ASO MOTEL KADUNA LTD. V. MRS. DAYO DEYEMO
(2016)LCN/8084(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of January, 2006
CA/K/121/02
RATIO
COMPANY LAW: LEGAL PERSONALITY; WHETHER THE COMPANY IS IN LAW A DIFFERENT PERSON ALTOGETHER FROM THE SUBSCRIBERS TO THE MEMORANDUM
It is settled law that the company is in law a different person altogether from the subscribers to the memorandum, and although it may be that after incorporation, the business is precisely the same as it was before and the same persons are managers and the same hands received the profits. The company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable in any shape or form except to the extent and in the manner provided by the law. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
COURT: JURISDICTION; WHETHER THE LAW CONFERS EXCLUSIVE JURISDICTION THE FEDERAL HIGH COURT IN SUITS AGAINST THE FEDERAL GOVERNMENT OR ANY OF ITS AGENCIES
The law is that even if the appellant is adjudged to be an agency of the Federal Government, and in the instant appeal it is apparent is not, that in itself does not deprive the trial court of jurisdiction to entertain the respondent’s claim against the appellant this being that there is no blanket provision in Section 251(1)(r) of the 1999 Constitution which confers exclusive jurisdiction on the Federal High Court in Suits against the Federal Government or any of its, agencies. In Omosowan v Chi Edozie (supra) at page 484 paragraph D-G, this Court states thus:-
“There is no blanket provision in Section 230(1) (a)-(s) of the 1979 constitution as amended by Decree 107 of 1993 or the Federal High Court Act, Cap 134 of the laws of the Federation 1990, which confers exclusive jurisdiction on the Federal High Court in Suit against the Federal Government or any of its agencies regardless of the subject matter. Only a few selected cases are made the exclusive preserve of the Federal High Court. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
CONSTITUTIONAL LAW: CONDITIONS PROVIDED BY THE CONSTITUTION BEFORE ANY ACTION OR PROCEEDINGS COULD COME UNDER ITS OPERATION
It therefore logically follows that the provisions of Section 251(1)(p) & (r) of the 1999 Constitution requires the following condition precedent before any action or proceedings could come under its operation – namely:
(a) The action or proceedings must be brought against the Federal Government or any of its agencies.
(b) The action or proceedings must be for a declaration or injunction.
(c) The action or proceedings must affect the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.
In the appeal at hand, the relief sought for by the respondent against the appellant is neither for a declaration nor for injunctive order in respect of any executive or administrative action or decision of the Federal Government or any of its agencies. It is an action for debt recovery therefore the cause of action is within the jurisdiction of the trial Kaduna State High Court. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
PRACTICE AND PROCEDURE: INTERLOCUTORY PROCEEDING; HOW INTERLOCUTORY PROCEEDING OR APPLICATION BEFORE THE KADUNA STATE HIGH COURT IS DETERMINED
It is trite law that interlocutory proceeding or application before the Kaduna State High Court is determined on the basis of affidavit evidence and not oral evidence. This is provided for in Order 8 Rule 3 and Order 9 Rules 1-10 of the Kaduna State High Court (Civil Procedure) Rules 1987. Order 8 Rule 3 of the said Rules states thus:- “Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely; and no affidavit shall used unless it is duly filed.” per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
PRACTICE AND PROCEEDING: INTERLOCUTORY PROCEEDINGS; WHETHER EVIDENCE IS ORAL IN INTERLOCUTORY PROCEEDINGS OR APPLICATION
This Court in Osho v A.G Ekiti State (supra) at page 652 held thus:-
“In interlocutory proceedings or applications, Evidence is not oral but by affidavit. Therefore, a party wishing the court to rely or make use of a document in support of his case must first and foremost bring that document properly before the court. This is done by referring to that document in the body of the affidavit as having been exhibit to the affidavit and marked as an Exhibit. Where this is not done, the court is not competent to look at the document”. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
PRACTICE AND PROCEDURE: UNDEFENDED LIST PROCEDURE; THE RATIONALE FOR UNDEFENDED LIST
This Court categorically stated the rationale for undefended list procedure in the case of MAT HOLDINGS LTD v UBA PLC (2003)2 NWLR (Pt.803) at page 90 paragraphs C-E. The court states:-
“The rules of court providing the cases to be placed on undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of Although the need for fair hearing should not be sacrificed on the alter of expediency, the procedure should not be frustrated thwarted by fanciful or general defences directed at frustrating the plaintiff of judgment he well deserves. A case should therefore not be transferred to the General cause list merely on the whims and caprices of a defendant who merely finds the words ‘fair hearing’ convenient as well as handy slogan”. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
COURT: COURT DISCRETION; THE GUIDING PRINCIPLE OF THE EXERCISE OF THE UNFETTERED DISCRETIONARY POWER OF THE COURT TO ADJOURN ANY PROCEEDINGS PENDING BEFORE THEM
It is trite law that all courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the material placed before the court and the peculiar circumstances of the particular case. In the State v Duke (supra) at page 442, this Court held thus:-
“The refusal to grant adjournment is discretionary and in order to succeed on appeal against such refusal, it must be shown that the court exercised its discretion wrongly. (Queen v Onye (1961) 1 All NLR 642; Nwokunta v State referred to)”. per. ABUBAKAR ABDULKADIR JEGA, J.C.A.
JUSTICES
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
ABUBAKAR ABDULKADIR JEGA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
Between
ASO MOTEL KADUNA LTD. Appellant(s)
AND
MRS. DAYO DEYEMO Respondent(s)
ABUBAKAR ABDULKADIR JEGA, J.C.A: (Delivering the Leading Judgment) The appellant in this appeal filed two distinct Notices of Appeal against the decisions of the Kaduna State High Court of Justice presided over by Honourable Justice James Abiriyi, The two Notices of Appeal are one dated and filed on 17th February 2004 filed out of time pursuant to Order of this Honourable Court made on 8th February 2005 and the other dated and filed on 12 March 2004 filed out of time pursuant to the order of this Honourable Court made on the 8th February 2005. The decisions being appealed against are the judgments of Hon. Justice James Abiriyi of the Kaduna State High Court delivered on the 30th of January, 2004 in the undefended list granting the respondent all the reliefs sought in Suit No: KDH/KAD/670/2003 after dismissing the motion for extension of time filed by the appellant and proceeding immediately to deliver judgment stating that the affidavit in support of the Notice of Intention to defend which the court had dismissed did not contain defence on the merit.
The second appeal is against the ruling of the Kaduna State High Court of Justice presided over by Hon. Justice James Abiriyi delivered on the 27th of February 2004 refusing to set aside the judgment of the same court delivered in the undefended list against the appellant on 30th of January 2004 in Suit No. KDH/KAD/670/2003.
