relating to individual customer and hank transactions as was erroneously decided by the Court below and unsuccessfully argued before this Court by Chief Clarke.”
At Pg. 191 Kutigi JSC (as he then was) also explained:
“The proviso to my mind is intended not to deny the Federal High Court of jurisdiction in the matter or area stated therein. The proviso is an exception to the “exclusively,” rule embodied in section 257 (1) (d). In other words, it is a proviso to the provision of paragraph (d) of section 251 subsection (1) only.”
He put the matter conclusively thus at Pg.192 of the NWLR:
“In other words the Federal High Court can exercise concurrent jurisdiction in the area stated or mentioned in the proviso,”
See also the following cases I.T.P.P LTD. VS UBN PLC. (2006) 12 NWLR Pt. 995 Pg. 483 at 503, 510. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. CALHORIE LIMITED
2. MR. JUDE OBIAJULU – Appellant(s)
AND
INTERCONTINENTAL BANK PLC – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal, at the instance of the 1st and 2nd Judgment Debtors (hereinafter referred to as “the Appellants”) against the ruling of Honourable Justice A.R. Mohammed, of the Federal High Court Lagos, in Suit No.FHC/L/683/2005, delivered on the 9th of July 2008, whereby he entered Judgment in favour of the plaintiff (Respondent in the present Appeal) as gleaned from the orders made in the said Ruling reflected at page 344 of the Record of Appeal.
FACTS CULMINATING IN THIS APPEAL
The Respondent (then Applicant), via an undefended List Procedure” had brought a motion ex parte before the Federal High Court supported by Affidavit seeking leave that Suit No. PHC/L/CS/683/05 be placed on the undefended List and that the Appellants (then Defendants) have no defence to the claim. Pages 34-63 of the Record of Appeal. The Application was granted vide enrolled Order of Court of 27/7/05. The Respondent (as Plaintiff) had before then filed Writ of Summons on the 7th of July 2005 against the Appellants (then Defendants) jointly and severally claiming inter alia the following:
(a) “judgment in the sum of N30,783,415.51k (Thirty Million, Seven Hundred and Eighty Three Thousand, Four Hundred and Fifteen Naira, Fifty-One Kobo) being the outstanding balance as at the 30th day of April, 2005 on various credit facilities granted to the Defendants by the Plaintiff.
(b) “Interest on the above stated sum at the rate of 30% per annum from the 1st day of May, 2005 till judgment and thereafter at the rate of 10% per annum until final liquidation of the judgment sum.
(c) “…………”
From records, no Notice of Intention to Defend was filed by the Appellants. Rather he filed, on the 25th of May 2006, a Motion on Notice seeking the following orders:-
(1) “An order of this Honourable Court vacating the exparte order dated 27th day of July 2005, granting leave to the Plaintiff/Respondent to file and serve this suit on the Defendant/Applicants under the undefended list, the said application being obtained by fraud and an Abuse of Court Process in that:-
i. The Application for leave was filed and obtained fraudulently based on hidden facts and suppressed truth
ii. The avenue for arbitration which parties agreement provided for, has not been first exploited before the Plaintiff/Respondent rushed to this Honourable Court.
(2) An order setting aside the service of the Writ of Summons and the Statement of Claim as a suit brought under the undefended list on the ground that the required supporting Affidavit “setting forth the grounds upon which the claim is based and stating that in the Plaintiffs belief there is no defence thereto”…. was not served on the defendants along with the Writ of Summons and Statement of Claim.
An order of this Honourable Court striking out this suit in its entirety for want of JURISDICTION in that:-
i. The Suit as presently constituted is incompetent, not joining necessary parties to the suit
(a) United Parcels Services (UPS)
(b) Hong Kong and Shaghai Banking Corporation, HSBC, London and
(c) Zhejiang Amp. Incorporated as parties to the suit.
ii. This Honourable Court is a wrong court for a suit of this nature having to do with dispute between individual customers and their bank, in view of the proviso to section 251(a) (d), of the 1999 Constitution of the Federal Republic of Nigeria.
(4) And any or other orders as this Honouroble Court shall deem it fit to make in the circumstances.”
On the 9th of July 2008, the application was dismissed by Honourable Justice A.R. Mohammed thereby giving final Judgment in favour of the Respondent – Intercontinental Bank Plc.
The Ruling/Judgment is reflected at pages 324-345 of the Record of Appeal. The Appellants are dissatisfied with the said Judgment and promptly filed Grounds of Appeal encapsulated in a Notice of Appeal dated 18th July 2008 and filed on the 22nd of July 2008, seeking inter alia – an order of this Honourable Court setting aside the whole Judgment of the Federal High Court, Lagos as delivered by Honourable Justice A.R. Mohammed on 9th July 2008, and remit the case to the lower court for retrial on the merits before a different Judge.
The Record of Appeal was duly transmitted to this Honourable Court on the 28th of August 2008 and the appeal was entered as Appeal No.CA/L/713/2008. The Notice of Appeal was filed by the Law firm of Victor S. Okonkwo & Co. It initially encapsulates 7 (seven) Grounds of Appeal with 5 (five) additional Grounds of Appeal filed on the 15th of March 2010. The original Notice of Appeal is dated 18th July 2008 but filed on the 22nd of July 2008.
By Motion on Notice filed on the 30th of January 2009, an application for an order extending time to the Appellants/Applicants within which to appeal against the Judgment of the Federal High court delivered on 9th July 2008, on grounds of mixed law and facts, and or facts; and for an order granting leave to the Appellants/Applicants to appeal against the said decision on mixed law and facts and/or facts alone, was struck out on the 8th of March 2010, while the prayers for an order granting leave to the Appellants/Applicants to file and argue 5 additional Grounds of Appeal on grounds of mixed law and facts, and for extention of time within which the Appellants/Applicants may file Appellants’ brief in the said Appeal were duly granted on same date.
It is therefore a fact that the application for leave to appeal against the Judgment of the Federal High Court delivered on 9th July 2008, on grounds of mixed law and facts, and/or facts alone, as it affects Grounds 1 to 7 was refused by this Honourable Court on the 8th of March 2010.
The Appellants’ brief of argument was filed on the 15th of March 2010. It is settled by Christopher C. Okoli Esq. Learned counsel had formulated the following 6 (six) issues for determination. They are:
1. Whether the action of the Plaintiff/Respondent which was filed as “Undefended List” was competent before the court, in view of the provisions of Order 24 rules 1 – 2 and 3 of the Federal High Court (Civil Procedure) Rules 2000.
