DIYA FATIMILEHIN & COMPANY. v. OYEWOLE OGUNTADE & ORS
(2018)LCN/12211(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/J/328/2017
RATIO
COURT AND PROCEDURE: UNDEFENDED PROCEDURE LIST AND SUMMARY JUDGMENT PROCEDURE LIST
“Although summary judgment and Undefended List Procedure are similar and the purpose for which they are designed to achieve is the same, but what is applicable under Order 23 Rule 1 of the Plateau State High Court Civil Procedure Rules is Undefended List and not summary judgment. Also the Undefended List Procedure is on application and not by a motion on notice. The purpose of summary judgment procedure and Undefended List is to prevent sham defence from defeating the right of parties by delay and at the same time causing great loss to the plaintiff who is endeavoring to enforce his rights: Carling Int.l (Nig.) Ltd. Vs. Keystone Bank Ltd. (2017) 9 NWLR (Pt. 1571) 345 at 348; Macaulay Vs. NAL Merchant Bank Ltd. (1990)4 NWLR (Pt.144) 283 and Akahall & Sons Ltd. Vs. N.D.I.C.194 at 196-197.” PER TANI YUSUF HASSAN, J.C.A.
INTERPRETATION: THE ESSENCE OF REPLY BRIEF
“The essence of a reply brief is to respond to new points that might have been raised in the respondent’s brief. There is nothing new raised in the respondent’s brief that necessitated the appellant to file a reply brief. Reply brief is not open for the appellant to re-argue his case, which is what the appellant has done in this case. The reply brief is therefore discountenanced.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
DIZENGOFF W.A. (NIG.) LTD Appellant(s)
AND
AGRIC SERVICE, TRAINING CENTRE AND MARKETING LTD Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
The appellant as plaintiff at the lower Court, instituted an action by a Writ of Summons and statement of claim dated the 15th day of December, 2016, against the respondent as defendant, claiming as follows:
i. An order directing the defendant to pay the plaintiff the sum of N6,699,838.52 being the unpaid balance of the value of goods supplied to the defendant by the plaintiff which said sum remains outstanding.
ii. Interest rate of 10% on the sum of N6,699,838.52 from 24th August, 2014 (when the amount becomes due for payment) to date of judgment.
iii. General damages in the sum of N4,000,000.00 for failure to pay for goods supplied.
iv. An order for the payment of N2,500.000.00 being the cost incurred by the claimant as its solicitors’ fees for instituting this action.
v. Interest on the judgment sum at the rate of 10% per annum from the date of judgment till the sum is fully liquidated.
vi. The costs of this action.
A memorandum of conditional appearance dated 20th February, was entered by the defendant/respondent.
The appellant also subsequently filed a motion on notice dated 15th December, 2016 and filed on 16th December, 2016 praying the Court for the following order:
1. An order entering summary judgment against the defendant in the sum of N6,699,838.52 plus interest being the unpaid balance of the value of goods supplied to the defendant by the plaintiff which said sum remains outstanding.
ALTERNATIVELY
2. An order entering judgment against the defendant for the sum of N3,850,988.27 being the amount admitted by the defendant to be due and outstanding to the plaintiff as unpaid balance of the value of the goods supplied to it.
The application is supported by 20 paragraphs affidavit deposed to by one Mathew Olalekan Olabiyi, an Accountant in the plaintiff’s company. In response to the application the defendant/respondent filed a counter-affidavit of 26 paragraphs dated 22nd February, 2017. The appellant/applicant filed a further affidavit in support of the motion.
The learned trial judge in a considered ruling on the motion declined jurisdiction and ordered parties to refer the matter for arbitration, and the case was struck out.
Dissatisfied with the ruling of the trial Court, the appellant appealed to this Court on five grounds of appeal with their particulars and reliefs sought. The Notice of Appeal was dated and filed on the 29th day of August, 2017.
The appellant’s brief settled by Mathew Dawodu Esq., dated 22nd February, 2017 was filed on the 27th of November, 2017 and deemed properly filed on the 25th of January, 2018. The appellant’s reply brief dated 2nd May, 2018 was filed on the 4th of May, 2018 and deemed properly filed on the 21st June, 2018. He adopts the briefs and urged us to allow the appeal. Two issues were identified for determination in the brief as follow:
1. Whether having regard to the principles of law on summary judgment and admission, and in view of the facts presented by parties, the lower Court was right to have held the appellant’s application for summary judgment was premature as the respondent’s affidavit in opposition to the said application disclosed a valid defence on the merit and there was no clear admission of the appellant’s claims. (Grds 1, 2 and 3)
2. Whether having regard to the facts and circumstances of this case, the lower Court was right to have declined jurisdiction to entertain the appellant’s claim on the basis that there was an agreement by parties to go for arbitration. (Grds 4 and 5)
The respondent’s brief settled by S.S. Obende Esq., was dated and filed on the 26th of February, 2018. In it, there incorporated a Notice of preliminary objection. The argument on the preliminary objection is at Pp. 3-9 of the brief. He adopts the brief and urged us to uphold the preliminary objection and dismiss the appeal.
Learned counsel for the respondent formulated two issues for determination but on the date of the hearing of the appeal, he urged us to strike out issue two, having been abandoned and it was so struck out on the 16th of October, 2018. The sole issue remained for determination reads:
1. Whether the lower Court was right in dismissing the appellant’s Motion of 15th December, 2016.
It is good practice to hear a preliminary objection first whenever it is raised before determining the substantive issues on appeal. This is so because where the Court finds that a preliminary objection succeeds, there is no need to determine the merits of the appeal. See Afribank Nig. Plc. Vs. Akwara (2006)5 NWLR (Pt. 974)619 and Nepa Vs. Ango (2001)15 NWLR (Pt. 737) 627.
