DR. J.B.O. ADEWUMI v. ADEBEST TELECOMMUNICATIONS NIGERIA LIMITED
(2011)LCN/4730(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of July, 2011
CA/IL/60/2005
RATIO
GROUND OF APPEAL: WHETHER A GROUND OF APPEAL MUST EMANATE OR BE TIED TO THE DECISION OF THE LOWER COURT FROM WHENCE THE APPEAL AROSE
I must not hesitate to agree with the learned counsel to the Objector/Respondent on the general principle which has been established by a host of authorities too numerous to mention that for a Ground of Appeal to be valid or competent it must emanate or be tied to the decision of the lower court from whence the appeal arose. Indeed, as rightly submitted relying on the cases of Saraki v. Kotoye (1gg2) 12 SCNJ 26 at 43; Iloabuchie v, Iloabuchie (supra); Ido/Osi Local Government v. Aluko (supra); Bello v. Aruwa (supra); Mercantile Bank of Nig. Plc v. Nwobodo (supra); A.G. Katsina State v. Greener Lands Ltd. (2005) All FWLR (pt. 256) at 1353 and Alakija v. Abdulai (supra); all cited by learned counsel for the Objector/Respondent, a ground of appeal must be fixed and circumscribed within the controversy at issue. It must challenge the ratio decidendi and condescend to the errors of law and fact which are inherent in the judgment against which the Appellant predicates his prayer(s) for the judgment to be set aside. See Metal Construction (W.A.) Ltd, v. Miglore (1990) 1 NWLR 299 at 299 at 311; Per Karibi-Whyte, J.S.C. and Egbe v. Adefarasin (1987) 1 NWLR 1 at 23. Where therefore a Ground of Appeal arises from questions outside the decision of the court below, such a ground is incompetent, as rightly submitted by the learned counsel for the Objector/Respondent and ought to be struck out along with the issue formulated from same. See Atoyebi v. Governor Oyo State (1994) 5 SCNJ 12. PER IGNATIUS IGWE AGUBE, J.C.A.
ISSUE OF JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE RAISED WITHOUT LEAVE
…the dictum of Muhammed J.S.C. in Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592 at 615 paras. C – G, ably cited by learned counsel for Appellant where His Lordship succinctly stated the position of the law thus:- “Where a ground of appeal raises a question of law alone, it can be filed and argued without any leave of court first sought and obtained.The issue of jurisdiction is an issue of law, which can always be raised without leave.” See also Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt. 790) 33 and Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) 531. See further Oputa, J.S.C. in Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR 179 AT 188. As far back as L987, Obaseki, J.S.C., one of the most erudite and celebrated judicial icons to have adorned the hallowed sanctuary of the Supreme Court, could not have put the issue better and indeed expounded this principle most admirably in Western Steel Works Ltd. & Anor. v. Iron Steel workers Ltd (1987) 2 NWLR 179 at 188, inter alia:- “The fundamental nature of jurisdiction exempts it from any disabilities and restrictions which frustrate other legal points on appeal if not raised in the court below or at the appropriate time. The failure to raise it does I not invest the court with the competence it has not got. In line with the principle above enunciated, the Supreme Court made it abundantly clear that it is never too late or premature to raise the issue of jurisdiction whether at the Court of first instance or Appellate Court and when raised, the objection ought to be taken first and decided upon (State v. Onagoruwa (1992) 2 NWLR 33; Oloba v. Akereja (1955) 3 NWLR 508), as leave of the Appellate Court is unnecessary to raise it as fresh ground since the court can itself raise it suo motu. Obikoya v. The Registrar of Companies (1975) 4 SC 31 at 35; all refer. PER IGNATIUS IGWE AGUBE, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 6 RULE 2(3) OF THE RULES AS IT REGARDS THE NEED FOR GROUNDS OF APPEAL TO BE CONCISE, PRECISE AND UNDER DISTINCT HEADS WITHOUT BEING UNNECESSARILY ARGUMENTATIVE, OR NARRATIVE
Order 6 Rule 2(3) of the Rules on the other hand states that:- “(3) The 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 and shall be numbered consecutively.” The rationale behind the provisions of Order 6 and the Rules cited by the Respondent/Objector and the need for grounds of appeal to be concise, precise and under distinct heads without being unnecessarily argumentative, lengthy, narrative and/or elaborate and must deal with the real complaint upon which the ground is predicated, is to furnish the Respondent with the case to be met and narrow down the issues at the hearing. It is also for purposes of avoiding the elements of surprise on the other party. See B.P. (West Africa) Ltd. v. Allen (1962) 1 All NLR 645 at 649; Alade v. Alenutoke (1955) 1 NWLR 207; National Investment and Properties Ltd. v. Thompson Organization (1969) NMLR 99. PER IGNATIUS IGWE AGUBE, J.C.A.
OMNIBUS GROUND OF APPEAL: PURPOSE OF AN OMNIBUS GROUND OF APPEAL
The case of Dafa v. F.C.D.A. (supra) was decided in 1994 by the Court of Appeal and although their Lordships relied on the Supreme Court cases of Mogaji v. Odofrn and Odufunade v. Rossek; the apex Court two years later in Ajibona v. Kolawole (1996) 12 S.C.N.J. 270 at 280 paras. 30 40, per ogwuegbu, J.S.C.; explained the essence of a Ground of Appeal which complains that the judgment is against the weight of evidence inter alia:- ‘An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It implies that the judgment of the trial court cannot be supported by the weight of the evidence (elicited) by the successful party which the trial -judge either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified. An omnibus ground of appeal also implies that there is no evidence which if accepted would support the findings of the trial-judge.” See Anyaoke & ors. v. Adi & ors. (1986) 17 NSCC (pt. II) 799; Chief Abah Ogbodo v. Adulugba 1971) All NLR 70 (Reprint) and Nta & Ors. Anigbo &o 7 Ors. (1972) All NLR 510 at 516 (Reprint). PER IGNATIUS IGWE AGUBE, J.C.A.
ENFORCEMENT OF A CONTRACT: WHETHER A CONTRACT CAN BE ENFORCED BY A PERSON WHO IS NOT A PARTY
This principle of law was long established by Lord Haldane in the English locus classicus of Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge Ltd. (1915) A.C. at page 853; when he posited:- “My Lords, in the law of England, certain principles are fundamental. One is that only a person who is party to a contract can sue on it. Our law knows nothing of jus quaesitun tertio arising by way of property as for example, under trust, but it cannot be conferred on a stranger to a contract as a right in personnam to enforce the contract.” Coming home to Nigeria and in particular to the peculiar circumstances of this case, the principle underlying the decision by Lord Haldane in the afore cited case was adopted in Ikpeazu v. African Continental Bank Ltd. (1965) NMLR 374 at 379, where Ademola, CJN, delivering the lead judgment of Supreme Court with Brett, Bairamian, Onyeama and Ajegbo JJ.S.C. concurring, held thus:- “Generally a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it – Tweddle v. Atkinson 30 L.J.Q.B. 265; Dunlop Pneumatic Tyre co. Ltd. v. selfridge (1915) A.C. 847. The position is stronger with regard to contracts under seal, unless a person is named as a party to a deed, he cannot maintain an action upon it – Chesterfield and Midland Silkstone Colliery Co. v. Hawkins (1865) 3 H x C. 677. The only exemption to this rule relates to indenture made about land which was introduced by Section 5 of the Real Property Act 1845 to enable a stranger to a deed to take advantage of a benefit to him in the deed.” See also Et Co. (Nig-) Ltd. v. Western Nigeria Development Corporation (WNDC) reported at page 403 of “sagay. Nigerian Law of contract,’ 2nd Edition, 2001 published by spectrum Law series; shuwa v. chad Basin Authority (C.B.A) (1991) 2 NWLR (pt. 205) p. 550; UBN plc v, sparkling Breweries Ltd. & Ors. (1997) 5NWLR (pt. 505) 344 at 363. See further Atfotin Ltd. (The owners of M. V. Tofini) v. the Attorney-General of the Federation & Anor. (1996) 12 SCNJ 236 at 254 – 255 and 256, per Iguh JSC. The corollary of the situation is as stated in Ilesha Local planning Authority (LPA) v. Olayide (1994) 5 NWLR (pt. 342) 91, Mercantile Bank v. Abusonwan (1956) 2 NWLR (pt. 22) 270 and Incar v. Ojomo (1988) 5 NWLR (pt. 39) 111; that since a person who is no privy or party to a contract cannot bring an action to enforce it, so too can he not be liable or sued for the enforcement of the contract. PER IGNATIUS IGWE AGUBE, J.C.A.
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
DR. J.B.O. ADEWUMI
(PROPRIETOR, THOMAS ADEWUMI COLLEGE, OKO) – Appellant(s)
AND
ADEBEST TELECOMMUNICATIONS NIGERIA LIMITED – Respondent(s)
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated the 17th day of November, 2003 and filed on the 6th day of October, 2003, the Plaintiff (now Respondent) claimed from the Defendant (now Appellant) the following:-
“i. N800,000.00 being the cost of SR 20 Rural Telephone Facilities supplied and installed by the Plaintiff at Thomas
“ii- 10% interest per annum on the aforesaid sum of N800.00 from date of judgment till final liquidation of same”
The claim was predicated on the fact according to the plaintiff/Respondent, that:
“Sometime in July, 2000, the Defendant/Appellant contracted the Plaintiff for the supply and installation of SR 20 Rural Telephone facilities at Defendant’s School – i.e. Thomas Adewumi College, Oko in Irepodun Local Government Area, Kwara State, at the cost of N800,000.00. The Plaintiff successfully and satisfactorily did the supply and installation where upon the defendant issued a Union Bank Oro Cheque for half the correct sum but which cheque was dishonoured upon several presentations at the Bank. Inspite of this and several Demands, the Defendant has failed and neglected to pay the Plaintiff’s money. ” See page 9 of the Record of Proceedings.
In support of the Writ of Summons, the Plaintiff/Respondent’s Managing Director (Julius Awoyemi Adebayo), deposed to an affidavit of seventeen paragraphs wherein he averred in paragraphs 3 – 15 inter alia:-
“3. That the Plaintiff is a limited liability company dealing, inter alia in supply and installation of telephone equipments and her head office is at No. 1 Otunola Adebayo Street, Owoniboy’s Building, Ilorin,
“4. That the Defendant herein is the Proprietor of Thomas Adewumi College, Oko.
“5. That sometime in July 2000, the Defendant contracted the Plaintiff for the supply and installation of SR 20 Rural Telephone facilities at Thomas Adewumi College, Oko in Irepodun L.G.A. Kwara State. A copy of the Plaintiff’s letter of proposal/quotation dated 7/7/2000 is herewith attached as Exhibit A.
“6. That subsequent to Exhibit A, the Defendant agreed unconditionally with the Plaintiff for the supply and installation of the telephone facilities at the sum of Eight Hundred Thousand Naira (N800,000. 00).
“7. That the Plaintiff successfully and satisfactorily did the supply and installation of the telephone services in July, 2000. A copy of the Plaintiff’s letter of completion dated 15/7/2000 is herewith attached as Exhibit B.
“8. That to the Defendant’s knowledge and approval, the installation had to be connected with Nigerian Telecommunications Ltd (NITEL) facilities (i.e. Offa NITEL Exchange) whereupon the Defendant was to be paying the necessary charges to NITEL.
“9. That the Defendant used the said telephone facilities supplied and installed by the Plaintiff as, for instance, same is reflected in the payment made by the Defendant to NITEL for the month of August, 2000. A photocopy of the NITEL Bill used for payment by the Applicant is herewith attached and marked Exhibit C.
“10. That when the Defendant was failing in his obligation to NITEL as stated in paragraph B above, NITEL had to write to the Defendant in respect of same on 26/1/2001. A photocopy of the said NITEL letter together with the attached bill is herewith attached and marked Exhibits D and D1 respectively.
“11. That after the Plaintiff had completed the job, the Principal of the Defendant’s school wrote to the Plaintiff awarding an already executed contract. A copy of the said letter dated 16/9/2000 is herewith attached and marked as Exhibit E.
“12. That the plaintiff replied to Exhibit E by expressing her resentment at awarding an already executed contract and demanded for her money. A copy of the Plaintiff’s reply dated 18/9/2000 is herewith attached and marked as Exhibit
“13. That it was because the telephone facilities supplied and installed by the Plaintiff was working satisfactorily that the Defendant issued a union Bank, Oro Cheque for the sum of Four Hundred Thousand Naira (N400,000.00) dated 27/9/2000 being half of the total contract sum, while pleading for a month to settle the remaining balance.
