AMRI MEDICAL RELIEF LIMITED & ORS v. e-BARCLAYS MICROFINANCE BANK LIMITED
(2015)LCN/7876(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of May, 2015
CA/A/119/2012
RATIO
PRACTICE AND PROCEDURE: UNDEFENDED LIST; THE ESSENCE OF THE RULES RELATING TO UNDEFENDED LIST AND THE PROVISION OF THE RULE IN RELATION TO CASES OF DEBT OR LIQUIDATED MONEY DEMAND
The essence of the rules relating to undefended list is to deal with despatch cases which are virtually uncontested or incontestable and in respect of which defendants should not be allowed to defend for the purpose of delay. See SODIPO V. LEMMINKAINEN OY (1986) 1 SC 197, 207 and KOKOORIN V. PATIGI LOCAL GOVERNMENT (2009) 13 NWLR (1164) 205, 218. The rules therefore provide a special procedure for cases of debt or liquidated money demand (as in the instant case). Specifically it requires that if a defendant who is served with a writ in an undefended list matter intends to defend the action, he shall within five days to the day fixed for hearing deliver to a registrar of the court a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit. Being a specific provision governing a special procedure, it is not subject to the general provision of the Rules in Order 12 Rule 1(1) thereof regarding entry of appearance to a writ in the general or ordinary cause list. The law is as expressed in the latin maxim generalia specialibus non derogant, that is, a general provision cannot override a specific provision. See KRAUS THOMPSON ORGANISATION V. NATIONAL INSTITUTE FOR POLICY and STRATEGIC STUDIES (2004) 17 NWLR (901) 44, 59 and ATAGUBA & CO. V. GURA (NIG) LTD. (2005) 8 NWLR (927) 429, 448. per. JOSEPH E. EKANEM, J.C.A.
PRACTICE AND PROCEDURE: WRIT OF SUMMON; THE TIME LIMITATION OF THE NOTICE OF INTENTION TO DEFEND
It must be emphasised that suits on the undefended list are sui generis and it is therefore pointless to look to the general provisions that apply to suits filed on the general cause list which are expected to follow the normal procedure for such suits including, to my mind, the filing of memorandum of appearance. See UHEME V. PARKES (2014) 3 NWLR (1395) 475, 493.
In the case of NATIONAL ASSEMBLY v. CCI CO. LTD (2008) 5 NWLR (1081) 519, 539, this court stated that:
“The marked writ of summons with the affidavit in support shall thereafter be served on the defendant who if he desires will be required to file a notice of intention to defend together with a supporting affidavit setting out the grounds of his defence. The notice of intention to defend must be filed and/or delivered to the registrar of the trial court not less than five(5) days before the already fixed date for hearing of the suit.” per. JOSEPH E. EKANEM, J.C.A.
PRACTICE AND PROCEDURE: SUIT ENTERED ON THE UNDEFENDED LIST; THE EFFECT OF THE NEGLECT OF THE DEFENDANT TO DELIVER THE NOTICE OF INTENTION TO DEFEND WHEN A SUIT ENTERED ON THE UNDEFENDED LIST COMES UP ON THE RETURNED DATE
When a suit entered on the undefended list comes up on the return date, it comes up for hearing. By Order 21 Rule 4 of the Rules where, as in this case, the defendant neglects to deliver the notice of intention to defend and an affidavit disclosing a defence on the merit, or it is not given leave to defend (even though it delivers the processes) the suit shall be heard as an undefended list suit and judgment given accordingly.
In the case of BEN THOMAS HOTELS LTD V. SEBI FURNITURE LTD (1989) 5 NWLR (123) 529, 532, OBASEKI, JSC, stated that:
“If a defendant properly served with a writ of summons decides to stay away from court on the hearing day, he cannot, under the Rules, be heard to say that the trial Judge should not have heard the case on the day particularly when the case was put on the undefended list.” per. JOSEPH E. EKANEM, J.C.A.
APPEAL: ISSUE FOR DETERMINATION; THE IMPLICATION OF RAISING A FRESH ISSUE NOT RAISED AND DETERMINED AT THE TRIAL COURT WITHOUT OBTAINING LEAVE OF THE COURT AND WHETHER PARTIES ARE BOUND BY THEIR AGREEMENT
In respect of issue 2, I agree with counsel for the respondent that it is a fresh issue as it was not raised and determined at the court below. No leave was obtained to raise it in this court and it is therefore incompetent. See BALONWU V. IKPEAZU (2005) 13 NWLR (942) 479, 517 and ORGAN V. NIGERIA LIQUEFIED NATURAL GAS LTD (2013) 16 NWLR (1381) 506, 531. Apart from the above, it is indeed trite that parties are bound by their agreement and cannot go outside it to set up a case inconsistent with it. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
1. AMRI MEDICAL RELIEF LIMITED
2. WSPL LIMITED
3. BARR. GEORGE A. CHIGBU Appellant(s)
AND
e-BARCLAYS MICROFINANCE BANK LIMITED Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): The respondent granted loan facilities to the 1st and 2nd appellants to the tune of Ten Million Naira (N10,000,000:00) each. The loans granted to the 1st and 2nd appellants were secured by collaterals, namely; title documents of the 3rd appellant’s land, Plot No.83869 (A) 32 Road C Close, Gwarinpa Estate, Abuja and Airport Road, Sabon Lugbe, which were deposited with the respondent.