2. Whether fraud was not fully established against the Plaintiff/Respondents (which fraudulent practices were specifically asserted in paragraphs 26, 27, 28, 29, 32, 33, 38, 517, 52 and 55 of the affidavit in support of motion dated 25/5/06) and also by the non-disclosure of the legal material facts of the case on the port of the plaintiff/respondent.
3. Whether the arbitration clause in the agreement of the parties (Exhibit ‘A’ of the affidavit in support of the motion dated 25/5/06) and also the submission to and participation in arbitration proceedings, constituted enough binding arbitration between the parties.
4. Whether the trial court properly assumed jurisdiction when it considered the case of the Plaintiff/Respondent which was not commenced by due process of law and even when the necessary parties were not before the court and the subject matter not being within the jurisdiction of the court and while there was a pending arbitration proceedings to which parties had submitted themselves.
5. Whether the application of the Defendant/Appellant dated 25th May 2006, was proper or necessary in the circumstances of this case and whether the failure to consider the issues raised thereby by the trial court amounted to denial of fair hearing.
6. Whether the award of the sum of N30,783,415.51 (Thirty Million, Seven Hundred and Eight-Three Thousand Naira, Four Hundred and Fifteen Naira, Fifty-One Kobo) the interest thereof and a cost of N20,000.00 (Twenty Thousand Naira Only) to the Respondent/Respondent, were justified or appropriate in law or fact in the circumstances of this case.
Learned counsel for the Appellant asserts that issue No. 1 is distilled from Grounds 1, 2, 3, 4 and 7. That issue No. 2 is tied to Ground 8 of the Grounds of Appeal. That issue No. 3 is tied to Ground 9. That issue No.4 is tied to Grounds 6 and 10 of the Grounds of Appeal. Issue No. 5 is tied to Ground 12; Issue No. 6 is tied to Ground 11.
The Respondent’s brief is settled by Adedamola Solesi Esq. He formulates the following 7 (seven) issues for determination which are:
(i) “Whether the Lower Court had any jurisdiction to entertain the suit at all?”
(ii) “Whether there was any Arbitral Proceedings pending between the parties before the institution of the suit by the Respondent at the Lower Court?”
(iii) “Whether the Appellants justifiably dispute their outstanding indebtedness to the Respondent for the first time on Appeal?”
(iv) “Whether the Appellants can validly complain of non joinder (if any) after neglecting to exercise their rights via an Application for joinder at the Lower Court?”
(v) “Whether the Appellants’ Application doted the 25th day of May, 2006 was dismissed by the Lower Court without any recourse to their right to fair hearing?”
(vi) “Whether the Appellants have successfully established fraud against the Respondent?”
(vii) “Whether the Respondent having instituted the suit at the Lower Court by way of undefended List Procedure, substantially complied with the Rules of the Lower Court?”
The Respondent had tied none of his issues to the Grounds of Appeal. The result is that the issues for determination are liable to be struck out.
On the 9th of February 2012, learned counsel for the parties adopted their respective briefs of argument. They were to have re-addressed Court on that date because of the illegibility of the Record of Appeal, but the Appellant had filed new copies, which the Court was satisfied with.
Learned counsel for the Appellants Victor S. Okonkwo Esq. adopted his brief of argument filed on the 15th of March 2010. He relies on the argument therein and urges this Honourable Court to allow the Appeal.
George Duru Esq., learned counsel for the Respondent adopts his brief of argument on the 2gth of March 2010. He relies on his argument therein and urges this Honourable Court to dismiss the Appeal.
The Appellants’ first issue for determination distilled from Grounds 1, 2, 3, 4 and 7 of the Grounds of Appeal is whether the action of the Plaintiff/Respondent which was filed as “Undefended List” was competent before the Court, in view of the provisions of order 24 Rules 1, 2 and 3 of the Federal High Court (Civil Procedure) Rules 2000.
Order 24 of the Federal High Court (Civil Procedure) Rules 2000, was the extant Rules guiding the issue of proceedings in undefended List procedure in the Federal High Court at the time the cause of action arose.
Order 24 Rule 1, thereof has this to say
“Whenever application is made to a Court for the issuance of a Writ of Summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds, for believing that there is no defence thereto, enter the suit for hearing in what shall be called the undefended List” and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
It is the contention of learned counsel for the Appellant, Christopher C. Okoli Esq, that, the writ of summons dated 7th day of July 2005 (suit No.FHC/L/CS/683/2005) was most incompetent and void for non-conformity with the express provisions of the Federal High court (civil Procedure) Rules 2000.
He argues that, by the combined effect of Order 24, Rulers (1) and (2) of the Federal High Court (Civil Procedure) Rules 2000, whenever a case is to be marked as Undefended List”, the Plaintiff must have done all of the following –
(a) Make an application to the Registrar of the Court for issuance of Writ in respect of a claim to recover a debt or liquidated money demand.
(b) Support the application with an affidavit setting forth the grounds upon which the claim is based.
(c) The Deponent of the affidavit must state in one of the paragraphs of the affidavit a compulsory statement that “in the deponents’ belief there is no defence (on the part of the Defendant) to the action.
(d) The plaintiff shall deliver to the Registrar the writ of summons and the sworn affidavit which incorporated the deponents’ belief (of no defence to the action of the part of the Defendant).
(e) The Defendant shall be served through the Registrar (in practice by the Bailiffs’ of Court) with the said Writ of Summons and the said affidavit. Thus, the Court of Appeal in the case of C.R.P.D.I.C. VS. ENO OBONGHA (2007) FWLR Part 54 Page 351 at 366 and 372 held:
“Undefended List Procedure ….is a special procedure…. An action brought under the undefended List does not require pleading… the Court in considering on application to place a suit on the undefended list must be satisfied from the applicants’ affidavit that “there ore good grounds for believing that there is no defence.”
Without doubt, Order 24, Rules 2, 3, 4 and 5 of the Federal High Court (Civil Procedure) Rules 2000 has this to say
Rule 2 “There shall be delivered by the Plaintiff to the Registrar for the issuance of the Writ of Summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the Writ of Summons for service.”
Rule 3(1) “If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a Notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.”
Rule 3(2) “Where leave to defend is given under this rule, the action shall be removed from the undefended List and placed on the ordinary cause list and the Court may order pleadings, or proceed to hearing without further pleadings.”
