ED-OF NIGERIA LIMITED V. SNIG NIGERIA LIMITED(2013)

ED-OF NIGERIA LIMITED V. SNIG NIGERIA LIMITED

In The Supreme Court of Nigeria

On Friday, the 1st day of February, 2013

SC.6/2004

RATIO

ACTION: DUTIES OF A DEFENDANT UNDER ORDER 23 RULE 3(1) AND (4)

It must be emphasized that the respondent herein as a defendant in the proceeding provided for under Order 23 rule 3 (1) and (4) must, therefore, show in the affidavit supporting his notice of intention to defend not only the fact of his intention to defend, but the further fact of a defence on the merit. Beyond disclosing an ex facie good defence to appellant’s action, the defendant must supply full details of the actual defence he intends, if given leave, to place before the court. See. UTC Nigeria Ltd V Pamotei & Others (1989) 2 NWLR (part 103) 244; Essang V Bank of the North (2001) 6 NWLR (part 709) 384 at 399; ACB Ltd V Gwagwada (1994) 5 NWLR (part 342) 25 at 36; Ben Thomas Hotels V Sebi Furniture (1989) 5 NWLR (part 123) 523 and Planwell Wattershed Ltd V Ogala (2003) 18 NWLR (part 852) 478 at 488 and 489. PER MUSA DATTIJO MUHAMMED, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

Between

ED-OF NIGERIA LIMITED Appellant(s)

AND

SNIG NIGERIA LIMITED Respondent(s)