“14. That the plaintiff presented the Defendants’ cheques stated in paragraph without the cheque being honoured. A photocopy of the said chegue is herewith attached and marked as Exhibit G. “15. That thereafrer, the Plaintiff has been making several repeated demands for her money but the Defendant has failed to pay anything.”
In particular the Plaintiff/Respondent averred in paragraph 16 of the affidavit thus i “16. That I verily believe that the Defendant has no defence to this suit.’ Annexed to the Affidavit in support of the Writ of Summons were documents marked Exhibits A, B, C, D, DI, E, F and G. Exhibit A captioned “PROPOSAL FOR THE SUPPLY AND INSTALLATION OF TELEPHONE FACILITY TO YOUR COLLEGE” with Reference ATs/voL.333/7/2K, dated 7/7/2000; is a letter addressed to the Proprietor Thomas Adewumi College Oko, Irepodun Local Government Area, Kwara State; as the proposal for the supply and installation of Digital SR. 20 Rural Telephone facility to the proprietor’s School, Thomas Adeyemi College, Oko, Kwara State. The proposal enumerated the quality of the facility and accessories with a guarantee that they would do the job without collecting any money from the Defendant/Appellant’s office and that the Defendant could pay after the completion of the job. The Respondent included Quotation of a grand total of N2,004,656.00 as cost for the job and same was signed by Mr. Thadeus Adeponle (PRO to the Managing Director of the Plaintiff/Respondent).
Exhibit B is also a letter addressed to the Proprietor of the College and captioned “COMPLETION OF THE SUPPLY AND INSTALLATION OF DIGITAL RITRAL TELEPHONE FOR THOMAS ADEWUMI COLLEGE, OKO” which letter was signed by Sulaiman Abiodun for the Managing Director of the Respondent. Exhibit C is a photocopy of NITEL Bill used for payment by the Appellant to show that the Defendant/Respondent used the telephone facilities supplied and installed by the Respondent as reflected for the month of August, 2000.
Exhibit D dated 26th January, 2001, is a letter from the Nigerian Telecommunications Ltd. (NITEL) addressed to the Principal of Thomas Adewumi College; demanding from the college payment of outstanding Bill on use of NITEL infrastructure and Relocation of the College Telephone equipment. The letter is signed by G.O. Ogundeji (Senior Manager (DC), Kwara State Territory and a copy sent to the Managing Director of the Respondent. Exhibit DI are copies of Bills/Pay-slips of the Nigerian Telecommunications Ltd. for the sum of N288,375.00 issued at the instance of the Principal of Adewumi College, Oko, Kwara State for July December, 2000 and December, 2001 in the sums of N76,125.00 and N152, 250.00 respectively.
Exhibit E is a letter of approval of the supply and installation of the SR 20 VHF, the Digital Telephone facilities for the college, signed by the principal of the College, Mr. White Bread and addressed to the Respondent. That letter is dated 16th September, 2000.
By Exhibit F dated 18th September, 2000, from the Respondent to the Principal of the College, the Respondent rejected the approval of the contract awarded her on the basis that the job had already been done without the Defendant/Appellant giving the respondent any letter to that effect and that the price of N2,000,000.00 was for the supply and installation with Real Mast and NITEL Bill but that since the Defendant/Appellant had a Real Mast, their (Appellant’s) Proprietor reduced the price to N800,000.00 (Eight Hundred Thousand Naira) only, and including NITEL Bill of N250,000.00 (Two Hundred and Fifty Thousand Naira) only, the total contract sum ought to be N1,050,000 (one Million Fifty Thousand Naira) only.
The Respondent expressed her intention no longer to collect her money on installment basis because the job had since been completed on the 15th of July, 2000 without the Defendant/Appellant’s letter of contract Award. Finally, Exhibit G is a Union Bank Cheque issued in favour of the Plaintiff/Respondent by the Defendant/Appellant.
Apart from the Affidavit in Support of the writ of Summons, the Plaintiff/Respondent also, pursuant to order 12, Rule 5 and order 23, Rule 1 of the Kwara State High court (civil Procedure) Rules, 1989; by a Motion Exparte dated the 3rd day of October, 2003 and fifed on the 6th of October, 2003; and the inherent jurisdiction of the court, prayed for the following Orders:-
“1′ An Order of the Honourable Court entering the plaintiffs suit for hearing on the undefended List and marking the writ of Summons accordingly.
“2. An Order granting leave to serve the Defendant/Respondent with the writ of summons and other court processes in this case by substituted means, to wit by delivery of same to the principal of Thomas Adewumi college, oko, in Irepodun Local Government Area Kwara State, being an agent of the Defendant/Respondent.
“3. And for such further or other order(s) as the court may deem fit to make in the circumstance.”
The motion was supported by a ten paragraph affidavit wherein the self same Julius Awoyemi Adebayo, Businessman of Abidoye Lanre, G.R.A. Ilorin, Kwara state, deposed to the following facts:-
“1. That I am the managing Director of the Plaintiff/Applicant herein by virtue of which position, I am very conversant with the facts of this case.
“2. That I have the consent and mandate of the Plaintiff/Applicant to swear to this affidavit.
“3. That the Plaintiff/Applicant instructed her counsel, S.O. Jimoh Esq, to institute this action against the Defendant/Respondent.
“4. That S.O. Jimoh, Esq. told me and r verity believe same to be true that leave of this Honourable Court is needed to bring this suit under the Undefended List.
“5. That plaintiff/Applicants claim is as stated in the Writ of Summons already filed while the grounds upon which the claim is based are contained in the affidavit supporting the said Writ of Summons.
“6. That the Defendant/Respondent is mostly resident in Ibadan and travels abroad from time to time.
“7. That the Defendant/Respondent is the Proprietor of Thomas Adewumi College, Oko, Irepodun Local Government Area of Kwara State.
“8. That I verily believe that if the Writ of Summons and other court processes in this suit are served on the Principal of Thomas Adewumi College, Oko same will come to the knowledge of the Defendant/Respondent.
“9. That I verily believe that the Defendant/Respondent will not be prejudiced if this application is granted.
“10. That I swear to this affidavit bona fide.”
On the 20th day of October, 2003, learned counsel for the Plaintiff/Applicant moved his Motion Ex-Parte before M.A. Akoja, J. of the Omu-Aran Judicial Division of the High Court of Justice, Kwara State; who in his considered Ruling delivered on the 17th day of November, 2003, granted all the prayers and ordered accordingly, that:
“(i) A Writ of Summons be issued and entered for hearing as an “Undefended List” action.
“(ii) The Writ of Summons shall be marked as “Undefended’,
“(iii) Defendant/Respondent shall be served with the Writ of Summons and other court processes in this case by delivering same to the Principal of Thomas Adewumi College, Oko, in Irepodun Local Government Area of Kwara State, being an agent of the Defendant/Respondent.”
Following the delivery of the Ruling the substantive case was adjourned to Wednesday, 28th of January, 2004. When the case was called although the Court recorded that parties were absent, it is recorded at page 25 line 3 that “David Adeniyi Ashonibare, the Bursar to Adewumi college represents the Defendant”
S.O. Jimoh Esq., then announced his appearance for the Plaintiff and intimated the court that the case was for hearing that day and that pursuant to the Order made on the 17th day of November, 2003, the Defendant had been served and that if the court was disposed they were ready to go on.
The Bursar on the other hand, intimated the court that they were only served with the processes on the 22nd of January, 2004 and they immediately got in contact with their lawyer in Abuja who promised to be in court that day and they were still expecting him. At that juncture, Mr. Jimoh drew the court’s attention to the endorsement on the back of the process which showed that the Acting principal of the School, Joseph Ishola Abolarin signed as having been served on the 20th of January, 2004, rather than the 22nd day of January, 2004, as purported by the said Bursar.
Following this revelation the learned trial Judge ruled that he was satisfied from the endorsement and the Order of the Court served on the Ag. principal of Thomas Adewumi college, that all processes were duly served on the representatives of the Defendant on Tuesday, 20-01-2004 and not Thursday, 22nd day of January, 2004, as alleged by the Bursar, who was representing the Defendant in the case. Accordingly, he ordered that Mr. Jimoh was free to proceed with his case.
Mr. Jimoh then proceeded to state the case of the Plaintiff submitting with references to the facts, the Exhibits attached to the affidavit in support of the Writ of Summons and in particular paragraph 16 of the affidavit which averred that the Defendant had no defence to the suit having failed to file a Notice of intention to defend and affidavit for the suit to be heard on the merit. He further placed reliance on the cases of Goronyo v. U.B.A. Plc. (2000) FWLR (pt. 22) 1102/1109 and Alale v. Olu (2000) FWLR (pt.23) 1308 – 1309 and Order 23 Rule 4, to urge the court to give judgment in, favour of the plaintiff as per his Writ of Summons. Thereafter, the learned trial judge adjourned the case to the 23rd of February, 2004 for Ruling.
On the 23rd day of February, 2004, when the Ruling/Judgment was to be delivered, S.O. Jimoh Esq. appeared for the Plaintiff while T.A. Oladele Esq. appeared for the Defendant/Applicant. The Court however remarked that: “This case is for Ruling/Judgment this morning. The Judgment of this court is ready and would be delivered presently.’ See page 27 of the Record of Proceedings. His Lordship’s Judgment contained in pages 28 – 33 was then delivered and the Reliefs sought by the Plaintiff for the sum of N800,000.00 being cost of SR20 Rural Telephone Facilities supplied and installed by the Plaintiff at Thomas Adewumi College, Oko, at the instance of the Defendant, to be paid to the Plaintiff by the Defendant, was ordered along with 10% post judgment interest per annum on the said sum in favour of the Plaintiff from the date of the judgment until final liquidation.
Dissatisfied with the judgment of the learned trial Judge, the Defendant gave Notice of Appeal in the lower Court with five Grounds as contained in pages 48 to 49 of the Record of proceedings. Stripped of their respective particulars, the Grounds of Appeal are hereunder reproduced as couched:-
“GROUNDS APPEAL
1. The learned Trial Judge erred in law in entertaining the suit being incompetent and devoid of jurisdiction to do so.
2. The learned Trial Judge erred in law to have given judgment when sufficient Evidence and weighty grounds were not disclosed on Affidavit in support of the Writ of Summons.
3. The learned Trial Judge erred in law to have awarded N800,000.00 to the Respondent being the cost of SR 20 Rural Telephone facilities supplied and installed by the Plaintiff/ Respondent at Thomas Adewumi College, Oko, Kwara State.
4. That the learned Trial Judge erred in law to have disregarded the Notice of Intention to defend filed on the 20th of , February 2004 and proceeded to give judgment on 23rd of February, 2004. 5. The judgment is against the weight of evidence. ”
Upon transmission of the Record of Proceedings from the lower court hereto, this court in accordance with the Rules ordered pleadings to be exchanged by the parties. In the Brief settled by Akinyele Sanyaolu, Esq. of Rabonni Chambers, Harrods Buildirgs, Awolowo Junction, Bodija Ibadan, Oyo State; the learned Counsel for the Appellant distilled two Issues for determination couched in the following terms:-
“1. Whether considering the facts of this case, the appellant could be said to be proper party before the trial court. (see Grounds 1 and 5 of the Notice of Appeal).
2. Whether the learned trial Judge was right when he proceeded to enter judgment against the Defendant /Appellant under the Undefended List Procedure in view of the depositions in the Defendant/Appellant’s Affidavit. See Grounds 2, 3 and 4 of the Notice of Appeal. ”
In the Respondent’s Brief settled by Samuel O. Jimoh, Esq. the learned counsel for the Respondent, a sole issue for determination couched inter alia was formulated thus:-
“1. Whether the learned trial Judge was right when he proceeded to enter judgment for the Plaintiff/Respondent under the Undefended List Procedure and without regard to the Defendant’s/Appellant’s purported notice of Intention to Defend filed on the 20/2/2004 – Grounds 2, 3, 4 and 5. ”
It is pertinent to note however, before proceeding to deal with the arguments and resolution of the issues raised by the parties, that the learned counsel for the Respondent had raised a preliminary objection to the effect that the Appellant’s Grounds of Appeal are incompetent. Picking on the Grounds seriatim, it has been submitted on Ground I, that this ground is neither related to the decision of the lower court nor does it constitute a challenge to any ratio of the decision.
According to the learned counsel for the Respondent who relied on Saraki v. Kotoye (1992) 12 SCNJ 26 at 43 and Iloabuchie v. Iloabuchie (2000) 5 NWLR (pt. 626) 194 at 203, it is trite law that for a Ground of Appeal to be competent, it must arise from the decision of the Court and/or constitute a challenge to the ratio of such decision. Learned Counsel for the Respondent also cited Ido/osi Local Government v. Aluko (2007) All FWLR (pt. 352) 1807 at 1816 1817; Bello v. Aruwa (1999) 8 NWLR (pt. 615) 454 at 468; Mercantile Bank of Nigeria Plc v. Nwobodo (2005) All FWLR (281) 1640 at 1647; A.G. Katsina state v. Greener Lands Ltd. (2005) All FLWR (pt. 256) 1342 at 1353 and Alakrya v. Abdullai (1995) 5 SCNJ 1 at 18, to buttress his submissions in that regard.