Rule 4 “Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) of this order, or is not given leave to defend by the Court, the suit shall be heard as an undefended List, and judgment given thereon, without calling upon the Plaintiff to summon witness before the Court to prove his claim formally.”
Rule 5 “Nothing herein shall preclude the Court from hearing or requiring oral evidence, if it so thinks fit at any stage of the proceedings under Rule 4 of this order.”
Learned counsel had contended that in the purported commencement of Suit No. FHC/L/CS/863/2005, the Plaintiff (Respondent in this appeal) did the following which were not in accordance with the Rules of Court.
They are:
(a) Applied for writ of summons from the Registrar of the court.
(b) Accompanied the said Writ of Summons with a Statement of Claim dated 7th July, 2005 (NOT a Sworn Affidavit setting forth grounds upon which the claim is based)
(c) Filed a motion of ex-parte on the same 7th July 2005 which was heard on 27th July, 2005.
(d) The learned trial judge heard the application and granted the reliefs’ and stating “that the Writ of Summons, Statement of Claim and other originating process shall all be marked as undefended list suit that the return date for mention in this matter shall be 29th day of September 2005” (See page 67 of the Records of Appeal).
He argues that the Respondent did not file any affidavit “setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto”, neither was there any service of such affidavit accompanying the Writ of Summons, or any of the Appellants.
He admits that on being served with what he termed the abnormal “court processes” the Appellants on the 25th May 2006 filed a motion on notice (challenging the competence of the actions and the jurisdiction of the Court) which application was heard and dismissed on 9th July 2008 by the trial Court.
He argues that the issue however is whether the non-compliance with the strict provisions of Order 24 Rules (1) and (2) on the part of the Respondent can be waived by the Court and the case taken to be competent or properly filed before the Court?
Referring to Order 3 Rules (1) and (21) of the Federal High Court (Civil procedure) Rules 2000, he argues that the Court may set aside the proceedings in which the failure occurred. He argues that by the provisions of the law, the issue of non-compliance with the Rules can neither be waived by the Court nor by the party in default, citing OWNERS OF THE M.W “ARADELLA” VS. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 8 MJSC Page 145 at 159-160. Paragraph d-g.
Learned counsel contends that the Appellants ought not to file any “affidavit disclosing defence” as in the circumstances of this case which is incompetent, but rather in compliance with Order 3 Ruler 2(1) and (2) apply to Court (as they rightly did in this case) for the proceedings to be set aside, which application must be made before the Defendants/Applicants take any further step in the action.
He argues that the Motion on Notice dated 25th May 2006, in which the Appellants challenged the competence of the action and the jurisdiction of the Court, was in conformity with the law.
He posited, whether the trial Court was justified in law when the Court refused to set aside the proceedings in the Suit No.FHC/L/CS/683/2005 on grounds that the Appellants did not file affidavit disclosing defence.
I had earlier observed that the Respondents issues for determination were not distilled from any of the Grounds of Appeal. I shall therefore consider this issue No. 1 and indeed other issues for determination of the Appellant solely on the Appellants counsel’s submission and argument.
From records, by Writ of Summons filed on the 7th of July 2005, the Plaintiff (Respondent in this Appeal), claim against the Defendants (Appellants in this Appeal), jointly and severally inter alia the following:
(a) Judgment in the sum of N30,783,415.51k (Thirty Million, Seven Hundred and Eighty-Three Thousand, Four Hundred and Fifteen Naira, Fifty-one Kobo only) being the outstanding balance as at the 30th day of April 2005 on the various credit facility granted to the Defendants by the Plaintiff.
(b) Interest on the above stated sum at the rate of 30% per annum from the 7th day of May, 2005 till Judgment and thereafter at the rate of 10% per annum until final liquidation of the judgment given …”
(Page 4 of the Record of Appeal)
The claim is for a liquidated money demand.
On that same date, that is to say, on the 7th of July 2005, from Records, by motion ex-parte, the plaintiffs sought an order of the Honourable Court granting leave to the plaintiff/Applicant to issue the Writ of Summons and place the suit i.e Suit No. FHC/L/CS/683/2005, comprising the Writ of Summons, Statement of Claim and other originating processes therein on the “Undefended List”, and to mark the processes accordingly, and enter thereon a date for hearing suitable in the peculiar circumstances of this suit – pages 34-61 of the Record of Appeal. The application was accompanied by an affidavit and Exhibits C01-C08.
Pursuant to an enrolled order of Court dated 27th July 2005, the application for leave to issue the writ of Summons and place same and other originating processes on the “Undefended List” was granted. Pages 69-70 of the Record of Appeal.
Order 24 Rule 3(2) of the Federal High Court (Civil Procedure) Rules 2000 says
“Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause list and the Court may order pleadings, or proceed to hearing without further pleadings”
This provision, in my view simply connotes that the granting of the leave mandates (because of the word “shall”) that the suit be transferred from the ordinary cause list and shall be transferred to the Undefended List and same marked accordingly. In my view, the provisions of Order 24 essentially enables the Applicant to file an affidavit setting forth the Grounds upon which the application is based and stating that in his opinion, the Defendant has no defence to the action, non-compliance with specific format notwithstanding.
The failure of Respondents to specifically set forth grounds upon which the claim is based in a particular format goes only to form and not substance.
However, a painstaking look at the affidavit in support of the motion exparte, shows in paragraph 20 thereof, that the Applicant had deposed to the fact that the Defendants Respondents have no defence to the Plaintiffs/Applicants’ claim. (Pages 35-38 especially page 38 of the Record of Appeal).
I am of the view that this suffices. Failure of the Applicants to state specifically the Grounds upon which the application is brought does not vitiate the processes nor render the proceedings null and void, as those Grounds are encapsulated in the entire affidavit in support of the application ex-parte particularly paragraphs 8 to 19 of the affidavit in support of the motion ex-parte – (pages 36-38 of the Record of Appeal.)
On the 28th of September 2005, the Appellants (Defendants) at the lower court, filed a motion for an order vacating the ex-parte order dated 27th day of July 2005, granting leave to the Plaintiff to file and serve the suit on the Defendants under the Undefended List.
Order 24 Rule 4 of the Federal High Court (Civil Procedure) Rules 2000 has this to say
“Where any Defendant neglects to deliver the notice of defence and affidavit prescribed by Rule (3(1) of this order, or is not given leave to defend by the Court, the suit shall be heard as on undefended list, and judgment given thereon without calling upon the Plaintiff to summon witnesses before the Court to prove his claim formally”
Rule 3(1) has this to say
“If the party serve with the Writ of Summons and Affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the Court may think just”
Notably is that the Appellants did not allege that they were never served with processes as to the transfer of the suit from the ordinary cause list to the undefended list. They only allege that the provisions of the Rules were not complied with strictly.
