ALHAJI DALHATU YAHAYA v. MRS. BOLA THOMAS AYANSIJI
(2019)LCN/13342(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2019
CA/J/50/2018
RATIO
UNDEFENDED PROCEDURE: WHEN A DEFENSE IS DICLOSED
In effect, where such defence is disclosed, the Justice of the case would demand that the matter be transferred to the General Cause List for hearing on the pleadings and this was what the trial Court did in the instant case. See Grand Cereals and Oil Mills Ltd v As-Ahel International Marketing Ltd (2000) 4 NWLR (Pt.652) 310, Danfulani v Shekari (1996) 2 NWLR (Pt.433) 723; N.M.C.B Ltd v Obi (2010) 14 NWLR (Pt.1213) 169 and Wema Sec. & Fin. Plc v N.A.I.C (2015) 16 NWLR (Pt.1484) 93.PER ADZIRA GANA MSHELIA, 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
ALHAJI DALHATU YAHAYA – Appellant(s)
AND
MRS. BOLA THOMAS AYANSIJI – Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice Gombe State delivered by Honourable Justice A.M Yakubu dated 12th February, 2014. The brief facts as presented by the Appellant is as follows: The Plaintiff now Appellant commenced Suit at the High Court of Justice Gombe State by a writ of summons claiming the sum of N9,125,000.00 (Nine Million, One Hundred and Twenty Five Thousand Naira) only and 10% interest on the Judgment sum per annum against the defendant now Appellant. The suit commenced under the Undefended List. Upon service on the Appellant at the lower Court, Appellant filed a Notice of Intention to Defend. The lower Court was satisfied and transferred the suit under the General Cause List. The lower Court ordered for pleadings and other accompanying Court processes. The Respondent filed his Statement of Claim vide a Motion on Notice dated 4th October, 2013 and the application was granted by the lower Court. The Appellant did not also file a Statement of Defence within time but came by way of a Motion dated 16th January, 2014 asking for extension of time to
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file defence out of time. While this motion was pending to be moved before the matter proceed to full blown hearing, the Respondent filed a motion dated 17th January, 2014 asking for Judgment under Order 26 Rule 2(1) of the Gombe State High Court (Civil Procedure) Rules. Proceedings continued on the 6th day of February, 2014. The Court despite pending motion on notice dated 16th January, 2014, seeking extension of time to file Statement of Defence and an application for adjournment sought by the Appellant, proceeded with the matter by striking out the application of the appellant, allowed the Respondent to move the Motion for Judgment and reserved Ruling/Judgment for 12/02/2014. Though the matter had been moved to the General Cause List from the Undefended List the lower Court proceeded to Judgment against the Appellant.
Dissatisfied with the decision of the lower Court, Appellant lodged an appeal to this Court vide Notice of Appeal dated 5th day of May 2014, containing two Grounds of Appeal.
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In compliance with the rules of Court parties exchanged their Briefs of Argument. Appellant?s Brief settled by S.A Mustafa Esq. was dated 3rd day of May
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2018 and filed 04/05/2018. Respondents brief settled by I.M. Ibrahim Esq. dated 14th January, 2019 was filed on 16th January 2019 but deemed properly filed on 13th March, 2019. The Appellant filed a Reply brief dated 27/02/2019 filed on 07/03/2019 but deemed properly filed on 13/03/2019. On 16/01/2019 Respondent filed Notice of Preliminary Objection. When the appeal came up for hearing, both counsel adopted their respective Brief of Argument. Appellants counsel urged the Court to allow the appeal. While Respondent?s counsel urged the Court to dismiss the appeal.
In the Appellants Brief of Argument, Appellant distilled lone issue for determination as follows:
Whether it was proper for the lower Court to enter Judgment for the Respondent under Order 26 Rule 2(1) of the Bauchi State Civil Procedure Rules (applicable to Gombe State) without hearing some evidence when the suit was transferred to the General Cause List from the Undefended List.
On the part of the Respondent she formulated two issues for determination as follows:
1. Whether the Appellants appeal with No CA/J/50/2018 does not constitute an abuse of
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Court/Judicial Process and liable to being dismissed thereby.
2. Whether from the facts and circumstances of the Suit between the parties the learned trial Judge was right to have heard and determined the Suit between the parties before him with no GM/65/2013, under Order 26 Rule 2(1) of the Bauchi State Civil Procedure Rules, applicable to Gombe State.