In the instant case, learned counsel for the Respondent contended, the question of whether the Appellant was a proper party was never an issue before the Court and was never pronounced upon by that court in its judgment. Placing reliance again on the cases of Chiorlu v. Akani (2001) FWLR (pt. 71) 1781 at 1788; A.G. Katsina State v. Greener Lands Ltd (supra); Iloabuchie v. Iloabuchie (supra); Dafa v. F.C.D.A. (1994) 4 NWLR (pt.340) 549 at 555; Alakija v. Abdullahi (supra) at 1353 – 1534, he was of the view that Ground 1 and Issue Number 1 based on it are incompetent and liable to be struck out.
In the alternative, he submitted that at best Ground 1 and Issue Number 1 formulated there from constitute fresh issue raised by the Appellant for the first time in the Court of Appeal and can only be done with the leave of Court. The Appellant in this case, he maintained, did not seek leave of this court and was therefore not granted leave to raise the issue whether or not the Appellant is a proper party in the case. He asserted further that even if the Appellant had sought leave, he would still not have been entitled to obtain same having not filed a Notice of Intention to defend . Brifina Ltd v. International continental Bank Ltd (2002) FWLR (pt. 116) 863 at 867 E – F; was cited to buttress the above contention and to further urge us on the authorities of Wilkey v. Ogiegbaen (2001) FWLR (pt 71) 1729 at 1740 and Yakubu v. Tsauri (2004) All FWLR (pt. 213) 1869 at 1882, to strike out Ground 1 of the grounds of Appeal and Issue Number 1 formulated in the Appellant’s Brief.
As for Ground 2, the learned counsel for the Respondent also pilloried same for being vague and general in terms contrary to Order 6 Rule 3 of the Court of Appeal Rules 2007, more so, when the sole particular is argumentative contrary to Order 6 Rule 2 (3) of the Court of Appeal Rules, 2007.The Ground, he has also argued, is akin to an Omnibus Ground of Appeal which the Appellant is not entitled to file having not led evidence at the lower court. Dafa v. F.C.D.A. (supra) at 555 and Odufunade v. Rossek (1962) 1 SCNLR 170 it 173, refer. It was further submitted that a careful reading of the argument of counsel reveals that no issue was distilled from Ground 2 and the Ground is deemed abandoned because the Appellant has formulated his issue partly from Ground 2 which ground is about weight of evidence adduced by the Respondent in support of his Writ of Summons but that the Appellant’s argument thereon is stricto sensu based on Ground 4 of the Grounds of Appeal on his Notice of Intention to Defend.
He accordingly submitted that where a Ground of Appeal is not covered by an issue formulated in a Brief, such ground is deemed abandoned and liable to be struck out.
Turning to Ground 4, learned counsel submitted and urged us to strike out same for incompetence on the following grounds:-
(a) The ground does not relate or arise from the decision of the lower court but constitute a fresh issue raised without f eave of this Honourable Court.
(b) Even but not conceding that the Ground is competent, having been argued under Issue 2 which purportedly covers Grounds 1, 2 and 4 which are in themselves incompetent, Issue 2 becomes contaminated and liable to be struck out and he so urged us to do.
In respect of Ground 5 which learned counsel also categorized as omnibus ground, he noted that the judgment of the lower court was based on affidavit evidence of the Respondent in support of her Writ of Summons.
Whereas, he contended, there was no affidavit evidence from the Appellant before the lower court, the lower court had no evidence to be compared with that of the Respondent. He repeated his earlier submission and placed reliance still on Dafa v. F.C.D.A. (supra) and Odufunade v. Rossek (supra) to insist that the omnibus Ground that the judgment of the court below was against the weight of evidence cannot avail the Appellant. He also contended that assuming the said Ground 5 is competent, same having been argued under Issue Number 1 and Ground I, the Ground is incompetent for being contaminated and should be struck out.
Concluding his argument on the Preliminary Objection, it was submitted that this court is duty bound to determine appeals only on competent grounds challenging the decision of the court of trial even where no preliminary objection is raised. Dafa v. F.C.D.A. (supra) at 555 was again cited to further submit that in the Appeal at hand, since all the five grounds contained in the Notice of Appeal have been found to be incompetent, the Notice of Appeal is a nullity and this Honourable Court has the power to strike out same on the authority of Wilkey v. Ogiegbaen (supra) at 1239.
In the same vein, he finally argued, the two issues formulated by the Appellant on the incompetent Grounds are also rendered incompetent and accordingly the entire appeal should be dismissed as done in Yakubu v. Tsauri (supra) at 1882.
In the determination of the Preliminary Objection raised by the learned counsel to the Respondent on the competence of the Grounds of Appeal and the issues formulated there from, I must not hesitate to agree with the learned counsel to the Objector/Respondent on the general principle which has been established by a host of authorities too numerous to mention that for a Ground of Appeal to be valid or competent it must emanate or be tied to the decision of the lower court from whence the appeal arose. Indeed, as rightly submitted relying on the cases of Saraki v. Kotoye (1gg2) 12 SCNJ 26 at 43; Iloabuchie v, Iloabuchie (supra); Ido/Osi Local Government v. Aluko (supra); Bello v. Aruwa (supra); Mercantile Bank of Nig. Plc v. Nwobodo (supra); A.G. Katsina State v. Greener Lands Ltd. (2005) All FWLR (pt. 256) at 1353 and Alakija v. Abdulai (supra); all cited by learned counsel for the Objector/Respondent, a ground of appeal must be fixed and circumscribed within the controversy at issue. It must challenge the ratio decidendi and condescend to the errors of law and fact which are inherent in the judgment against which the Appellant predicates his prayer(s) for the judgment to be set aside. See Metal Construction (W.A.) Ltd, v. Miglore (1990) 1 NWLR 299 at 299 at 311; Per Karibi-Whyte, J.S.C. and Egbe v. Adefarasin (1987) 1 NWLR 1 at 23.
Where therefore a Ground of Appeal arises from questions outside the decision of the court below, such a ground is incompetent, as rightly submitted by the learned counsel for the Objector/Respondent and ought to be struck out along with the issue formulated from same. See Atoyebi v. Governor Oyo State (1994) 5 SCNJ 12. It is against this back ground that we shall consider the competence vel non of the Appellant’s Grounds of Appeal.
GROUND 1: That Ground complains that: “The learned trial Judge erred in law in entertaining the suit being incompetent and devoid of jurisdiction : –
PARTICULARS OF ERROR
1. The Defendant/Appellant is not a proper party before the court.
2. Thomas Adewumi College, Oko is an incorporated body duly registered with Corporate Affairs Commission, Nigeria and has a distinct legal personality from its Proprietor Dr. J.B.O. Adewumi.”
I have gone through the entire gamut of the judgment of the lower Court page by page and very discreetly too, but I cannot find where the lower court pronounced on the issue of the Defendant not being a party to the suit and the corporate personality of Thomas Adewumi College, Oko, which according to the only particular of Ground 1 of the Grounds of Appeal under scrutiny or sought to be struck out, was registered as an incorporated body with the Corporate Affairs Commission. Ordinarily, in line with the decided cases above cited and relied upon by the learned Counsel to the Respondent/Objector, Ground 1 of the Appellant’s Ground of Appeal ought to be struck out for being incompetent, it not being a challenge to the ratio decidendi of the lower court.
Again, if the authorities of Brifina Ltd. v. Intercontinental Bank Ltd (supra) and Yakubu v. Tsauri (supra); are anything to go by, then, the Ground and the Issue formulated from it, on another score, are fresh issues for which the leave of court must be sought and obtained before filing and argument. Indeed, from another dimension, since this is a matter heard by the learned trial Judge under the “Undefended List” Procedure, where the Appellant did not file a Notice of Intention to Defend, he was and ought not be given leave to argue a fresh ground or issue on appeal as this would tantamount to inviting the Appellant to sneak in from the back door in a bid to hoodwink both the Court and in particular the Respondent/Objector in this Appeal to challenge the decision of the trial Judge.
In line with good practice, the learned counsel to the Appellant has in the Appellant’s Reply Brief canvassed a very salient and alluring contention when he conceded on the authorities of Alabi v. Doherty (2005) 18 NWLR (pt. 957) 430 C.A; Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684; Kotawote v. Alberto (1989) I NWLR (pt. 9S) 352; Ugo v. Obiekwe (1959) 1 NWLR (pt. 99) 566; Omo v. Judicial Service Commission Delta State (2000) 12 NWLR (pt. 682) 444; that it is settled law that fresh points will not be allowed on Appeal where such issues were not pronounced upon by a court of first instance nor will an Appellant be allowed to raise on appeal a question not raised, tried or considered by the trial court. He has however further submitted that, where the question involves substantial points of law, substantive or procedural and it is clear that no further evidence would be adduced which would affect the decision on it, the court will allow the question to be raised and points taken to prevent miscarriage of justice.
We cannot agree more with the learned counsel for the Appellant and there are authorities galore which tend to support his views that, since Ground 1 being pillaried raises the fundamental and threshold issue of jurisdiction predicated on the error of omission and commission of the lower court in the entertainment of the suit as constituted, that issue is a substantial point of law both substantive and procedural which this court ought to and can entertain even when raised for the first time without leave. We in so doing, derive support from the dictum of Muhammed J.S.C. in Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592 at 615 paras. C – G, ably cited by learned counsel for Appellant where His Lordship succinctly stated the position of the law thus:-
“Where a ground of appeal raises a question of law alone, it can be filed and argued without any leave of court first sought and obtained. The issue of jurisdiction is an issue of law, which can always be raised without leave.” See also Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt. 790) 33 and Obatoyinbo v. Oshatoba (1996) 5 NWLR (pt. 450) 531. See further Oputa, J.S.C. in Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR 179 AT 188.
As far back as 1987, Obaseki, J.S.C., one of the most erudite and celebrated judicial icons to have adorned the hallowed sanctuary of the Supreme Court, could not have put the issue better and indeed expounded this principle most admirably in Western Steel Works Ltd. & Anor. v. Iron Steel workers Ltd (1987) 2 NWLR 179 at 188, inter alia:-
“The fundamental nature of jurisdiction exempts it from any disabilities and restrictions which frustrate other legal points on appeal if not raised in the court below or at the appropriate time. The failure to raise it does I not invest the court with the competence it has not got.”
In line with the principle above enunciated, the Supreme Court made it abundantly clear that it is never too late or premature to raise the issue of jurisdiction whether at the Court of first instance or Appellate Court and when raised, the objection ought to be taken first and decided upon (State v. Onagoruwa (1992) 2 NWLR 33; Oloba v. Akereja (1955) 3 NWLR 508), as leave of the Appellate Court is unnecessary to raise it as fresh ground since the court can itself raise it suo motu. Obikoya v. The Registrar of Companies (1975) 4 SC 31 at 35; all refer.
From the above decisions of the apex Court which make no distinction as to suits commenced under the Undefended List Procedure and others of different species, the authorities cited by the learned counsel for the Objector/Respondent and in particular Ido/Osi Local Government v. Aluko (supra) and Brifina Ltd. v. International Continental Bank Ltd. (supra), may have been decided on sound principles, peculiar facts and circumstances but are cited herein, out of context. They are accordingly not applicable to the peculiar circumstances of this case and therefore have been discountenanced. We therefore hold that Ground 1 of the Grounds of Appeal and Issue Number 1 formulated from it are competent.
GROUND 2 avers thus:-
“The learned Trial Judge erred in law to have given judgment in the suit when sufficient Evidence and weighty grounds were not disclosed on the Affidavit in support of the Writ of Summons. ‘
PARTICULARS OF ERROR
“1. Where sufficient and weighty grounds were not disclosed in the Affidavit in support of Writ of Summons, the Trial Judge ought to have transferred the matter to the General cause list for hearing on its merit.”
Beginning from the first arm of the argument of the learned counsel for the Respondent/Objector, Order 6 Rule 3 of the Court of Appeal Rules, 2007 provides that:-
“Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence and a ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the Respondent.”
Order 6 Rule 2(3) of the Rules on the other hand states that:-
“(3) The 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 and shall be numbered consecutively.”