The facts of this case as can be seen from the totality of the records presented before this court inclusive of the briefs filed by the parties are as follows:-
The appellant is a company wholly owned by the Federal Capital Development Authority (FCDA) established by Section 3 of the Federal Capital Territory Act Cap 128 Laws of the Federation of Nigeria, 1990 in execution of its functions under Section 4 of the same Act, the appellant carries on Hotel and Catering services in Kaduna State. The respondent as plaintiff at the trial court commenced an action against the appellant under the ( undefended list for the sum of =N=969,750 (nine hundred and ninety-six thousand and seven hundred and fifty Naira) only being
the unpaid money for several cartons of frozen fish, turkey and chicken supplied to the appellant on credit and interest thereon at the rate of 25% per annum at monthly rate from 29th October 2002 until judgment is given and thereafter at the rate of 10% per annum until total liquidation thereof.
Upon an application brought pursuant to Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the learned trial Judge on the 17th December 2003 granted leave to issue and serves writ of summons on the appellant under the undefended list and marked same accordingly. The Suit was adjourned to the 23rd day of January 2004 for hearing.
On the returned date, the appellant’s counsel informed the trial court that he had filed a motion on Notice for extension of time within which to file Notice of Intention to defend, hence he sought for and was granted an adjournment to the 30th January 2004 for the hearing of the motion aforesaid and of the substantive suit.
On the 30th January 2004, the trial Judge heard both the motion aforesaid in the substantive suit and entered judgment in favour of the respondent in the sum of N=969,750.00 with 10% interest from the date of judgment until final liquidation of the judgment debt on the ground that there is no notice of intention to defend filed and that even the notice of intention to defend sought to be filed before the court disclose no defence on the merit.
Aggrieved and dissatisfied by the above mentioned judgment, the appellant appealed against it to this Honourable Court by a Notice of Appeal dated the 17th day of February 2004 containing five grounds of appeal.
We heard this appeal on the 5th October 2005, Counsel to the appellant Mr E.N. Nwagbu informed the court that he has two appeals – substantive appeal and an interlocutory appeal that he had filed the brief in the main appeal on 11/2/05 and a reply brief on 21/7/05, In respect of the interlocutory appeal the appellant’s counsel filed his brief of argument on 21/7/05 and a reply brief on 13/4/05. Learned counsel adopts all the briefs and urged the court to allow the appeal and grant all the reliefs sought.
The respondent and her counsel were not in court. On the 24th March 2005 when the appeal was adjourned to 5/10/05 for hearing, counsel to the respondent was in court. In respect of the substantive appeal, the respondent filed his brief of argument on 24/3/05 the brief dated the same date. In respect of the interlocutory appeal, the respondent filed his brief of argument on 7/4/05. In accordance with the provisions of Order 6 Rule 9(5) of the Rules of this Court, the respondent is deemed to have argued her appeal.
The appellant filed a Notice of Appeal dated 17/2/04 which contained five grounds of appeal. From the five grounds of appeal, learned counsel to the appellant formulated five issues for determination. The Issues are:-
1. “Whether the trial court ought to have assumed jurisdiction to entertain the Suit at all.
2. Whether the motion on Notice for extension of time to file Notice of Intention to defend ought to have been dismissed because the Notice of Intention to defend was not marked as Exhibit” 1″ (“AM I”) even though it was referred to as such on the motion paper and the affidavit in support.
3. Whether after dismissing the motion for extension of time the trial court was right in proceeding to consider the affidavit in support of the Notice of Intention to defend without giving the appellant the opportunity to address it on why judgment should not be entered.
4. Whether the content of the affidavit in support of Notice of Intention to defend disclosed defence on the merit or mere denials.
5. Whether the whole decision was against the weight of affidavit evidence.”
The respondent in her brief of argument formulated three Issues for determination which read thus:-
1. “Whether the appellant, a limited liability company is an agency of the Federal Government within the contemplation of Section 251(i)(r) of the 1999 Constitution excluded from the jurisdiction of the State High Court.
2. Whether the notice of intention to defend which the appellant intended to rely upon was properly brought before the trial court to warrant that court’s competence to look at same.
3. Assuming that there was a notice of intention to defend properly before the trial court whether the learned trial Judge was right in entering judgment in favour of the respondent in the circumstances of this case.”
I have carefully considered the facts and circumstances of this appeal and I am of the firm view that the three Issues formulated by the respondent would adequately dispose of this appeal. Accordingly, the three Issues formulated by the respondent would be treated in the determination of this appeal.
Issue No.1 – whether the appellant, a limited liability company, is an agency of the Federal Government within the contemplation of Section 251(i)(r) of the 1999 Constitution excluded from the jurisdiction of the State High Court.
On Issue No.1, counsel to the appellant submits that Abuja is the Federal Capital Territory of Nigeria and the trial court ought to have taken judicial notice of the provisions of Sections 3 and 4 of the Federal Capital Territory Act, Cap 128, Laws of the Federation of Nigeria (LFN) 1990 as establishing the FCDA. That FCDA has powers to carry out its functions which includes the incorporation of the AIPDC Ltd, the parent company of the appellant and the appellant itself and this would have prevailed on the trial court to hold that under Section 251(1), (a), (p) & (q) of the 1999 Constitution the appellant qualifies as an agency of the Federal Government and therefore lacked jurisdiction to entertain the matter no matter the type of claim before the trial court. Further counsel to the appellant argues that the FCDA established by Section 3 of the Federal Capital Territory Act is entitled to incorporate the appellant and used same as its agency in carrying out its function. That the Federal Government of Nigeria also uses the FCDA as its agency and by implication the exercise of the powers of the Government of Nigeria. The appellant is liken to NEPA and NITEL also counsel contends that it is not in dispute that the appellant is wholly subscribed to by Staff of the Government of the Federation of Nigeria. Counsel to the appellant submits that in construing the word ‘agency’ the Common Law of Agency and Case Law thereto would be of help and that this is one of the relevant cases in which law of agency applies to confirm that the appellant is an agency of the Federal Government of Nigeria. Reference made to NEPA v Mr. B. Edegbero & 15 Ors, 12 NCSOR 105, 124-125, Paras H.A. Learned counsel to the appellant contends that the nature of the claim does not matter once this Honourable Court finds that the appellant is an agency of the Federal Government, the trial court lacked jurisdiction to entertain the matter as by Section 251(1) of the 1999 Constitution only the Federal High Court has exclusive original jurisdiction to entertain a claim where a party is an agency of the Federal Government of Nigeria. Reference made to Edegbero’s case (supra) at page 121 Para F. That the trial court was wrong for not adverting its mind to the issue of jurisdiction and lack of it. Counsel to the appellant urged this Honourable Court to allow the appeal and hold that the trial court lacked jurisdiction to entertain the Suit and the judgment delivered in the undefended list be declared a nullity and be set aside by this Court.