Before I proceed I have to first of all resolve the preliminary objection raised by the Respondent. The Notice of Preliminary Objection was dated 14/01/2019 and filed on 16/01/2019. The Notice of Preliminary Objection seeks the dismissal of Appeal No. CA/J/50/2018 in Limine. The ground for the objection is that the said Appeal is an abuse of process. According to counsel the Preliminary Objection was argued as issue 1 contained at pages 5-10 of the Respondents Brief of Argument. He urged Court to sustain the objection and dismiss the appeal. Respondents counsel in response referred to the Reply Brief dated 27/02/2019 and filed on 07/03/2019 but deemed filed on 13/03/2019. Counsel adopted the said Reply and contended that the argument is contained at page 1-4 paragraphs 2.0-2.9 of the
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Reply Brief. He urged Court to dismiss the preliminary objection.
The procedure adopted by the Respondent in arguing the Preliminary Objection is wrong. Respondent formulated issue one from the Preliminary objection. Issues are only distilled from Grounds of Appeal filed by the Appellant. Respondent is not permitted to formulate issues at will. It is my humble view that the Preliminary Objection is not properly argued as such same would be discountenanced.
ISSUE 2
In arguing this issue learned counsel submitted that the antecedent of this suit leading to Judgment delivered on the 12/02/2014 is quite unique. Counsel submitted that at the trial Court, Respondent commenced this suit under the Undefended List. That Appellant, after he was served, filed Notice of Intention to Defend together with an affidavit setting forth grounds of fact that constituted a defence. That the learned trial Judge found merit in the affidavit of the Appellant and refused to enter Judgment for the Respondent, and instead ordered for pleadings and trial. Learned counsel contended that the essence or implication of transferring a suit from Undefended List to General Cause
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List is that the trial Judge has refused to enter Judgment on the basis of what had been filed before him by both sides, and that the only way the suit can be determined before him is to hear evidence based on pleadings. Learned counsel referred to portion of the Ruling of the trial Court appearing at pages 171 lines 10-15 of the record wherein he said thus:
In the circumstances, issue three are resolved in favour of the defendant that even though defendant affidavit is evasive the issue of law raised in the defendant affidavit discloses a defence on the merit at this stage of the proceedings. This case is therefore transferred to the General Cause List for parties to file pleadings.
That the above conclusion demonstrate the fact that certain issues of law raised by the defence of the Appellant is worth testing under a trial condition, which connotes the taking of oral evidence and cross-examination.
Learned counsel further submitted that the Judgment of the Court below was rendered as a consequence of Order 26 Rule 2(1) of the Bauchi State High Court Civil Procedure Rules, (applicable to Gombe State). According to counsel a trial
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Judge like the Judge of the Court below in appropriate circumstances enter Judgment for a claim of a liquidated money demand where there is failure to file defence. That circumstance of the instant case makes the provision of Order 26 Rule 2(1) inapplicable considering the antecedent of the case. Learned counsel submitted that in compliance with the Order for pleadings, plaintiff now Respondent filed a statement of claim, statement of witnesses on oath, list of documents to be relied upon during trial and a long list of witnesses to be called and whose statement on oath had been filed. That at the date the trial Judge allowed the respondent to move the motion filed pursuant to Order 26 Rule 2(1), the statement of defence of the Appellant was not properly in place before the lower Court, but a motion for that purpose had been filed and pending. That on 6th day of February, 2014 the Appellant counsel applied for an adjournment. Vide a letter acknowledged by the Court, while his application to file his defence was pending. According to counsel the lower Court did not only threw away the motion of the Appellant and paved the way for the Respondent to move a motion
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for Judgment under Order 26 Rule 2(1). That immediately after the sitting of that day the lower Court reserved and delivered Judgment on the 12/02/2014. Learned counsel contended that it was wrong for the lower Court to completely backslide and proceeded to enter Judgment against the Appellant under Order 26 Rule 2(1) when it had, by itself set the motion for trial after refusing to enter Judgment under the Undefended List. That trial Judge who transfers a case to the General Cause List must hear evidence, however minimal, before Judgment except where there is admission subsequently. Counsel submitted that the application of Order 26 Rule 2(1) by the lower Court was wrong because the procedure under that rule though applicable to suit for liquidated money demand where the defendant failed to file defence but cannot apply to a suit commenced under Order 22 of the High Court Civil Procedure Rules, Bauchi State applicable to Gombe State, where the suit of the Respondent was tested and failed to persuade the Court to enter Judgment. Counsel maintained that it was wrong for the trial Judge to enter Judgment under Order 26 Rule 2(1) on the basis of the Motion
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for Judgment without the Respondent leading some evidence, when the case was scheduled for hearing by Order of Court. Reliance placed on Darma v Ecobank (2017) 2 SCM paged 55 at 71, ratio 1.