Notably also is that the Appellants never filed a notice to defend within the five days prescribed by Law, after service of processes on him, as stipulated by the Rules. In its stead, he filed a motion for an order to vacate the ex-parte order on the 28th of September 2005, exactly two months after the leave to transfer the matter to the undefended list was granted.
Before a suit is removed and/or transferred from the undefended list and placed on the ordinary cause list ordered for hearing, the notice of intention to defend, and the accompanying affidavit filed by the Defendant, must disclose a bonafide good defence on the merit.
Procedure under Order 24 Rules 1 and 4 of the Federal High Court (Civil procedure) Rules 2000 was designed to prevent delay in cases where there is no defence. Where the plaintiff can satisfy the court that he has a clear case against the Defendant which the Defendant cannot answer, the Court should give the Defendant Judgment forthwith thereby avoiding unnecessary expense and delay in a full blown trial. In other words, the procedure discourages unmeritorious claims, spurious and shadowy defences, designed to keep a deserving Plaintiff in misery and trauma for no justifiable reason. EPE LOCAL GOVT. VS. KESHINRO (2009) 4 NWLR (Pt.1131) at 427; HIMMA MERCHANT LTD. VS. ALIYU (1994) 5 NWIR (Pt.34) at 667.
Before giving Judgment under this Order, the Plaintiff must ensure that the claim before the Court is for a liquidated sum, as the amount claimed must be ascertainable by simple mathematical calculation and there must be sufficient particulars of the transaction – GRAND CEREALS AND OIL MILLS LTD VS. AS-AHEL INTERNATIONAL MARKET AND PROCUREMENT LTD. (2004) 4 NWLR (Pt. 652) at 326.
In OBULAI VS. OBORO (2001) FWLR Part 47, 1004 Ratio 3 at 1006, the Supreme Court held inter alia
“Every Judgment or Ruling delivered by a competent Court is presumed to be right. The burden is therefore on the Appellant to show the reason why the Judgment he has appealed from in a civil case should be set aside. If he cannot clearly convince the Appeal Court or if all he has done is merely raise a doubt whether the judgment is right or wrong, the judgment stays, and the appeal fails”‘
The learned trial Judge was obligated to enter Judgment for the Respondent, as that was the right cause to take, because the Respondent had not complied with the strict rule as to filing a Notice of Intention to defend.
His order entering Judgment in favour of the Plaintiff against the Defendants jointly and severally cannot be faulted. (Page 344 of the Record of Appeal)
Indeed at pages 343-344 of the Record of Appeal i.e Pages 20-21 of the Ruling of the learned trial Judge of the 9th of July 2008, he observed thus
“As this suit is placed on the undefended list and the defendants have not filed Notice of defence with affidavit as required by Order 24 Rule 3 of the Rule of the Court 2000, the implication is that the Plaintiff is entitled to have Judgment entered on its behalf in accordance with Order 24 Rule 4 of the Federal High Court Rules 2000. I therefore enter judgment in favour of the plaintiff against the Defendants jointly and severally as follows:…”
This decision is unassailable.
Accordingly Issue No. 1 which is distilled from Grounds 1, 2, 3, 4 and 7 is answered in the affirmative and same is resolved against the Appellants and in favour of the Respondent.
Ipso facto, Issue No.5 which is the same as issue No 1 is answered in the negative and same is hereby resolved in favour of the Respondent and against the Appellants.
The claim is for the sum of N30,783,415.51k outstanding indebtedness as reflected in the letter of demand of 10th May 2005 – pages 32-33 of the Record of Appeal. The sum is therefore ascertainable.
Issue No.2 is whether fraud was not fully established against the plaintiff/Respondent (which fraudulent practices were specifically asserted in paragraphs 26, 27, 28, 29, 32, 33, 38, 51, 52 and 55 of the affidavit in support of motion dated 25/5/05) and also by the non-disclosure of the legal material facts of the case on the part of the Plaintiff/Respondent.
With respect, this is an issue which is predicated on the answer either way to issue No 1. As Issue No 1 is answered in the affirmative and resolved in favour of the Respondent, consideration of this issue becomes an academic exercise.
It is trite that Appellate Courts do not entertain issues which will amount to embarking on an acedemic voyage – OLORI MOTORS CO. LTD VS. UNION BANK OF NIG. PLC (2005) 70 NWLR (Pt.989) 585 @ 606.
This virus extends to Issue No. 3 which is whether the arbitration clause in the agreement of the parties, (Exhibit “A” of the affidavit in support of the motion dated 25/5/06) and also the submission to, and participation in arbitration proceedings, constituted enough binding arbitration between the parties.
Again, this issue is predicated on Issue No 1 which has been answered in the affirmative, in favour of the Respondent and against the Appellants. To consider same would amount to embarking on an acedemic and futile exercise.
On Issue No 4, it is whether the trial Court properly assumed jurisdiction when it considered the case of the Plaintiff/Respondent which was not commenced by due process of law and even when the necessary parties were not before the Court, and the subject matter not being within the jurisdiction of the Court, and while there was a pending arbitration proceedings, to which parties had submitted themselves.
This issue is profusely prolix and utterly narrative. Learned counsel for the Appellants owed it a duty to draft this issue in a more comprehensive way, devoid of prolixity and vagueness. He should have been concise. This is bad drafting skill and same is hereby deprecated.
Howbeit, this issue is also predicated on issue No 1, and same having been answered in the affirmative and resolved in favour of the Respondent and against the Appellants, to consider this issue would be tantamount to embarking on a wild goose chase and academic exercise, which has no place in the Appellate Courts.
This issue is resolved in favour of the Respondent and against the Appellants.
On Issue No 6, which is, whether the award of the sum of N30,783.415.51k (Thirty Million, Seven Hundred and Eighty-Three Thousand, Four Hundred and Fifteen Naira, Fifty-One Kobo) the interest thereof, and a cost of N20,000.00 (Twenty Thousand Naira only) to the Respondent/Respondent, were justified or appropriate in law or fact in the circumstances of this case.