PRELIMINARY OBJECTION
The Notice of preliminary objection prays the Court to strike out the entire Notice and grounds of appeal and fortiori, the entire appeal. The grounds of objection are:
(i) Grounds 1, 2, 3 and 4 of the notice and grounds of appeal contain legal arguments and narrative in their particulars. Also the particulars are at variance with the grounds of appeal.
(ii) The appeal is against the decision of the lower Court granting the respondent leave to defend the suit.
(iii) No leave has been sought and obtained before the notice of appeal was filed.
(iv) Ground 5 of the appellant’s notice of appeal arose from a clerical mistake which can be corrected without an appeal.
(v) This Honourable Court lacks the jurisdiction to entertain the appeal in the absence of a valid notice and grounds of appeal.
On the 1st ground of objection, learned counsel for the respondent referred to Order 6(2)(3) of the Court of Appeal Rules, 2011, that a notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative. That by Order 6(2)(3) of the Court of Appeal Rules, 2011, where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.
It is argued on behalf of the respondent on ground one that particulars 1-IV of ground one of the notice of appeal contain arguments attempting to show in what manner the lower Court erred. That the particulars in ground two of the appeal do not support the ground as a ground of law, and the appellant has not demonstrated in any of the particulars how this is a ground of law. On ground three of the appeal which is couched as a ground of law, but the particulars show, it is a ground of fact. He referred Okwuagbala Vs. Ikwueme (2010)19 NWLR (Pt. 1226) 54. On ground four of the appeal, the respondent contended that the particulars of the said ground are argumentative and narrative. That in particulars (i)-(iii) the particulars of misdirection were not stated.
Relying on the cases of Globe Fishing Industries Ltd. Vs. Coker (1990)7 NWLR (Pt. 162) 265 at 300; Obiake Vs. Benue Cement Coy Plc. (1997)10 NWLR (Pt. 525)438 at 446 and Stirling Civil Engineering Nig. Ltd. Vs. Yahaya (2002)2 NWLR (Pt. 750) 1 at 15, it is submitted that once, one or more particulars are rendered bad, the remaining particulars serve no useful purpose. We are urged to hold that grounds one to four of the appeal are incompetent.
On grounds two and three of the objection argued together, the counsel submitted that a summary judgment procedure permits one of two things either enter judgment for the applicant or grant leave to the defendant/respondent to defend the action. That refusal of the appellant?s application amounted to the lower Court granting leave to the respondent to defend the action and in such a case no right of appeal avails the appellant.
That on the third ground of objection, it is argued for the respondent that the decision of the lower Court revolved on the Court’s exercise of discretionary power. That where the decision involves exercise of discretion, it is a question of mixed law and fact which requires leave, but appellant did not seek leave of the Court before filing the appeal. He referred to Abdul Vs. C.P.C (2013) LPELR 20597.
With regard to ground four of the objection the contention of the respondent is that the parties in the course of argument before the Court did not mention of an agreement to refer the suit to an Arbitrator. That the only agreement undertaken was for reconciliation of account for determining the truth regarding the sale and deliveries of the items that constitute the claim before the Court. That the lower Court’s reference to Arbitrator is a slip or omission which does not give right to appeal as such the error can be corrected. The Court was referred to Nwana Vs. FCDA (2007)11 NWLR (Pt. 1044) 59 and Odofin Vs. Oni (2001)3 NWLR (Pt. 701) 488 among others. We are urged to uphold the objection and strike out the grounds of appeal. The respondent’s counsel did not proffer argument on ground five of the objection. It is therefore deemed abandoned.
The appellant’s counsel in response to the preliminary objection on ground one of the objection, submitted that the purpose of particulars of grounds of appeal is to advance reasons for the complaint in the grounds of appeal and that was what is contained in the appellant’s notice of appeal.
Relying on Oleksandr Vs. Lonestar Drilling Co. Ltd. (2015) 9 NWLR (Pt. 1464) 337 at 396; C.R.B. & R.D.A. Vs. Sule (1990) 7 NWLR (Pt. 2001) 7 NWLR (Pt. 1141) 489; it is submitted that grounds 1-4 of the appellant’s notice of appeal established that the particulars simply advance reasons for complaints in the grounds of appeal. We are urged to hold the grounds and particulars of appeal as competent.
On grounds 2 and 3 of the objection the appellant’s counsel said the respondent has a misrepresentation of the ruling of the trial Court. That from the ruling of the trial Court, it is clear that the lower Court declined jurisdiction to entertain the appellant’s claim and struck out the case for want of competence and jurisdiction. He submitted that the ruling of the trial Court was a final decision with regard to the rights of the parties to have the matter heard and determined by the lower Court.
Relying on the cases of Onyero Vs. Nwadike (2011) 18 NWLR (Pt. 1279) 954 and Ibrahim Vs. Gwandu (2015)5 NWLR (Pt. 1451) 1 at 28, it is argued that the ruling of the lower Court being a final decision, by the provisions of Section 241(i) (a) of the 1999 Constitution (as amended), the appellant does not require leave to appeal. We are urged to so hold.
It is submitted that, it is a gross misrepresentation of the ruling of the lower Court for respondent to contend that it may be granted leave to defend the suit when the lower Court struck out the suit for want of competence and jurisdiction.
On ground 4 of the objection, learned counsel for the appellant contended that the submission of the respondent that the lower Court erroneously used the word ‘Arbitration’ instead of ‘reconciliation’ is nothing but an attempt to re-write the ruling of the lower Court. That from the ruling of the Court, the word ‘Arbitration’ was never a clerical error but was the substance of the ruling of the lower Court, and it cannot be altered or corrected under the slip rule doctrine. The Court was referred to Jegede Vs. Akande (2015) 6 NWLR (Pt. 11455) 228 at 255; Shanu Vs. Afribank (Nig.) Plc. (2002) 17 NWLR (Pt. 795) 185 and Holborn (Nig.) Ltd. Vs. O.C.C. Ent.
