WONAH CONSTRUCTION COMPANY LIMITED v. NASSARAWA STATE GOVERNMENT & ORS
(2019)LCN/13747(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2019
CA/MK/140/2017
RATIO
DUTY OF COURTS: COURTS ARE TO DO AWAY WITH TECHNICALITIES AND WORK ON ACHIEVING JUSTICE FOR PARTIES
It is a well established principle that the duty of Court is to decide the rights of the parties and not to punish them for errors if any, in the conduct of their case by deciding otherwise than in accordance with their right. Hence where a defendant has a good defence and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules relating to the form in which the defence is brought. The rules are designed to assist the Court and parties in putting their case before the Court. They are not intended to deny the parties an opportunity of presenting their case thereby resulting in injustice. PER JUMMAI HANNATU SANKEY, J.C.A.
COURT: DISCRETIONARY POWERS OF COURTS
From these decisions, it becomes apparent that in spite of the strict provisions of the Rules of Court in Order 15, a trial Judge still has the inherent jurisdiction to exercise its discretion in appropriate circumstances in the determination of cases on the Undefended List procedure, especially where the issue of jurisdiction is raised. See: Akpan V Akwa Ibom PIC Ltd (2013) LPELR-20753(SC) per Galadima, JSC; Ajayi V Adebiyi (2012) LPELR-7811(SC) 51 per Adekeye, JSC. PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
WONAH CONSTRUCTION COMPANY LIMITED – Appellant(s)
AND
1. NASSARAWA STATE GOVERNMENT
2. NASSARAWA STATE PUBLIC WORKS MAINTENANCE AGENCY
3. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, NASARAWA STATE – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Ruling of the High Court of Nasarawa State sitting in Lafia delivered on 20th March, 2017 by Abundaga, J. in a suit brought on the Undefended List procedure wherein, after ruling on a motion challenging the competence of the processes filed by the Appellant, he granted an adjournment for the Respondents to file their Notice of intention to defend the action on the ground of fair hearing.
?The brief facts leading to the Appeal are as follows: The Appellant, a limited liability company, was awarded a contract by the Respondents vide letter of award dated 18th May, 2010, for the construction of the Doma-Alage-Amaku Federal Road, a distance of 34.5 kilometers. The Letter of Award was for the contract sum of N272,302,800 (Two Hundred and Seventy Two Million, Three Hundred and Two Thousand, Eight Hundred Naira) only. The Appellant accepted the contract and its terms, and was mobilized with the sum of N72,704,847.60 (Seventy Two Million, Seven Hundred and Four Thousand, Eight Hundred and Forty Seven Naira, and Sixty Kobo). The Appellant executed the
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contract and submitted an Interim Payment Certificate for N108, 777,451.10 (One and Eight Million, Seven Hundred and Seventy Seven Thousand, Four Hundred and Fifty One Naira, Ten Kobo). The Respondents consulting Engineers approved payment for N64, 316, 626.86 (Sixty Four Million, Three Hundred and Sixteen Thousand, Six Hundred and Twenty Six Naira, and Eighty-Six Kobo). The Respondents paid the Appellant the sum of N57, 241,797.86 (Fifty Seven Million, Two Hundred and Forty One Thousand, Seven Hundred and Ninety Seven Naira, Eight Six Kobo), less taxes and levies. The Appellant submitted the second interim payment certificate for N78, 649,975.09 (Seventy Eight Million, Six Hundred and Forty Nine Thousand, Nine Hundred and Seventy Five Naira, and Nine Kobo.) The Respondent?s Consulting Engineers approved payment of N71, 557,338.78 (Seventy One Million, Five Hundred and Fifty Seven Thousand, Three Hundred and Thirty Eight Naira, and Seventy-Eight Kobo). The Public Works Maintenance Agency also wrote to the Commissioner for works requesting that the Appellant be paid. Numerous documents to buttress the claim were annexed to the affidavit in support of the
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claim as follows: Exhibits JA1, JA2, JA3, JA4, JA5, JA6, JA7, Exhibit JA8, JA9, JA10, and JA13.