The 3rd appellant (Managing Director/Chief Executive Officer of the 1st and 2nd appellants) gave a personal guarantee for the repayment of the loans. He also issued a post-dated cheque for Twelve Million Naira and signed a loan acknowledgement and transfer of title document.
Upon failure to repay the loan as agreed, the respondent took out a Writ of Summons in the undefended list against the appellants at the High Court of the Federal Capital Territory, Abuja Judicial Division, holden at Maitama in suit No. FCT/HC/CV/958/200 claiming as follows:
“(a) N9,600,000.00 from the 1st defendant and 3rd defendant jointly and severally being the balance outstanding from the principal sum N10M granted to the 1st defendant as loan and guaranteed by the 3rd defendant.
(b) N9,010,250.00 from the 2nd defendant and 3rd defendant jointly and severally being the balance outstanding from the principal sum of N10M granted to the 2nd defendant as loan and guaranteed by the 3rd defendant.”
The writ was supported by an affidavit of 22 paragraphs with documents attached as Exhibits. It was served on the appellants on 21/2/2011 with the return date being 28/2/2011 (not 28/2/2010 as stated at page 26 of the record of appeal). On the said date and in the absence of the appellants, who did not file a notice of intention to defend and an affidavit showing cause, the trial court adjourned the suit to the 16/3/2011 for judgment. On that date, the trial judge entered judgment in favour of the respondent against the appellants in the sums claimed with cost of N20,000:00 in respondent’s favour.
Aggrieved by the judgment, the appellants appealed to this court by way of notice of appeal bearing two grounds of appeal.
In his brief of argument filed on 30/2/2012, Obi C. Nwakor, Esq; of counsel, for the appellants, formulated two issues for the determination of the appeal. The issues are:
“1. Whether the trial lower court had jurisdiction to have heard the suit of the respondent on the 28th day of February, 2011 and given judgment thereof, when the time limited by the civil procedure rules of the High Court of the Federal Capital Territory Abuja 2004, for entering appearance had not expired.
2. Whether the trial lower court in awarding/entering monetary judgment for the respondent was not re-writing the agreement and the true intention of the parties as contained in the “loan acknowledgment agreement.”
On his part, Charles Ndukwe, Esq; of counsel, for respondent formulated one issue for the court’s determination of the appeal. The issue is:
“Whether in the circumstances of this case, it was proper for the lower court to enter judgment for the respondents.”
The issues formulated by the appellants are more comprehensive than the single issue formulated by respondent’s counsel. I shall therefore adopt them for the determination of this appeal.
Arguing issue 1, counsel for the appellants cited Order 12 Rule 1(1) of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2004 and pointed out that the time limited in the Writ of Summons for entry of appearance is 8 days while hearing was done within 7 days. This, in his view, robbed the trial court of competence. He cited and relied on the case of ADERONKE BAKERY LTD V. ONYEJEKWE LTD (1992) 2 NWLR (590) 228, 233 in support.
Regarding issue 2, appellants’ counsel submitted that parties are bound by the terms of their agreement. He stated that the parties provided a remedy to the respondent in the event of failure to pay the amount borrowed. He noted that Exhibits P2 and P3 gave the values of the properties at N35 and N23 Million which are well above the sums borrowed. The agreements, he added, made the sum of N20M borrowed to become consideration paid to the appellants by the respondent in the event of failure or inability to pay back on due date. Since Exhibit P4 provided a remedy to the respondent, it can in keeping with its terms only take over the land as owners and not seek monetary claims, thus going outside the terms of the agreement, he concluded.
He finally urged the court to set aside the judgment of the trial court.