The rationale behind the provisions of Order 6 and the Rules cited by the Respondent/Objector and the need for grounds of appeal to be concise, precise and under distinct heads without being unnecessarily argumentative, lengthy, narrative and/or elaborate and must deal with the real complaint upon which the ground is predicated, is to furnish the Respondent with the case to be met and narrow down the issues at the hearing. It is also for purposes of avoiding the elements of surprise on the other party. See B.P. (West Africa) Ltd. v. Allen (1962) 1 All NLR 645 at 649; Alade v. Alenutoke (1955) 1 NWLR 207; National Investment and Properties Ltd. v. Thompson Organization (1969) NMLR 99.
Based on the foregoing background and authorities above cited, we have had a careful perusal of the questioned Ground of the Appellant’s Grounds of Appeal and contrary to the submissions of the” learned counsel for the Respondent/Objector, the Ground is precise, concise, and not vague or argumentative as erroneously contended. It is under a distinct head as it has set out substantially the grouse of the Appellant on the error committed by the learned trial Judge in giving judgment to the Respondent without sufficient and weighty evidence being disclosed in the Affidavit in support of the Writ of Summons.
The particular is also to the point that there being no weighty grounds in the said affidavit to ground the judgment of the lower court, the Court ought to have transferred the suit to the General Cause List. We therefore find nothing offensive and in breach of Order 6 Rules 2(3) and 3 of the Court of Appeal Rules, 2007. The Ground is therefore competent and not akin to omnibus ground as purported by the learned counsel for the Respondent/Objector. Dafa v. F.C.D.A. (Supra) and Odufunade v. Rossek, even though decided on sound principles and in their particular circumstances, are with the greatest respect not applicable to the facts of this case.
It is also not true that that the Ground is not covered by the Issue formulated. Although it is conceded that in the course of arguing the issue, the learned counsel concentrated in extenso on the Notice of Intention to Defend filed by the Appellant in the Court below which the Learned trial Judge ignored ;and the Learned Counsel for the Appellant only dealt with the salient issue of the failure of the trial court to consider the entire evidence as deposed to in the Affidavit in support of the Writ of Summons in paragraph 5.1 of the Brief i.e. the summary and conclusion, we are of the view that the Appellant has sufficiently intimated the Respondent of his grievance so that issues can be joined there on. It cannot be said in the face of paragraph 5.1 of the Brief that the Appellant had abandoned the Ground and we refuse to strike out the Ground as prayed by the Respondent’s counsel.
As for GROUND 4, which the learned counsel for the Respondent/Objector has condemned as being incompetent in that it does not relate to the decision of the Court below, nothing can be further from the truth than such a submission. That Ground is concise and precise and questions the error committed by the learned trial Judge in refusing to countenance the Notice of Intention to Defend filed on the 20th of February, 2004, but proceeded to give judgment on the 23rd of February, 2004, in favour of the Respondent inspite of the pendency of the said Notice before the judgment.
With the greatest respect to the learned counsel to the Respondent /Objector, that issue emanated from the decision of the Court below as can gleaned from page 27 of the Record of Proceedings of 23-02-2004, where T.A. Oladele Esq. appeared for the Defendant/Applicant, presupposing that the Court below was seised of the Notice of Intention To Defend filed on the 20th of February, 2004 but chose to ignore same.
Also, conscious of the Notice filed by the Appellant although belatedly, the Court relied on the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 12 SCNJ 171 at 174 – 175; Alale v. Olu (2000) FWLR (pt.23) 1294 at 1308 – 1309, which decided that on the return date of a case placed under the undefended list, the court has only one duly, namely, to see whether the Defendant has filed a Notice of Intention to Defend together with an affidavit disclosing a defence on the merits. Where no such Notice and Affidavit had been filed within 5 days before the return date, the court has no choice than to proceed with the hearing of the matter as undefended list and give judgment accordingly for the Plaintiff. See pages 31 to 32 of the Records.
Ground 4 of the Grounds of Appeal is competent and since Grounds 1, 2 and 4 are competent, any issue or issues like Issue Number 2 formulated from the Said Grounds is competent and not contaminated as purported by the learned counsel for the Respondent/objector.
Turning to Ground 5, since the learned counsel for the Appellant has conceded that he could not have filed an omnibus ground since the Appellant did not lead evidence, that Ground is accordingly struck out albeit reluctantly.
I take the view that Dafa v. F.C.D.A. (supra) and Odufunade v. Rossek (supra) were not decided on the basis of the Undefended List procedure. Where, as in this case, the learned trial Judge gave judgment based on the evidence of the Respondent alone, he ought to have ensured that the evidence adduced by the Respondent was weighty and substantial enough, first of all, to warrant the order placing the suit under the Undefended List not to talk of entering judgment in favour of the Respondent on such evidence, subsequently.
Where such evidence is not weight and sufficient enough to warrant entry of judgment in favour of the Respondent, such a judgment can be said to be against the weight of evidence. The case of Dafa v. F.C.D.A. (supra) was decided in 1994 by the Court of Appeal and although their Lordships relied on the Supreme Court cases of Mogaji v. Odofin and Odufunade v. Rossek; the apex Court two years later in Ajibona v. Kolawole (1996) 12 S.C.N.J. 270 at 280 paras. 30 40, per ogwuegbu, J.S.C.; explained the essence of a Ground of Appeal which complains that the judgment is against the weight of evidence inter alia:-
‘An omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It implies that the judgment of the trial court cannot be supported by the weight of the evidence (elicited) by the successful party which the trial -judge either wrongly accepted or that the inference drawn or conclusion reached by the trial judge based on the accepted evidence cannot be justified. An omnibus ground of appeal also implies that there is no evidence which if accepted would support the findings of the trial-judge.” See Anyaoke & ors. v. Adi & ors. (1986) 17 NSCC (pt. II) 799; Chief Abah Ogbodo v. Adulugba 1971) All NLR 70 (Reprint) and Nta & Ors. Anigbo &o 7 Ors. (1972) All NLR 510 at 516 (Reprint).
Suffice it to say that even if we strike out Ground 5 of the Grounds of Appeal, this Appeal can still be argued on other grounds and/or Ground 1 alone which ground questions the jurisdictional competence of the lower court to entertain the suit be it under the Undefended List or ordinary procedure. On the whole, the preliminary objection partly succeeds only on the basis of the concession to Ground 5 being struck out; otherwise, the bulk of the objection by the learned counsel for the Respondent is full of sound and fury signifying nothing.
ARGUMENT OF ISSUES
Now, back to the issues raised by the respective parties; ISSUE NUMBER 1 of the Appellant questions “whether considering the FACTS OF THIS CASE THE APPELLANT COULD BE SAID TO BE A PROPER PARTY BEFORE THE TRIAL COURT (GROUND 1 OF THE NOTICE OF APPEAL)”.
In arguing this Issue, the learned counsel for the Appellant referred to page 10 of the Records pointing out that it is an undisputed fact that the Appellant is the proprietor of Thomas Adewumi College, Oko, Kwara State which College is duly registered with the Corporate Affairs Abuja and issued with certificate No. 318302 dated 12th of August, 1997 (Exhibit A at page 38 of the Records refers).
Learned counsel argued that there was never a time the Defendant/Appellant contracted the Plaintiff/Respondent to submit proposal or quotation for installation of SR 20 Rural Telephone Mobile Facilities, rather according to counsel, it was the management of Thomas Adewumi College, Oko, Kwara State as can be gleaned from the Exhibits attached to the affidavit in support
of the Writ of Summons particularly Exhibits A, B and F, D, DI and E (pages 10 – 23 of the Records) refer.
As regards Exhibit G (Union Bank Nig. Ltd. Cheque) attached to the Affidavit in support of the Writ of Summons, learned counsel for the Appellant also noted that same was an account opened by Thomas Adewunmi College, Oko, Kwara State with Union Bank Nig. Plc. which the Defendant/Appellant is a signatory. It was therefore submitted placing reliance on Section 38 of the Companies and Allied Matters Act, Cap. 59, L.F.N., 1990 and the cases of Salomon v. Salomon (2002) 1 WRN 1 at 16; Habib Bank Nigeria Ltd, v. Benson Ochete (2000) 19 WRN 20 at 40; and Kaduna Refinery & Petro Chemical Co. v. Onuorah (2003) 3 WRN 1 at 6 – Z; that the appendage of legal personality conferred on incorporated bodies under the Companies and Allied Matters Act, 1990, is that such incorporated bodies are capable of suing and being sued.
Thus, he further maintained, Thomas Adewunmi College, Oko, Kwara State, has the full capacity to sue and be sued by reason of the fact that although the Respondent intimated the Defendant/Appellant of the supply of the telecommunications facilities and installation of same, it was the Principal and Chief Executive Officer of the school who awarded the contract. In other words, he further argued, the contract was between Adewumi College, Oko and the Respondent and not between the Appellant and Respondent. Learned counsel for the Appellant then submitted that there was no privity of contract between the Appellant and the Respondent but between the school and the Respondent, and accordingly, the contract cannot be enforced against the Defendant/Appellant even though the contract is for his benefit. Lanre Ladimeji & 47 Ors. v. Federal Ministry of Works & Housing & 2 Ors. 7 WRN 39 at 47; Re-Enterprises Ltd. v. Nwosu (2002) 11 WRN 2B at 34 and Thomas C. Makwe v. Chief Obanua Nwukor (2001) 32 WRN 10 (SC); were all cited in support of the above proposition of the law and to submit that from the foregoing legal principles enunciated, it follows then that the proper party is not before the Court. It was contended further that the Appellant not being a proper party, the result is that the suit was incompetent and the court below was divested of the jurisdiction to entertain same. Nigeria Football Coaches Association & 1 Or. v. Kashimawo Laloko & 2 Ors. (2003) FWLR (pt. 144) 482 at 496; Ayorinde v. Oni (2003) 3 NWLR (pt. 649) 348 at 361; and Madukolu v. Nkemdilim (2001) 46 WRN 1 at 13; were finally relied upon to contend on this issue that the absence of proper parties to the suit introduced a feature in the suit which prevented the trial Court from exercising its jurisdiction and to urge us to set aside the judgment of the lower Court for failure to join the proper party – Thomas Adewunmi College, Oko, Kwara State. He then urged us for the above reasons to set aside the judgment of the lower court and allow the Appeal.
It is pertinent to note that the learned counsel for the Respondent proffered no reply to the submissions of the learned counsel for the Appellant on this threshold issue of jurisdiction perhaps because of his erroneous belief or misconception that the Ground of Appeal (Ground 1 of the Notice of Appeal) was incompetent, the issue of jurisdiction having not been pronounced upon by the lower court and/or that the Appellant raised it herein for the first time without seeking the leave of Court to so raise it. However, such erroneous impression has been adequately cleared from the dicta of the Supreme Court in the cases earlier cited and analyzed and in particular the dictum of Obaseki, JSC in Western Steel Works Ltd. & Anor, v, Iron & Steel Workers Ltd. (1957) 2 NWLR 129 at 188; which is to the effect that by the fundamental and threshold nature of jurisdiction, it is exempt from the disabilities and restrictions which ordinarily would have frustrated other legal points in this appeal, if not raised at the appropriate time and at the Court below or in this court Without leave.
It must be reiterated, even if the learned trial Judge nay the learned counsel for the Respondent anchored their refusal to consider the issue of jurisdiction on the basis of the Undefended List Procedure adopted by the Respondent in the initiation of his suit, that this Court in its appellate jurisdiction can entertain the question as to whether in the first place, the suit was competent and/or whether the learned trial Judge was seised of the jurisdictional competence to entertain same since the Court could have even raised the issue suo muto taking into consideration the affidavit in support of the Writ of Summons and the accompanying documentary Exhibits.
From all indications, we take it that the learned counsel to the Respondent has no answer to the arguments of counsel to the Appellant on the issue of jurisdiction and/or has indirectly conceded to the submissions of counsel for the Appellant on this Issue. Be that as it may, it is still our bounding duty to consider the submissions of the learned counsel for the Appellant on the merits in order to come to a decision one way or the other as to whether based on the facts before the lower court and now this court, those submissions can ground the success of the Appeal taking into consideration the state of the law.
My Lords, we have already set out the facts of this case based on the Affidavits of the Respondents and Exhibits A – G tendered in support of the Writ of Summons. For the avoidance of doubt, Exhibit A is a proposal from the Respondent for the supply and installation of Telephone Facilities dated 7/7/2000, and addressed to the Defendant/Appellant. Even Exhibit B dated 15/72000 is another letter from the self same Respondent addressed to the defendant which letter intimated him of the completion of the supply and installation of Digital Rural Telephone Facilities for Thomas Adewumi College Oko.