In reply to submissions on Issue No.1, learned counsel to the respondent submits that the issue of jurisdiction is fundamental to the question of competence of the court making any order or giving a decision and so the issue must first be determined once raised. This is because decisions given without jurisdiction amount to a nullity no matter how well conducted or that they were given in the interest of justice, it can be raised at any stage even on appeal for the first time as it is being done in this appeal. Reference made to NDLEA v Okorodudu (1997) 3 NWLR (Pt.492)221; Barclays Bank Ltd v Central Bank of Nigeria (1997) 6 SC, 175; Odofin v Agu (1992) 3 NWLR (Pt 170) 661. That it is the submission of the learned counsel for the appellant that by virtue of Sect 251 (r) of the 1999 Constitution that the trial State High Court lacked jurisdiction to entertain the Suit on the premise that the appellant is an agency of the Federal Government of Nigeria and therefore it is only subject to the jurisdiction of the Federal High Court. Learned counsel to the respondent contends that the main thrust of the appellant’s aforesaid submission is that having regards to the provision of Section 3 and 4 of the FCDA Act, the appellant is an agency of the Federal Government in that its parent company was incorporated by the Federal Capital Development Authority. Counsel to the respondent submits that the argument and submission of counsel for the appellant is lacking in merit and a misconception of the position of law relating to the interpretation of agency of the Federal Government within the contemplation of Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria, 1999. That there is no single evidence placed before the trial court to proof that Abuja Investment and Property Development Limited is incorporated by the Federal Capital Development Authority. There is also no evidence to establish that the appellant is either a subsidiary of Abuja Investment Development Authority or a parastatal under the Federal Capital Development Authority. That assuming the appellant had led evidence to proof that FCDA incorporated Abuja Investment and Property Development Limited which in turn owned the appellant, counsel to the respondent contends that the appellant has misconceived what is meant by Federal Government or its agencies in Section 251(1)(r) of the 1999 Constitution. That the phrase ‘the Federal Government or any of its agencies’ in Section 250(1)(r) cannot be inferred to mean that the legislature intended to change the age long principle governing the separate identity of an incorporated company vis-a-vis its shareholders, directors and subscribers. Counsel for the respondent argues that once a company is incorporated, the company assumes a distinct identity from its shareholders, subscribers and promoters and cannot be an agent of its shareholders. This being so, the State High Court has jurisdiction over the claim – reference made to B1 Zee Bee Hotels Ltd v Allied Bank Nig Ltd (1996) 8 NWLR (Pt.465)176 at 185-186. Also learned counsel for the respondent contends that having a controlling number of shares in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence. That the fact that FCDA holds controlling numbers of share in the appellant does not make the later an agent of the Federal Government to exclude the trial court adjudicating the case brought against it. Reference made to Okomu Oil Palm Co. Ltd. v Isehienrhien (2001) 6 NWLR (Pt.710) 660 at page 686 Paragraph G-H. Learned counsel for the respondent argues that assuming that the appellant is adjudged to be an agency of the Federal Government, that in itself does not exclude the trial court from assuming jurisdiction in adjudicating on the claim against the appellant. Counsel to the appellant submits that there is no blanket provision in Section 251(1)(r) of the 1999 Constitution which confers exclusive jurisdiction on the Federal High Court in Suits against the Federal Government or any of its agencies. That the provisions only relates to a few selected topics – reference made to Omosowan v Chi Edozie (1998) 9 NWLR (Pt.566)477 at 484 paragraph D-G. Further, counsel for the respondent contends that the provision of Section 251(1)(r) of the 1999 Constitution requires the following conditions precedent before any action or proceedings could come under its operations – namely:-
(a) the action or proceedings must be brought against the Federal Government or any of its agencies;
(b) the action or proceedings must be for a declaration or injunction;
(c) the action or proceedings must affect the validity of any executive or administrative action or decision of the Federal Government or any of its agencies reference made to University of Agric Makurdi v Jerk (2000) 11 NWLR (Pt.679) 658.
Learned counsel for the respondent submits that in the instant case, the relief sought for by the respondent against the appellant is neither for a declaration nor for injunctive order in respect of any executive or administrative action or decision. It is an action for debt recovery, therefore even if it is adjudged that the appellant is an agency of the Federal Government, the cause of action is within the jurisdiction of the State High Court. Reference made to University of Abuja v Ologe (1996) 4 NWLR (Pt.445) 706. Further, it is the contention of counsel to the respondent that the case of NEPA v Edegbero (supra) relied upon by the appellant is clearly not relevant in this appeal in that National Electric Power Authority is no doubt an agency of the Federal Government by virtue of it being a creation of Section 1 of the NEPA Act, Cap 256, LFN 1990 whereas the appellant is not a creation of a statute but a limited liability company. Finally, learned counsel to the respondent submits that the appellant being a company incorporated under the Companies & Allied Matters Act having its separate entity. It is not an agency of the Federal Government of Nigeria and therefore the trial State High Court has the requisite jurisdiction to adjudicate on this Suit as it rightly did. Counsel therefore urges this Honourable Court to answer the first issue in the negative.
ln reply on points of law, counsel to the appellant referred to Sections 3 and 4 of the Federal Territory Act, Cap 128, LFN, 1990 and Section 37 of the Company and Allied Matters Act, Cap 59, LFN, 1990 and submits that everything done by the Federal Capital Development Authority including incorporating the appellant is done by the Federal Government of Nigeria and no further proof is required to establish that fact as it is admitted by the respondent. That the appellant is wholly owned by the Federal Capital Development Authority established under Sections 3 and 4 of the Federal Capital Territory Act, Cap 128 LFN, 1990. Urges us to hold that the appellant is a Federal Government Agency.
Counsel to the appellant contends that the respondent’s misconception of the agency of the Federal Government is a narrow and rigid interpretation and application of the rule in Salomon v Salomon (1987) AC 21 now codified by Sections 37 and 38(1) of CAMA and an erroneous acceptance of these sections of CAMA or the decision in Salomon’s case as being superior to the provision of Section 251(1)(p) of the constitution which is unconstitutional -reference made to Section 1(3) of the Constitution. That in construing agency referred to in Section 251(1)(p) of the 1999 Constitution, it is not whether the shareholders are acting as agents of its directors or shareholders but whether the government of the federation of Nigeria as a corporate legal entity such as Aso Motel Kaduna Ltd, the appellant as its agents for the purpose of carrying out its functions whether as a disclosed principal or not. That in the answer to the poser, that this is the only understanding that is required to crack the issue of agency in this matter – reference made to NEPA v. EDEGBERO & Ors (supra). Counsel to the appellant submits that the respondent is emphasizing paragraph 251(1)(1) which is not the section relied upon by the appellant. That the appellant relies on Section 251 (1)(p) – that the submissions of the respondent in paragraphs 5.14 to 5.17 of the respondent’s brief are irrelevant. That the issue of creature of statute or not creature of a statute is a beaten path. That a limited liability company whether private or public does not fall from heaven they are creatures of Sections 36, 37 and 38(1) of CAMA especially Section 37 which confers on them all the powers of a statutory body. Counsel to the appellant urged us to hold that the appellant is an agency of the Government of the Federation of Nigeria and a creature of statute.