Ltd. (2015)11 NWLR (Pt. 1471) 451 at 474-475 and submitted that any attempt to correct same will lead to variation of the ruling of the lower Court and we are urged to so hold and dismiss the preliminary objection.
The purpose of filing a preliminary objection is to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. The aim of a preliminary objection is to challenge the competence of an appeal, of the hearing thereof. In other words, its purpose, if successful, is to terminate the appeal at that stage – Garba vs. Mohammed (2016)16 NWLR (Pt.1537) 114 at 131.
The first ground of objection are that grounds, 1, 2, 3 and 4 of the Notice and grounds of appeal contain legal arguments and narrative in their particulars as contained at page 4 of the respondent’s brief. The grounds and their particulars are produced thus:
GROUND ONE
The learned trial judge erred in law when he held that from the totality of the evidence presented before the Court, the appellant’s application for summary judgment was premature as the matter was not filed under the Undefended List.
PARTICULARS
1. Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987 entitles the applicant to file an application under the Undefended List Procedure and seek for summary judgment where he believes that the respondent has no defence to his claim.
2. It is settled that the Undefended List Procedure and the summary judgment procedure are both designed to achieve the same purpose which is to enable the Court deal summarily with the plaintiff’s claim and enter quick judgment once it is clear that the defendant has no defence to the claim. Ifeanyichukwu T.I.V Ltd. Vs. O.CB. Ltd. (2015)17 NWLR (Pt. 1487) 1; Thor Ltd. Vs. F.C.M.B. Ltd. (2005)14 NWLR (Pt. 946) 696.
3. It is also an established principle of law that where a Court has the jurisdiction to grant a relief, the fact that the jurisdiction of the Court is involved under the wrong law or rule, should not prevent the Court from granting the relief so long as the facts relied upon by the applicant support the correct law or rule of Court to be applied. WITT & BUSCH Ltd. Vs. Dale Power System Plc. (2007) 17 NWLR (Pt. 1062) 1 and Onjejike Vs. Anyasor (1992)1 NWLR (Pt.218) 437.
4. The learned trial judge was in error to have held that the appellant’s application for summary judgment is premature and was not filed on the Undefended List.
GROUND TWO
The learned trial judge erred in law when he held that the appellant is not entitled to judgment on the basis that the respondent had a valid defence to its claim for summary judgment.
PARTICULARS
i. It is settled law that a plaintiff will be entitled to summary judgment when it is shown that the defendant has no valid defence to the monetary claim sought. Pan Atlantic Shipping and Transport Agencies Ltd. Vs. Rhein Mass G.M.B.H. (1997)3 NWLR (Pt. 493) 248.
ii. It is also established principle of law that if a defendant wishes to contest an application for summary judgment, he cannot rely on a sham defence but must show a defence on the merit.
iii. From the record before the lower Court, the respondent? counter affidavit failed to establish any defence on the merit that it was not indebted to the appellant for the sum of N6,699,838.52 being the outstanding balance due from the goods supplied to it by the appellant.
iv. The learned trial judge was in error to have held that the counter affidavit filed by the respondent disclosed a prima facie case and a defence on the merit to the appellant’s application for summary judgment.
GROUND THREE
The learned trial judge erred in law when he held that ‘The suit is being vehemently contested and there is no clear admission of the plaintiff’s claim. The request for summary judgment where there is no direct admission to the plaintiff’s claim is not feasible.’ and on his basis refused the appellant’s alternative relief for judgment based on admission.
PARTICULARS
i. Order 30 Rule 3 of the Plateau State High Court (Civil Procedure) Rules, 1987 allows a plaintiff to bring an application for judgment on admission once there is an admission of fact by the defendant either in pleadings or any document before the Court.
ii. It is settled law that where a claim for definite sum allegedly owed by a defendant is made and the defendant admits owing part of the claim, the Court has a duty to enter judgment for the sum admitted, leaving the balance to be contended. F.A.B.S. Ltd. Vs. Ibiyeye (2008)14 NWLR (Pt. 1107) 375.
iii. From the records before the lower Court, the respondent by its letter dated 14th November, 2016 admitted being indebted to the appellant for the sum of N3,850,988.27.
iv. The trial judge was in error to have held that since the respondent has not filed a defence, no issue has been joined and as such no admission of fact was made by the respondent to warrant the appellant’s alternative application for judgment based on admission.
GROUND FOUR
The learned trial judge misdirected himself when he held that there was an agreement by parties to go for arbitration and on this basis struck out the appellant’s suit for lack of jurisdiction.
PARTICULARS
i. It is settled law that parties will only refer a dispute to arbitration once there is an agreement or contract executed by parties establishing such terms and conditions. Magbagbeola Vs. Sanni (2002)4 NWLR (Pt. 756) 193.
ii. From the records before the lower Court, there was neither any agreement or contract between the parties in this appeal that in the event of dispute, parties will proceed to arbitration.
iii. The trial judge was in error to have relied on an agreement which was neither executed by the parties in this appeal, in declining jurisdiction to entertain the appellant?s claims, striking out the suit and directing parties to proceed to arbitration.
It is clear from the above grounds and particulars, the particulars flow from the grounds. While it is agreed some of the particulars are argumentative, the particulars as a whole are inelegantly drafted. That, notwithstanding the inelegant drafting of the particulars of grounds 1, 2, 3 and 4, the respondent and indeed the Court are not in doubt as to what the appellant?s complaints are. I hold that the particulars of grounds 1, 2, 3 and 4, are in compliance with the requirement of the law and the said grounds are competent.
