ALHAJI YAKUBU NA’ALLAH v. ALHAJI AMADU AJIYAN GOMBE
(2014)LCN/7313(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of June, 2014
CA/K/172/2007
RATIO
APPEAL: NOTICE OF APPEAL; WHETHER FILING A NOTICE OF APPEAL IS THE ONLY KNOWN AND LEGITIMATE WAY OR METHOD OF LAYING A COMPLAINT BEFORE A HIGHER COURT OR TRIBUNAL, TO SHOW GRIEVANCES OF AN AGGRIEVED PARTY AGAINST A DECISION TAKEN BY AN INFERIOR COURT OR TRIBUNAL
It is settled law that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision and the notice of appeal is the foundation upon which the jurisdiction of this court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (pt 1150) 624. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION IN AN APPEAL MUST ALWAYS BE DISTILLED FROM A GROUND OF APPEAL
It is settled law that an issue for determination in an appeal must always be distilled from a ground of appeal, and where it is distilled by a respondent who has no cross-appeal, it must be related to the grounds of appeal of the appellant – Kalu Vs Odili (1992) 6 SCNJ 76, Ayisa Vs Akanji (1995) 7 NWLR (Pt 406) 129, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: RECORD OF THE COURT; WHETHER THAT AN APPELLATE COURT DETERMINES THE DISPUTES OF PARTIES AND ARRIVES AT THE CONCLUSION BASICALLY ON THE PRINTED RECORD OF WHAT TRANSPIRED AT THE LOWER COURT
It is trite that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appellant therefore is only entitled to contest the judgment of a trial court on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba vs Olujitan (2000) 5 NWLR (Pt 655) 159, Global Transport Oceanico Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, V S Steel (Nig) Ltd vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo vs Omoolorun (2005) 12 NWLR (Pt 938) 1. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: FRESH ISSUE; WHETHER AN APPELLANT SEEKING TO RAISE A FRESH ISSUE ON APPEAL MUST SEEK THE LEAVE OF THE COURT OF APPEAL TO DO SO
The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the Court of Appeal to so do and where this is not done the court of Appeal will have no jurisdiction to consider and pronounce on the issue – Nidocco Ltd vs Gbajabiamila (2013) 14 NWLR (Pt 1374) 350, Nigerian Bottling Company Plc vs Ubani (2014) 4 NWLR (Pt 1398) 421 and Society Bic SA Vs Charzin Industries Ltd (2014) 4 NWLR (Pt 1398) 497. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: SUMMARY JUDGMENT PROCEDURE; THE WHOLE PURPOSE OF SUMMARY JUDGMENT PROCEDURE
The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc vs Jargaba (2007) 17 NWLR (Pt 1045) 247, University of Benin vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: THE UNDEFENDED LIST PROCEDURE; THE AIM OF THE UNDEFENDED LIST PROCEDURE
The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale vs Eze (2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320. It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial the expense of justice – Macaulay vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 rule 3 (1) of the High court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: AN AFFIDAVIT; WHAT THE DEFENDANT MUST SET OUT FOR AN AFFIDAVIT TO CONSTITUTE A DEFENCE ON THE MERIT
The law is that for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo Vs Okogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. 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 the defence is and what facts and documents are relied on to support 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 – Ataguba & Co Vs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt.997) 452, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: A TRIABLE ISSUE; WHAT IS A TRIABLE ISSUE AND SITUATIONS THAT WOULD GIVE RISE TO TRIABLE ISSUE
A triable issue is an uncontroverted material allegation contained in the defendant’s affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a fair probability of a bona fide defence – Ataguba & Co Vs Gura (Nig) Ltd supra, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babington-Ashaye Vs E. M. A. General Enterprises Ltd (2011) 10 NWLR (Pt.1256) 479. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COMMERCIAL LAW: AGENCY; WHETHER WHEN A PERSON MAKES A CONTRACT IN HIS OWN NAME, WITHOUT DISCLOSING EITHER THE NAME OF THE EXISTENCE OF A PRINCIPAL, HE IS PERSONALLY LIABLE ON THE CONTRACT TO THE OTHER CONTRACTING PARTY