The answer readily comes to mind. In “Undefended List” proceedings as in the instant case, the Appellants were obliged to have filed a notice of intention to defend. In other words, pursuant to order 24 Rule 3(1) of the Federal High Court (Civil procedure) Rules 2000, the Appellants, having been served with the Writ of Summons, and affidavit, were to, not less than five days before the date fixed for hearing, deliver a notice in writing that they intend to defend the suit together with an affidavit disclosing a defence on the merit.
But the Appellants did not take this crucial step.
The procedure by way of Undefended List is I dare say “sui generis”.
It is a special procedure and the parties must in law comply with the strict provisions thereof, particularly as it affects “time”.
It is my view as earlier observed, and at the expense of repetition, that the fact that the Applicant in the court below, having failed to set forth explicitly the Grounds upon which the claim is based, though seemingly irregular, (but without conceding) will not vitiate the proceedings, or the claim for that matter. Learned counsel for the Appellants have vigorously and vehemently argued, and indeed it is the forefront of his argument that the respondent did not comply with the strict provisions of Order 24 of the Federal High Court (Civil Procedure) Rules 2000.
With respect, by the provisions of Order 24 (Rule 1) of the 2000 Rules, the trial Court is only obligated to enter the suit for hearing on what shall be called the Undefended List” if the application is supported by an affidavit. And if he is satisfied that there was good Grounds for believing that there is no defence thereon.
But the Defendant (Appellants) were obligated to file a notice to defend on the merit within five days of being served with processes. And his failing to do so, makes the Appellants entitled automatically, to Judgment in law.
This lapse thus enabled the trial Court to give Judgment as a matter of law to the Respondent, which he did (and rightly in my view) by virtue of Order 24 Rule 4 of the Federal High Court (Civil Procedure) Rules 2000.
The Judgment which encapsulates the award of the sum of N30,783,415.51k (Thirty Million, seven Hundred and Eighty-Three Thousand, Four Hundred and Fifteen Naira, Fifty-One kobo), the interest thereof and cost of N20,000.00 (Twenty thousand Naira only) to the Respondent is justified and indeed appropriate in law and in fact, in the circumstances of this case.
The answer to this issue is in the affirmative and same is hereby resolved in favour of the Respondent and against the Appellants.
In all the Appeal is bereft of merit and cannot be sustained. It is hereby dismissed while the Ruling of Honourable Justice A. R. Mohammed of the Federal High Court, Lagos Judicial Division of the 9th of July 2008, is hereby affirmed with N30,000.00 costs in favour of the Respondent.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the erudite judgment just delivered by my learned sister RITA NOSAKHARE PEMU, JCA. I am in complete agreement with the conclusion that the appeal be dismissed. I will add a few words.
For the purpose of this appeal, I will adopt the issues as distilled by the Appellants’ counsel.
ISSUE ONE
The Appellants’ first issue is the same as the Respondent’s seventh issue. On this issue, the Appellants’ counsel submitted that the action which was commenced on the 7th day of July, 2005 was most incompetent and void for non-conformity with the express provisions of the Federal High Court (Civil Procedure) Rules 2000.
He argued that Order 24 of the Rules provides for the commencement of a suit via the undefended list procedure. He argued that the mode for commencing an action under this procedure is through affidavit evidence and that an action brought under the undefended list does not require pleadings. He explained that by the combined effect of the provisions of Order 24, Rules 1 & 2, before an action can be marked as undefended, the plaintiff must have made an application to the Registrar of the court for issuance of a writ in respect of a claim to recover a debt or liquidated money demand and this application must have been supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence on the part of the defendant to the action. He also argued that the defendant must be served by the Registrar with the said writ of summons and affidavit. He cited CRPDIC vs. ENO OBONGHA (2001) FWLR Pt.54 Pg.351 @ 366 and 372.
He then argued that the Respondent had accompanied his writ of summons with a statement of claim dated 7th of July, 2005 instead of a sworn affidavit and filed a motion ex parte dated the same date. He also claimed that he was not served as he should have been with a writ of summons and an affidavit. He claimed that the court below, on hearing the application, marked the action as undefended without considering these facts.
He pleaded the provisions of Order 3 Rule 1(1) & (2) of the Federal High Court (Civil Procedure) Rules which states that:
“where in the beginning or purporting to begin any proceedings, there has been, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner or form or content or in any other respect, the failure may be treated as an irregularity…the court may on the ground that there has been such failure…set aside either wholly or in part the proceedings which the failure occurred…”
He argued that the provision of Order 3 Rule 1 (1) & (2) of the Federal High Court Rules are clear and, the issue of non-compliance can neither be waived by the court nor by the party in default. He cited OWNERS OF THE MW ‘ARABELLA’ VS. NIGERIA AGRICULTURAL INSURANCE COPORATTON (2003) 8 MJSC Pg. 145 @ 159-160; DANGOTE VS. CSC PLATAEU (2001) FWLR Pt. 50 Pg. 1639 @ 1660.
He further argued that the Appellants were right in filing an application for the proceedings to be set aside rather than a notice of intention to defend the suit because the Respondent’s case was incompetent and that this was perfectly in conformity with the law. He cited ARABELLA VS NAIC (Supra) @ 162; CHIEF EMMANUEL OSITA OKEREKE VS. ALHAJI UMARU MUSA YAR’ADUA & ORS (2008) 8 MJSC Pg. 182 @ 217.
On the other hand, the Respondent’s counsel contended that in instituting the action at the lower court under the ‘undefended list’, the Respondent had substantially complied with the provisions of Order 24 of the Federal High Court (Civil Procedure) Rules 2000. He claimed that the Respondent’s application before the court below dated the 7th day of July 2005 was supported by a 22 paragraph-affidavit and that in paragraph 20 of the said affidavit, the deponent had stated that he verily believed that the Defendants had no defence at all to the Plaintiff’s claim. He referred to Page 38 of the records.
He argued that by virtue of Section 150(1) of the Evidence Act, when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. He cited UBN PLC VS. EDAMKUE (2005) 7 NWLR Pt.925 Pg.520 at 535.
I do not agree with the point being made by learned Appellants’ counsel in respect of this issue. Order 24 of the Federal High Court Civil Procedure Rules 2000 governs the procedure under the Undefended List.
Rule 1 provides as follows:-
“Whenever application is made to a Court for the issue of a writ of summons in respect of a Claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the undefended List”, and mark the writ of summons accordingly, and enter thereon d date for hearing suitable to the circumstances of the particular case.”