Courts are now encouraged to make the best they can out of bad or inelegant ground of appeal in the interest of justice. See Oleksandr Vs. Lonestar Drilling Co-Ltd. (2015)9 NWLR (Pt. 1464) 337 and Dakolo & Ors. Vs. Dakolo & Ors. (2011) LPELR 915 (SC) Hence defective particulars in a ground of appeal would not necessarily render the ground itself incompetent. Put differently, since the essence of particulars of error in law is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they flow. See N.N.B.C. Plc. Vs. Imonikhe (2002 5 NWLR (Pt. 760) 241 at 310 and D. Stephen Ind. Ltd. & Anor. Vs. B.C.C.I Int. (Nig.) Ltd. (1999)11 NWLR (Pt. 625) 29 at 31.
The attitude of Court has shaped by the contemporary shift from technicalities to substantial justice. The preliminary objection on ground one of objection has failed and it is dismissed.
Grounds 2, 3 and 4 of the objection are mere statements and not grounds and they are speculative. The contention of the respondent on these grounds of objection is that the declining of jurisdiction by the trial Court, on the motion of the appellant automatically granted it, leave to defend the suit. And that for the appellant to file an appeal on the said decision of the trial Court, leave ought to have been sought and obtained. Also that the arbitration referred to in the judgment instead of Reconciliation is a slip by the trial judge. All these are speculations.
It is erroneous for the respondent to assume leave to defend when the matter was struck out for want of competence and jurisdiction. Speculation is not acceptable because neither the parties nor the Court is permitted or entitled to speculate anything. See Overseas Construction Co. (Nig.) Ltd. Vs. Creek Ent. (Nig.) Ltd. (1985)3 NWLR (Pt. 13) 407; Bakare Vs. A.C.B. Ltd. (1986)3 NWLR (Pt. 26) 47 and Seismograph Services (Nig.) Ltd. Vs. Ogbeni (1976)4 SC 86.
It is not enough to speculate that because the trial judgment declined jurisdiction, leave is automatically granted to respondent to defend the action. Courts of law act on empirical evidence and not on speculations – Kekong Vs. State (2017)18 NWLR (Pt. 1596) 108 at 128. See also Okoko Vs. State (1964)1 ALL NLR 423 and Igabele Vs. State (2006)6 NWLR (Pt. 975) 100. Grounds 2, 3, and 4 of the preliminary objection lack merit and they are dismissed. The conclusion is that the preliminary objection fails and it is dismissed. Now the appeal. I shall be guided by the respondent’s issue in resolving this appeal.
ISSUE ONE
1. Whether the lower Court was right in dismissing the appellant?s Motion of 15th December, 2016.
In arguing this issue, the counsel for appellant submitted that the finding of the trial Court that the appellant’s action was not filed on the undefended list to warrant a summary judgment was made in error. The appellant’s contention is that having regard to the purpose and intendment of Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987 which deals with the undefended list procedure, an application for summary judgment can be brought under this order. Relying on the cases of Ifeanyichukwu T.I.V Ltd. Vs. O.C.B. Ltd. (2015)17 NWLR (Pt.1487) 1 at 32; Thor Ltd. Vs. F.C.M.B. Ltd. (2005)14 NWLR (Pt. 946) 696 at 710; Onyejike Vs. Anyasor (1992)1 NWLR (Pt. 218) 437 at 451-452 and WITT & BUSCH Ltd. Vs. Dale Power System Plc. (2007)17 NWLR (Pt.1062) 1 at 26, it is submitted that the Courts have held that undefended list procedure and summary judgment procedure are the same as their purpose is to enable the Court deal summarily with the plaintiff’s claim and enter quick judgment once it is clear that the defendant has no defence to the claim.
Appellant’s counsel submitted that from the evidence presented before the lower Court, that the facts relating to appellant’s claim for summary judgment are exactly the same as what a plaintiff must establish under the undefended list procedure. We are urged to find that the appellant’s claim for summary judgment as contained in its motion on notice dated 15th December, 2016 is in tandem with the provisions of Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987.
It is further submitted, that even if the appellant’s application for summary judgment was not in compliance with the rules of the lower Court, it would still not have rendered the application premature and/or incompetent by virtue of Order 2 Rule (1) of the Plateau State High Court (Civil Procedure) Rules 1987, which provides that, where there is failure to comply with the provisions of the rules of Court, the failure shall be treated as an irregularity and may not nullify such steps taken in the proceedings. He relied on Saleh Vs. Monguno (2006)15 NWLR (Pt.1001)26 at 59-60.
We are urged to set aside the finding of the lower Court and hold the appellant’s application was properly filed under the undefended list to warrant the Court assuming jurisdiction over the appellant’s application.
With regard to the counter affidavit of the respondent to the appellant’s application which is said to disclose a prima facie case and a defence on the merit, the appellant’s counsel contended that, documents presented before the Court show that the appellant supplied agricultural spare parts to the respondent worth N8,199,834.53 between November, 2013 – August, 2014 out of which the respondent only paid N1,500,000.00 only leaving the outstanding balance of N6,699,838.52.
After a reconciliation exercise of accounts between the parties, the respondent would have paid N5,350,988.27 on or before 31st August, 2016, failure of which the appellant will take a legal action to recover its money. The Court is referred to page 115 of the record on the said agreement and pages 169-170, on the respondents acceptance to pay the sum of N5,350,988.27 only as settlement of the outstanding debt.
That contrary to the findings of the lower Court, the respondent had no valid defence to the appellant’s application for summary judgment, as the purported defence was no more than a sham and a ploy to prolong the litigation of the dispute between the parties. He relied on Okoli Vs. Morecab Finance (Nig.) Ltd. (2007)14 NWLR (Pt. 1053) 37 at 60 paras C-F.