It is settled law that when a person makes a contract in his own name, without disclosing either the name of the existence of a principal, he is personally liable on the contract to the other contracting party, even though he may be in fact be acting on a principal’s behalf – West African Shipping Agency (Nig) Ltd Vs Kalla (1978) 3 SC (Reprint) 15, Asafa Foods Factory Ltd Vs Alraine Nigeria Ltd (2002) 12 NWLR (Pt 781) 353. In the words of Lord Reid in Basma vs Meekes (1950) AC 441 “an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONTRACT: QUASI CONTRACT; WHETHER A PARTY WHO PAYS MONEY TO ANOTHER UNDER AN INEFFECTIVE CONTRACT, THE PARTY WHO PAYS IS ENTITLED TO RECOVER THE MONEY IN QUASI CONTRACT AS MONEY HAD AND RECEIVED FOR CONSIDERATION THAT HAS FAILED
It is trite that where party pays money to another under an ineffective contract, the party who pays is entitled to recover the money in quasi contract as money had and received for consideration that has failed. This specie of action is founded upon principles of equity where a party cannot in good conscience hold unto money which has come into his possession and its objective is to eliminate the concept of unjust enrichment – First Bank of Nigeria Plc Vs African petroleum Ltd (1996) 4 NWLR (Pt 443) 448, First Bank of Nigeria Plc Vs Ozokwere (2006) 4 NWLR (Pt 970), Chartered Bank Ltd vs First African Trust Bank Ltd (2005) LPELR-11350(CA), Oyebanji Vs Fowowe (2008) All FWLR (Pt 410) 786, First Bank of Nigeria Plc Vs Ozokwere (2013) LPELR-21897(SC). The point was succinctly made by Lord Wright in Fibrosa Spolka Akcyna vs Fairbarn Lawson Combe Barbour Ltd (1943) AC 32 at page 61 thus:
“The claim was for money paid for a consideration which had failed. It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.” per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
ALHAJI YAKUBU NA’ALLAH Appellant(s)
AND
ALHAJI AMADU AJIYAN GOMBE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High court of Kano State in suit No K/177/2006 delivered by Honourable Justice Mohammed Haliru Abdullahi on the 13th of July, 2006 entering judgment in favour of the Respondent under the Undefended List Procedure.
The Respondent commenced the action under the Undefended List procedure against the Appellant and one Alhaji Mustapha Bukar, as first and second defendants, and his claims were for:
i. The payment of the sum of N7.5 Million jointly and severally by the defendants to the plaintiff being the purchase price of a property covered by certificate of occupancy No KLN/RES/87/2002 situate at Sani Mai Nagge Kano paid by the plaintiff to the defendants on the 8th of November, 2006, however upon the said payment, the defendants refused, failed and neglected to deliver up possession of the said property to the plaintiff and neglected to refund or pay over the said sum to the plaintiff despite repeated demands.
ii. Payment of the cost of this action to be assessed by the Court.
The case of the Respondent on the affidavit of facts in support of the case under the Undefended List was that on the 8th of November, 2003, the Appellant sold a property belonging to the second defendant covered by Certificate of. Occupancy No LKN/RES/87/2002 situate at Sani Mai Nagge Kano to him for the sum of N7.5 Million and for which he made payment by a bank draft dated the 6th of November, 2003 made out in the name of the Appellant and that he handed the bank draft to the Appellant in the presence of the second defendant and the Appellant issued him a receipt therefor. The photocopies of the bank draft and of the receipt were attached as MM1 and MM2. It was his case that the Appellant issued a notice to the occupants of the property to vacate and that when the occupants failed to vacate the premises, the Appellant and the second defendant failed and neglected to evict the occupants and to hand over possession to him and whereupon he demanded for a refund of his money; the notice to the occupants to vacate was MM3. It was his case that when the Appellant refused to refund his money, he caused his Solicitors to write a formal letter of demand for the money and to which the Appellant responded acknowledging the indebtedness; copies of the letter of demand and the letter from the Appellant were MM4 and MM5. It was his case that the Appellant and the second defendant had failed and neglected to refund the money to him despite repeated demands.