Respondent’s counsel in arguing his sole issue, stated that contrary to Order 21 Rule 3(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 2004 (“The Rules” for short) the appellants did not file or deliver to the registrar of the trial court within five days of the date fixed for hearing, a notice in writing of their intention to defend the suit together with an affidavit disclosing a defence on the merit. He submitted that the undefended list procedure is a special procedure which is governed by special rules as contained in Order 21 of the Rules. He cited and relied on NATIONAL ASSEMBLY V. CC1 CO LTD (2008) 5 NWLR (1081) 519 and SHELL PETROLEUM DEVELOPMENT OF NIGERTA LTD V. ARHO-JOE NIG LTD (2006) ALL FWLR 133. He submitted that the trial court was competent to determine the suit. It was his further submission that Order 12 of the Rules which allows eight days for the entry of appearance does not apply to a case brought under the undefended list. He distinguished the case of ADERONKE BAKERY LTD V. M/SO ONYEJEKWE LTD supra, cited by appellants’ counsel from the instant case.
He contended that appellant’s issue two is a fresh issue which has been raised without leave and so should be discountenanced. Alternatively, he submitted that the appellants ought to have filed a defence to raise the issue and that it was too late to do so at this stage.
He finally urged the court to dismiss the appeal.
In regard to issue I, it is to be re-stated that the suit that gave birth to this appeal was commenced as an undefended list matter. The grouse of the appellants in this issue is not with the issuance of the Writ on the undefended list, but with the fact that contrary to Order 12 of the Rules and the instruction in the writ which required them to enter appearance within eight days of the service of the Writ on them, the trial court heard the matter within 7 days of the service of the writ on them and gave judgment thereafter.
Order 21 of the Rules governs the undefended list procedure. In part it states as follows:
“3(1) Where a party served with the writ delivers to a Registrar, within 5 days to 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.
(2) Where leave to defend is given under this Rule, an 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.
4. Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit and judgment given accordingly”.
The essence of the rules relating to undefended list is to deal with despatch cases which are virtually uncontested or incontestable and in respect of which defendants should not be allowed to defend for the purpose of delay. See SODIPO V. LEMMINKAINEN OY (1986) 1 SC 197, 207 and KOKOORIN V. PATIGI LOCAL GOVERNMENT (2009) 13 NWLR (1164) 205, 218.
The rules therefore provide a special procedure for cases of debt or liquidated money demand (as in the instant case). Specifically it requires that if a defendant who is served with a writ in an undefended list matter intends to defend the action, he shall within five days to the day fixed for hearing deliver to a registrar of the court a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit. Being a specific provision governing a special procedure, it is not subject to the general provision of the Rules in Order 12 Rule 1(1) thereof regarding entry of appearance to a writ in the general or ordinary cause list. The law is as expressed in the latin maxim generalia specialibus non derogant, that is, a general provision cannot override a specific provision. See KRAUS THOMPSON ORGANISATION V. NATIONAL INSTITUTE FOR POLICY and STRATEGIC STUDIES (2004) 17 NWLR (901) 44, 59 and ATAGUBA & CO. V. GURA (NIG) LTD. (2005) 8 NWLR (927) 429, 448.
It must be emphasised that suits on the undefended list are sui generis and it is therefore pointless to look to the general provisions that apply to suits filed on the general cause list which are expected to follow the normal procedure for such suits including, to my mind, the filing of memorandum of appearance. See UHEME V. PARKES (2014) 3 NWLR (1395) 475, 493.
In the case of NATIONAL ASSEMBLY v. CCI CO. LTD (2008) 5 NWLR (1081) 519, 539, this court stated that:
“The marked writ of summons with the affidavit in support shall thereafter be served on the defendant who if he desires will be required to file a notice of intention to defend together with a supporting affidavit setting out the grounds of his defence. The notice of intention to defend must be filed and/or delivered to the registrar of the trial court not less than five(5) days before the already fixed date for hearing of the suit.”
In the instant case, the appellants were served with the writ on 21/2/2011 with the return date being 28/2/2011 (see pages 23-25 of the record of appeal). Thus the appellants had enough time to deliver the processes required. The court was therefore competent to hear the suit on 28/2/2011.
When a suit entered on the undefended list comes up on the return date, it comes up for hearing. By Order 21 Rule 4 of the Rules where, as in this case, the defendant neglects to deliver the notice of intention to defend and an affidavit disclosing a defence on the merit, or it is not given leave to defend (even though it delivers the processes) the suit shall be heard as an undefended list suit and judgment given accordingly.
In the case of BEN THOMAS HOTELS LTD V. SEBI FURNITURE LTD (1989) 5 NWLR (123) 529, 532, OBASEKI, JSC, stated that:
“If a defendant properly served with a writ of summons decides to stay away from court on the hearing day, he cannot, under the Rules, be heard to say that the trial Judge should not have heard the case on the day particularly when the case was put on the undefended list.”
Appellants’ counsel cited and relied on the case of ADERONKE BAKERY LTD v. ONYEJEKWE LTD supra to support his argument that the trial court was robbed of competence by hearing the case within 7 days of the service of the writ. This was a decision of the Court of Appeal. In the Supreme Court case of DUKE v. AKPABUYO LOCAL GOVERNMENT (2006) 133 LRCN 108, the Court of Appeal set aside the judgment of the trial court in an undefended list matter as being a nullity because the writ was served less than 8 days to the hearing date.