Learned counsel for the appellant argued that it is settled law, once there is an admission of fact, a party who is entitled to benefit from it can immediately apply for judgment based on that admission. He relied on Anason Farms Ltd. Vs. NAL Merchant Bank (1994)3 NWLR (Pt.331)241 paras F-G and A.T.M. Plc. Vs. B.V.T. Ltd. (2007) 1 NWLR (Pt. 1015) 259 at 282 paras F-H and urged us to set aside the judgment of the lower Court.
It is finally submitted on this issue that the lower Court was in error to have declined jurisdiction to entertain the suit based on arbitration which the appellant was never a party thereto. That the agreement containing the arbitration clause which the lower Court relied upon to refer the parties for arbitration was between the Plateau State Government and Secretary Equipment & Communication Nig. Ltd., to which the appellant was never a party to the agreement. The Court was referred to Pp. 153-166 of the record on the agreement.
Learned counsel relied on Idufueko Vs. Pfizer Products Ltd. (2014) 12 NWLR (Pt. 1420) 96 at 122-128 paras C-F and Makwe Vs. Nwukor (2001)14 NWLR (Pt. 733) 356 in support of his submission.
We are urged to set aside the judgment of the lower Court and allow the appeal.
On the other hand, counsel for the respondent submitted that the respondent in opposing the motion for summary judgment or admission contended that the rules of Court applicable in Plateau State does not support the appellant’s motion for summary judgment. That the Plateau State High Court Civil Procedure Rules, recognize only one type of summary judgment procedure which is the ‘Undefended List under Order 23 of the Plateau State Civil Procedure Rules, 1987.’
It is submitted on behalf of the respondent that the appellant did not apply for the writ of summons served on the respondent to be placed on the Undefended List, and therefore Order 23 will not be of any application. It is argued that the application for summary judgment was made as an interlocutory application in the substantive action represented by the writ of summons, that it is on this basis that the respondent contended before the lower Court that the motion for summary judgment was incompetent as there was no rule of Court that supported it. Also that Order 23 does not contemplate that a plaintiff should apply for judgment by motion on notice before judgment is delivered in a suit on the undefended list when the defendant is still within time to file his defence to the suit.
Learned counsel for the respondent submitted that in substance, the undefended list procedure is synonymous with summary procedure where the rule of Court so provided. But that the only recognized procedure for summary judgment under the Plateau State Civil Procedure Rules is proceedings commenced under the Undefended List. That there is no provision in the Plateau State Civil procedure Rules that accommodate for summary judgment other than Order 23 which specifically deal with liquidated money demand. Also that the appellant’s claim cannot qualify for a writ on the Undefended List in the light of the claims in paragraph 16 of the Statement of claim, and moreover when the writ was not commenced as Undefended List.
Referring to the decision in Ifeanyichukwu T.I.V Ltd. Vs. O.C.B. Ltd. (supra) relied on by the appellant and contended that both the summary judgment procedure and Undefended List Procedure are designed to achieve the same purpose, it is argued on behalf of the respondent that both procedures cannot co-exist as a means by which the same purpose is to be achieved. That Ifeanyichukwu T.I.V Ltd. Vs. O.C.B. Ltd. (supra) was decided on the Lagos State Civil Procedure Rules which has provided for summary judgment procedure, while the Plateau State Civil Procedure Rules has no provision for summary judgment but has provision for Undefended List which the Lagos State Civil Procedure Rules does not have.
Also referred is the case of Thor Ltd. Vs. F.C.M.B. Ltd. (supra) relied by the appellant, and submitted that the case does not support the case of the appellant, as where a claim is for general damages and interest as in reliefs i-iv, in paragraph 16 of the statement of claim, that cannot qualify for a summary judgment or Undefended List.
Referring to the case of Saraki Vs. Kotoye (1992) 9 NWLR (Pt. 264)156, it submitted for the respondent that the appellant’s motion for summary trial, was clearly an abuse of the process of the Court as no law supports the filing of a motion on notice for summary judgment in the Rules of Plateau State High Court, and that Order 2 Rule 1 of the Plateau State Civil Procedure Rules is inapplicable in this case. Submitting further, that the appellant placed reliance on documents for entitlement to judgment in the sum of N6,699,838.52 as summary judgment, whereas the appellant failed to advert to the counter affidavit and exhibits of the respondent in defence of the application. That in denial of the appellant’s claim, the respondent also exhibited document to show that the documents exhibited by the appellant did not show proof that the goods or supplies were made by the respondent or delivered upon the request of the appellant.
That in an application for summary judgment, the Court is obliged to consider the defence put up by the defence for the purpose of determining the existence of a defence. That the defendant/respondent in her counter affidavit raised both the statutory and factual defences which the law allows a defendant in an application for summary judgment. The Court was referred to H.R. Ltd. Vs. Inv. Ltd. (2007) 5 NWLR (Pt. 1027) 326 and Sodipo Vs. Lemminkanen OY (1986)1 NWLR (Pt. 12) 220 at 231.
With regard to the issue of reconciliation exercise in which the appellant contended that the respondent admitted to payment of N5,350,988.27 as settlement of the outstanding debt, which the appellant said entitled it to judgment on admission, it is submitted that the trial Court was right to hold that the admission that will qualify to be used as or for judgment must be clear and unambiguous. Counsel referred to Macaulay Vs. NAL Merchant Bank Ltd. (1990)4 NWLR (Pt. 144) 283 at 322; Uniben Vs. K.T. ORG. Ltd. (2007)14 NWLR (Pt. 1055)441.