Only the judge in Court or in Chambers can place a suit on the undefended list. The discretion to do so is governed by the fact that the Claimant has filed an Affidavit to support the writ of summons and the application to place the suit on the undefended list. The Affidavit sets out the grounds of the Claimant’s Claim and the reason for believing that the Defendant has no defence to the Claim. See EDEM VS CANON BALL LTD. (1998) 6 NWLR Pt. 553 Pg. 298 at 308; CRPDIC VS OBONGHA & ORS. (Supra).
In this case, the writ of summons, a statement of claim, motion ex-parte supported by a 22 paragraph affidavit to place the suit on the undefended list were all filed the same day -7/07/2005. In my humble view, the Respondent fulfilled the requirements of Order 24 Rule 1 with the filing of a statement of claim as mere surplusage not affecting adversely the compliance with the Rules of Court. It would have been a different thing entirely if the Respondent merely filed a statement of Claim without filing an affidavit. A Statement of Claim constitutes mere pleadings yet to be backed by evidence whereas an affidavit is sworn evidence which the Court is bound prima facie to believe and on which it can base its decision to put the case on the undefended list. I reiterate my humble view that the Respondent complied with the Rules of Court.
I agree with learned Respondent’s Counsel that it was the Appellants who intentionally refused to comply with the provisions of Order 24 Rules 3 & 4 which provide as follows:
3. If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
4. Where any defendant neglects to deliver the Notice of Defence and Affidavit prescribed by Rule 3 (1) of this Order, or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the Plaintiff to summon witnesses before the Court to prove his case formally.
It is clear to me that failure of the Appellants to file a notice of intention to defend amounts to an admission of the Respondent’s claim. See IKPONG VS UDOBONG (2007) 2 NWLR Pt.1017 Pg.184 @ 204; OKOLI VS MORECAB FINANCE (NIG) LTD (2007) 14 NWLR Pt. 1053 Pg.37.
I also agree with learned Respondent’s Counsel that the Appellants were obviously dwelling on mere technicalities which have over time been overtaken by the duty of the Courts to do substantial justice between parties. The Courts now emphasize the substance of a claim as opposed to the form. See DUKE VS. AKPAYUBO LOCAL GOVERNMENT (2005) 19 NWLR Pt.959 Pg.130 @ 144-145; SALEH VS. MONGUNO (2006) 15 NWLR Pt. 1001 Pg.26 @ 59-60; BROAD BANK OF NIGERIA LTD VS. OLAYIWOLA & SONS LTD (2005) 3 NWLR Pt.912 Pg. 434 @ 458
This issue is resolved against the Appellant.
ISSUE TWO
The Appellants’ second issue and the Respondent sixth issue are the same. On this issue, Counsel to the Appellants submitted that failure, refusal or neglect on the part of a plaintiff in purporting to commence a civil action through non-disclosure of legal material facts such as would enable the court to be fully abreast of all matters in controversy is fraudulent and vitiates any proceeding or judgment that might have been obtained in such case. He cited ALAMIEYSEIGHA VS. YEIWA (2001) FWLR Pt.50 Pg.1676 @ 1595.
The Appellants’ Counsel in paragraph 4.4 of the brief claimed that the Respondent in the action instituted at the lower court failed to disclose certain material facts. He submitted that the very activities of the Respondent as stated in the above paragraph are not only fraudulent, but failure to disclose these facts as well constituted fraud. He cited VALCAN CASES LTD. VS. GESLLSCHAFT FUR INDUSTRIES (Supra).
He further submitted that if the trial court had properly evaluated the evidence before it, it would not have awarded the sum it awarded in favour of the Respondent without considering the fact that the Respondent used a wrong rating of 40% instead of the Central Bank of Nigeria’s approved lending rate and had committed various frauds against the Appellants.
He then concluded that since the trial court had failed to properly evaluate the evidence before it before giving its judgment, this court can interfere with the finding of facts and accordingly set aside the entire decision complained of. He cited BONIFACE NNORODIM & ANOR VS EZE PAUL EZEANI & ORS (2001) FWLR Pt. 40 pg.1696 @ 1700 – 1710.
Counsel to the Respondent on the other hand contended that the Appellants have not fully established a case of fraud against the Respondent. He claimed that a careful perusal of the Appellants’ application dated 25th day of May 2006, will show that it does not substantiate any allegation of crime against the Respondent.
He argued that contrary to the Appellants’ allegation of non-disclosure of material facts, the Respondent had indeed disclosed the only material facts relevant to the case which are:
1. That the Appellants are indebted to the Respondent in the sum of N30,785,415.
2. That the said indebtedness has not been paid.
3. That there are documents indicating the transactions between both parties.
He stated that any fact aside from the above are not material and nondisclosure of such is not enough to cast aspersion of fraud on the Respondent.
He argued that the Appellants’ allegation would have had some weight if their submission at the lower court was that they were not indebted to the Respondents at all or they have fully liquidated their indebtedness. He further contended that the allegation was merely a ploy by the Appellants to evade their indebtedness to the Respondent. He claimed that the allegation of fraud is an imputation of crime that has to be proved beyond reasonable doubt. He cited ASO MOTEL KADUNA LTD. VS DEYEMO (2006) 7 NWLR Pt. 978 Pg.87 @ 123 PER JEGA JCA; OKOLI VS. MORECAB FINANCE (NIG) LTD (Supra).
He then urged the court that the Appellants’ allegation being spuriously made to maliciously postpone the payment of their indebtedness should be discountenanced and the issue resolved in favour of the Respondent.
This is issue as raised and couched in my humble view is irrelevant to the consideration of this appeal. The grounds of appeal and issues distilled therefrom must emanate from the ratio of the judgment or ruling appealed against. The issue of whether the Respondent used a wrong rate to compute the money in controversy was never considered nor decided on by the trial judge. This is an issue which goes to the merit of the case between the parties. The Appellant should have filed a notice of intention to defend the action in compliance with Order 24 Rule 3 (1) and then brought the reasons why they are contesting the case to the attention of the trial judge by notice to defend supported by affidavit instead of refusing to defend the Claim and bringing an application to set aside the ex parte Order of the judge placing the case on the undefended list.
Complaints in a ground of appeal must be directed against the decision appealed against. The Court held at Pg.340 of the Record as follows:- There is therefore no affidavit before this Court by which the Defendants have specifically denied the Plaintiff’s Claim as endorsed in the writ of summons and statement of Claim in this suit.