WALTER SAMUEL NKANU ONNOGHEN, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Holden at Benin in Appeal No. CA/B/234M/99 delivered on the 13th day of May, 2002 allowing the appeal of the present respondent against the judgment of the High Court of Delta State in suit No. W/308/98 delivered on 8th March, 1999 in which the court entered judgment in favour of the present appellant under the Undefended List procedure.
The action was instituted at the High Court under the Undefended List Procedure for:
“(a) The sum of N3,433,500. (Three Million, Four Hundred and Thirty-Three Thousand, Five Hundred Naira) being the sum due to the plaintiff on the jobs executed by the plaintiff at the request of the defendant as at April, 1998.
(b) 15% per annum interest on the sum of N9,433,500 (Three Million, Four Hundred and Thirty-Three Thousand, Five Hundred Naira) from 1/5/98 to the day of judgment and
(c) 10% per annum interest on the judgment sum from the date of judgment until the whole judgment sum is paid”.
The appellant, as plaintiff, alleged that by letters dated 1st December, 1997, 5th February, 1998 and 2nd March, 1998 the plaintiff was requested by the defending to submit and it did submit quotations to the defendant for the insulation/cladding and painting works in the Warri Refinery. The quotations were attached to the affidavit in support of the application for the suit to be entered under the Undefended List, and marked as exhibits A, B and C respectively. Exhibits D, E and F are said to be letters from the defendant requesting the plaintiff to proceed with the jobs; that on 4th March, 1998 the plaintiff wrote to the defendant confirming its reduction of the contract price to N5,722,500 which the defendant accepted and paid the sum of N1,716,750 as mobilization vide exhibit G1.
It is also the contention of the plaintiff that it completed 60% of the jobs and delivered invoice No. 41 dated 22/4/98 for the sum of N3,433,500.00 to the defendant which the defendant failed and/or neglected to pay inspite of repeated demands which resulted in the institution of the action in terms of the reliefs earlier reproduced in this judgment.
The defendant sought leave to defend the action by filing a notice of intention to defend with an affidavit as required by the Rules of Court in which it disclosed that it acted as an agent to a disclosed principal in the transaction in issue and that the proper party to be sued is the disclosed principal.
However, the plaintiff did not dispute the facts relating to agency as no further affidavit was filed by it.
The learned trial judge heard arguments from both counsel after which he came to the conclusion that the affidavit of defence did not disclose any defence to the action and consequently entered judgment for the plaintiff as a result of which the defendant appealed to the lower court which set aside the judgment of the trial court and ordered that the matter be transferred to the general cause list to be heard and determined by another judge. It is against that judgment that appellant has appealed to this Court, the issue for the determination of which have been identified by learned Counsel for appellant C. A. AJUYA ESQ in the appellant brief deemed filed on 6/5/04 thus:
“Whether the Learned Justices of the Court of Appeal were right in holding that the defendant’s affidavit disclosed a defence on the merit”
On the other hand, learned counsel for the respondent, O. A. AKERELE ESQ. submitted two issues for determination to wit:
“(a) Under the Undefended List is a defendant obliged to prove his defence at the stage he is asking for leave to defend before he can be entitled to leave to defend
(b) Does the defendant/respondent’s defence (if proven) constitute a defence to the plaintiff/appellant’s claim”
When looked at closely, it is clear that the issues formulated by learned counsel for the respondent do not relate to the judgment of the lower court but that of the trial court, which is not the judgment on appeal before this Court. In fact, the two issues reproduced supra are exactly the same issues formulated by the present respondent’s counsel in his appellant brief before the lower court -see pages 60 to 61 of the record of appeal being part of the appellant brief before that court. What learned Counsel for respondent did in this case is simply to reproduce his appellant brief including the issues he formulated before the lower court.
In the circumstance the sole issue relevant in the determination of this appeal is as formulated by learned counsel for appellant and earlier reproduced in this judgment and I proceed to consider the appeal on the said issue.
In arguing the issue, learned counsel for appellant referred the court to Order 23 Rules 3(1) and 4 of the Bendel State High Court (Civil Procedure) Rules, 1988, as applicable to Delta State, and submitted that from the affidavits it is clear that the respondent has not disclosed any defence on the merit to the appellant’s case under the Undefended List and that the lower court was in error in setting aside the decision of the trial court in favour of the appellant. Learned Counsel cited and relied on the following cases – Planwell Watershed Ltd v. Ogala (2003) 12 SC (pt. 11) 39 at 42 – 43; Ivan v. Bilante International Ltd (1998) 5 NWLR (pt 550) 396 at 402; Bature v. Savanna Bank of Nigeria Limited (1998) 4 NWLR (pt. 546) 438 at 446 etc, and submitted that a trial court has a discretion in determining whether a defence on the merit has been disclosed by the defendant in an undefended List proceeding.