The grievance of the appellant in Issue No.1 is that the trial court lack jurisdiction to entertain the claim of the respondent against it in the that the appellant a limited liability company is wholly owned by the Federal Capital Development Authority established under Sections 3 & 4 of the Federal Capital Territory Act, Cap 128, LFN 1990 therefore, under the provision of Section 251(1)(a), (P) & (q) of the 1999 Constitution, the appellant qualifies as an agency of the Federal Government and as such, the trial court lacked jurisdiction to entertain the matter irrespective of the type of claim before the trial court.
Issue No.1 centered on jurisdiction – it is trite law that the issue of jurisdiction is fundamental to the question of the competence of the court making any order or giving any decision and as such the issue must first be determined once raised. This is because decisions given without jurisdiction amount to a nullity no matter how well conducted or that they were given in the interest of justice. Beside, it can be raised at any stage even on appeal for the first time as it is being done in this appeal.
In its contention that it is an agency of the Federal Government, the appellant relies on the provisions of Sections 251(1)(p) & (r) of the 1999 Constitution. The said provisions states as follows;-
“S.251(1) – Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by a an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in Civil causes and matters;
(p): the administration or the management and control of the Federal Government or any of its agencies.
(r): Any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.”
The facts as can be seen from the printed record before the court clearly show that the appellant herein is a limited liability company. At page 3 of the printed record is the affidavit in support of the writ of summons on the undefended list and paragraph 6 of the affidavit states thus:-
“That the defendant is a limited liability Company engaged in hotel and catering Services business.”
Also at page 31 of the printed record is the affidavit in support of a motion on Notice filed by the respondent. Paragraph 4(a) of the affidavit state as follows:-
“4(a). That the defendant is a subsidiary company To ABUJA INVESTMENT AND PROPERTY DEVELOPMENT COMPANY LIMITED. (hereinafter called the Company).”
There is nothing from the totality of the printed record presented to the court showing or indicating that the appellant is a subsidiary company of Abuja Investment and Property Development Company Limited and that the said AIPDC Ltd is a company incorporated pursuant to Sections 3 and 4 of the Federal Capital Territory Act, Cap 128, 1999 establishing the FCDA. Beside even if there is evidence indicating that the FCDA incorporated Abuja Investment and Property Development Company Ltd which in turn owned the appellant, it would be a gross misconception of the law to infer that the phrase ‘Federal Government or any of its agencies’ in Section 251(1)(r) of the 1999 Constitution mean that the framers of the Constitution intended to change the age long principle governing the separate identity of an incorporated company vis-a -vis its shareholders, directors and subscribers.
It is settled law that the company is in law a different person altogether from the subscribers to the memorandum, and although it may be that after incorporation, the business is precisely the same as it was before and the same persons are managers and the same hands received the profits. The company is not in law the agent of the subscribers or trustee for them. Nor are the subscribers as members liable in any shape or form except to the extent and in the manner provided by the law.
The facts of the appellant’s incorporation entails that it is a company, being a company it has a distinct legal personality and distinct identity from its shareholders, subscribers and promoters. As such, it is not an agent of its shareholders. It therefore follows that the appellant cannot be held to be an agency of the Federal Government even if all its shares are wholly owned by that government. Having a controlling number of shares in a company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence. In the appeal at hand, the fact that FCDA holds controlling numbers of share in the appellant does not make the appellant an agent of the Federal Government. In Okomu Oil Palm Co. Ltd. v. Isehienrhien (supra) at page 686 paragraphs G-H, the Supreme Court held thus:-
“Having a controlling number of shares in a Company is not synonymous with its ownership once it is incorporated as an entity of its own and having its own separate legal existence. in the instant case, the fact that the Federal Government of Nigeria holds a controlling share in the appellant does not make the later an agent of the former such as to make the Civil Service Rules applicable to it.”
The law is that even if the appellant is adjudged to be an agency of the Federal Government, and in the instant appeal it is apparent is not, that in itself does not deprive the trial court of jurisdiction to entertain the respondent’s claim against the appellant this being that there is no blanket provision in Section 251(1)(r) of the 1999 Constitution which confers exclusive jurisdiction on the Federal High Court in Suits against the Federal Government or any of its, agencies. In Omosowan v Chi Edozie (supra) at page 484 paragraph D-G, this Court states thus:-
“There is no blanket provision in Section 230(1) (a)-(s) of the 1979 constitution as amended by Decree 107 of 1993 or the Federal High Court Act, Cap 134 of the laws of the Federation 1990, which confers exclusive jurisdiction on the Federal High Court in Suit against the Federal Government or any of its agencies regardless of
the subject matter. Only a few selected cases are made the exclusive preserve of the Federal High Court.
In the instant case, the action of the trial court dismissing the appellants’ preliminary objection and assuming jurisdiction to entertain the respondent’s claim was tenable as there is no provision in the above mentioned laws conferring exclusive jurisdiction on the Federal High Court to entertain actions on simple contracts involving the Federal Government or any of its agencies. (7Up Bottling Co. Ltd v Abiola & Sons Bottling Co. Ltd (1996) 7 NWLR (Pt.463)714; University of Abuja v Ologe (1996) 7 NWLR (Pt445) 706; Akagbo v Dr Ataga (1998) 1 NWLR (Pt.534) 459 Referred to) p.484 paras D-G.”
It therefore logically follows that the provisions of Section 251(1)(p) & (r) of the 1999 Constitution requires the following condition precedent before any action or proceedings could come under its operation – namely:
(a) The action or proceedings must be brought against the Federal Government or any of its agencies.
(b) the action or proceedings must be for a declaration or injunction.
(c) The action or proceedings must affect the validity of any executive or administrative action or decision of the Federal Government or any of its agencies.
In the appeal at hand, the relief sought for by the respondent against the appellant is neither for a declaration nor for injunctive order in respect of any executive or administrative action or decision of the Federal Government or any of its agencies. It is an action for debt recovery therefore the cause of action is within the jurisdiction of the trial Kaduna State High Court. Accordingly, Issue No.1 is resolved against the appellant in favour of the respondent.
Issue No.II- whether the Notice of Intention to defend which the appellant intended to rely upon was properly brought before the trial court to warrant that court’s competence to look at same.
Learned counsel for the appellant submits that the trial court refused to apply Order 2 Rule 1 to cure the defect if any in not marking the Notice of Intention to defend as in Order 9 Rule 10 of the High Court (Civil Procedure) Rules 1987 Cap 68 Laws of Kaduna State and held that no sufficient reason was shown for the delay in filing Notice of Intention to defend out of time. Counsel to the appellant argues that Order 2 Rule 1 of the High Court (Civil Procedure) Rules of Kaduna State cures the defect envisaged by Order 9 Rule 10 of the same Rules and is not cogent reason to denying the appellant his right of fair hearing. That the courts in Nigeria in these modern times tend toward substantial justice without regard to technicalities – reference made to NALSA AND TIM Associates v NNPC (1991)11 SCNJ 51 at 61 lines 39-40. Counsel to the appellant contends that the trial court was not sure it was on sound legal footing when it dismissed the motion for extension of time and urged us to answer this Issue in the negative and allow the appeal.