The Appellant filed a notice of intention to defend and it was supported by an affidavit of facts. The case of the Appellant on the affidavit was he was not the owner of nor did he have any vested interested in the property coveted by Certificate of Occupancy No LKN/RES/87/2002 situate at Sani Mai Nagge Kano and that the role he played in the entire transaction was that of a Solicitor to a disclosed principal. It was his case that the bank draft was issued in his name and that he issued the receipt, MM2, as the Solicitor to the vendor and that upon receiving credit for the money, he issued an Afribank cheque in the sum of N7.5 Million in favour of one Mustapha Isa, the owner and vendor of the property and that he sent the cheque under cover of a letter, Exhibit 1. It was his case that the vendor of the property was not the second defendant but Mustapha Isa and that his letter acknowledging the indebtedness, MM5, was not meant for the consumption of the court and unless the matter was transferred to the general cause list, proper parties will not be joined.
The records of the Court show that the Appellant filed a motion dated the 11th of May, 2006 before the lower court praying for an order striking out the name of the second defendant as a party and to substitute Mustapha Isa as the second defendant on the ground that he was the person that sold the property covered by Certificate of occupancy No LKN/RES/87/2002 and it is only after he is joined that the effective orders can be made in the matter. The records show that counsel to the Appellant moved the motion on the 1st of June, 2006 and that the application was opposed by counsel to the Respondent on the ground that the application was clearly outside the purview of Order 23 Rule 4 of the High Court Rules and that the lower court agreed with Counsel to the Respondent and it struck out the application. The Appellant did not appeal against this decision of the lower Court.
The lower Court heard the matter under the Undefended List and in its ruling delivered on the 13th of July, 2006, after stating the respective cases of the parties, stated thus:
“The issue for determination is whether the defendants have made out a cogent case for leave to defend the action. In deciding whether the defendants especially the 1st defendant has made a case for defence on the merit, a careful assessment of the case made out by the plaintiff must be weighed against the issues raised by the defendants as grounds for being allowed to defend. Now the case of the plaintiff is that the plaintiff made a payment directly to the 1st defendant for which the 1st defendant issued a receipt of his firm in form and later made a personal undertaking to liquidate the amount involved installmentally.
Now the defendant’s grounds is that all the money involved had been received by the 2nd defendant and so 1st defendant, especially being a legal practitioner is not personally liable as an agent for a disclosed principal.
In coming to a decision, the first poser to resolve is the role of the 1st defendant in the entire transaction. Although the receipt issued was in his firm’s name, the payment was made personally in his name; this presupposes that the 1st defendant acted beyond the scope of powers of an agent. The conclusion is better highlighted by having regard to Exhibit MM5 dated 5th of February, 2006 where the 1st defendant owned up liability personally and glibly asserting that he was acting for 2nd defendant. The follow up poser is whether a legal practitioner will make a clear admission of liability if indeed the 2nd defendant really received the payment. The answer is of course no, in the absence of allegation of coercion or deceit being exerted on the 1st defendant to make such admission. In the circumstances, I hold that the notice of intention to defend by the 1st defendant lacks merit and it dismissed accordingly.”
The lower Court thereafter proceeded to enter judgment in favour of the Respondent against the Appellant, as the first defendant, and it dismissed the claims against the second defendant as lacking in merit. The Appellant was dissatisfied with the judgment and it caused his Counsel to file a notice of appeal containing four grounds of appeal against it.
In arguing the appeal before this Court, Counsel to the Appellant presented a brief of arguments dated the 20th of April, 2007 and filed on the 15th of May, 2007. Counsel to the Respondent filed a brief of arguments on the 24th of October, 2013 and it was deemed properly filed on the 26th of November, 2013. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective brief of arguments.
Counsel to the Appellant distilled three issues for determination in the brief of arguments and these were:
i. Whether the trial Court has the jurisdiction to embark on the trial and give judgment on an undefended list without serving the second defendant.
ii. Whether the Appellant has acted beyond the scope of an agent when he accepted the payment in his name and issued Exhibit MM5 and will that be enough for the trial Judge to suo motu dismiss the claim against the second defendant and enter judgment against the Appellant.
iii. Whether the failure of the trial court to substitute the second defendant with one Mustapha Isa who in fact was the person who sold and received the money claimed by the Respondent is unconnected with an undefended proceeding.