It is also the submission of counsel that granted that the respondent contracted as an agent, which appellant denied, exhibits D, E and F do not support that contention as they showed that the contract was in respondent’s own name, which respondent is liable, relying on Basma v. Weeks 12 WACA 316; Pascutto v. Adecentro Nigeria Limited (1997) 11 NWLR (pt. 529) 467 at 483 – 484; that even if agency is established, the respondent would still be liable to appellant, relying on Shipping Agency v. Kalla (1978) NSCC 114 at 118; Pabod Supplies Limited v. Bereduco (1996) 5 NWLR (pt. 448) 304 AT 329 TO 330.
Finally, counsel urged the court to resolve the issue in favour of appellant and allow the appeal.
On his part, learned counsel for respondent submitted that the lower court was right in holding that respondent has disclosed a defence on the merit to the case of appellant, in that respondent raised the defence of acting on behalf of a disclosed principle; that a defendant at the stage of seeking leave to defend an action under the Undefended List is not required to prove the defence but to disclose it and that the trial court was in error in holding otherwise and the lower court right in setting that holding aside. It is the further submission of counsel that the trial court’s resolution of the merits of the case by concluding that the respondent’s defence was not a defence on the merit and did not take into consideration the fact that the respondent was open to lead oral evidence to show the capacity in which it signed the contract and precluded the respondent from proffering evidence at the trial to the effect that:-
(a) It was the disclosed principal Snig France that contracted with appellant.
(b) The appellant was aware that the respondent acted as agent to Snig France.
(c) The appellant had always dealt with Snig France and its representatives in the performance of the contract and so had elected to deal with the principal, which excuses the agent from personal liability.
Finally, counsel submitted that the issue as to whether appellant had so elected to deal with the principal should have been allowed to go to trial as it is after evidence that such an issue can be resolved; that there was evidence that appellant was dealing with a certain Mr. C. Caulier from Snig France and that the signature appearing for Snig Nigeria on pages 6 – 16 of the record are different from that of C. Caulier on pages 34 – 36 which needed resolution at the trial.
Counsel urged the court to resolve the issue in favour of respondent and dismiss the appeal.
The provisions of Order 23 of the Bendel State High Court (Civil Procedure) Rules, 1988 give rise to proceedings under the Undefended List, which is simply a process by which a party, usually the plaintiff, can recover liquidated money demands from the defendant in the shortest possible time and without a full blown civil trial, which is usually very lengthy and time consuming. The relevant Rules of the Order to this case are Rules 3 (1) and 4 which enact thus:
“3(1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the date fixed for the 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 leave to defend upon such terms as the court may think just.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) 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.”
The judgment of the trial judge which resulted in the appeal before the lower court is very short and is in substance as follows:
“The court has examined the affidavit of intention to defend and the main affidavit in support of the claim. The defendant has not denied that it is not owing the plaintiff that amount but tried to conjure a defence that it was only an agent. None of the documents signed by the defendant suggests such a status which the defendant is now seeking to take shelter. On the whole, the court is of the view that no defence on the merit has been disclosed and the issue for transfer to general cause list is hereby rejected. Judgment is hereby entered in favour of the plaintiff for the sum of N3,433,500.00 at 15% annual interest beginning from April 1998 till the payment of the judgment debt.” see pages 48A – 488 of the record.
In setting aside the above judgment of the trial court, the lower court, at page 112 of the record held inter alia, as follows.
“Learned counsel for the appellant has argued and I agree with him that the issue of agency which he raised in paragraph 3 (viii) of the affidavit in support of the intention to defend is a substantial issue of fact entitling the appellant to leave to defend and it constitutes a triable issue which ought to have gone to trial. It does not lie in the power of the trial judge at this stage to rule that agency has not been proved because the documents annexed to the writ or notice of intention to defend do not disclose where (sic) the appellant acted on behalf of SNIG FRANCE. Some explanation ought to be given on why Exhibit “D” written on 4th December, 1997 was signed on behalf of Snig (Nig) Ltd/Snig LSB France and why Exhibit “J” which complained about the non-payment of the N3,433,500.00 was copied to SNIG LSB FRANCE by the Managing Director of the Respondent Company….