In reply on Issue No.1, learned counsel to the respondent submits that the appellant defaulted in complying with the mandatory provisions of Order 22, Rule 3(c) of the Rules of Kaduna State High Court (Civil Procedure) Rules 1987. That by a motion dated the 22nd day of January, 2004, the appellant applied for an order granting it leave to file its notice of intention to defend and for an order for extension of time within which the respondent then defendant will file notice of intention to defend annexed hereto and marked as Exhibit’ 1 ‘. The application was supported by a six paragraph affidavit, that paragraph 4(e) of the affidavit in support contained an averment which runs thus:-
“That the defendant have a defence to the plaintiff writ of summons and it will serve the interest of justice to allow the defendant file his notice of intention which is annexed hereto as Exhibit ‘AM1′.”
Counsel to the respondent submits that to succeed in an interlocutory proceeding or application, evidence relied upon is not oral but by affidavit hence the applicant must comply with the provision of Order 8 Rule 3 and Order 9 Rules 1-10 of the High Court (Civil Procedure) Rules 1987. That documents referred to in affidavit shall be annexed to the affidavit or referred to in the affidavit as annexed but shall be referred to as Exhibit. All such exhibits must be distinctly marked and serially identified as exhibits in the body of the affidavit – reference made to Order 9 Rules 9 & 10 of the Kaduna State High Court (Civil Procedure) Rules 1987.
Learned counsel to the respondent contends that the notice of intention to defend referred to as exhibit’ AM 1′ in paragraph 4(e) of the affidavit which the appellant prayed to be deemed as duly filed and served was not annexed to the affidavit in support of notice of intention to defend referred to as Exhibit ‘1’ in paragraph 4(e) of the affidavit in support. Counsel submits that since evidence in the appellant’s interlocutory application for extension of time to file notice of intention to defend the Suit, is by affidavit evidence, the appellant wishing the trial court to rely on or make use of a document in support of its application must first and foremost bring same properly before the court. That this is done by referring to that document in the body of the affidavit as having been exhibited and marked as exhibit 1, 2, 3, or A, B, C etc. counsel to the respondent submits that the proper and acceptable legal way of bringing the contents of notice of intention to defend to the attention of the Honourable trial Judge is by marking and exhibiting same distinctively. That the appellant failed to do that and that being the case, the notice of intention to defend was not legally before the trial court hence that court was not competent to look at it let alone to rely on its contents – reference made to Osho v A.G. Ekiti State (2002) 2 NWLR (Pt.758) 628 at 652, Paragraph D-H. Counsel to the respondent argues that the failure of the appellant to annex and exhibit the notice of intention to defend to the affidavit in support of the motion is fatal and not a mere irregularity curable by Order 2 Rule 1 of Kaduna State High Court (Civil Procedure) Rules 1987. Counsel urged us to answer Issue No.II in the negative.
In reply on points of law, counsel to the appellant contends that Issue No.II is basically premised on technicalities which are no longer the mood of the courts in Nigeria as at now. That the application for extension of time was dismissed on technicality by the trial court because the notice of intention to defend was not marked as Exhibit ‘1’ or ‘AM’ even though it was referred to as such on the motion paper and the affidavit in support. That in an application for extension of time to file notice of intention to defend, it is not necessary to annex the notice of intention to defend. That the court may give a number of days at its discretion to file same and adjourn hearing to another date and not to enter judgment after extending time by saying that there is no notice of intention to defend. That not marking the exhibit does not vitiate the exhibit as long as it is identifiable and that, that irregularity is not substantial or fatal but a mere irregularity curable by Order 2 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987, Cap 68 Laws of Kaduna State 1991. Counsel to the appellant contends that the effect of the failure of the trial court to consider the defendant’s affidavit in support is that the defendant has been denied his right to fair hearing – reference made to Alhaji Kabiru v Alhaji Sani Ibrahim (2005) All FWLR (Pt.240)94 at 118, paragraph G. Also, appellant’s counsel argues that the case of Osho v A.G Ekiti State (supra) cited by the respondent is rendered irrelevant as the trial court actually looked at the notice of intention to defend and affidavit in support of same albeit not considering it as it ought to have done before entering judgment. Counsel to the appellant urge us to answer the respondent’s second Issue in the affirmative since the court looked at the notice of intention to defend and concluded that it contained only denials.
The complaint of the appellant in Issue No.II is that the trial court ought not to have dismissed his motion on Notice for extension of time to file his Notice of Intention to defend on the ground that the notice of intention to defend attached to the affidavit in support of the motion for extension of time was not marked as exhibit even though it was referred to as such on the motion paper and affidavit in support of the motion as Exhibit ‘1’ and ‘AM1’ respectively.
The respondent as defendant in the trial court by a motion on notice dated 22nd day of January 2004 sought for the following reliefs to wit:-
1. “Granting leave for the defendant/applicant to file Notice of Intention to defend.
2. An Order for extension of time within which the defendant/applicant will file his Notice of Intention to defend annexed hereto and marked Exhibit ‘1’.
3. An Order deeming the annexed Exhibit ‘1’ as properly filed and served.
4. And for such further order(s) as the court may deem fit to make in the circumstance.”
It is trite law that interlocutory proceeding or application before the Kaduna State High Court is determined on the basis of affidavit evidence and not oral evidence. This is provided for in Order 8 Rule 3 and Order 9 Rules 1-10 of the Kaduna State High Court (Civil Procedure) Rules 1987. Order 8 Rule 3 of the said Rules states thus:-
“Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely; and no affidavit shall used unless it is duly filed.”
Order 9 Rules 9 & 10 states:-
“R.9: Accounts, extracts from registers, particulars of creditors and other documents referred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed but shall be referred to as exhibits.”
“R.10: Every certificate on an exhibit referred to in an affidavit signed by the commissioner before whom the affidavit is sworn shall be marked with the short title of the Cause or Matter.”
It is crystal clear from the provisions of Order 9 Rules 9 & 10 that documents referred to in an affidavit or referred to in the affidavit as annexed but shall be referred to as Exhibit. All such exhibits must be distinctly marked and serially identified as exhibits in the body of the affidavit.
The respondent in the motion on Notice dated 22nd day of January 2004 referred to the Notice of Intention to defend which it sought the court to deemed filed as Exhibit’ 1′ and in the affidavit in support of the said motion on Notice at paragraph 4(e) it referred to the said Notice of intention to defend as Exhibit’ AM1′. I have looked at the Notice of Intention to defend at page 33 of the printed record and the affidavit in support of the Notice of Intention to defend at pages 34 and 35 of the printed record, it is clear beyond dispute that the Notice of Intention to defend and its supporting affidavit has not been marked either as Exhibit ‘1’ or Exhibit “AM1′ or any other exhibit. Order 9 Rule 10 clearly states that such exhibits shall mark. This Court in Osho v A.G Ekiti State (supra) at page 652 held thus:-
“In interlocutory proceedings or applications, Evidence is not oral but by affidavit. Therefore, a party wishing the court to rely or make use of a document in support of his case must first and foremost bring that document properly before the court. This is done by referring to that document in the body of the affidavit as having been exhibit to the affidavit and marked as an Exhibit. Where this is not done, the court is not competent to look at the document”.