On his part, counsel to the Respondent formulated four issues for determination in his brief of arguments and these were:
i. Whether or not the Appellant can argue his first issue for determination without first obtaining the leave of this Honourable Court.
ii. Whether or not the lower Court was right in dismissing the claim against the second defendant and in entering judgment against the Appellant.
iii. Whether or not the refusal of the lower Court to substitute the second defendant with Mustapha Isa is material and worthy of being argued in this appeal.
iv. Whether or not the judgment entered against the Appellant by the lower Court was not on merit.
Now, the notice of appeal of the Appellant stated on its face that the appeal was against the decision of the lower Court dated the 13th of July, 2006.
It is settled law that the only known and legitimate way or method of laying a complaint before a higher court or tribunal, to show grievances of an aggrieved party against a decision taken by an inferior court or tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision and the notice of appeal is the foundation upon which the jurisdiction of this court to entertain this appeal is predicated –
Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (pt 1150) 624.
Thus, the task before this court is to review the decision of the lower Court dated the 13th of July, 2006 and nothing more. It is not within the brief of this court in this appeal to review any other ruling or decision of the lower Court outside the said decision dated the 13th of July, 2006 and this court possesses no power or jurisdiction to set aside or nullify any other such ruling or decision. This is because a court of Appeal cannot set aside a judgment or ruling of a lower court against which there is no notice and grounds of appeal legally filed before it – Anah vs Anah (2008) 9 NWLR (pt 1091) 75. In the absence of an appeal against a judgment of decision of a court, it remains inviolate for all time – Olawepo Vs Security and Exchange Commission (2011) 16 NWLR (Pt 1272) 122, Emeka vs Okadigbo (2012) 18 NWLR (Pt 1331) 55, Duru Vs Federal Republic of Nigeria (2013) 6 NWLR (Pt 1351) 441.
The issue of the non-substitution of the second defendant by Mustapha Isa raised in the third issue for determination formulated by the Appellant, and reiterated by the Respondent as his third issue for determination, was decided by the lower court on the 1st of June, 2006 when it struck out the application seeking for the substitution on the ground that it was clearly outside the purview of Order 23 Rule 4 of the High court Rules. The Appellant did not appeal against that decision and the issue was not part of the decision of the 13th of July 2006.
The issues to be resolved in an appeal must arise from the decision appealed against and where the converse is the case, the courts are enjoined to discountenance and strike out such issues – Contract Resources (Nig) Ltd Vs Standard Trust Bank Ltd (2013) 6 NWLR (Pt 1350) 260, Asogwa vs Peoples Democratic Party (2013) 7 NWLR (Pt 1353) 207, Eyigebe vs Iyaji (2013) 11 NWLR (Pt 1365) 407.
The issue will thus be discountenanced.
Also, the first issue for determination formulated by the Respondent did not arise from the decision appealed against and it was not distilled from any of the grounds of appeal of the Appellant.
It is settled law that an issue for determination in an appeal must always be distilled from a ground of appeal, and where it is distilled by a respondent who has no cross-appeal, it must be related to the grounds of appeal of the appellant – Kalu Vs Odili (1992) 6 SCNJ 76, Ayisa Vs Akanji (1995) 7 NWLR (Pt 406) 129, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421.
The issue is in the nature of a preliminary objection to the first issue for determination formulated by the Appellant. It is improper. This court will, however, in the interest of justice, consider the arguments proffered there under as a response to the arguments of the Appellant on the first issue for determination of the Appellant.
The second and fourth issues for determination of the Respondent are a proliferation of the second issue for determination of the Appellant. This appeal will be resolved on the first and second issues for determination of the Appellant. These are:
i. Whether the trial Court has the jurisdiction to embark on the trial and give judgment on all undefended list without serving the second defendant.
ii. Whether the Appellant has acted beyond the scope of an agent when he accepted the payment in his name and issued Exhibit MM5 and will that be enough for the trial Judge to suo motu dismiss the claim against the second defendant and enter judgment against the Appellant.
On the first issue for determination, Counsel to the Appellant stated that the originating processes in the matter before the lower Court, though served on the Appellant, were not served on the second defendant as affirmed by the bailiff of court in the affidavit deposed to on the 26th of May, 2006 and that despite this fact the lower court went ahead with the hearing of the matter. Counsel stated that service of originating processes on the party sued is a pre-condition for the exercise of jurisdiction by a court and that where service is not effected, a court cannot embark on the adjudication of a matter and he referred to the cases of Bentworth Finance (Nig) Ltd Vs Gombe (1969) All NLR 638, B.C.C. Vs ADC (1972) All NLR 157, amongst others. Counsel stated that the failure to serve the second defendant was a fundamental defect to the exercise of jurisdiction by the lower court.