This was issue 2 raised at the Lower Court for the Appellant as Defendant. The learned trial judge cleverly side stepped the issue since the procedure under the Undefended List does not allow the judge to dissect the different positions of the parties. As I said earlier, the issue of fraud or submission to arbitration could have been brought while a defence to the suit was made. This should have been done by the Appellant with a notice of intention to defend the suit supported by an affidavit stating all the various complaints including allegation of fraud and excessive interest rates etc. Suffice it to say with respect that learned Appellants’ Counsel did not seem to understand that the ex parte Order, was a first step in a process during which he would have been given opportunity to be heard. All he needed to do instead of attacking the process was to utilise the opportunity to be heard. Issue two is resolved against the Appellant.
ISSUE THREE
With regards to this issue, Counsel to the Appellants argued that on the tripartite agreement between the parties dated 22nd August 2000 specifically provided for the submission of any dispute which arises from the interpretation of the agreement, which cannot be settled amicably between the parties, to an Arbitration panel in Clause 1-2(b) of the agreement. He referred to Pg. 148 of the records.
He submitted that a valid, subsisting and proper arbitration was constituted in accordance with Section 1(1) and (2) of the Arbitration and Conciliation Act 1990 and the conditions precedent were fully met and fulfilled. To substantiate this, Counsel claimed the following:
1. That there was exchange of letters between the parties which provides a record of arbitration agreement and referred this court to said letters dated September 25, 2003 on page 209 of the records and 10th May 2008 on page 215 of records.
2. That parties exchanged points of claims and of defence and that the Respondent had by virtue of a letter dated 7th July 2003 (Pg.218 of the records) submitted to the jurisdiction of the arbitrators; ‘Sub Committee on Ethics and Professionalism of the Bankers Committee’.
3. That arbitration was constituted and the arbitrators made an interim award which was communicated to the parties by a letter dated June 9th 2005 to the effect that neither of the parties should divulge any information by way of speaking with the press or in whatever form on matters relating to the case during the pendency of the matter with the Sub Committee.
Counsel then argued that once there was an agreement to submit a matter to arbitration as evidenced in clause 12(b) of the tripartite agreement between the parties, the parties could submit any dispute to arbitration and any award made shall be binding on the parties. He cited COMMERCE ASSURANCE LTD VS. ALLI (1992) 4 NCLR 25 @ 34. He then submitted that the Respondent, having submitted to the jurisdiction of the arbitrators and having fully participated in the proceedings thereof, cannot turn round to say there was no arbitration.
He then urged this Court to set aside the proceedings and dismiss the claim of the Respondent in accordance with Section 34 of the Arbitration and Conciliation Act 1990.
In reply, the Respondent’s Counsel stated that there was nothing in Clause 12(b) of the agreement between the parties compelling or restricting the parties therein to settle all disputes by way of Arbitration. He also referred thee court to Clause 12 of the agreement which states as follows:
“In the event that any party hereto shall breach any of the terms of this agreement, the aggrieved party shall have right of recourse to any competent court of law in the Federal Republic of Nigeria”
He then argued that from the above provision, it is clear that arbitration is not the only option open to the parties thereto and that parties could also seek redress in a court of competent jurisdiction, which the Respondent actually did.
He denied vehemently that there was an arbitration proceedings involving both parties and he contended that the Appellants failed to establish the existence of one by failing to prove the following:
1. The appointment of Arbitrators by the mutual agreement of the parties herein
2. The name(s) and particulars of the Arbitrator(s) so appointed
3. The number of Arbitrators
4. Venue of arbitration
5. How the arbitration fees were paid
He further contended that the procedure laid down by Section 7 of the Arbitration and Conciliation Act, which provides for the methods of appointing Arbitrators was not shown by the Appellants to have been followed. He stated that the Act emphasizes mutual agreement rather than unilateral action in the appointment of arbitrators.
He argued that the Appellants petition to the Bankers’ sub-committee on Ethics and Professionalism is not and cannot be conceived as Arbitration within the contemplation of the Act. He stated that to hold otherwise would be tantamount to saying that a similar petition to a Local Government Council, the Nigerian Bar Association and similar bodies, constitutes Arbitration. He urged the court to resolve the issue in favour of the Respondent, the Appellants having failed to show any binding arbitration between the parties. For the reason I have earlier on held in this judgment, this issue does not arise for determination. That is, it does not arise from the ratio of the learned trial judge who could not have given any opinion on such an issue at that point in the proceedings. The arguments proferred by both parties relate to the merit of the claim brought by the Respondent which the learned trial judge did not determine. The Lower Court determined the Claim on the basis that the Appellants having failed to file a Notice of Intention to defend and Affidavit in Support in accordance with the Rules, had failed woefully to defend the Claim. That argument was wrongfully submitted by the Appellant as Defendants/Applicants as issue 2 before the trial Court who in my view rightfully ignored it in the circumstances.
It is completely misconceived to defend a suit by way of a Motion on Notice as the Appellants tried to do in their motion dated 25/05/06 filed on 26/05/06. This issue is also resolved against the Appellant.
ISSUE FOUR
The fourth issue as distilled by the Appellant is both ambiguous and cumbersome. In paragraph 6.2 of the Appellants’ brief, he divided the issue into four parts. It is apparent that 6.2a and 6.2d have already been dealt with in issues 1 and 3 and I see no reason why they should be canvassed again. As such, I will only deal with 6.2b and 6.2c.
In paragraph 6.2.b of the Appellants’ brief, Counsel stated that the necessary parties were not before the court. He claimed that certain parties namely Hong Kong and Songhai Banking Corporation (HSBC), Zhejiang AMP Incorporation and United Parcel Services should have been joined in the action at the trial court.
He had earlier stated the facts that led to the controversy in paragraphs 5.4 a-g. He claimed that since it was HSBC that had mistakenly credited the account of Zhejiang AMP Incorporated with the sum of 160,000 dollars, both parties ought to have been joined as necessary parties in addition to UPS in whose possession; some of the Appellants’ goods were damaged. He cited GREEN VS. GREEN (2001) FWLR Pt.79 pg.795 @ 817.
He argued that failure to make them parties in the suit and the court making pronouncement on issue in which they have exclusive evidence to give but without hearing them amounted to miscarriage of justice.
In reply, the Respondent’s counsel stated for the purpose of clarity that HSBC, being the Respondent’s correspondent bank in London had in February 2001 mistakenly credited the account of Zhejiang AMP, the Appellants’ overseas supplier with the sum of 1600,000 dollars. Zhejiang AMP, believing the money was credited to it in the normal course of transactions, sent goods of the same worth to the Appellants. The Appellants, on receipt of the goods undertook to make repayment of the money to the Respondent through HSBC.