The Supreme Court set aside the judgment of the Court of Appeal.
Acholonu, JSC stated that:
“To my mind it is a defect which… would not ordinarily vitiate any proceedings taken, to wit, that there was a unilateral abridgement of time…”
At page 126, Acholonu, JSC stated further:
“Having acknowledged the debt but now the respondent seeks to resort to mere technical factors this court would not avail it.”
Ejiwunmi, JSC, at page 128 stated thus:
“It is a settled principle that where a beneficiary of a rule failed to challenge the correctness of the procedure at the commencement of the proceedings, the adoption of a wrong procedure will be no more than an irregularity and would not render the entire proceedings a nullity.”
Ogbuagu, JSC, at page 137 stated that:
“The appropriate time at which a party to a proceeding should raise an objection based on procedural irregularity is at the commencement of the proceedings or at the time when the irregularity arises. If the party “sleeps” on that right and allows the proceedings to continue on the irregularity to finality… then the party cannot be heard to complain at the concluding or concluded stage of the proceedings or on appeal thereafter that there was procedural irregularity that vitiated the proceedings. The only exception … is that the party would be allowed to complain on appeal, if it shows that it had suffered a miscarriage of justice by reason of the procedural irregularity.”
In the instant case, the appellants do not deny the debts owed by them. They were served the writ and knew of the hearing date but failed to protest that the 8 days stated on the writ for them to enter appearance had not expired. Appellants have not shown any miscarriage of justice caused to them by the hearing. It is therefore too late for them to raise it in this appeal.
I therefore resolve issue one in the affirmative and against the appellant.
In respect of issue 2, I agree with counsel for the respondent that it is a fresh issue as it was not raised and determined at the court below. No leave was obtained to raise it in this court and it is therefore incompetent. See BALONWU V. IKPEAZU (2005) 13 NWLR (942) 479, 517 and ORGAN V. NIGERIA LIQUEFIED NATURAL GAS LTD (2013) 16 NWLR (1381) 506, 531.
Apart from the above, it is indeed trite that parties are bound by their agreement and cannot go outside it to set up a case inconsistent with it. In Exhibit P4, the loan agreement, clauses 4 and 5 state:
“4. In the event of any failure, negligence or refusal on my part to liquidate the said loan/credit facility before the expiration of 90 (Ninety) days from the date hereof, the said sum of N20m or any part outstanding shall be treated as full consideration paid to me by the Bank for the sale, transfer and/or assignment of the said plots of land to the Bank.
5. The Bank shall upon my failure, neglect or default in liquidating the said loan/credit facility or any part thereof take over as owner and/assignor thereof of my aforementioned plots of land in full and final settlement of the said loan/credit facility or any part thereof still outstanding without any further reference to me.”
There is no doubt that the provisions of the clauses provide a remedy for the respondent where there is failure to repay the loan as agreed. However, it does not exclude resort to the court to sue for the sum owed. It only provides an alternative to the right to sue for the recovery of the debt. This is because by Section 6(6)(b) of the Constitution of Nigeria 1999 (as amended), the judicial powers vested in courts set out in sub-section (5) including the trial court extends to all matters between persons etc in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. Section 257(1) of the same Constitution gives jurisdiction to the trial court to hear the matter at hand. Section 1(1) of the Constitution makes the Constitution supreme and its provisions have binding force on all authorities and persons throughout the Federal Republic of Nigeria. It follows therefore that parties to a contract cannot contract themselves out of the provisions of the Constitution including the provisions set out above.
The respondent chose to pursue his civil right in court and he cannot be shut out from doing so.
I therefore resolve issue 2 against the appellants.
Having resolved the two issues against the appellants, the appeal is without merit. I accordingly dismiss it as being frivolous and I affirm the judgment of the trial court.
I assess the costs of the appeal at N100,000:00 (One Hundred Thousand Naira) in favour of the respondent.
MOORE A.A. ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. My learned brother has exhaustively and rightly discussed and determined the issues in this appeal. I have nothing to add to the reasoning and conclusions of my learned brother.
I agree that this appeal is frivolous and I too dismiss it with N100,000.00 costs in favour of the respondent against the appellants.
TANI YUSUF HASSAN, J.C.A.: I have in advance read the lead Judgment just delivered by my learned brother, Joseph E. Ekanem, JCA. I agree with the reasoning and conclusion therein.
I also dismiss the appeal and affirm the Judgment of the trial Court. I abide by the order of cost.
Appearances
No representation for the appellantsFor Appellant
AND
H.K. Osenum, EsqFor Respondent