In response, Counsel to the Respondent referred to the proceedings before the lower court and the arguments canvassed by the Appellant thereat and stated that nowhere therein did the counsel to the Appellant canvass the issue being raised in this issue for determination. Counsel stated that there is nothing on record to show that the Appellant obtained the leave of this court before raising this fresh issue in this appeal and that the Appellant has not shown any special circumstance to warrant this court entertaining the issue and that as such the issue is incompetent and should be struck out and he referred to the cases of Elf Oil Nigeria Ltd Vs Nigeria Oil Mills Ltd (2010) 12 WRN 166, Okafor vs INEC (2010) 14 WRN 52, amongst others. Counsel urged this Court to strike out the issue for determination.
It is not in contest that the issue of non-service of the originating processes was not canvassed or raised by the Appellant at any stage of the proceedings before the lower court and the point was not pronounced upon by the lower court in its judgment.
It is trite that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appellant therefore is only entitled to contest the judgment of a trial court on the issues properly raised before the lower court and pronounced upon by that court – Oshatoba vs Olujitan (2000) 5 NWLR (Pt 655) 159, Global Transport Oceanico Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, V S Steel (Nig) Ltd vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo vs Omoolorun (2005) 12 NWLR (Pt 938) 1.
The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the Court of Appeal to so do and where this is not done the court of Appeal will have no jurisdiction to consider and pronounce on the issue – Nidocco Ltd vs Gbajabiamila (2013) 14 NWLR (Pt 1374) 350, Nigerian Bottling Company Plc vs Ubani (2014) 4 NWLR (Pt 1398) 421 and Society Bic SA Vs Charzin Industries Ltd (2014) 4 NWLR (Pt 1398) 497.
The Appellant did not seek leave of court to raise the issue and accordingly it not an issue that this should countenance on this appeal.
Notwithstanding the above, even if this Court were to go ahead and consider the issue, it is a non-starter as the Counsel to the Appellant, with respect to him, turned the law on its head in his arguments.
There is a world of difference between jurisdiction of a Court to hear a matter and power and competence of a Court to exercise its jurisdiction over a defendant sued in a matter. Jurisdiction of a court to hear a matter is donated by the statute – Elelu-Habeeb Vs Attorney General,Federation (2012) 13 NWLR (Pt 1313) 423, Madumere vs Okwara (2013) 12 NWLR (Pt 1368) 303, Opara Vs Amadi (2013) 12 NWLR (Pt 1369) 512. While the power and competence of a Court to exercise jurisdiction over a party sued as a defendant in a matter is dependent on service of the originating process on that party and where a party is not so served, it is the proceedings and orders made in the matter as far as they affect the party not served that will be declared nullities – Management Enterprises Ltd Vs Otusanya (1987) 2 NWLR (Pt 55) 179, Mark Vs Eze (2004) 5 NWLR (Pt 865) 54, Okoye vs Center Point Merchant Bank Ltd (2008) 15 NWLR (Pt 1110) 335.
Where, as in the instant case, more than one defendant is sued in an action and service of the originating process is effected on one of the defendants and not on the other defendant, it is the defendant who has not been served, if an order had been made in the suit affecting him, that can apply to have the proceedings and the order nullified and not the defendant who was duly served – Chime & Ors vs Chime & Ors (2001) 3 NWLR (Pt 701) 527. The Appellant was duly served and as such the lower court had power and competence to exercise jurisdiction over him and it does not lie in his mouth to complain about non-service of the process on the second defendant, particularly more so as the lower Court made no order affecting the second defendant.