Also that, the lower Court was right in its decision that the claim is being contested and that there was no clear admission of indebtedness to the appellant and the decision is valid as it has not been impeached. That for admission to form basis of judgment before trial Court, such an admission must be unqualified. The Court is enjoined to take into account the totality of the circumstances forming the alleged admission. He referred to U.B.N. Plc. Vs. Dawodu (2003)4 NWLR (Pt. 810 )287; F.A.B.S. Vs. Ibiyeye (2008)14 NWLR (Pt.1107)375 and submitted that the respondent cannot be said to have admitted the alleged delivery when it has not admitted the delivery or receipt of the goods.
The Court was referred to Nigeria Bottling Co. Plc. Vs. Oboh (2006) 12 NWLR (Pt. 677) 212; Pan Asian Co. Ltd. Vs. National Insurance Co. (Nig.) Ltd. (1932) 9 SC 1 and Ataguba Vs. Gura (Nig.) Ltd. (2005)8 NWLR (Pt. 927) 429 at 449 among others.
It is finally submitted that the lower Court in determining the part regarding to ‘reconciliation’ made reference to ‘Arbitration’ as what was agreed by the parties, it is submitted that regardless of the appropriate word, the lower Court still found that the suit was pre-mature, since the parties did not conclude on the reconciliation before the appellant rushed to Court.
We are urged to resolve in favour of the respondent.
The essence of a reply brief is to respond to new points that might have been raised in the respondent’s brief. There is nothing new raised in the respondent’s brief that necessitated the appellant to file a reply brief. Reply brief is not open for the appellant to re-argue his case, which is what the appellant has done in this case. The reply brief is therefore discountenanced.
The appellant instituted an action by a Writ of Summons and Statement of claim dated the 15th of December, 2016 and filed on the 16th of December, 2016. On the same day, the 16th of December, 2016, the appellant filed a motion pursuant to Order 23 Rule 1 and Order 30 Rule 3 of the Plateau State High Court (Civil Procedure) Rules praying for an order to enter summary judgment against the defendant/respondent for liquidated amount which was due and unpaid.
By the provision of Order 23 Rule 1 of the Plateau State High Court Civil Procedure Rules 1987, whenever application is made to a Court for the issue of a Writ of Summons in respect a claim to recover a debt or liquidated money demand or any other claim and such 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 for the circumstances of the particular case.
By Order 23 Rule 3(1) if a party served with the writ of summons and affidavit, delivers to the Registrar a notice in writing that he intends to defend that 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.
Order 30 of the Plateau State High Court Civil Procedure Rules provides that any party may give notice by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of any other party.
Under Order 23 Rule 1 of the Plateau State High Court Civil Procedure Rules there is no provision for summary judgment but Undefended List. For the appellant to come under Order 23 Rule 1, there must be an application for the suit to be placed on the Undefended List and the writ to be so marked ‘Undefended List’. It is a condition precedent to be satisfied for the suit to be placed under the Undefended List. There is no application by the appellant for the suit to be placed under the Undefended List and the writ as reflected at page 1 of the record is not marked ‘Undefended List’.
Order 23 does not contemplate a motion on notice to be filed for summary judgment.
Although summary judgment and Undefended List Procedure are similar and the purpose for which they are designed to achieve is the same, but what is applicable under Order 23 Rule 1 of the Plateau State High Court Civil Procedure Rules is Undefended List and not summary judgment. Also the Undefended List Procedure is on application and not by a motion on notice. The purpose of summary judgment procedure and Undefended List is to prevent sham defence from defeating the right of parties by delay and at the same time causing great loss to the plaintiff who is endeavoring to enforce his rights: Carling Int.l (Nig.) Ltd. Vs. Keystone Bank Ltd. (2017) 9 NWLR (Pt. 1571) 345 at 348; Macaulay Vs. NAL Merchant Bank Ltd. (1990)4 NWLR (Pt.144) 283 and Akahall & Sons Ltd. Vs. N.D.I.C.194 at 196-197.
The appellant in submission with regard to summary judgment relied heavily on the case of Ifeanyichukwu Vs. O.C.B Ltd. (supra). However in that case there was an application by the respondent to issue the writ under the Undefended List, and upon consideration of the application, the Writ was so issued and marked as Undefended List, which is not the position in the instant case where there was no application to issue the Writ under the Undefended List. What is applicable in Lagos State is motion for summary judgment. But it is not applicable in Plateau State. The Supreme Court in Ifeanyichukwu Vs. O.C.B Ltd. (supra) held thus:
“The Undefended List Procedure and summary judgment procedure are both designed to achieve the same purpose. That explains why the High Court of Lagos State (Civil Procedure) Rules 2004 has only provisions for summary judgment Procedure. The Undefended List has been removed from the new Rules.”
In line with the above, that also explains why the Plateau State High Court Civil Procedure Rules has only provision for Undefended List.
Order 23 Rule 1 and 3(1) of the Plateau State High Court Rules provided for steps to be taken by both a claimant who believes that a defendant against whom he has claims, does not have a defence, and a defendant who was served with the processes of the claimant’s claim intends to defend.
The appellant was not in compliance with the Rules when he filed a motion on notice for summary judgment, instead of application to place the suit on the Undefended List procedure as the mode of commencement of action for summary judgment under the Plateau State High Court Civil Procedure Rules.
Order 30 of the Plateau State High Court Civil Procedure Rules is also not helpful for the appellant. Although the appellant alleged that documents have shown that the respondent admitted its indebtedness to the appellant, but there is no statement of defence filed by the respondent to show the pleaded admitted facts.
A Court is competent to adjudicate on a matter when:
(a) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or the other; and
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction
(c) The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction –
Madukolu Vs. Nkemdilim (1962)2 SCNR 341. See also Oni Vs. Cadbury Nig. Plc. (2016)9 NWLR (Pt. 1516) 80; Securities and Finance Plc. Vs. N.A.I.C. (2015) 16 NWLR (Pt. 1484) 93; Alims (Nig.) Ltd. Vs. U.B.A. (2013) 6 NWLR (Pt. 1351) 613 and Buremoh Vs. Akande (2017) 7 NWLR (Pt. 1563) 74 at 80.