I am therefore firmly of the view that the appellant satisfied the conditions necessary for the transfer of the case to the general cause list for the matter to be determined on the merits since a triable issue was raised in the affidavit in support of the notice to defend the action….”
The question is which of the lower courts is right It is correct as found by the trial court that the respondent is not disputing the sum claimed as arising from the contracts. All it is contending is that appellant has sued the wrong person in that it is an agent of a disclosed principal which makes the principal liable. The question before the lower courts, therefore, is whether respondent’s affidavit discloses a defence to the action on the merit. The issue at the stage in the proceeding where a defendant seeks leave to be let in to defend an action under the Undefended List Procedure is not whether the defence put forward by the defendant has been proved or established but whether there are facts on record as disclosed in the affidavits, which if proved could ground the proposed defence on the merit.
From the record, the facts relied upon by respondent as constituting its defence to the action are as deposed to in paragraph 3 of the affidavit of defence filed with the notice of intention to defend the action as required by the Rules of Court. It states, inter alia, as follows:
“3. I am informed by the Commercial Manager Mr. Patrick Mong whom I verily believe as follows:
(i) The Company Snig Nigeria Limited has a parent Company called S. A. GROUPE SNIG (SNIG FRANCE) whose Head Office is at 211 Avenue Francie de Presence, 69994 Veunissieux, France.
(ii) In 1997 SA INGERSOLI – DRESSER POMPES (IDP) whose Head Office is at Route d’Angers 72234 ARNAGE CEDEX, FRANCE accepted SA GROUPE SNIG’S tender for sub-contracting works including services on site for the renovation of the feed pumps at the Warri terminal station in Delta State, Nigeria.
(iii) In order to execute the project S. A Group SNIG required certain logistic support from indigenous contractors.
(iv) Contained in the contract between SNIG FRANCE and IDP it is stipulated that the works be carried by local labour and services
(v) To this end Snig France contracted with ED-OF Nigeria Limited to perform insulation/cladding and painting works.
(vi) The plaintiffs were in constant contact on the site with the project managers – Mr. C. Caulier and Mr. Serend Strizzolo from Snig France at all times.
(vii) The plaintiff knew at all times that the Defendant herein merely acted as an agent of Snig France.
(viii) (a) The proper party to be sued by the plaintiff herein is the disclosed principal Snig France……”
When you look at exhibit “D” which is dated the 4th day of December, 1997, you will see that it was signed by two persons, J. BRANTONNE and PATRICK MONG for “SNIG (NIG) LTD/SNIG LSB FRANCE”, while the letter of complaint against the non-settlement of the bills written by the appellant and dated 16/7/98, exhibit “J” is copied to SNIG LSB FRANCE.
From the above it is clear that having regards to the claim of the respondent to being an agent of a disclosed principal to wit SNIG LSB FRANCE in the transactions in issue, there is the need for some explanations to be offered as to why the said exhibit “D” was signed as it was and why exhibit “J” should be so copied. The only place where such explanations can be offered is at full trial under the general cause list. It is at that trial that the issues as to whether respondent acted on its behalf or for a disclosed principal or whether appellant has elected to sue the agent instead of the disclosed principal etc, etc, can be properly raised and resolved.
In the circumstance, I agree with the conclusion of the lower court at page 112 of the record, earlier reproduced in this judgment, that the present respondents satisfied the conditions needed for the matter to be transferred from the Undefended List to the General Cause List to be determined on the merit. The respondent has disclosed a defence on the merit which defence should be tested at the trial of the action.
Another point of note, which was also taken by the lower court and commented upon is the issue of the award of 15% interest on the sum claimed by the trial court when there is no evidence of the basis for the claim of interest under the Undefended List Procedure. That point has not been taken up by either party before this court but it is a point of law which should not be ignored. From the affidavit in support of the application for the issue of a writ under the undefended list as required by the Rules, there is no ground(s) upon which the interest on the sum claimed is based. This renders the award of 15% interest questionable in the circumstance.
In conclusion, I hold the considered view that the appeal has no merit whatsoever and is subject to dismissal in the circumstances, and order accordingly.
I affirm the judgment of the lower court and order that appellant pays to the respondent the sum of N100,000 by way of costs.