From the contents of Exhibit E, a letter from Mr. White Bread, the Principal of Thomas Adewumi College, approval for the award of the contract was conveyed to the Managing Director Adebest Wireless Communications Systems Ltd. The award was subject to the acceptance of the offer of the terms stated in paragraphs 2 and 3 of the letter after which the parties were to sign an attached Agreement as the basis for the said contract. Exhibit F from the Respondent was addressed to the principal and Chief Executive of the College rejecting the offer of the contract awarded, whereas the signature on Exhibit G was appended by the Defendant on behalf of Thomas Adeyemi collage, oko, P.M.B. 50, Omu-Aran.
Taking into consideration the totality of the documents tendered, it is clear that even though the proposal for the installation of the Telecommunications Facilities and the letter of completion of the job were addressed to the Proprietor of Thomas Adeyemi college oko, (the Appellant herein), and he signed the cheque (Exhibit G) on behalf of the College, the person who made the offer for the contract was the principal of the College who was like the Managing Director and Chief Executive of the School. Thus, if there were any valid contract between the school and the Respondent and that contract was breached, it is the school through its chief Executive that ought to be held accountable, notwithstanding the fact that the Defendant is the Proprietor who would have benefited from the contract. This principle of law was long established by Lord Haldane in the English locus classicus of Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge Ltd. (1915) A.C. at page 853; when he posited:-
“My Lords, in the law of England, certain principles are fundamental. One is that only a person who is party to a contract can sue on it. Our law knows nothing of jus quaesitun tertio arising by way of property as for example, under trust, but it cannot be conferred on a stranger to a contract as a right in personnam to enforce the contract.”
Coming home to Nigeria and in particular to the peculiar circumstances of this case, the principle underlying the decision by Lord Haldane in the afore cited case was adopted in Ikpeazu v. African Continental Bank Ltd. (1965) NMLR 374 at 379, where Ademola, CJN, delivering the lead judgment of Supreme Court with Brett, Bairamian, Onyeama and Ajegbo JJ.S.C. concurring, held thus:-
“Generally a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it – Tweddle v. Atkinson 30 L.J.Q.B. 265; Dunlop Pneumatic Tyre co. Ltd. v. selfridge (1915) A.C. 847.
The position is stronger with regard to contracts under seal, unless a person is named as a party to a deed, he cannot maintain an action upon it – Chesterfield and Midland Silkstone Colliery Co. v.
Hawkins (1865) 3 H x C. 677. The only exemption to this rule relates to indenture made about land which was introduced by Section 5 of the Real Property Act 1845 to enable a stranger to a deed to take advantage of a benefit to him in the deed.” See also Et Co. (Nig-) Ltd. v. Western Nigeria Development Corporation (WNDC) reported at page 403 of “sagay. Nigerian Law of contract,’ 2nd Edition, 2001 published by spectrum Law series; shuwa v. chad Basin Authority (C.B.A) (1991) 2 NWLR (pt. 205) p. 550; UBN plc v, sparkling Breweries Ltd. & Ors. (1997) 5NWLR (pt. 505) 344 at 363. See further Atfotin Ltd. (The owners of M. V. Tofini) v. the Attorney-General of the Federation & Anor. (1996) 12 SCNJ 236 at 254 – 255 and 256, per Iguh JSC.
The corollary of the situation is as stated in Ilesha Local planning Authority (LPA) v. Olayide (1994) 5 NWLR (pt. 342) 91, Mercantile Bank v. Abusonwan (1956) 2 NWLR (pt. 22) 270 and Incar v. Ojomo (1988) 5 NWLR (pt. 39) 111; that since a person who is no privy or party to a contract cannot bring an action to enforce it, so too can he not be liable or sued for the enforcement of the contract. Thus, the submission of the learned counsel to the Appellant in paragraphs 4.1.5 to 4.1.7 at pages 5 and 6 of the Appellant’s Brief relying on the case of Thomas Chukwuma Makwe v. Chief Obanua Nwukor (2001) 32 WRN 10; and all other authorities in this regard is unassailable as it represents the true position of the law of contract both in England and here in Nigeria, that the fact that a person to the consideration of a contract stands in such near relationship to the party from whom consideration is derived that he may be considered a party to the consideration; does not entitle him to sue or be sued upon the contract.
The above leads us to the crucial question whether the Defendant is a party to the contract the subject matter of the suit now on appeal
and the contention of the Appellant that Thomas Adewumi College whose Chief Executive made the offer for the contract is a legal personality capable of suing and be sued. In fairness to the learned trial Judge, it must be conceded that since he ignored the Notice of Intention to Sue as filed belatedly by the Appellant, he could not have known the legal status of the school since the case was decided under the undefended List procedure.
However as an Appellate court and considering the fact that the issue of jurisdiction can be raised even for the first time herein as has been done by the Appellant, we cannot ignore the contents of the case file before us notwithstanding the nature of proceedings. This is borne out of the fact that no matter how brilliant the judgment of the court may be and the exigency of the case, where, from the documents before this Court, it is discovered that the learned trial Judge had no jurisdiction to entertain the suit for any reason whatsoever, his judgment can only be an exercise in futility and a complete nullity. See Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 587; Salati v. Shehu (1986) 1 S.C. 332 at 374; Ukpong v. Commissioner for Finance & Economic Dev. (2007) All FWLR (pt. 350) 1246 SC.
Now, at page 38 of the Record of Proceedings, a Certificate of Incorporation bearing the name of Thomas Adewumi College Limited is reproduced. The School is registered with the Corporate Affairs Commission Federal Republic of Nigeria on the 18th day of August, 1997, with Registration/Certificate No. RC 318302 under the Companies and Allied Matters Act, 1990; as a company Limited by shares. What then is the effect of Registration of Thomas Adewumi College as a Limited Liability Company?
Section 37 of the Companies and Allied Matters Act provides that:-
“As from the date of incorporation mentioned in the Certificate of Incorporation, the subscribers of the memorandum together with such other persons as may, from time to time, become members of the company shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the powers and functions of an incorporated company, including the power to hold land, and having perpetual succession and a common seal, but with such liability on the company in the event of its being wound up as is mentioned in this Act. ”
The above provision has been given judicial interpretation in a host of Nigerian cases following the English locus classicus of Salomon v. Salomon [1879] A.C. 22 at 51, per Lord Halsbury, L.C. and Lord Macnaghten who in his concurring judgment held inter alia:-
“When the memorandum is duly signed… the subscribers are a body corporate capable forthwith… of exercising all the functions of an incorporated company. The company attains maturity on its birth. There is no period of minority no interval of incapacity. The company is at law a different person altogether from the subscribers to the memorandum; and, though it may be that after incorporation the business is precisely the same as it was before, because the same person are managers, and the same hands receive the profits, the company is not in law the agent of the subscribers or a trustee for them. Nor are the subscribers as members liable, in any shape except to the extent and in the manner provided by the Act.” See also Lee v. Lee Air Farming Limited (1961) A.C. 12 P.C.
The Supreme Court in approval of the concept of corporate personality of a company rejected the call to treat the Appellant’s Company as an agent of the controllers in the case of Marina Nominees Ltd. v. F.B.I.R. (1956) 2 NWLR (pt. 20 – 48); and described such a call as misconceived, holding that an incorporated company is a separate legal entity which must fulfill its own obligations under the law. Again, in Dunlop Nigerian Industries Ltd. v. Forward Nigeria Enterprises Ltd. & Anor. (1976) 1 A.L.R. Comm. 243; this concept of separate personality of incorporated company was reiterated and the court went further to hold that it makes no difference to the rule of corporate personality that one member owns all or substantially all of the shares. See Trenco Nigeria Ltd v. African Real Estate Ltd (1975) I LRN 146 at 153; Anyaegbunam v. Osaka (2000) 3 SC 1; Aso Motel Kaduna Ltd. v. Deyemo (2006) 7 NWLR (pt. g7S) 93 C.A. and Tsokwa Oil Marketing Co. v. U.T.C. (Nig.) Plc (2002) 12 NWLR (pt. 52) 437 C.A.
On the effect of the limited liability status of a company like Thomas Adewumi College Limited, this Court, Benin Division, held in union Bank of Nigeria Plc. v. F.E. Orharhuge (2000) 2 NWLR (pt.645) 495 at 510,517; that: –
“Once incorporation takes place, the company becomes a separate legal entity from those who incorporated it (and) there is no personal liability for any debt incurred by the company.”
On the legal capacity to sue and be sued as a result of incorporation and the legal personality status conferred upon it by the section of the Companies and Allied Matters Act earlier cited, the superior Courts in Nigeria have also adopted the rule of law as established in Foss v. Harbottle (1843) 2 Hare 461; and encoded in Section 299 of C.A.M.A. which is to the effect that any wrong or liability incurred or suffered by a company or in an action for recovery of money or damages due or against it either in tort or contract, only the company itself and not an individual or minority shareholder can sue or take action to redress, recover and/or ratify the wrong or irregular conduct. Gombe v. P.W. (Nig.) Ltd (1995) 6 NWLR (pt 604 402 SC; Ejikeme v. Amaechi (1998) 3 NWLR (pt 542) 456 C.A.; Daily Times (Nig) plc v. Akindiji (1998) 13 NWLR (pt 580) 22 at 27 CA. and N.I.B. Invest. W/A v. omissore (2006) 4 NWLR (pt 969) 122 CA.
The point was further emphasized in Njemanze v. shell B.P. port Harcourt (1966) All NLR 8; Agbomagbe Bank Ltd. v. General Manager, G.B. Olivant Ltd (1961) 1 All NLR 166 and Otuyemi v. Esso (W.A.) Co. Ltd. (1961) WNLR 130; that once incorporated, the company and it alone must act and be acted against to enter into and enforce its rights and obligations. This rule is applicable to actions by and against the company and indeed both outsiders and share holders. Accordingly, an individual member of the company is precluded from appropriating to himself the right of action which belongs to the company as any such action involving the company must be commenced by or against it in the company’s registered name; since it would tantamount to an anomaly, to sue as in this case, an officer of the company on behalf of the company, unless he is so authorized to defend the suit. Thus, In vassile v. Paas Industries Ltd (2000) 12 NWLR (pt 681) at 357 (2000) FWLR (pt. 19) 130; it was held that:-
‘A limited liability company is a juristic person and can sue and be sued in it corporate name. It is separate and distinct from bites shareholders, and directors. As such, it will be unnecessary to join any of its members of officers in an action against it (as a Co/Defendant).”
There are however, exceptions to the rule above stated which have been provided for by section 300 of the Act and they include where the court upon an application of any member of the company seeks for an injunction or declaration restraining the company from:-
1. Entering into any transaction which is illegal;
2. Purporting to do by ordinary resolution any act which by its constitution or the Act requires to be done by special resolution;
3. Any act or omission affecting the applicant’s individual rights as a member;
4. Committing fraud on either the company or the minority shareholders where the directors fail to take appropriate action to redress the wrong done;
5. Where a company meeting cannot be called in time to be of practical use in redressing a wrong done to the company or to minority shareholders; and
6. Where the directors are likely to derive a profit or benefit or have profited or benefited from their negligence or from their breach of duty.
Also by the theory of lifting or piercing or going behind the corporate veil, the legislature and the courts in exceptional circumstances and where expedient, can unveil or unmask a company to see the individuals or members behind it. See F.D.B. Financial Services Ltd. v. Adesola (2000) 8
NWLR (pt.668) 170 at 13; NBCI v. Integrated Gas Nig. Ltd (1999) 8 NWLR (pt. 613) 119 at 129; where the court reiterated the need to distinguish between the corporate entity of the company and its biological members, the consequence of which is to draw a veil behind it which veil ought not to be lifted except where at law “certain consequences attach to the acts, motive or opinions of persons working for and inside the ‘separate personality,’
the company.” In Public Finance securities Ltd. v. Jefia (1998) 3 NWLR (pt. 54) 602; this court had an occasion to pronounce on some of the instances that would warrant the piercing of the veil of incorporation when it held thus:-
“The Court can lift the veil. It can pull down the mask. The court will lift the veil of incorporation of any company to find out who was behind the fraudulent and improper conduct of the company.
This will be necessary where the canopy of legal entity is used to defeat public convenience, justifying wrong, perpetrate, I protect fraud and crime… or involved in reckless or fraudulent trading activities tainted with fraud.
See Sections 93, 246,290,316, 336, 507,631(4), of the Companies and Allied Matters Act and the cases of N.N.B. Ltd. v. Bazuru (1995) I NWLR (pt. 575) 646; Adeniji v. The State (1992) 4 NWLR 248 and FDB Financial Services Ltd. v. Adesola (supra). In the case at hand, there is no averment in the affidavit in the support of the Writ of Summons that the Company was used as a canopy for the perpetration of fraud; to defeat public convenience, justifying wrong, protection of crime or was involved in reckless of fraudulent trading activities as envisaged by the provisions of C.A.M.A. as enumerated above; so as to warrant the suing of Appellant in his personal capacity Proprietor of Thomas Adewumi College, Oko.