Order 23 of the Plateau State High Court Civil Procedure Rules is clear and unambiguous. It is an undoubted fetter to the Court’s assumption and exercise of jurisdiction. Rules of Court are not made for fun but made to be obeyed. The issue of jurisdiction is constitutional and cannot be conferred on the Court either by itself or by the consent of the parties. The condition stipulated in the principles laid down in the case of Madukolu Vs. Nkemdilim (supra) must all co-exist in totality for the Court to be properly constituted. The procedure adopted by appellant for summary judgment is incompetent. The summary judgment initiated by motion on notice under Plateau State High Civil Procedure Rules Order 23 is incompetent.
The lower Court was therefore right when it held at page 205 of the record thus:
“The case is hereby and accordingly struck out for want of competence and jurisdiction.”
This aspect of findings of the trial Court is very crucial, but there is no appeal on it. It is deemed admitted.
Where the trial Court lacks jurisdiction to entertain a matter, the appellate Court is also deprived of jurisdiction to entertain the appeal – Buremoh Vs. Akande (supra).
On the issue of arbitration, learned counsel for the appellant contended that the agreement containing the arbitration clause which the lower Court relied upon in arriving at its decision was between the Plateau State Government and Sec. Equipment & Communication Nigeria Ltd. reflected at Pp. 153 -166 i.e. Exhibit SNB2. That is not correct and it is misleading. This is because the trial Court did not make reference to Exhibit SNB2 in its ruling nor make any pronouncement on it. As rightly submitted by the respondents’ counsel there was no agreement by the parties to resort to arbitration, but there was an existence of the agreement by the parties to resort to reconciliation of the transaction. This was captured by the Ruling of the trial Court at page 205 of the record stated thus:
“Furthermore the agreement reached was for reconciliation and the parties have agreed to go for arbitration which was not done.”
The only inference that can be drawn from the above ruling of the lower Court is the agreement for reconciliation which the parties agreed upon and not arbitration as accidently referred to by the trial judge, since both parties agreed there was no agreement between them to go for arbitration. It is my view, reference to ‘arbitration’ made by the lower Court was a slip which on the application of the parties and under the inherent jurisdiction of the trial judge can be corrected to reflect or convey the intention of the Court. See Bola Vs. Latunde, Ogunpa; St. James Church (1963)1 SCNLR 288 and Unnanse Vs. Unnanse (1950) AC 561.
From the record, none of the parties applied either for the lower Court to exercise its power under the slip rule or under its inherent jurisdiction to correct the word ‘arbitration’ for ‘reconciliation’. Since the parties agreed that there was no agreement between them to resort to arbitration, it means therefore none of the parties ought to have been misled as to the intention of the trial judge when he made reference to ‘arbitration’ instead of ‘reconciliation’. Moreso when it is not every mistake, slip or error in a judgment that will result in appeal being allowed. See Adeyemi Vs. State (2014)13 NWLR (Pt. 1423) 132 at 136.
The contention of the appellant that the trial Court relied on Exhibit SNB2 in its ruling is a misconception and it will not hold.
The appeal is accordingly dismissed. Parties to bear the costs.
ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading in advance the lead Judgment of my learned brother Hassan, J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat. I have nothing more to add. I also dismiss the appeal and abide by the consequential orders contained in the lead Judgment.
BOLOUKUROMO MOSES UGO, J.C.A. (DISSENTING): This appeal is from the decision of the High Court of Appeal of Plateau State of 6th March 2008 declining jurisdiction over the suit of the appellant.
My learned brother TANI YUSUF HASSAN, J.C.A., had given me the privilege of reading in advance his lead judgment in this appeal.
While I agree with my learned brother and the lower Court that application for Summary Judgment (as opposed to its sister procedure of Undefended List) which appellants brought in the lower Court has no place in the Rules of the Plateau State High Court so that application was incompetent, I find indefensible the learned trial Chief Judge’s decision to decline jurisdiction and strike out the entire action of appellants on the grounds that, as His Lordship put it:
“The agreement reached was for reconciliation and the parties have agreed to go for arbitration which was not done.
“In the circumstances, I find that the case ought to be for arbitration on the disputes between the parties provided in their agreement. I hereby decline jurisdiction to entertain the plaintiff’s claim. The parties are hereby ordered to refer the matter to arbitration. The case is hereby and accordingly struck out for want of competence and jurisdiction of the Court.”
The 4th ground of appellant’s Notice of appeal is directed solely at the correctness of this decision of the learned trial Judge.
Appellant there complained as follows:
GROUND 4: The learned trial Judge misdirected itself when he held that there was an agreement by parties for arbitration and on this basis struck out the Appellant’s suit for lack of jurisdiction.
PARTICULARS
(i) It is settled law that parties will only refer a dispute to arbitration once there is an agreement or contract executed by parties establishing such terms and conditions. Magbagbeola v. Sanni (2002) 4 NWLR (Pt. 756) 193.
(ii) From the records before the lower Court, there was never any agreement or contract between the parties in this appeal that in the event of any dispute, parties will proceed to arbitration.
(iii) The trial Judge was in error to have ruled on an agreement which was never executed by the parties in the appeal in declining jurisdiction to entertain the Appellant’s claims, striking out the suit and directing parties to proceed to arbitration.
Issue 2 of appellant was devoted to this ground. Appellant made the following impregnable argument in paragraph 4.2.4 – 4.2.6 of its brief of argument:
4.2.4 From the records before this Court, it is manifestly clear that the agreement containing the arbitration clause and which the lower Court
relied upon in arriving at its decision was between the Plateau State Government and SEC Equipment & Communications Nigeria Ltd. (see pages 153 – 166 of the record). The appellant was never a party to this agreement.