Appeal dismissed.

C. M. CHUKWUMA ENEH, J.S.C.: I have had a preview of the lead judgment of my learned brother, Onnoghen JSC in this matter and I agree with him that the appeal should be dismissed. I endorse the orders contained therein.

SULEIMAN GALADIMA, J.S.C.: This appeal emanates from the judgment of the Court of Appeal Benin delivered on 13/5/2012 in Appeal No. CA/B/234M/99, allowing the appeal of the respondent herein against the judgment of the trial High Court delivered on 8/3/1999 in which the court entered judgment in favour of the appellant herein under Undefended List Procedure.
I have read the draft of the judgment of my learned brother ONNOGHEN JSC.
I agree with him entirely that this appeal has no merit and must be dismissed. The background facts are well exposed in the lead judgment.
The issue is when a trial court would deem it appropriate in law to transfer a suit commenced under the Undefended List Procedure to a General Cause List for determination.
Under Order 23 Rules 3 (1) and (a) (Civil Procedure Rules) High Court, Delta State is the relevant provision dealing with the issue.
It provides thus;
“3. (1) if the party served with the writ of summons and affidavit delivers to the Registrar not less than five days before the date fixed for hearing a notice of writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit: the court may give leave to defend upon such terms as the court may think just.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) 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 a plaintiff to summons witnesses before the court to prove his case formally.”
What is required of the trial High Court by the provisions of the foregoing Rules is the consideration of the affidavits of the respective parties to find out if the defendant has ex facie disclosed any defence to the action of the plaintiff. If the court is satisfied that the defendant has disclosed defence, it will then grant the defendant leave to defend the action upon such terms as it may deem just in the circumstance of the case. Otherwise it refuses the defendant to defend the action and shall proceed to hear the suit. In this case at hand, the learned trial Judge after the consideration of the affidavits, parties has concluded thus:
“The court has examined the affidavit of intention to defend and the main affidavit in support of the claim. The defendant has … tried to conjure a defence that it was only an agent. None of the document signed by the defendant suggests such a status take shelter. On the whole, the court is of the view that no defence on the merit has been disclosed and the issue for transfer to the general cause list is hereby rejected……”
In the light of the foregoing the trial court decided in favour of the plaintiff in terms of the writ it took out against the defendant.
What are the facts deposed to in the affidavit of the defendant disclosing defence on the merit. Resort must be had to paragraphs 3(vii) and vii (a) and (b) of the said affidavit as follow:
“3. I am informed by the commercial manager Mr. Patrick Mong, whom I verily believe as follows:
(vii) The plaintiff knew at all time that the defendant herein merely acted as an agent for SNIG FRANCE.
(viii) (a) The proper party to be sued by the plaintiff herein in the disclosed principal SNIG FRANCE.
(b) SNIG FRANCE has taken up legal proceedings against IDP in respect of the project. Attached herewith and marked Exhibit QA1 is a Certified True Copy of a translation of the said proceedings in the French Courts.”
From the foregoing substantial reasons have been disclosed which will grant the appellant leave to defend the respondent’s claim. Having averred to the claim of the respondent to being an agent of a disclosed principal that is, SNIG LSB FRANCE, in the transaction in question, there is need for some further clarifications or explanations to be offered as to why Exhibit “D” was signed, as it was, and why Exhibit “J” should be so copied. In the circumstances of this, full trial is necessitated under the general cause list.
Accordingly, I agree with the lower court that the respondents have satisfied the conditions required for the matter to be transferred from Undefended List to the General Cause List to be determined on the merit. It is my considered view that the respondent has disclosed a defence on the merit which defence should necessitate the trial of the appellant’s claim.
In sum, in view of the foregoing and the detailed consideration of the issue by my learned brother ONNOGHEN JSC I too shall dismiss the appeal and affirm the judgment of the lower court. I abide by order made as to costs.