In the instant case, the documents sought to be relied upon or made use of i.e. the Notice of Intention to defend and its supporting affidavit have not been marked as mandatorily required by Order 9 Rule 10 therefore, the defect is fatal and not a mere irregularity curable by Order 2 Rule 1 of Kaduna State High Court (Civil Procedure) Rules 1987 the trial court was therefore right to have dismissed the -motion if the appellant dated 2 2nd day of January 2004 as the Notice of Intention to defend which the appellant intended to rely upon was not properly brought before the trial court to warrant that court’s competence to look at same. Accordingly, Issue No.II is resolved against the appellant in favour of the respondent.
Issue No.III- Assuming there was a Notice of Intention to defend properly before the trial court, whether the learned trial Judge was right in entering judgment in favour of the respondent in the circumstances of the case.
On the third Issue, counsel to the appellant submits that the trial court was wrong as it admitted to have dismissed the motion on Notice for extension of time to file Notice of Intention to defend. That the trial court breached the fundamental right of fair hearing as guaranteed the appellant under Section 36(1) of the 1999 Constitution in proceeding to judgment without allowing the appellant to show cause why judgment should not be entered since the trial court decided to look at the affidavit in support of Notice of Intention to defend that if the trial court called upon the appellant to show cause, the contents of the affidavit showing that no demand by way of Local Purchase Order (LPO) was attached by the respondent showing the appellant received the items in respondent’s Exhibit ‘1-8’ or that no valid contract existed between the parties, the court would have transferred the matter to the General Cause List for hearing. That the court breached the audi alteram partem rule and Section 36(1) of the Constitution that the judgment was unconstitutional, null void and of no effect and sacrificed justice on the alter of speed – reference made to Section 1(1) of the 1999 Constitution and State v Dr Olu Onagoruwa (1992) 2 SCNJ (Pt.1) 1 at 22 line 23. Appellant’s counsel contends by raising the issue of fraud and LPO not being issued to the respondent and not exhibited the appellant has satisfied the condition to be admitted to defend the Suit – reference made to Haruna Sule Tahir & Anor v Udeagbala Holdings Ltd (2005) All FWLR (Pt.240)120 Para D-E. Counsel urged us to allow the appeal and hold that they are triable issues.
In reply on Issue No.III, learned counsel to the respondent submits that the appellant was not denied the right of fair hearing in any respect as the only duty expected of the learned trial Judge was not to afford the appellant’s counsel the opportunity to address the court. That the only business of the day left after hearing the motion is to proceed to give judgment if there is no defence. If there is however a defence, the case should be transferred to the general cause list for hearing and determination.
Counsel to the respondent contends that a case should therefore not be transferred from undefended list to the general cause list merely on the whims and caprices of a defendant who merely finds the words ‘fair hearing’ a convenient as well as handy slogan – reference made to Mat Holdings Ltd v UBA Plc (2003) 2 NWLR (Pt.803)71 at 90 para C-E. Further the respondent’s counsel argues that in an action under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit and state clearly and concisely what defence and what facts are relied on as supporting it. That to disclose a triable issue, an affidavit in support of Notice of Intention to defend on the merit should not be a sham intended to delay and frustrate justice. Reference made to Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Pt.144) 283; Agro Millers Ltd v CMD (Nig) Plc (1997) 10 NWLR (Pt.525) 469. Counsel submits that if an allegation contained in the affidavit in support of notice of intention to defend is one relating to fraud, the particulars in its support must be given – reference made to Udemba v More CAB FIN (2003) 1 NWLR (Pt.800)96 at pages 107-108. That a defendant who has no triable defence should not be allowed to hide under the cloak of an imagined defence of fraud with no share of particulars in support to postpone the day of reckoning; he should not be allowed to rely on a farce and a ruse – reference made to Nishi Azawa v Jethwani (1984) 12 SC 234. Learned counsel for the respondent submits that the learned trial Judge properly considered the averments in the appellant’s affidavit in support of Notice of Intention to defend and he rightfully held that the averments are not a defence on the merit in that they contained bare denials. Counsel urged us to answer the third issue in the positive.
In reply on points of law, counsel to the appellant submits that the allegation of fraud in the affidavit in support of the appellant’s notice of intention to defend in paragraph 4(h) contains particulars which were stated in the same paragraphs 4(a)(b)(c) (d) (e) & (f) which also raised the issue of forgery and particulars of fraud. That the mere raising of issue of fraud is sufficient to transfer a matter on the undefended list to the General Cause List. Reference made to Haruna Sule Tahir & Anor v Udeagbala Holdings Ltd (supra) at 130 Para D-E. That the case of Udemba v More CAB FIN (supra) cited by the respondent on the issue of particularizing allegation of fraud refers to the statement of claim and defence not affidavit and that in the appellant’s case it provided the particulars of fraud in paragraph 4(a)-(g) of the affidavit in support of intention to defend. Further counsel to the appellant argues that Exhibits 1-8 bears the name Aso Motel and not Aso Motel Limited which means that if the trial court really evaluated the matter before it, it would have discovered that was wrongly brought to court and ought to have struck out the Suit as the proper defendant is Aso Motel Limited which ought not to be bound by the contents of respondent’s Exhibit 1-8. That there is no privity of contract between the appellant and the respondent reference made to ENIW V DIKK NIG LTD (2004) ALL FWLR (Pt.236) 309 Paragraph A-B. Counsel urged us to answer Issue No.3 in the affirmative.
Issue NO.III is a moot issue in that it assumed that the Notice of Intention to defend which was not properly before the court. If it were properly before the trial court whether the learned trial Judge was right in entering judgment in favour of the respondent in the circumstances of the case.
In the instant case, the learned trial Judge dismissed the motion on Notice dated 22nd day of January 2004 which sought for an extension of time for the respondent to file his Notice of Intention to defend out of time. After dismissing the said motion, the learned trial Judge at page 113 of the printed record stated as follows:-
“However in case I have wrongly dismissed it, I have decided to look at the Notice of Intention to defend purportedly before the court and it does not disclose any defence on the merit. It contains bare denials. This is not a defence on the merit. I therefore proceed to treat the matter undefended list procedure both on the ground that there is no Notice of Intention to defend filed as required by the Rules of this court and the fact that even the Notice of Intention to defend before me disclose no defence on the merit”.
It is glaring from the printed record before the court that despite the fact that the appellant failed to place before the trial court a Notice of Intention to defend as required by law, the learned trial Judge still looked at the unmarked Notice of Intention to defend which was not properly before the court and found that it failed to disclosed a defence on the merit.