On the second issue for determination, Counsel to the Appellant defined agency as a relationship existing between two parties called principal and agent, the function of the agent being to create a contractual relationship between principal and third party and that the Respondent knew as a fact that the Appellant was solicitor to the second defendant and that the Appellant sold the property of the second defendant and received the draft in his name in the presence of the second defendant. Counsel stated that thus when the Appellant received MM1 and issued MM2 in his firm’s name and wrote MM5, he was acting within his domain as an agent and was exercising the powers given to him under the contract of agency and that his actions will bind his disclosed principal and he referred to the case of Watteau Vs Fenwick (1893) 1 QB 346. Counsel stated that MM5 that the lower court relied upon in finding the Appellant liable was marked “without prejudice” and that being an offer to pay sum amount of money in installments it was not admissible in evidence and not worthy of consideration and he referred to the case of Evuleocha vs ACB Plc (2001) 5 NWLR (pt 707) 472. Counsel stated that even assuming that MM5 was admissible evidence, the wordings of the document cannot be interpreted to mean acceptance of liability by the Appellant as they show that the Appellant wrote it as an agent acting within his usual authority and they do not waive liability of the second defendant and vest it on the Appellant.
In response, Counsel to the Respondent stated that the main issue in this matter was that the Appellant did not raise any triable issue and that his notice of intention to defend was designed to dribble and frustrate the Respondent from getting back his money and that the lower court was right in dismissing the defence and entering judgment in favour of the Respondent and he referred to the cases of UBA Vs Jargaba (2007) WRN 1, Okoli vs Morecan Finance Nig. Ltd (2007) 33 WRN 1, amongst others. Counsel stated that the words ‘without prejudice’ written on the face of MM5 was meaningless as it does not ordinarily render a document inadmissible and was inapplicable unless there was some dispute and negotiation and the terms of offer were made in settlement of the dispute or negotiation and that the court was entitled to look at the document to see if it meets the conditions and he referred to the cases of Grayshot Enterprises Ltd Vs Minister of Agriculture (2002) FWLR (Pt 106) 1055, Shropshire District council vs Amos (1987) All ER 340, United Bank of Africa Vs IAS Company Ltd (2001) FWLR (Pt 75) 578, amongst others.
Counsel stated that the Appellant did not depose to facts to warrant the matter being transferred to the general cause list.
Now the provisions of the High Court of Kano State Rules relating to the Undefended List provide a summary judgment procedure.
The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc vs Jargaba (2007) 17 NWLR (Pt 1045) 247, University of Benin vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.
The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale vs Eze (2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial the expense of justice – Macaulay vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 rule 3 (1) of the High court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend.
Thus, the simple issue for determination in this appeal is whether the lower court was correct when it found that the affidavit of the Appellant disclosed no defence on the merit.
The law is that for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo Vs Okogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. 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 the defence is and what facts and documents are relied on to support 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 – Ataguba & Co Vs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt.997) 452, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
A triable issue is an uncontroverted material allegation contained in the defendant’s affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a fair probability of a bona fide defence – Ataguba & Co Vs Gura (Nig) Ltd supra, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babington-Ashaye Vs E. M. A. General Enterprises Ltd (2011) 10 NWLR (Pt.1256) 479.
It must, however, be borne in mind that in considering whether a defendant made out a defence on the merit, a trial Court must never lose sight of the fact that it is not its duty at that point to determine whether the defence has been proved. It should simply look at the facts deposed to and determine if they prima facie afford a defence, not necessarily a complete defence, but one which shows a triable issue. The issue is not whether the defence will succeed or which of the parties will eventually succeed. Once the defendant deposes to facts which are on the face of it reasonable, not a fanciful or make believe defence, and one which raises some doubts regarding the claim of the plaintiff, he should be allowed in to defend. In other words, the success of the defence raised at the end of the case is not the criteria or yardstick for measuring whether it amounts to a triable issue or not – Tahir Vs Kapital Insurance Ltd supra, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq supra, Babington-Ashaye Vs E. M. A. General Enterprises Ltd supra, David vs Jolayemi supra.
Therefore, where a defendant has deposed to enough facts which entitle him to interrogate the plaintiff and indeed shows that he has a fair case for defence; reasonable grounds for setting up a defence of even a fair probability that he has a bona fide defence, he ought to be given the opportunity or leave to join issues with the plaintiff by the court transferring the case to General cause List for hearing on the merits. On the other hand, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness – Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc (2002) 15 NWLR (Pt.789) 46, Sanyaolu vs Adekunle (2006) 7 NWLR (Pt.980) 511.