MUSA DATTIJO MUHAMMED, J.S.C.: I had a preview of the lead judgment of my learned brother Onnoghen JSC and entirely agree with him that this appeal must fail.
The issue the appeal raises is when would a trial court rightly transfer to its general cause list a suit commenced under the undefended list procedure
In the instant case the appellant had commenced his action at the High Court of Delta State for the reliefs already reproduced in the lead judgment. The trial court found for the appellant. On appeal by the respondent to the Benin Division of the Court of Appeal, the lower court, having found that the affidavit in support of respondent’s notice for leave to defend the suit had disclosed a defence, the trial court’s judgment was set aside. The court also ordered that the matter be transferred to the trial court’s general cause list for same to be tried by a judge other than the judge whose decision in suit No. W/308/98 the court below allowed in appeal No. CA/B/234m/99.
Aggrieved by the decision, the plaintiff has further appealed to this court urging us to allow his appeal against the wrong decision of the court below.
Order 23 rule 3 (1) and (4) of the trial court’s procedure rules relevant to the issue under reference provide:-
“3 (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the date fixed for hearing a notice of writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit; the court may give leave to defend upon such terms as the court may think just.
(4) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) 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 summons witnesses before the court to prove his case formally.”
It is glaring from the foregoing rules that what is required of the trial court is to consider the respective affidavits of the two sides with the view to finding out whether or not the defendant has ex facie disclosed a defence to the plaintiff’s action. If the court answers the question in the affirmative it grants the defendant leave to defend the action on such terms as the court deems fit. If the court however answers the question in the negative it refuses the defendant leave to defend the action and hears the suit as being undefended dispensing with the otherwise necessary requirement of taking evidence from the witnesses the plaintiff would have summoned. The trial court’s conclusion from that exercise at pages 48A – 48B reads:-
“The court has examined the affidavit of intention to defend and the main affidavit in support of the claim. The defendant has … tried to conjure a defence that it was only an agent. None of the document signed by the defendant suggests such a status which the defendant is now seeking to take shelter. On the whole, the court is of the view that no defence on the merit has been disclosed and the issue for transfer to the general cause list is hereby rejected…”
The court proceeded to enter judgment for the plaintiff in terms of the writ as taken out.
In determining the appeal from the trial court’s judgment, the lower court at page 112 of the record opines thus:-
“… learned counsel for the appellant has argued and I agree with him that the issue of agency which he raised in paragraph 3 (viii) of the affidavit in support of the intention to defend is a substantial issue of fact entitling the appellant to leave to defend and it constitutes a triable issue which ought to have gone to trial. It does not lie in the power of the trial judge at this stage to rule that agency … some explanation ought to be given on why Exhibit ‘D’ written on 4th December, 1997 was signed on behalf of Snig (Nig) Ltd/Snig LSB France and why J which accompanied the non payment of N3,433,500.00 was copied to SNIG LSB FRANCE by the Managing Director of the respondent company…
I am “therefore firmly of the view that the appellant satisfied, the conditions necessary for the transfer of the case to the general cause list for the matter to be determined on the merits…”
The two courts having taken divergent positions cannot certainly all be right. Given Order 23 rule 3 (1) and (4) of the trial court’s adjectival law which both courts assert to apply to the facts of the parties as contained in their respective affidavits, it is my considered view that the trial court is in manifest error. On the other hand, the judgment of the court below is beyond reproach.
This court has applied same or similar rules of court relevant to the issue at hand in a seemingly endless body of cases. Therein, the court has held that once the defendant’s affidavit in support of his notice of intention to defend discloses a “triable issue,” a point that is incapable of being resolved on the basis of the affidavits of both sides, it becomes incumbent for the trial court to, by virtue of its own rules on the matter, to hold that the defendant having succeeded in disclosing a defence that requires further scrutiny, grant the defendant leave to defend the suit. Resultantly, the court transfers the suit to its general cause list for a full blown trial and eventual determination.
It must be emphasized that the respondent herein as a defendant in the proceeding provided for under Order 23 rule 3 (1) and (4) must, therefore, show in the affidavit supporting his notice of intention to defend not only the fact of his intention to defend, but the further fact of a defence on the merit. Beyond disclosing an ex facie good defence to appellant’s action, the defendant must supply full details of the actual defence he intends, if given leave, to place before the court. See. UTC Nigeria Ltd V Pamotei & Others (1989) 2 NWLR (part 103) 244; Essang V Bank of the North (2001) 6 NWLR (part 709) 384 at 399; ACB Ltd V Gwagwada (1994) 5 NWLR (part 342) 25 at 36; Ben Thomas Hotels V Sebi Furniture (1989) 5 NWLR (part 123) 523 and Planwell Wattershed Ltd V Ogala (2003) 18 NWLR (part 852) 478 at 488 and 489.
In the case at hand, the respondent has averred in the affidavit in support of his intention to defend, the fact that it is an agent of a disclosed a principal: SNig France; that the appellant is aware of that fact, and that the law excuses the respondent from liability in the face of the further facts in the supporting affidavit, showing that the appellant in the performance of the contract was dealing with the disclosed principal’s representatives. The appellant never filed a reply to these averments in respondent’s affidavit.
In the face of all these, the court below is manifestly right to have held that the need has arisen for the transfer of appellant’s suit to the general cause list for same to the fully heard and determined. I so hold as well.
For the foregoing and the further and fuller reasons adumbrated in the lead judgment, I also dismiss this appeal. I abide by all the consequential orders made by my learned brother in the lead judgment.