Going by the authorities above cited and the law, it is clear that the Appellant who was not privy to the contract was not a proper party to be sued in this case, rather Thomas Adewumi College Ltd who by incorporation is a legal entity with powers to sue and be sued and which entered into the contract for the supply and installation of Telecommunication Facilities with the Respondent, ought to be sued in its own name. There being no evidence that the Appellant was authorized to defend the suit on behalf of Thomas Adewumi College Ltd; we agree with the submission of the learned counsel for the Appellant on the authorities of Lanre Ladimejie & 47 Ors. v. Federal Ministry of Works and Housing & 2 Ors. 7 (supra); Re Enterprises Ltd. v. Nwosu (supra) and Makwe v. Nwukor (supra); that the proper parties were not in court.
In line therefore with the decisions in N.F.C.A. & 1 Or. v. Kashimawo Laloko & 2 Ors. (supra); Ayorinde v. Oni (supra) and Madukolu v. Nkemdilim (supra); ably cited by the learned counsel for the Appellant; since the proper parties were not in court, the suit was incompetent and this feature divested the trial court from exercising its jurisdiction. The suit in the first place ought to be and is accordingly struck out for want of jurisdiction. Issue Number 1 is therefore resolved in favour of the Appellant.
Assuming we are wrong in so holding, we shall now consider ISSUE NUMBER 2: “WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE PROCEEDED TO ENTER JUDGMENT AGAINST THE DEFENDANT/APPELLANT UNDER THE ITNDEFENDED LIST procedure IN VIEW OF THE DEPOSITTONS IN THE DEFENDANT’S/APPELLANTS AFFIDAVIT”
This Issue is akin to the sole issue formulated by the Respondent as to ” WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE PROCEEDED TO ENTER JUDGMENT FOR THE PLAINTTFF/RESPONDENT UNDER THE UNDEFENDED LIST PROCEDURE AND WITHOUT REGARD TO THE DEFENDANTS/APPELLANT’S PURPORTED NOTTCE OF INTENTION TO DEFEND FILED ON 20/2/2004″
The learned counsel for the Appellant in his argument on this issue noted that on the 2nd day of February, 2004, the Defendant/ Appellant filed a Notice of Intention to Defend to which he attached an Affidavit of thirty-one (31) paragraphs stating facts and grounds but that pending this Notice and affidavit, the Court proceeded to deliver Judgment on the 23rd February, 2004. Learned counsel enumerated the five grounds upon which the Defence was predicated thus:-
“(1) This Honourable Court lacks jurisdiction to hear this suit in that the Defendant is not a proper party before the Court.
“(2) The sum of N800,000.00 (Eight Hundred Thousand Naira) only claimed by the Plaintiff is not liquidated sum.
“(3) The Plaintiff did not complete the execution of the job on which he claimed N800,000.00 (Eight Hundred Thousand Naira) only.
“(4) There is no contract Agreement between the Plaintiff and Defendant.
“(5) The Federal High Court Holden at Ilorin had adjudicated on this matter. ”
The learned counsel for the Appellant also reproduced paragraphs 5 to 28 of the affidavit in support of the Notice of Intention To Defend which according to him raised contentions issues to be determined through oral evidence submitting that in a suit brought under the Undefended List, the Court cannot discountenance a Notice of Intention to Defend which affidavit challenges the jurisdiction of the Court as a defence on points of law as on facts. For the above submission, he relied on Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (pt. 65) 472 at 485; Fresco (Nig.) Ltd v, NASCO Rice & Cereal Co. Ltd (1958) 11 NWLR (pt. 573) 227 at 230 – 234; per R.D. Mohammed, JCA and Bawa v. Phenias (2007) 4 NWLR (pt. 1024) 251 at 266.
It was learned counsel for the Appellant’s further submission that the issue of jurisdiction is a threshold in our adjudicating system and is so fundamental that when raised, the Court must pause and consider whether it is clothed with the legal power to adjudicate in the matter. Sule v, Nigeria Cotton Board (1985) 6 S.C. 62, refers. Still on this issue of jurisdiction, he maintained that it gqn be raised at any stage of proceedings, even on appeal, or suo muto by the Court. Barclays Bank of Nig. V. C.B.N. (1976) 6 S.C. 175; Adeyemi & Ors v. Opeyori (1976) 9 & 10 S.C. 31; Associated provincial Book House Ltd. v. Wednesday Corp. (1984) 1 K.B. 223; Okara v. Ndili (1984) 4 N.W.L.R. (pt. 115) 700 and Abubakar & Ors. v, Jos MOT, Dev. Board & Anor. (1997) 10 NWLR (pt. 524) 22; were all cited to buttress the above submission.
On the reliance placed by the Court below on the case of Ben Thomas Hotel Ltd. v. Sebi Furniture Co. Ltd. (1959) 12 S.C.N.J. 171 at 174 – 175; he observed that the facts and circumstances of this case are not the same with the one at hand since the former case did not challenge the jurisdiction of the Court. He insisted that once jurisdiction of a Court is challenged, that Court must entertain the objection before proceeding with the hearing of the matter for judgment.
Referring to the authorities of University of Lagos v. Aigoro (1985) 1 NWLR (pt. 1) 143; FSB International Bank Ltd. v. Imano Nig. Ltd. (2000) 11 NWLR (pt. 679) 620 and U.T.C. v. Pamotei (2001) 4 WRN, per Karibi-Whyte, and Belgore, JJ.S.C. he contended that the Supreme Court has reiterated that the interest of justice between parties demands that when a statement is filed irregularly, the learned trial Judge would not shut his eyes to the facts alleged there in and in good conscience shut out the Defendant on a mere technical point.
Based on the foregoing and the peculiar circumstances of the case and duty of the Court below to do substantial justice, he asserted that the Court was duty bound to look at the Notice of Intention to Defend filed by the Defendant on the 20th February, 2004, before delivery of judgment on 23rd February, 2004, notwithstanding the fact that the Notice was not filed before five (5) days to the hearing of the substantive suit.
Referring again to the case of Osifo v. Okogbo Community Bank Ltd. (2006) 15 NWLR (pt.1002) 260 at 274,on the interpretation of Order 23 Rule 3(1) of the High Court (Civil Procedure) Rules of Bendel State which is in pari material with the Kwara State High Court Rules, he anchored his submission on this issue on the dictum of Abba Aji, JCA at pages 281 – 282 of the Report insisting that the failure of the learned trial Judge to consider the entire evidence as deposed to in the Affidavit in support of the Writ of Summons and that attached to the Notice of Intention To Defend before delivering judgment under the Undefended List occasioned a miscarriage of justice thereby rendering the judgment a nullity. He therefore urged us to grant the Appellant’s relief and set aside the judgment of the trial Court.
Responding to the arguments of the learned counsel to the Appellant, S.O. Jimoh, Esq. of Counsel for the Respondent recalled that the suit was tried under the Undefended List Procedure and the Order placing the suit there under was made on the 17th of November, 2003, which the return date was fixed for 28/1/2004, on which date the learned trial Judge heard the case having satisfied himself that service of all processes had been effected on the Defendant.
According to learned counsel, the Appellant did not file any Notice of Intention to Defend together with affidavit and on the 28/1/2004; the lower Court adjourned the case to 23/2/2004 for judgment. He referred to what transpired on the 23rd of February, 2004, when Mr. Oladele announced appearance for the Appellant on page 27 of the Record of Proceedings; culminating in the reading of the judgment which was entered in favour of the Respondent. Learned counsel pointed to pages 24-27 of the Records wherein on Friday, 20/2/2004, the Appellant without any application for extension of time filed a purported Notice of Intention to Defend together with an Affidavit citing Order 23 Rules 3(1) and 4 of the High Court (Civil Procedure) Rules of Kwara State 1989; and submitted that on 23/2/2004, when the matter came up for judgment, the Appellant did not mention to the lower court anything about the purported Notice of Intention to Defend together with the Affidavit. He was of the further view that where a party has any process such as a motion, objection or Notice of Intention To Defend, as in the instant case, it was his duty to make efforts towards informing the Court to allow him to go ahead to utilize such process in the best way legally possible. Where a party fails in his duff in this regard, learned counsel continued, the Court will presume such a party to have abandoned the process. For the above submission, he relied on the dictum of Onnoghen J.C.A, (as he then was) in Kwara Hotels v. Ishola (2002) FWLR (pt. 125) 759 at 775 para. D; to further submit that the Appellant cannot be heard to accuse the lower court of not considering his purported Notice of Intention To Defend together with the accompanying affidavit and urged as to so hold.
Apart from the above situation, it was learned counsel for the Appellant’s contention that even if the Notice of Intention To Defend was brought to the attention of the Court on 23/2/2004, same was incompetent and the Court would legally be right to ignore same because of the time frame prescribed by the Rules for the filing of the Notice of Intention to Defend before hearing of the suit which the Appellant filed out of time.
Inspite of the above, the learned counsel also observed that the appellant did not file any motion for extension of time. On the effect of a process filed out of time without leave for extension of time, fearned counsel placed reliance on Asore v. Lemonu (1994) 7 NWLR (pt. 356) at 290 – 291 and okunrinboye Export co. Ltd. v. skye gank plc. (2009) 2 – 3 MJSC 42 at 64 paras. E – G. As for Order 23 Rule 3(1) of the Kwara State High Court (civil Procedure) Rules 1989, which prescribes not less than five days before the ,date fixed for hearing of the suit, for the Notice to be filed, learned counsel again posited that the filing of the Notice by the Appellant without asking for extension of time rendered the Appellant’s Notice invalid. According to him, to take the Notice as valid would render the provisions of order 23 and the purpose for which it was made complete nonsense.
on the reliance placed on the case of osifo v. okogbo community Bank Ltd. (2006) 15 NWLR (pt. 1002) 260, learned counsel for the Respondent countered that it is not applicable to this case because in the former case, the Defendant filed a counter Affidavit as against the prescribed Notice of Intention to Defend and Accompanying Affidavit and the counter-Affidavit even though irregular was filed within time. He therefore urged us to discountenance Osifo v. okogbo community Bank Ltd (supra).
In the final analysis, the learned counsel for the Respondent urged us to hold that the lower court was left with an undefended suit and had no other duty than invoking the provision of order 23 Rule 4 of the Kwara state High court (civil Procedure) Rules 1989, to give judgment to the plaintiff/Respondent as done after reviewing relevant authorities on Undefended List Procedure’. we were then urged from the findings of the court below which according to him were unassailable, to resolve this issue against the Appellant affirm the judgment of the lower court and dismiss the Appellant’s appeal in its entirety.
In the resolution of this issue, it necessary to reproduce the provisions of order 23 of the Kwara state, High court (civil procedure) Rules, F989, under which the Plaintiff/Respondent’s suit was initiated and heard by the lower court. It provides thus:-
“Order 23
THE UNDEFENDED LIST
“1. Whenever application is made to a court for the issue of a Writ of Summons in respect of a claim to recover a debt or liquidated money demand 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 to the circumstance of the particular case.
“2. There shall be delivered by the Plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the Writ of Summons for service.
“3(1) If the party served with the Writ of Summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause List; and the court may order pleadings, or proceed to hearing without further pleadings.
“4. Where any Defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(r) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the Plaintiff to summon witnesses before the Court to prove his case formally.
“5. Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under Rule 3.’
The provisions of Order 23 and the Rules made there under have been the subject of intense controversy amongst judicial and legal pundits and there appears to be divergent opinions on the proper approach to the determination of suits predicated on this procedure. However, the consensus opinion and preponderance of authorities have established that the purport and object of these provisions is for the enhancement of quick dispensation of justice. See Ademola, C.J.N. in Bank of the North Ltd, v. Intra Bank S.A, (1969) All NLR 88 at 91.
Thus, Kayode Eso, J.S.C. (now emeritus) had posited on this score in Sodipo v. Lamminkainen Oy & Anor. (1956) 1 NWLR (pt. 15) 220 at 230; that:
“The rules are for purposes of obtaining summary judgment without proceeding to trial. They are for disposing with dispatch, cases which are virtually uncontested.
An action in the Undefended List is not a real substitute to trial of actions, but it serves the purpose of reducing congestion in the courts by way of creating an avenue for the speedy determination of actions.”
Indeed, the procedure has been held to be an abridged form of civil procedure and “a truncated form of ordinary civil procedure peculiar to our adversary system where the ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried or the quantum of the Plaintiff’s claim disputed to necessitate a hearing” See Ikpong v. Udobong (2007) 2 NWLR (pt.1017) 184 at 204 – 205 paras. D – C.