The Appellant contended that the Respondents were in breach of Clauses 25(1), 33(2) and 34(e) of the Contract, Exhibit JA10 and therefore that the penalties were as contained in Clause 81(1)(2)(3) of the Contract, Exhibit JA13, bringing the total indebtedness of the Respondents to the Appellant to N101,826,482.06 (One Hundred and One Million, Eight Hundred and Twenty Six Thousand, Four Hundred and Eighty Two Naira, Six Kobo), representing the balance of last Interim Payment Certificate, Retention Fee & Interest. The Appellant engaged the services of Joe Agi, SAN & Associates who wrote a letter, Exhibit JA10, to the Respondents appealing for its payment with interest.
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Thereafter, the Appellant filed an action on the Undefended List for the payment of her entitlement. The processes were served on the Respondents and they responded by filing a Motion on Notice seeking an Order striking out the suit for being incompetent. The Appellant responded by filing a counter-affidavit to which the Respondents filed a further affidavit accompanied by a written
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address.
When the matter came up for hearing, the applications were argued and the learned trial Judge resolved all the issues raised against the Respondents. However, he declined to enter Judgment for the Appellant based on her claim brought on the Undefended List in consideration of the principles of fair hearing. Dissatisfied with the refusal to enter Judgment at that stage of proceedings, the Appellant filed this Appeal on 04-04-17, wherein he complained on three grounds.
At the hearing of the Appeal on 20-05-19, O.F. Ekengba Esq. adopted the Appellant?s Brief of argument filed on 08-05-17 and the Appellant?s Reply Brief of argument filed on 17-04-18, but deemed duly filed on 17-11-18, in urging the Court to allow the Appeal. In turn, J.A. Allu, Esq., Assistant Director of Public Prosecutions, Nasarawa State Ministry of Justice, adopted the Respondents? Brief of argument filed on 09-10-17, but deemed filed on 07-11-18, in urging the Court to dismiss the Appeal.
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In his Brief of argument, the Appellant distilled two issues for determination from the three Grounds of Appeal thus:
1. Whether in the circumstances of this
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case, where the Respondents, despite the warning of the trial Court not to take the chance of filing an objection on jurisdiction alone in an Undefended List proceedings, can be entitled to an adjournment to file a defence under the canopy of giving them the right of fair hearing, instead of entering Judgment for the Appellant. (Grounds 1 and 2)
2. Whether the learned trial Judge did not violate the Appellant’s right to fair hearing when he suo motu raised the issue of fair hearing on behalf of the Respondents and resolved same in their favour without hearing from the Appellant. (Ground 3)
In their Brief of argument, the Respondents adopted the issues formulated for determination by the Appellant. The Appeal shall therefore be determined on these two issues which shall be addressed separately.
ARGUMENTS
Issue one – Whether in the circumstances of this case where the Respondents, despite the warning of the trial Court not to take the chance of filing an objection on jurisdiction alone in an Undefended List proceedings, can be entitled to an adjournment to file a defence under the canopy of giving them the right of fair hearing, instead of
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entering judgment for the Appellant.
Learned Counsel for the Appellant submits that the suit was commenced under the Undefended List procedure and the Appellant did all what she was required in law to do. The Respondents were served with all the processes showing that they were indebted to the Appellant. The total undisputed claim of the Appellant was for N101,826,482.06 (One Hundred and One Million, Eight Hundred and Twenty Six Thousand, Four Hundred and Eight Two Naira Six Kobo).
Counsel submits that in a case of this nature where the Respondents deliberately chose not to put up a defence, the only choice open to the Court was to enter Judgment for the Appellant. Ben Thomas Hotels V Sebi Furniture (1989) 12 SC, 160, 163, per Eso, JSC; SPDC Nig Ltd V XM Federal Ltd (2006) 16 NWLR (Pt. 1004) 189, per Onnoghen, JSC (as he then was) are relied on. He submits that the learned trial Judge, having decided, prior to arguments, that the Respondent?s reliance solely on the issue of jurisdiction does so at his peril, both the parties and the Court are bound by that decision. However, after the trial Judge dismissed the objection on jurisdiction, he
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declined to enter Judgment for the Appellant. Rather, he contended that the Respondents? right to fair hearing would be infracted if time was not given to them to file a defence. Counsel argues that the Court having earlier held that if the sole issue of jurisdiction failed, the Respondent shall lose the case, should have proceeded to enter Judgment as per the claim. He submits that such an Order of Court not appealed against, remains valid and subsisting; and where an issue has been canvassed and adjudicated upon by a Court of competent jurisdiction between parties, it is binding on them and their privies, even in a subsequent suit. He relies on Enyong V Ekpenyong (2011) LPELR-4058(CA), per Oredola, JCA; & NDIC V Union Bank Plc (2015) LPELR 24316 (CA) per Obaseki-Adejumo, JCA.