CLARA BATA OGUNBIYI, J.S.C.: I have read in draft the lead judgment just delivered by my learned brother Walter S. N. Onnoghen, JSC. I agree that the appeal is devoid of any merit and is also dismissed by me.
For purpose of emphasis however, I wish to state that the legitimacy of the sum being claimed at the trial court is not in controversy but rather that a wrong person is being sued in court. In otherwords, the respondent’s claim and contention is, being an agent of a disclosed principal that is to say SNIG LSB FRANCE, the liability should be that of his principal. The determination of the assertion is, in my view a matter of evidence which can only be adduced and testified to at the trial and not from the affidavit evidence now before the court.
The trial court in the suit at hand entered judgment for the appellant on an undefended list. The Court of Appeal Benin Division allowed the appeal lodged against the decision, set aside the judgment of the trial High Court Delta State holden at Warri and transferred the suit to general cause list.
On a further appeal to this court, the lone issue raised is as follows:-
Whether the learned Justices of the Court of Appeal were right in holding that the defendant’s affidavit disclosed a defence on the merit
The procedure pursuant to which this action is predicated is as provided by Order 23 of the Bendel State High Court (Civil Procedure) Rules of 1988, applicable to Delta State. Order 23 Rules 3(1) and 4 provide thus:-
“3(1) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days, before the date fixed for the 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 leave to defend upon such terms as the court may think just.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) 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.”
The facts deposed of paragraph 3(vii) and (viii) (a) and (b) of the affidavit disclosing defence on the merit are very revealing wherein the reproduction state thus:-
“3. I am informed by the commercial Manager, Mr. Patrick Mong whom I verily believe as follows:-
…
(vii) The plaintiff knew at all times that the defendant herein merely acted as an agent for Snig France.
(viii) (a) The proper party to be sued by the plaintiff herein is the disclosed principal Snig France.
(b) Snig France has taken up legal proceedings against IDP in respect of the project. Attached herewith and marked Exhibit OA1 is a certified true copy of a translation of the said proceedings in the French Courts.”
On a corporate reading of the facts deposed supra, substantial reasons are disclosed therein which will entitle the appellant leave to defend and thereby constituting a triable issue. It did not therefore lie in the power of the trial court of that stage to conclude that the existence of agency has not been proved in the absence of annexing such documents to the writ or notice of intention to defend. The trial court by its ruling had in the circumstance precluded the respondent from establishing its status in relation to the claim before the court. The law is well established and settled that where a triable issue is raised, the case ought as a matter of principle be transferred onto the general cause list. It is the deposition of the notice to defend that should be the determinant factor.
The defendant/respondent’s defence had loudly echoed that it was merely an agent to a disclosed principal and this fact had been well spelt out on its affidavit evidence reproduced supra. In my considered view, the lower court could not have been more correct in arriving at its judgment which reversed the erroneous view held by the trial High Court Judge.
The appeal herein is dismissed and in terms of the lead judgment, I also affirm the judgment of the lower court. I further abide by the order made in the lead judgment as to costs.