Learned counsel submitted that failure to adopt and rely on the statement on oath of any of the witnesses but on the affidavit in support of motion for Judgment (which more or less complained of failure to file defence by the Appellant) is a failure by the Respondent to place, no matter how minimal any evidence to prove his case at the trial Court. See G.E International v Q. Oil & Gas Services Ltd (2016) 10 SCM page 118 at 136-137 ratio 4. He urged the Court to resolve lone issue in favour of the Appellant.
In response learned counsel for the Respondent referred to Order 26 Rule 2(1) of the Rules, under reference in the grounds of appeal and Appellants Brief of Argument. Counsel contended that Appellant?s counsel did not dispute the existence of the said provision. Counsel also submitted that the following facts are clear from the record:
1. That the claim of the Respondent is for debts or liquidated money demand.
2. That the Appellant
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did not file defence within the time limited by the Rules of Court for doing so and did not comply with many orders made by the trial Court for him to do so. Reference made to Order 24 Rule 2(1) of the trial Court?s Rules.
3. That the case came up before the trial; Court on the following dates 28/11/2013; 08/01/2015; 28/01/2014; 06/02/2014 for hearing but case could not be heard due to the several application of the appellant for adjournment.
4. That in line with the provision of Order 26 Rule 2(1) the Respondent applied to the Court for Judgment by filing motion for Judgment dated and filed on 17/01/2014.
5. That the Appellant filed counter-affidavit to the motion of the applicant joining issues, in respect of the motion for Judgment, rather than seeking to relist the ?motion for extension of time to file defence which was struck out for want of prosecution.
6. That the Appellant was in breach or violation of the Order of the trial Court directing him to file defence/pleadings.
Learned counsel submitted upon the foregoing, the learned trial Judge was right to have entered Judgment for the Respondent. That the trial Court
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is empowered by Order 26 Rule 2(1) of the trial Courts Rules. That rules of Court are meant to be obeyed. See Dariye v FRN (2011) 25 WRN 164; Okoye v Anyanwoko (2011) 28 WRN 156 and Owners v Insurance (2008) 5 SCNJ, Nnachi v Onourah (2011) 22 WRN 17 ratio 2 @ pages 82-83.
Counsel distinguished the cases of G.E International Ltd v Q. Oil & Gas Services Ltd (supra) and urged the Court to resolve the issue in favour of the Respondent, that the learned trial Judge was right to have entered Judgment in favour of the Respondent.
I have considered the submission of both counsel. In order to appreciate the complaint of the Appellant it would be necessary to state briefly what transpired at the trial Court. On the 04/06/2013 the plaintiff (now Respondent) moved the High Court vide his motion exparte for the writ to be issued against the Defendant/Appellant under the undefended list and for it to be marked as Undefended. The learned trial Judge in granting the leave had this to say at page 155 of the record:
Having carefully perused the affidavit evidence in support of the application together with the annexure thereto, and having
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considered the written address accompanying the motion, this Court is of the respectful view that the application be granted and is accordingly granted. Leave of this Court is granted to the plaintiff to issue the writ against the defendant and to mark the writ as Undefended with same to be placed under the undefended list of the cause list of this Court.
The plaintiffs claim was brought ?pursuant to Order 22 Rule 1 of the Bauchi State High Court (Civil Procedure) Rules, 1987 applicable to Gombe State and is for the sum of Nine Million, One Hundred and Twenty Five Thousand Naira (N9,125,000.00) being money owed by the Defendant to the plaintiff which has not been paid despite demand thereof by the plaintiff. He also asked 10% of the total Judgment per annum from the date of Judgment till the final liquidation of the entire Judgment sum.
In compliance with Order 22 Rule (1) after granting the leave, the matter was adjourned to another date for hearing. Court processes were served on the defendant. Defendant filed Notice of Intention to defend, dated 28-06-2013 and filed on 01-07-2013. The case was heard on the 05/07/2013.