The appellant has argued that his right of fair hearing guaranteed by Section 36(1) of the 1999 Constitution has been breached by the learned trial Judge in proceeding to judgment without allowing the appellant to show cause why judgment be entered since he decided to look at the affidavit in support of Notice of Intention to defend. Trials or proceedings under the undefended list procedure are guided by the provisions of Order 22 Rules 1-5 of the Kaduna State High Court (Civil Procedure) Rules 1987, to afford a defendant or his counsel a hearing under any guise before hearing a Suit under an undefended Suit is not in the spirit of the above mentioned Order and Rules of the Kaduna State High Court (Civil Procedure) Rules. Order 22 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987 states thus:-
“If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof deliver to the Registrar not less than 5 days before the date 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”.
It is crystal clear from the above provisions of Order 22 Rule 3 of Kaduna State High Court (Civil Procedure) Rules, the Order requires the trial court to consider only the evidence contained in the affidavit filed by the defendant in support of the Notice of Intention to defend the Suit in determining whether or not the affidavit discloses a defence under the undefended list. Once the learned trial Judge forms the opinion that the affidavit does not disclose a defence on the merit to the action, he is to proceed with the hearing of the Suit as an undefended Suit and enter judgment accordingly without affording the defendant or his counsel even if present in the court any opportunity of being heard – see the case of Marley v Isah (2000)5 NWLR (Pt.658)651 at page 666 paragraph D-F.
The contention of the appellant that he was not given fair hearing does not hold water as the only duty expected of the learned trial Judge was not to afford the appellant’s counsel the opportunity to address the court. The only business of the day left after hearing the motion is to proceed to give judgment if there is no defence. If there is however a defence, the case should be transferred to the general cause list for hearing and determination.
This Court categorically stated the rationale for undefended list procedure in the case of MAT HOLDINGS LTD v UBA PLC (2003)2 NWLR (Pt.803) at page 90 paragraphs C-E. The court states:-
“The rules of court providing the cases to be placed on undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of Although the need for fair hearing should not be sacrificed on the alter of expediency, the procedure should not be frustrated thwarted by fanciful or general defences directed at frustrating the plaintiff of judgment he well deserves. A case should therefore not be transferred to the General cause list merely on the whims and caprices of a defendant who merely finds the words ‘fair hearing’ convenient as well as handy slogan”.
On the contention of the appellant that its affidavit in support of its Notice of Intention to defend which was not proper before the court discloses a defence on the merit I have carefully looked at the affidavit at pages 34-35 of the printed record and it is my view that the said affidavit contains only mere denials and do not disclose any defence on the merit or any triable issue. The law is that in an action under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit and state clearly and concisely what defence and what facts are relied on as supporting it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff .A mere general denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiffs claim. See Agro Millers Ltd v CMB Nig Plc (supra). In the instant case, the learned trial Judge was justified when he held that the respondent’s affidavit contains bare denials.
On the allegation of fraud by the respondent, the respondent in his affidavit before the trial court merely states that the plaintiffs claim is tainted by fraud as no such transaction was entered between the plaintiff and defendant. The law is that if an allegation of fraud is contained in the affidavit of notice of intention to defend, the particulars in its support must be given. This Court in the case of Udemba v Morecrab Fin Ltd (supra) at pages 107-108 paragraphs F-G states the law as thus:-
“If an allegation contained in the affidavit in support of notice of intention to defend is one relating to fraud, the particulars in its support must be given. Fraud must not just be alleged in the air”.
In the instant case, the respondent in his affidavit merely alleged fraud and did not give any particulars in its support. Therefore without stating the particulars of the alleged fraud, the issue of fraud goes to no issue and the respondent should not be allowed to hide under the cloak of an imagined defence of fraud with no share of particulars in its support to postpone the day of reckoning.
On the whole, it is clear from the printed record before the court that the learned trial Judge properly considered the averments in the appellant’s affidavit in support of the notice of intention to defend and he rightly held that the averments are not a defence on the merit in that they contained bare denials. Accordingly, Issue No.III is answered in the positive and resolved against the appellant in favour of the respondent.
In the result, the main appeal as filed by the appellant is totally lacking in merit and ought to be dismissed and it is hereby dismissed. The judgment of the Kaduna State High Court in Suit No.KDH/KAD/670/2003 delivered on 30/1/2004 by Abiriyi J. is hereby affirmed. The respondent is entitled to costs which I assessed at =N=6,000.00. The second appeal filed by the appellant in this appeal is an interlocutory appeal in respect of the appellant’s motion on Notice dated 19 February 2004 in which the trial Judge in a considered Ruling dismissed the motion in a ruling delivered on 27’h February 2004. The appeal is against the decision of the Kaduna State High Court presided over by Hon. Justice James Abiriyi refusing to grant the appellant an adjournment after the hearing of the application had commenced.
The background facts leading to this interlocutory appeal is as thus:- on the 30th day of January 2004, the learned trial Judge entered judgment against the appellant and in favour of the respondent for the sum of=N=969,750.00 being the unpaid money for several cartons of frozen fish, chicken and turkey supplied by the respondent to the appellant which the later had failed to pay. The appellant became dissatisfied with that judgment hence on the 17th day of February 2004 it appealed against same in a Notice of Appeal containing 5 grounds.
Despite the pendency of the appeal challenging the jurisdiction of the trial court amongst other grounds, the appellant on the 19th February 2004 simultaneously filed an application before the trial court seeking for an order setting aside the judgment and striking out the Suit for want of jurisdiction on the ground that the appellant is an agency of the Federal Government.
The appellant also filed two other applications on the 16th & 17th February 2004. The three applications were fixed for the 27th day of February 2005 for hearing. On the returned date, the appellant withdraw the application dated 16th February 2004 and proceeded to move that which is dated 19th February 2004. Having begun to move the said application, the appellant’s counsel applied for an adjournment to enable him get the necessary documents. The learned trial Judge refused the application for adjournment hence the appellant’s counsel continued to move the application.
In a considered ruling, the learned trial Judge dismissed the application and it is against the refusal to grant an adjournment that this appeal is predicated.
From the three grounds of appeal contained in the appellant’s Notice of Appeal dated the 12th day of March 2004, the counsel to the appellant formulated three issues for determination. The issues are:-
1. “Whether the trial court was right in refusing the application for adjournment sought.
2. Whether the refusal of the trial court to grant the adjournment constituted a denial of fair hearing.
3. Whether the refusal to grant the adjournment occasioned a miscarriage of justice”.
Learned counsel for the respondent formulated one issue for determination and the issue read thus:-
“Whether the trial court exercised its discretion in refusing the appellant’s counsel application for adjournment judicially and judiciously”.
From the circumstances of this appeal, it is my considered view that the issue formulated by the learned counsel to the respondent can effectively determine the appeal. Accordingly, the sole issue formulated by the respondent would be treated in this interlocutory appeal.