He submitted that the aforementioned facts represent the true position of the parties which is not in dispute and that by virtue of this, the joinder of the 3 companies referred to by the Appellants was not necessary. He argued that the parties were not joined since the Respondent had no claim against them. He cited OLUJITAN VS. OSHATOBA (1992) 5 NWLR Pt. 241- Pg.326 @ 335.
He further argued that the Appellants had the right to bring an application at the Lower court for joinder of the companies, but they neglected to do so and as such cannot be heard to complain of non-joinder on appeal. He cited OSUN STATE GOVT. VS DANLAMI (NIG) LTD (2003) 7 NWLR Pt. 818 pg. 72 @ 95-96. He referred the court to pages 246-251, of the records which contain an application filled by the Appellants at the Lower Court praying for the joinder of EFCC as a party therein. He stated that even though the application was later withdrawn, it is strange that the Appellants did not deem it fit to join the companies then. He then contended that this issue was an after-thought by the Appellant without merit which ought to be discountenanced by the court.
He contended also that non-joinder of parties who at best can only be desirable parties will not be a ground for defeating the Respondent’s action at the Lower court.
As I have held in respect of issues 2 & 3 all the arguments proferred by both parties go to no issue because there was no ratio of the trial judge from which it was derived. All these points raised by the Appellants in the Motion could have been raised by a Notice of Intention to defend and an affidavit. When the case is placed on the general cause list, then the statement of defence would contain the relevant averments on which issues would be joined during trial and the trial court would have been obliged to give an opinion subject to review by this Court. This part of this issue is with the greatest respect misconceived and is hereby resolved against the Appellant.
In paragraph 6.2.c of the Appellants’ brief, Counsel to the Appellants of aimed that the subject matter of the suit is a matter of customer/banker relationship and as such the Federal High Court had no jurisdiction to entertain the matter.
He argued that the cause of action at the lower court, according to the Respondent’s claim arose as a result of the grant of credit facilities by a banker to a customer. He claimed that as a result, the subject matter of the suit falls within the proviso of Section 215(1) (d) of the 1999 Constitution which states that:
“Provided that this paragraph shall not apply to any dispute between an individual customer and its bank in respect of transactions between the individual customer and the bank”.
He further argued that the lower court ought to have struck out the case for lack of jurisdiction and that the decision taken by the court amounted to a nullity. He cited SAM-FAM LTD VS AINA (2001) FWLR Pt.70 pg.1601 @ 1609.
He also stated that no court can either of its own volition or through the prompting of any party confer jurisdiction on itself where it totally lacks one. He cited AGUSIOBO V. OKAGBUE (2001) FWLR Pt.76 Pg.1162 @ 1174; ADEYEMI V. THE STATE (1991) 5 NWLR Pt 195 Pg.1
Learned Respondent’s counsel in reply to this issue argued that the interpretation given to the proviso to Section 251(1) (d) by the Appellants is perverse and evidently misconceived. He claimed that the proviso was not intended to strip the Federal High Court of its jurisdiction in respect of ordinary customer-banker relationship but to rid it of its exclusive jurisdiction in respect thereof. He stated that the Federal High Court can at best enjoy concurrent jurisdiction with the State high court in matters arising out of ordinary customer-banker relationship. He cited NDIC VS OKEM ENTERPRISES (2004) 10 NWLR Pt. 880 Pg.107.
Let me say that the issue of who has jurisdiction in respect of strictly banker and customer relations has been settled beyond peradventure in NDIC VS OKEM cited Supra by learned Respondent’s Counsel. The full Court led by Kutigi JSC (as he then was) came unanimously to the conclusion that the Federal High Court can exercise concurrent jurisdiction in the area stated or mentioned in the proviso to S.251 of the 1999 Constitution. At Pg. 183 of the NWLR Uwaifo JSC who wrote the lead judgment held thus:
“The said proviso cannot be interpreted to have the effect of conferring exclusive jurisdiction on the State High Courts and completely taking away the jurisdiction of the Federal High Court to entertain causes and matters relating to individual customer and hank transactions as was erroneously decided by the Court below and unsuccessfully argued before this Court by Chief Clarke.”
At Pg. 191 Kutigi JSC (as he then was) also explained:
“The proviso to my mind is intended not to deny the Federal High Court of jurisdiction in the matter or area stated therein. The proviso is an exception to the “exclusively,” rule embodied in section 257 (1) (d). In other words, it is a proviso to the provision of paragraph (d) of section 251 subsection (1) only.”
He put the matter conclusively thus at Pg.192 of the NWLR:
“In other words the Federal High Court can exercise concurrent jurisdiction in the area stated or mentioned in the proviso,”
See also the following cases I.T.P.P LTD. VS UBN PLC. (2006) 12 NWLR Pt. 995 Pg. 483 at 503, 510. This issue is resolved against the Appellant.
Issues 5 & 6 are also resolved against the Appellant in so far as they did not emanate from the judgment of the trial court and cannot be subject of appeal.
For the above and further reasons ably set out in the lead judgment, I dismiss the appeal and abide by all consequential orders in the lead judgment.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my Lord, RITA N. PEMU, JCA, and I agree that this appeal should fail as it has no merit.
The Appellants, who were the Defendants at the trial court, had one bounden duty in a case that had been entered on the undefended list or cause for hearing. Having earlier on and within 5 days of the service on them of the appreciation to enter the suit on the undefended list failed to file a Notice of Intention to defend and an accompanying affidavit disclosing a defence on the merit, they could have sought for the indulgence of the trial court for compliance’ rather than a setting aside application as made.
The objections or defence as thought to be available could be raised in the supporting affidavit accompanying the Notice of Intention to defend, or extension of time to file such Notice, which delay must be explained, and which must not have been unreasonable, nor deliberate or intended to delay or prejudice the trial.
Fairing to comply with this “sui generic” requirement of the Rules as provided by order 12 Rule 3(1) of the Federal High Court Civil Procedure Rules 2009, the Appellants have successfully and fatally shot themselves out of any remedy.
In the circumstance, their appeal must be dismissed and the trial court’s Judgment is accordingly affirmed. I abide by the order relating to costs, as made in the lead Judgment.
Appearances
Appellant not represented For Appellant
AND
George Duru For Respondent