The case of the Appellant on the notice of intention to defend was that the role he played in the entire transaction was that of a Solicitor to a disclosed principal, one Mustapha Isa, the vendor of the property in question, and that all his actions on the transaction were within the scope of his authority as agent and that as such he cannot be made personally liable. The Appellant, however, admitted that the bank draft in the sum of N7.5 Million for the purchase of the property, MM1, was made out in his personal name and that he issued a receipt acknowledging the collection of the money from the Respondent, MM2, in the name of his law firm. It was not in dispute that in furtherance of the sale of the property to the Respondent, the Appellant issued a notice, MM3, in the name of his law firm to the tenants in the property to vacate and relinquish possession. A read through the three documents, MM1, MM2 and MM3, show that nowhere therein did the Appellant state that he was acting either as Solicitor or agent to a disclosed principal.
It was not in dispute that when the Appellant was unable to put the Respondent in possession of the property, the Respondent caused his Counsel to write a letter to the Appellant asking for refund of the N7.5 Million paid to him and the Appellant responded by a letter, MM5, wherein he undertook to refund the money in installments. What is evident from all the documents is that the Appellant entered into the contract to sell the property in question to the Respondent in his personal name.
It is settled law that when a person makes a contract in his own name, without disclosing either the name of the existence of a principal, he is personally liable on the contract to the other contracting party, even though he may be in fact be acting on a principal’s behalf – West African Shipping Agency (Nig) Ltd Vs Kalla (1978) 3 SC (Reprint) 15, Asafa Foods Factory Ltd Vs Alraine Nigeria Ltd (2002) 12 NWLR (Pt 781) 353. In the words of Lord Reid in Basma vs Meekes (1950) AC 441 “an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.”
The defence of Appellant that he acted as agent of a disclosed principal and as such should not be personally liable cannot, in the circumstances, thus be a viable defence.
Counsel to the Appellant also canvassed the point that the letter acknowledging the indebtedness, MM5, was not meant for the consumption of the court because it carried the phrase “without prejudice” and that as such the lower court was wrong to have relied on it to ground the liability of the Appellant to refund the sum of N7.5 Million to the Respondent. With respect to counsel, this argument is neither here nor there, in the circumstances of this case. It was not in dispute that after the collection of the money for the purchase of the property, the Appellant was unable to put the Respondent in possession of the property.
It is trite that where party pays money to another under an ineffective contract, the party who pays is entitled to recover the money in quasi contract as money had and received for consideration that has failed. This specie of action is founded upon principles of equity where a party cannot in good conscience hold unto money which has come into his possession and its objective is to eliminate the concept of unjust enrichment – First Bank of Nigeria Plc Vs African petroleum Ltd (1996) 4 NWLR (Pt 443) 448, First Bank of Nigeria Plc Vs Ozokwere (2006) 4 NWLR (Pt 970), Chartered Bank Ltd vs First African Trust Bank Ltd (2005) LPELR-11350(CA), Oyebanji Vs Fowowe (2008) All FWLR (Pt 410) 786, First Bank of Nigeria Plc Vs Ozokwere (2013) LPELR-21897(SC). The point was succinctly made by Lord Wright in Fibrosa Spolka Akcyna vs Fairbarn Lawson Combe Barbour Ltd (1943) AC 32 at page 61 thus:
“The claim was for money paid for a consideration which had failed. It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep.”
The purchase price for the property it the instant case was paid directly to the Appellant in his personal name. Thus, irrespective of MM5, the Appellant is liable to refund the money he collected from the Respondent for a failed consideration.
The decision of the lower Court that the Appellant did not disclose a defence on the merits to warrant the transfer of this matter from the undefended list to the general cause list and in entering judgment in favour of the Respondent cannot be faulted by this Court. This appeal is devoid of merit and it is hereby dismissed. The ruling of the High Court of Kano State in Suit No K/177/2006 delivered by Honourable Justice Mohammed Haliru Abdullahi on the 13th of July, 2006 entering judgment in favour of the Respondent under the Undefended List Procedure is hereby affirmed. The Respondent is awarded the cost of this appeal assessed at N50,000.00. These shall be the orders of this Court.
DALHATU ADAMU, J.C.A.: I agree.
ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of my brother H.A.O Abiru JCA, that the appeal lacks merit and should be dismissed.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
Appearances
Ibrahim AdamuFor Appellant
AND
A. I. IsmailaFor Respondent