Notwithstanding the need for quick dispatch and the truncated nature of the procedure, it has been suggested that it is not the intention of the legislature that it be converted to a forum for obtaining cheap judgment without giving the Defendant opportunity to join issues with the Plaintiff. See C.C. Nweze, J.C.A, “Law And Procedure In Suits On The Undefended List” Master Publishing Company (Law Publishers) 2001 Edition at page 3; C.C. Nweze & G.C. Nnamani, in Justice Philip Nnaemeka-Agu: Imprints on Law and Jurisprudence (Enugu Fourth Dimension Publishing Co. Ltd 1996), page 25 and Tobi JCA (as he then was) who warned that it is an abuse of procedure for counsel “who want a short cut in litigation to commence actions on the undefended list and make such actions look so on their face. ”
On the injustice meted to some defendants under the procedure, the learned Judicial Titan had intoned: “In other cases; he is unlucky and shut out from defending the action and is (thus) denied the fundamental right to fair hearing. In such situation, there is a violation or breach of the natural justice rule of audi alteram partem (‘Civil Procedure Human Rights Application)” in Lawyers Bi-Annual Vol. 2, No. 2 (October, 1995) 186, 193.
Now, following the enumerated principles above enunciated for the invocation of the Undefended List Procedure and determination of suits under the Rules/ we shall now consider whether the court below was right in placing the suit under the Undefended List and giving judgment in favour of the Respondent having discountenanced the Notice of Intention to Defend filed by the Appellant on the 20th of February, 2004.
In answering this question, it must be noted that by the provisions of Rule 1 of Order 23, certain conditions precedent must exist before the court can enter the suit under the Undefended List. In the first place, the claim must be for the recovery of a debt or liquidated demand.
The phrase ‘a debt or liquidated demand’ has been the subject of a plethora of judicial interpretations and decisions. The Supreme Court in Maja v. Samourig (2002) FWLR (pt. 98) 818 S.C. defined it “as an ascertained or specific amount;” meaning that “there is nothing more that needs to be further done to determine the quantum or extent of the Defendant’s liability. ”
Also in Effanga v. Rogers (2003) FWLR (pt. 157) 1058 C.A. ‘liquidated money demand was defined as an amount of money that could be ascertained by calculation or fixed by any scale or other positive data or mathematics.
However, the court added that when the amount to be recovered depends on circumstances and is fixed by opinion or estimate, it is said not to be liquidated. See Household Utensils Dealers v. Ifeanyi Chukwu Ventures Nigeria Limited (2005) All FWLR (pt, 257) 1173 C.A.; where it was held that a liquidated demand is a debt or other specific sum due and payable by the Defendant to the Plaintiff; which must be ascertained or capable of being ascertained as a matter of mere arithmetic and includes a debt. It was also held that such a liquidated sum could arise from a contractual transaction or in tort or otherwise.
Still on the definition of these terms, per Gumel J.C.A. in the case of Abayomi v. Attorney General of Ondo State (2007) All FWLR (391) 1683 at 1694, posited that a liquidated demand is “a debt or other specific sum of money usually due and payable, “which amount “must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation.” From what can be surmised in the definitions or interpretations advanced in the above cited cases, it is clear that for a court to place such a claim under the Undefended List, there must be unequivocal and undisputed sum or debt ascertainable which must, if based upon a contract, have been accepted upon by the parties thereto. Thus, it has been held that the balance of money agreed where the Defendant had made some part payments is a liquidated debt. See Garba v. Sheda International (Nig.) Ltd. (2002) FWLR (pt. 113) 245 C.A.
Again, this court had held that the claimed amount must be certain, even if the documentary evidence in that regard as attached to the Plaintiff’s affidavit, is not in doubt; for if such documentary evidence adds up to nothing in terms of certainty, the Plaintiff cannot be said to have claimed a liquidated sum. See A.M.U & Sons Ltd. v. Lion Bank Plc (2006) All FWLR (pt. 293) 330 C.A. and Iron Products Ltd. v. Sentinel Assurance Co. Ltd. (1992) 4 NWLR (pt. 283) 734. In this case, even from paragraph 1(2) of Exhibit F, the letter from the Respondent to the Principal of Adewumi College, the amount claimed as the contract sum is neither ascertainable nor agreeable between the parties.
Whereas in one breath, the Respondent claimed N800,000.00; in another breath, he claimed N1,050,000.00. At page 22 of the Records which contains the guarantee by the Respondent, paragraph 5 thereof claimed that the Appellant’s office was supposed to pay additional cost of N30,000.00 for replacement of coaxial cable installed by the Respondent which thunder storm damaged at the Appellant’s office Thomas Adewumi College, Oko. The above shows that parties were not ad idem on the amount involved in the contract or the claim of the Respondent in which case there was a dispute which could only be resolved by oral evidence upon the suit being transferred to the general cause list for pleadings to be exchanged by the parties.
2. The Affidavit in support of the Application for entry of the claim under the Undefended List must set forth the grounds upon which the claim is based stating that in the deponent’s belief there is no defence thereto. See sodipo v. Lemminkainen Oy & Anor. (1986) 1 NWLR (pt. 15) 226, Okamba Ltd. v. Ganiyu Sule (1990) 7 NWLR (pt. 160) 1 and Hinma Merchants Ltd. v. Alhaji Aliyu (1994) 7 NACR 73.
3. The Court, shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing under what shall be called the “Undefended List”; mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
The above condition precedent is most crucial to the invocation of this rule. From the phrases under lined, it is clear that the entry of the suit under the Undefended List calls for the exercise of the Court’s discretion in that it shall only enter the suit as directed if satisfied that there are good grounds for believing that there is no defence to the Plaintiff’s case. In other words, like every discretion donated to judicial officers, the learned trial Judge before entering the suit as directed by the Rule must be judicious and judicial in the exercise of that discretion. As was decided in a long line of cases such discretion should not be predicated on the whims and caprices of the Judge, but should be devoid of sentiments, arbitrariness, and extraneous considerations. It ought to be dictated by sound judgment, honest belief, pure reason’ good conscience, the surrounding circumstances of the case and the competing rights of the parties. See Wayne (West Africa) Ltd. v. (1999) 2 S.C.N.J. 99 at 120; Suleiman v. COP Plateau State 33 NSCQR (Pt.2) 735 at 752 per Akintan, JSC, Anajemba v. F.G.N. (2005) 1 NCC 390; Unilag v. Olaniyan (1985) 1 SC 295 at 344 – 3a6; per Oputa, JSC and U.B.A. Ltd & Ors. v. Stahlban GMBH & Co. Kg. (1989) 6 SCNJ (pt.1) 1 at 28.
Even in the entry of a hearing date as provided under Rule 3(1), the judicious and judicial exercise of the Court’s discretion is called upon because such a date must be suitable to the peculiar circumstances of the case. Thus, judicial authorities have settled the position that in the exercise of his undoubted discretion, there is bounding duty on the trial Judge to critically examine the Plaintiff’s supporting affidavit, in order to determine the suitability of placing the suit under the Undefended List and marking same as such. Therefore, where the Plaintiff’s affidavit in support is self interrogatory, or contradictory with the documents tendered or exhibited to buttress the claim or where it does not disclose enough facts, then the court should transfer the matter to the General Cause List and reject the application. See C.R.P.I.C. v. Eno obongha (2001) FWLR (pt. 54) 353 C.A.; A.M.U. & sons Ltd. v. Lion Bank Plc (2006) All FWLR (pt, 293) 330 at 336 – 37.
It has also been held that the Plaintiff’s affidavit must explain how the amount claimed was arrived at, failing which the matter shall be transferred to the General Cause List for oral evidence to be led to ascertain the exact amount claimed. Uko v. Ekpenyong (2006) All FWLR (pt. 324) 1927 C.A. Also, as part of the duty of the trial court, there must be a critical examination of the documents tendered with the affidavit in order to obviate the fulfillment of the conditions precedent for the application of the Rule. Abayomi v, Attorney-General of Ondo State (2007) All FWLR (pt. 391) 1683 C.A. refers.
In PWOL v. Union Bank Plc (1999) 1 NWLR (588) 631 C.A; the rationale behind the critical examination of the Plaintiff’s case was emphasized and espoused as a necessary precedent, for that, the Defendant is only obliged to defend the suit if the Plaintiff’s affidavit raises a prima facie case against the Defendant and his defence would be unnecessary, if the Plaintiff’s case as disclosed on the affidavit, appears unsustainable.
Finally, the Court must as earlier stated, critically examine the claim of the Plaintiff in order to find out whether the monetary claim qualifies as a debt or liquidated money demand. See Omage, JCA in AKS property Investment company Ltd. v. Akpan (2008) All FWLR (pt. 411) 990 at 100. It is also pertinent to remark here that trial courts are enjoined to advance reasons for so placing the suit under the Undefended List no matter how precise the Ruling may appear.
From the foregoing, it is therefore clear that just as judicial authorities have imposed on the courts the duty to carry out thorough and discreet scrutiny of the case of the Plaintiff before exercising their discretion to place a suit under the undefended list, there are also corresponding duties on first the Plaintiff and subsequently the Defendant.
In this wise, the Plaintiff is expected like in all civil cases to succeed on the strength of his own case and not on the weakness of the Defendant’s case assuming as it is in this case that the Defendant did not file a Notice of Intention to Defend together with an affidavit disclosing a Defence on the merit. see Aubergine collections Ltd. v. Habib Nig. Bank Ltd. (2002) FWLR (pt.125) 1276 Gand Kabiru v. Ibrahim (2005) FWLR (240) 94 at 114 – 115 C.A.
Based on the above authorities, it is clear that before considering whether the Defendant filed a Notice of Intention to Defend or whether he breached the Rules, the Plaintiff must cross the first hurdle of disclosing from the affidavit in support of the Originating Summons or application for the suit to be entered under the “Undefended List” that he had a prima facie case strong enough to convince the court to be satisfied that the Defendant had no defence on the merits not to talk of calling the Defendant to proffer any defence by way of Notice of Intention to Defend and Affidavit.
Now, we had set out the contents of the affidavit in support of the motion for the entry of the suit under the Undefended List and ordinarily, apart from paragraph 5 thereof, there is nothing in that affidavit disclosing a prima facie case warranting the suit to be placed under the Undefended List.
However, in the 17 paragraph affidavit in support of the Writ of Summons, the averments on the salient issues in contention conflicted with the documents annexed as Exhibits. For instance, paragraph 5 alleges that sometime in July, 2000 the Defendant contracted the Plaintiff for supply and installation of SR 20 Rural Telephone facilities at Thomas Adewumi College, Oko in Irepoduh local Government of Kwara State. A copy of the Plaintiff’s letter of proposal/ quotation dated 7/7/2000 (Exhibit A) is exhibited. Paragraph 6 states that the Defendant agreed unconditionally with the Plaintiff for the supply and installation of the facilities at the sum of N800,000.00. In paragraph 7, the Plaintiff averred that it successfully and satisfactorily supplied and installed the telephone services in July,2000, a copy of the letter of completion which is also annexed as Exhibit B. Contrary to the averments in paragraph 6 that the Defendant agreed unconditionally with the Plaintiff for the supply and installation of the facilities, paragraph 11 of the affidavit discloses that it was after the completion of the job that the principal of the Defendant’s school wrote to the Plaintiff awarding an already executed contract. Exhibit E is the letter of award of contract.
By paragraph 12, the Plaintiff/Respondent by his ipse dixit contradicted his earlier averment that the Defendant accepted unconditionally for the supply and installation of the communications facilities since the Respondent would appear to have unilaterally awarded and executed the contract without any agreement or consensus ad idem.
In any case, the letter of award of contract subsequently sent to the Respondent and which was signed by the Principal of the School (rather than the Defendant), and the attached Agreement papers were rejected together with the terms of the contract. See paragraph 1 of Exhibit F where the Plaintiff stated categorically that: –
“As per the subject matter, we hereby bring to your notice that we cannot accept your letter given to us as “Contract Awarded with 2 reasons.”
From the subsequent tenor of Exhibit F, it ought to be clear to the learned trial Judge that the affidavit of the Respondent was self contradictory and raised questionable issues that ought to be subjected to oral testimonies and cross-examination.
Another issue that ought to have agitated the mind of the learned trial Judge was why the College/Defendant should withdraw the cheque for N400,000.00 issued in favour of the Respondent. However, like most trial courts who have taken the erroneous view that once an application of this nature comes before them, they must be granted willy-nilly, the learned trial judge without giving any reason why he should place the suit under the “Undefended List” simply ruled:-
“I have carefully considered the motion paper with the supporting affidavit and other attachments and I am satisfied that the application is in order as it has substantially satisfied the requirements of the relevant laws.”