In his written brief of argument before the court, learned counsel for the appellant submits that the motion to set aside the judgment of 30/1/2004 came up for the first time on the 27th February 2004 and the trial court was wrong in refusing the adjournment. That it is conceded that adjournment is at the discretion of the trial Judge but when its refusal deprives the applicant i.e. the appellant the reasonable time within which it could be heard in the determination of its civil rights and obligations, its fundamental right to fair hearing as guaranteed it under Section 36(1) of the 1999 Constitution has been breached. The result of such breach is that any ruling based on it is unconstitutional, null, void and of no effect – reference made to Prince E. Uche v Dike W. Obinna & Anor (2002) FWLR (Pt.92) 1728 at 1735. Further submits that the sins of counsel are no longer visited on their clients reference made to O. Long John v Chief C.N. Black & 2 Ors (1998)5 SCNJ 68 at 87-88 learned counsel contends that the refusal to grant the adjournment was arbitrary exercise of discretion and against Order 8 Rule 6 of the Kaduna State High Court (Civil Procedure) Rules and occasioned a miscarriage of justice. Counsel urged us to resolve the issue in favour of the appellant and allow this appeal.
In reply, learned counsel for the respondent submits that the question whether or not to grant an adjournment is a matter within the discretion of the court. The guiding principle is that the discretion must be exercised at all times not only judicially but also judiciously on the material placed before the court and the peculiar circumstances of the particular case. The court must balance its discretionary power to grant or refuse an adjournment bearing in mind the right of the parties – reference made to State v Duke (2003) 5 NWLR (Pt.813) 394 at 431; Odogwu v Odogwu (1992) 2 NWLR (Pt.253) 344; Odusote v Odusote (1991) further counsel submits in considering an application for adjournment, the court is faced with two competing rights: the interest to dispose of the case speedily and the interest of the applicant to be heard in the matter. In resolving the competing interests the court must be guided by the need to do substantial justice unnecessary and prolonged adjournment leads to frustration on part of the litigants and sometimes they lead to miscarriage of justice. Adjournment which are designed to delay or defeat justice should be refused – reference made to Onowuju v Ononoju (1991) 5 NWLR (Pt.192) 479. Counsel urged us to answer the issue formulated in the positive and dismiss this appeal for lacking in merit.
In reply on points of law, counsel to the appellant referred us to Blacks Law Dictionary 6th (Centennial) Edition West Group, Minnesota, and page 847 for the definition of judicial discretion. Counsel also referred to Order 8 Rule 6 of the Kaduna State High Court for the law on adjournment of motions.
The complaint of the appellant in the sole issue formulated for determination was that the trial court refused to grant him an adjournment when he sought for the adjournment. It is trite law that all courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit. The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the material placed before the court and the peculiar circumstances of the particular case. In the State v Duke (supra) at page 442, this Court held thus:-
“The refusal to grant adjournment is discretionary and in order to succeed on appeal against such refusal, it must be shown that the court exercised its discretion wrongly. (Queen v Onye (1961) 1 All NLR 642; Nwokunta v State referred to)”.
In the instant case, counsel to the appellant has commenced moving his application dated 19/2/2004 and half-way through the proceeding, he applied for an adjournment to enable him get necessary document. It is glaring from the printed record before the court that counsel to appellant failed to adduced any cogent and sufficient reason to enable the trials court exercise its discretion to grant the adjournment sought. It is apparent that merely saying that he needed an adjournment to enable him get necessary document was not enough to persuade the learned trial Judge. What counsel needed to state was the nature of the documents he wanted to procure, their source and relevance to his case if any and why he could not obtain them before the return date. Therefore in the face of the paucity of materials before the trial court for request for an adjournment, the refusal by the trial court to grant the adjournment cannot be faulted. No where has it been shown that the trial court exercised its discretion wrongly by refusing to grant the adjournment. I am therefore satisfied that the trials court exercised its discretion to refuse the adjournment sought as nothing was placed before it to persuade it to exercise its discretion in favour of the appellant. Accordingly, the sole issue formulated in this interlocutory appeal is resolved against the appellant in favour of the respondent.
In the result, this interlocutory appeal is devoid of any merit and ought to be dismissed and is hereby dismissed. Already costs have been awarded in the main appeal and it will suffice in this interlocutory appeal.
BABA ALKALI BA’ABA, J.C.A: I was privileged to have read in advance the judgment just delivered by my learned brother, Jega, JCA. In that judgment he has carefully reviewed the facts of both the main appeal and interlocutory appeal and considered the issues raised therein in order to consider whether the appeals are meritorious. I agree entirely with his reasoning and conclusion that the appeals lack merit and must be dismissed.
I am unable to agree with the submission of the learned counsel for appellant that the affidavit in support of the notice of intention to defend discloses a defence on the merit justifying the suit being transferred from the undefended list to the general cause list. To secure the transfer of the action from the undefended to general cause list, appellant must disclose or raise in the affidavit accompanying notice of intention to defend a defence on the merit. Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 provides as follows:-
“3(1) if the defendant served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the writ, the court may give him leave to defend upon such terms as the court may think just.’ (underlining mine)
The provisions of order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules, 1987, Cap.68, Laws of the Kaduna State of Nigeria is in pari material with order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules. It reads:-
“3(1) if the party served with writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date 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.” (underlining mine).
The governing words in the provisions set out are “a defence on the merit” which have been construed by the Supreme court per Uwais, JSC (as he then was) in the case THE FEDERAL MILITARY GOVERNMENT OF NIGERIA & OTHERS V. ABCHE MALAM SANI (1.990) 4 NWLR (PT.1.47) 688, 699 as follows:-
“What is required is simply to look at the fact deposed to in the counter-affidavit or indeed the facts averred in the statement of defence, where applicable, and see if they can prima facie afford a defence to the action. In that regard a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.”
It is clear from the passage just set out from the judgment of the Supreme Court, the affidavit accompanying the application by the defendant to defend must disclose a defence showing that there is a triable issue. In other words, the triable issue envisaged should not be at large but related to the defendant’s defence. Defences, in my respectful opinion, are facts, which, if proved, would exonerate the defendant from the plaintiff’s claim. The affidavit is required to set up a defence against the plaintiff’s claim and not to rake up fresh suit or cause or causes of action against the plaintiff.
Having gone through the affidavit in support as well as the notice of intention to defend, I agree with the learned trial Judge that no defence has been disclosed.
For these and more fuller reasons contained in the leading judgment, I, too dismiss the appeal. I abide by the consequential orders contained in the leading judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft the leading judgment of my learned brother Jega, JCA just delivered.
He has carefully set out the facts of the case and all the issues raised in the appeal have been exhaustively considered and resolved.
I also agree with him that the appeal lacks merit. I also dismiss it.
I abide by all other consequential orders made in the leading judgment.
Appearances
Mr. N. NwagboFor Appellant
AND
Mr. T.O. OladojaFor Respondent