Counsel submits that the issue of fair hearing does not arise in the circumstances of this case and the lower Court ought not to have raised it since the Respondents had been given the opportunity and they chose not to take it. Reliance is placed on Newswatch Communications Limited V Atta (2006) 12 NWLR (Pt. 993) 144,171, C-E per Tobi, JSC. He contends that the issue of
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fair hearing does not have any pivotal place in the Undefended List procedure. Reliance is placed on Obaro V Hassan (2013) 8 NWLR (Pt. 1357) 425, 452 per Ariwoola, JSC; Okeke V Nicon Hotels Ltd (1999) 1 NWLR (Pt. 586) 216, 224 per Muhammad, JCA; Daniels V Insight Eng. Co Ltd (2002) 10 NWLR (Pt. 775) 231, 246 per Amaizu, JCA; & FBN Ltd V Khaladu (1993) 9 NWLR (Pt. 315) 44, 55 per Katsina-Alu, JCA (as he then was). Counsel therefore urged the Court to hold that the learned trial Judge ought to have entered Judgment for the Appellant, instead of adjourning the matter for the Respondents to file a Notice of intention to defend.
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In response, learned Counsel for the Respondents submits that the learned trial Judge was not wrong in granting the Respondents an adjournment to file their Notice of intention to defend the suit after dismissing their objection. When the Appellant?s Counsel urged the learned trial Judge to dismiss the Respondents’ objection and enter Judgment for her, the Respondents? Counsel urged the Court to grant them an adjournment to file their Notice of Intention to defend together with an affidavit, in the interest of justice,
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should their preliminary objection be dismissed. It was based on these applications and submissions that the lower Court, in its Ruling, granted the adjournment. Counsel therefore submits that the lower Court was not wrong when it declined to enter Judgment for the Appellant and instead granted the Respondents an adjournment to file their Notice of intention to defend together, with an affidavit disclosing a defence on the merit.
Counsel submits that the case of Ben Thomas Hotels V Sebi Furniture (supra) relied upon by the Appellant, is not applicable to the instant suit because while the High Court Rules of Kwara State under which the decision was based stipulated a specific period of five days within which a defendant is expected to file a Notice of intention to defend and an affidavit before the return date, there is no such provision in the High Court of Nasarawa State (Civil Procedure) Rules 2010, which is the applicable Rules of Court in the instant case. Hence, the provision of the Kwara State Rules and any decision based thereon is inapplicable to this case.
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Counsel further submits that even where a defendant fails to file a Notice of
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intention to defend an action under the Undefended List procedure, the Court cannot automatically enter Judgment in favour of a Plaintiff without first scrutinizing the Plaintiff’s claim. He relies on Akpan V AIP & Investment Co. Ltd (2013) 12 NWLR (Pt. 1368) 377, 397; AIB Ltd V Packoplast (Nig) Ltd (2003) 1 NWLR (Pt. 803) 502, 526, D-E.
Counsel therefore urged the Court to discountenance the Appellant’s prayer to allow the Appeal and enter Judgment in her favour because the Appellant’s claim and incomplete annexures/exhibits are fraught with facts which can only be proved in a full trial, as the contract has not been executed to completion. He refers to all the Appellant?s exhibits especially Exhibits JA10 and JA13.
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Further referring to the lower Court?s pronouncements at pages 194-196 of the Record, Counsel submits that they cannot be taken in isolation as the decision of the trial Court. This is having regard to the subsequent decision and Order of the lower Court that the failure of the Respondents’ Counsel to file the Respondents’ Notice of intention to defend, along with the process challenging jurisdiction, does not bar the
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Respondents from taking up the i