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In a considered Ruling delivered on 11th day of July, 2013, the learned trial Judge transferred the case to the general cause list for parties to file pleadings. The learned trial Judge concluded the Ruling at page 171 of the record as follows:
In the circumstances, issue three is resolved in favour of the defendant that even though defendant affidavit is evasive the issues of law raised in the defendant affidavit discloses a defence on the merit at this stage of the proceedings. The case is therefore transferred to the general cause list for parties to file pleadings.
Having transferred the suit to the General Cause List parties are expected to file and exchange pleadings, thereafter full trial will commence wherein parties will call their witnesses to testify. The record showed that only the plaintiff filed his statement of claim after having sought for leave to file same out of time. Going by the printed record the defendant filed motion for extension of time to file statement of defence out of time but same was not moved. The plaintiff filed motion for Judgment in default of pleading pursuant to Order 26 Rule 2(1) of the Bauchi State High Court (Civil Procedure) Rules
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applicable to Gombe State. The record showed that defendant failed to move his motion to regularize his pleadings, so on the application of plaintiff?s counsel the trial Court struck out the motion and allowed Plaintiff to move his motion for Judgment. The trial Court on 12th day of February 2014 entered Judgment in favour of the plaintiff/Respondent as per his claim.
The suit was commenced under the Undefended List. When the Appellant filed a Notice of Intention to defend, the learned trial Judge carefully examined it and was satisfied that it disclosed triable issue. The suit was transferred to the General Cause List for hearing. Undefended List Procedure is meant to shorten the hearing of a suit where the claim is for a liquidated money sum. The procedure is not designed to shut out a defendant who can show in his affidavit in support of intention to defend that there is indeed a triable issue. In the instant case the learned trial Judge found that the facts disclosed facts which will at least throw some doubt on the case of the plaintiff. This is within the discretion of the trial Court. In effect,
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where such defence is disclosed, the Justice of the case would demand that the matter be transferred to the General Cause List for hearing on the pleadings and this was what the trial Court did in the instant case. See Grand Cereals and Oil Mills Ltd v As-Ahel International Marketing Ltd (2000) 4 NWLR (Pt.652) 310, Danfulani v Shekari (1996) 2 NWLR (Pt.433) 723; N.M.C.B Ltd v Obi (2010) 14 NWLR (Pt.1213) 169 and Wema Sec. & Fin. Plc v N.A.I.C (2015) 16 NWLR (Pt.1484) 93.
It is clear that after transferring the matter to the General Cause List, parties will exchange pleadings and a full trial will be conducted. In the instant case Plaintiff/Respondent filed his statement of claim and other processes and served same on the defendant/appellant. Apparently defendant failed to file his statement of defence. What the trial Court would have done at this stage was to have asked the plaintiff to open his case and call his witnesses to establish his claim. Once plaintiff established his claim by minimal proof Judgment would be entered in his favour. In my humble view it is wrong for the trial Judge to invoke Order 26 Rule 2(1) at this stage and enter Judgment
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in favour of the plaintiff. Since the trial Court had earlier refused summary Judgment and felt that there was a triable issue disclosed, the procedure for full trial ought to have been followed in this case. This is not to say that the trial Court could not enter summary Judgment under Order 26 Rule 2(1) in appropriate cases. I agree with the submission of learned counsel for the Appellant that the procedure adopted by the trial Court was wrong. In the circumstances I will resolve the sole issue in favour of the Appellant.
In the final analysis. I hold that the appeal is meritorious and succeeds. Appeal allowed. The Ruling of High Court of Justice Gombe State delivered on 17th day of January, 2016 by Hon. Justice M. A. Yakubu in Suit No. GM/65/2013 is hereby set aside. The case is sent back to the Chief Judge for assignment to another Judge other than M. A. Yakubu J. for hearing on the merit.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the lead judgment of my learned brother, ADZIRA GANA MSHELIA, JCA. I agree with the reasoning and conclusion reached. I have nothing useful to add. I abide by the order
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made.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother ADZIRA GANA MSHELIA J.C.A. (PJ), and I am in complete agreement with his reasoning and conclusion both of which I here adopt as mine, I abide the consequential order contained therein.
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Appearances:
Joel Pada John, Esq.For Appellant(s)
H.N. Nwoye, Esq.For Respondent(s)
Appearances
Joel Pada John, Esq.For Appellant
AND
H.N. Nwoye, Esq.For Respondent