He did not state why and whether he was satisfied that there were good grounds for believing that there was no defence to the claim of the Respondent before entering the suit under the Undefended List and same marked accordingly. On the authorities earlier cited, the learned trial Judge did not critically examine the claim of the Respondent together with the affidavit and documentary Exhibits tendered. If he so did, he would have discovered that the Respondent’s claim that the Defendant had no defence, was unsustainable.
We are therefore of the considered view that the Plaintiff did not cross the first hurdle and indeed the court failed in its duty to exercise its discretion judicially and judiciously. The order placing the suit under the Undefended to List ought to be set aside for the foregoing reasons and most importantly because the court in the first place lacked the jurisdiction to entertain the plaintiffs suit as the Defendant was no privy to the contract even if he is the proprietor of the school who ought to benefit from the contract and there was no proper party to the suit.
With the above position, the question of whether the court below was wrong to have discountenanced the Notice of Intention to Defend and the affidavit of the Appellant in giving judgment to the Respondent under the Undefended List becomes otiose. However, as a penultimate Court, in attempting to answer this question, it must be conceded that Order 23 Rule 3(1) stipulates the time frame (which is not less than 5 days before the date fixed for hearing) within which the Appellant ought to file and deliver his notice in writing of his intention to defend the suit, together with an affidavit disclosing a defence on the merits, which ought to have warranted the court to give him leave to defend upon such terms as the court may think just. Ordinarily, where the Appellant did not file the Notice of Intention to Defend as at when due, upon a strict interpretation of the Rules the consequences of such failure or negligence shall follow. This was exactly what the lower court did by invoking the authorities like Gronyo v. U.B.A. Plc (2000) FWLR (pt. 23) 1294 at 1308 1309; Jim Daniels v. Insight Engineering Co. Ltd (2002) FWLR (pt. 99) 1113 at 1125, per Amaizu, JCA; Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd (1989) 12 SCNJ 171 at 174 – 175 (Sc)and Royal Exchange v. Aswani Textile (1992) SCNJ (pt. 2) 346. Omokri JCA (of blessed memory) when confronted with a similar scenario in Ikpong v. Udobong (2007) 2 NWLR (pt. 1017) 184 at 204 – 205 paras, D – Chad taken the same view that:-
“Where a Defendant in an undefended List Procedure fails to file a Notice of Intention to Defend together with an affidavit disclosing a defence, that means he has no defence to the Plaintiff’s claim as such a failure amounts to an admission of the Plaintiff’s claim and as facts admitted require no further proof, the Plaintiff is therefore not called upon to prove his case formally. This is in consonance with the spirit and letters of Order 23 Rule 4 of the above rules. In the instant case, the Appellants did not file any affidavit disclosing their defence as required by the rules that being the case, there was no defence for the trial court to consider and the court had no option than to enter judgment for the Respondent, ”
In so holding, the avuncular judicial meteor relied on Ataguba & Co. v, Gura (Nig) Ltd. (2005) B NWLR (pt. 927) 429; Tahir v. J Udeagbala Holdings Ltd (2004) 2 NWLR (pt. 557) 438; Alale v. Olu (supra) Daniels v. Insight Engr. Co, Ltd (supra); Eastern Plastics Ltd, v. Synco West Africa Ltd (1999) 1 NWLR (pt. 587) 456; Jipreze v. Okonkwo (1957) 3 NWLR (pt. 62) 737and Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283.
Here in this court, the learned counsel to the Appellant on the authorities cited would have been perfectly right when he agreed with the learned trial Judge and on the Supreme Court authority of Okunrinboye Export co. Ltd. v. skye Bank Plc (2009) 2 3 M.J.S.C. 42 at 64, per Onnoghen, JSC, that the Appellant had no defence. The position taken by the learned counsel for the Respondent would have been unassailable going by the decision of the erudite Law Lord of the apex Court, particularly, as there is no indication that the Appellant sought for extension of time within which to file the Notice of Intention To Defend and the Affidavit disclosing a defence on the merit.
Again, the learned S.O. Jimoh Esq., would have been on solid pedestal when he cited Kwara Hotels Ltd. v. Ishola (supra) per Onnoghen JCA (as he then was), a decision of this Division, to submit that where a party filed a Notice of Intention to Defend, it was incumbent upon him (in this case, the Defendant) to make efforts to inform the court to allow him to utilize same in the best possible way.
However, from what can be gathered in the Record of proceedings, the Defendant/Appellant was represented by one Mr. David Adeniyi Ashonibare, the Bursar of Adewumi College as reflected in the proceedings of 28/1/2004, when hearing of the case took place as I had earlier highlighted. The said Mr. Ashonibare had intimated the Court that they had briefed a lawyer from Abuja who was being expected in court that day. Nevertheless, the court went ahead to hear the case oblivious of the provision of order 23 Rule 1 that the Court had the discretion to enter a date for hearing suitable to the circumstances of the particular case.
we are not oblivious of the fact that adjournment is at the discretion of the court’ where for instance, the Bursar had informed the court that they briefed a lawyer, equity and justice could have dictated to the court to fix another hearing date since the Defendant had demonstrated his willingness to defend the suit and the court still had the discretion to consider the Defendant/Appellant’s Defence to grant or refuse him to defend on the merit.
Where a lawyer had been briefed and he neglected to file the Notice of Intention as at when due and before the expiration of the stipulated five days, the blame should be at the door step of the learned counsel and not to visit his negligence on a Defendant who had overtly demonstrated his intention to defend a suit by sending Mr. Ashonibare to court. It was therefore the height of injustice not to have bent over backwards to accommodate the Defendant and consider his defence no matter how stupid. see Ikenta v. A.G. Rivers state (2008) SCNJ 152 AT 183, per Tabai, JSC and Iroegbu v. Okwordu (1990) 10 SCNJ 87.
The refusal of the learned trial Judge to look at the Notice of Intention to Defend and the Affidavit which nevertheless was part and parcel of the case file and Records smacks of denial of fair hearing and justice. see Kabiru v. Ibrahim (supra) at page 94; Eastern Plastic Ltd v. Synco (W.A.) Ltd (supra) at 456, V.S.S. Ltd Govt. of Anambra State (2001) FWLR (Pt.66) 697 and Olu v. Agbor-Hemeson (2004) FWLR (pt.188) 935.
It matters not that the case was adjourned for Judgment for as the learned C.C. Nweze (now JCA) aptly put it at page 4 of his text: “Law And Procedure In Suits on the Undefended list (supra)” citing Jipreze v. Pan African Bank Ltd (1992) 4 NWLR (pt.233) 76, while commenting on the irksome and worrisome stance of Onu, JCA (as he then was), that the principle of fair hearing has no application in cases filed under the Undefended List, some courts have shown inexplicable preference for the object of the Rules to the detriment of even the inveterate principles like the rules of natural justice.
It needs no further emphasis to state that it has become a trend in our jurisprudential clime that nowadays, the tendency is for courts to do substantial justice rather than slavish adherence to technical and mechanical justice.
This explains the salutary positions taken by eminent and liberal jurists which include Nnaemeka-Agu, Karibi-Whyte and Belgore JJ.S.C. in U.T.C. v. Pamotei & Ors (1959) 2 NWLR (pt. 103) 244 at 299; Oputa, Tobi JJ.S.C. and Pats-Acholonu, JSC (of blessed memory), that it is the duty of the court to decide the rights of parties and not to punish them for mistakes in the conduct of their cases. Thus, if the Defendant as in this case had a good defence which from the Notice of Intention and accompanying affidavit has been amply demonstrated, and he was willing and ready to defend the action, it was clearly inequitable for him to be shut out on technical rules relating to the form in which the defence has been brought.
As was rightly held by Belgore JSC (as he then was) and Tobi J.S.C. recently:-
“Rules of procedure are made for the convenience and orderly hearing of cases in court. They are made to help the cause of justice and not to defeat justice. The Rules are therefore aids and not masters of the court.
For the court to read the rules in the absolute without recourse to the justice of the cause, to my mind, will be making the courts slavish to the rules. This truly is not the raison d’etre of rules of court.”
For Tobi JSC; he was emphatic (and this takes care of Mr. Jimoh’s submission that non adherence to the strict rule of procedure under Order 23 would render same a complete nonsense); that if in the course, of doing justice, some harm is done to some procedural Rule like 3(1) of the Kwara State, High Court (Civil Procedure) Rules, 1989; the court should be happy that it took that line of action in pursuant of justice. There, the apex court refused to follow a Procedural Rule in Election Petition which sought to shut the door against willing Appellants who were out of time to seek for extension, “myopically or blindly in order not to fall into a mirage and get physically and mentally absorbed or lost.” They prayed for that day not to come. See Atiku Abubakar v. YarAdua (200s) 14 WRN 1 (2008) 2 SCNJ 549 at 581 to 583; Egolum v. Obasanjo & ors. (2004) 1 WRN 87 (1998) 5 SCNJ 92; Ngige v. Obi (2006) 18 WRN 33; Nwobodo v. Onoh (1984) All NLR 1 and Fayemi v. Oni (2009) 8 WRN 103 at 121 – 122; per Agube JCA.
Not having afforded the Appellant the opportunity to defend by the refusal to countenance his Notice of Intention to Defend and the accompanying affidavit, the learned trial Judge slavishly and myopically followed the Undefended List Procedure by allowing himself to be blinded and mentally and physically got absorbed and lost in the mirage into which he fell.
On the whole, the second issue is resolved in favour of the Appellant. This appeal is therefore meritorious and hereby succeeds in its entirety. The judgment of the High Court of Kwara State delivered on the 23rd day of February, 2001 is hereby set aside. The Plaintiff/Respondent’s suit is hereby struck out for want of jurisdiction and assuming, we are overruled on the issue of jurisdiction; we order that the suit be placed on the General Cause List and heard by another Judge of the Kwara state High court after pleadings may have been filed and exchanged by the parties. Parties shall however bear their respective costs.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft, a copy of the lead judgment of my learned brother, AGUBE, J.C.A. I agree with his line of reasoning and conclusion. I am also of the view that the appeal is pregnant with a lot of merit and ought to be and it is hereby allowed. I abide by the consequential order contained therein.
SOTONYE DENTON WEST, J.C.A.: I have read a copy of the lead judgment delivered by my learned brother I.I AGUBE JCA, before now. As usual he has thoroughly considered the preliminary objection and the two issues submitted by the parties for determination in the appeal and proficiently resolved them in line with applicable principles of law.
I am in complete agreement with the views expressed and the reasons stated for the conclusion on the issue with the emphasis that the aim of the undefended list procedure is a truncated form of civil procedure/hearing to ensure quick despatch of certain types of cases such as those involving debt or liquidated money claim when there is no genuine defence on the merit to the plaintiff claims. See Cooperative and Commerce International Bank Plc vs Samed Investment Company Ltd (2000) 4 NWLR (pt 651) at pg 19, International Bank for West Africa Ltd vs Unakalaba (1998) 9 NWLR (pt 565) at pg 245, Agwueneme vs Ezeh (1990) 3 NWLR (pt 137) at 242 and UBN Plc vs Jar Gaba (2007) 11 NWLR (pt 1045) 247 at 272 paras e-h.
The undefended procedure is a special procedure wherein the high court is empowered to give judgment in a suit based solely on affidavit evidence of the party without recourse to the necessity of formality hearing if the requirement of the rule are satisfied. Further, a case on the undefended list belong to different category and is not on the same footing as a case under default proceedings. See the case of Aso Motel Kaduna Ltd vs Doyeno (2007) All FWLR (pt 390) pg 1444 at 1475 and Mat Holding Ltd vs UBA Plc (2003) pt803 at 71.
A judgment obtained under the undefended list procedure is a judgment obtained on the merit as the judgment can only be set aside if fraud is established. See Okafor vs A.G, Commissioner for justice (1991) 7 SCNJ at 375.
In the case at hand the appellant who was respondent at lower court filed his defence and came to court the date the judgment was to be delivered, but the lower court went ahead and read the judgment. It is pertinent to note that a critical glance at the appellant’s defence was THOMAS ADEWUMI COLLEGE OKO awarded the contract and not Dr J .B .O Adewumi who is the proprietor. THOMAS ADEWUMI COLLEGE OKO is a registered body with the cooperate affair commission and it is recognized by the law as an identity that can sue and be sued. See Onyekuwluje vs Benue State Govt (2005) 8 NWLR (pt.928) 614 at 646-647.
As I earlier said my learned brother has treated the issues very well and I agree with his conclusion. I also ordered that the matter be placed on the general cause list before another judge.
Appearances
Akinyele Sanyaolu Esq., with Yakub Dauda Esq. For Appellant
AND
Samuel O. Jimoh, Esq., For Respondent