4.2.5 Furthermore, the agricultural spare parts supplied by the appellant to the respondent between the period of November 2013 and August 2014 (which is the basis of the Respondent’s indebtedness to the appellant) had nothing to do with the agreement executed by the Plateau State Government and SEC Equipment & Communications Nigeria Ltd. (see pages 69 – 103 of the record).
4.2.6. Flowing from the above, we respectfully submit that by virtue of the doctrine of privity of contract, the lower Court was in error to have declined jurisdiction to entertain the suit based on an agreement which the appellant was never a party to. As stated by the Supreme Court in Idufueko v. Pfizer Products Ltd (2014) 12 NWLR (Pt. 1420)96 @ 122 – 124.
Unsurprisingly, the respondent in its brief of argument had no coherent or tenable answer to this argument. It’s counsel, S. S. Obende Esq., started by saying the use of the word
“Arbitration” in the lower Court’s ruling was a “mistake or omission or accidental slip”; that what the trial Court meant was “reconciliation” and that could be corrected pursuant to Order 26 Rule 7 of the Rules of the High Court of Plateau State, only for learned counsel to immediately shift position to submit again in paragraphs 6.7 and 6.5 of its brief that the Agreement (Exhibit SNB2) between Plateau State Government and SEC Equipment and the Arbitration clause therein in Article 12 provided for arbitration in case of disagreement between the parties to the agreement so it was binding on appellant too and there was “need for SEC Equipment to be included on the determination of this issue”. Hear appellant at paragraphs 6.4 and 6.5 of its brief of argument:
“6.4. By clause 3.1 of Exhibit SNB2 the duties of SEC Equipment were specified. There is nothing in Exhibit SNB2 that empowers SEC Equipment to transact with the appellant on behalf of the respondent for the purpose of the appellant delivering items on the instructions of SEC Equipment or a basis for the invoices or deliveries notes to be addressed to Sec Equipment.
6.5. On this score for the purpose of determining whether the goods for which the appellant claimed the balance was the liability of the respondent, there was the need for SEC Equipment to be included in the determination of this issue. This issue therefore will be governed by Exhibit SNB2, which provides in Article 12 of Exhibit SNB2 that the disagreement or dispute will be resolved by resort to Arbitration. My lords are urged to resolve this issue in favour of the Respondent.”
How can an agreement between two different entities bind appellant who was not a party to it? Only parties to agreements are bound by its terms, non-parties are not bound and cannot even sue on it even if it was made for their benefit:Rebold Industries Ltd v. Magreola (2015) ALL FWLR (PT. 794) 94 @ 106 (S.C.); Basinco Motors Ltd v. Woerman Line Ltd (2009) ALL FWLR (PT. 488) 1634 @ 1636 (S.C). Appellant, an entirely different person under law, cannot be bound by an arbitration agreement between Plateau State and SEC Equipment in Exhibit ‘SNB 2’.
The argument of respondent’s counsel about the lower Court meaning to say ‘reconciliation’ instead of arbitration is also a complete non-sequitur.
The Court clearly ordered that parties had an agreement (a phantom one) on arbitration hence it was declining jurisdiction and striking out the case for parties to go to arbitration. The records of the lower Court did not suggest that the parties were reconciling in the con respondent’s counsel is interpreting it in the first ambit of his response; what was suggested by even respondent in its counter affidavit was that it was not aware of the supplies allegedly made by the appellant for which it brought the suit so there was need for parties to reconcile accounts to show the extent of its indebtedness. This is apparent from paragraphs 21 to 25 of its counter affidavit where it deposed as follows:
21.I know that except the suit is heard on the merits, it will be impossible to ascertain if the defendant is indebted to the plaintiff and the extent of the indebtedness if no reconciliation takes place between the plaintiff and the defendant.
22.I know that except a reconciliation takes place it will be impossible to ascertain the payments made by the SEC Equipment & Communication Nigeria Ltd for the supplies constituting this contract, as part of
SEC Equipment & Communication Nigeria Ltd share contributions to the defendant.
23. I know that the defendant has a defence to this action, as the plaintiff is uncertain as to the extent of the defendant’s indebtedness.
24. I know that no judgment can be entered on the basis of summary judgment without the Court ascertaining the extent of the defendant’s liability to the plaintiff.
25. I know that it is in the interest of justice for judgment not to be entered for the plaintiff until the plaintiff proves her entitlement to the sum claimed in the writ of summons or such other sums as mutually agreed based on the reconciliation by the parties.
The respondent stuck to this position in its address and urged the Court, as is also shown in paragraph 22 above, that the case should be heard on its merits.
In any event, assuming, but without conceding, that parties were trying to even settle or reach a ‘reconciliation’ of the entire case, that is no reason for the lower Court to decline jurisdiction and strike out the case. The proper step the Court should have taken is to adjourn the case for them to ‘reconcile’.
While the Court may encourage settlement, it lacks power to foist settlement on parties (Ekpa v. Utong (1991) 16 NWLR (PT. 197) 258 S.C) let alone make an unsolicited order striking out their case and order an arbitration which they never contemplated, as in this case.
I hold therefore, that the order of the trial lower Court declining jurisdiction over appellant’s case and striking it out was perverse. In the circumstance, I here allow the appeal on this ground, set aside the order of the lower Court declining jurisdiction and striking out appellant’s case and in its place order that Suit No. PLD/J691/2016 of appellant be and is here restored to the Cause List of the lower Court for hearing on its merits by a different judge.
Appearances:
Mathias Dawodu with him, Ifeoma C. Korie
For Appellant(s)
S.S. Obende with him, M.A. Dawam and W.S. Aboki
For Respondent(s)
