F. K. CONSTRUCTION CO. LTD. V. TREVI FOUNDATION NIG. LTD.
(2011)LCN/4762(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of July, 2011
CA/PH/294/2004
RATIO
RULES OF THE COURT: WHETHER A PARTY WHO FAILED TO COMPLY WITH THE RULES OF THE COURT IS ESTOPPED FROM COMPLAINING ABOUT THE EFFECT OF ITS FAILURE TO OBEY RULES OF COURT
The failure of the appellant to comply with the rules of court has thus nailed it’s complain that it was not fair on it. The appellant is thus estopped from complaining about the effect of its failure to obey rules of court. The appellant had over 4 months to file its intention to defend the suit in the undefended list. The appellant did not even feel that it could have filed an application for extension of time to file its notice of intention to defend. What it did therefore, is a total waiver of its right, see ARIORI V. ELEMO (1983) 1 SCNLR 1. PER ISTIFANUS THOMAS, J.C.A.
RULES OF COURT: EFFECT AND NATURE OF THE RULES OF COURT
…Rules of court are meant to be obeyed. See AGIP V. AGIP PETROL (2010) 42 NSQR 167. According to Adekeye JSC in AGIP v. AGIP PETROL (supra) at page 243. “This court has held in numerous decisions that rules of court must be obeyed by litigants and they are binding on all parties before the court. Rules of court are not mere rules but are by nature akin to subsidiary legislations by virtue of section 18(1) of the Interpretation Act and therefore have the force of law. See Oba Aramolaran & Anor V. Oladele & 2 Ors 1990 7 NWLR (PT. 162) page 359; Bango V. Chado (1988) 9 NWLR (Pt. 564) 139; Duke V. Akpabyo Local Govt. (2005) 19 NWLR (pt. 959) 130 at 148 – 157, Owners of llie M.V. Arabella V.N.A.I. C. (2008) 11 NWLR PT. 1097 page 182 at 205 – 206”. PER AWOTOYE, J.C.A
UNDEFENDED LIST PROCEDURE: STATUTORY PROVISION GOVERNING THE UNDEFENDED LIST PROCEDURE
The procedure on the Undefended List procedure is well stated under order 23 Rules 1, 3 and 4 of the Rivers state High court Rules of 1987. Order 23 Rules 1, 3 and 4 of the Rules read:- “23(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, liquidated money demand or any other claim and the 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 circumstances of the particular case. 3. (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day affixed 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(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.” PER AWOTOYE, J.C.A
UNDEFENDED LIST PROCEDURE: ESSENCE OF THE DEFENDANT FILING A NOTICE OF DEFENCE AND AFFIDAVIT FOR AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE; WHETHER A DEFENDANT CAN FILE A PRELIMINARY OBJECTION OTHER THAN A NOTICE TO DEFEND AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
Filing of notice of defence and affidavit prescribed under order 3(1) of the Rules are mandatory requirement for any defendant who has good defence to the action filed. If they are not filed, the court has no option but to enter judgment. In BEN THOMAS HOTEL LTD V. SEBI FURNITURE (1989)5 NWLR (PT. 123) 523 the Supreme Court held that if they are not filed the court must proceed to judgment. It is true an action under the undefended list procedure can be challenged by filing a preliminary objection other than a notice of intention to defend. See SODIPO v. LEMMINKAINGEN (1986) 1 NWLR (PT. 15) 220 at 231, NISHIKAWA LIMITED V. JETHWANI (1984) 12 SC. 234 at 257, UTC NIG. LTD. V. PAMOJEL (1989) 2 NWLR (Pt. 103) 244, however the affidavit supporting the objection must contain facts wide detailed enough to disclose good defence should the preliminary objection fail. Otherwise the defendant would have nothing to fall back on to sustain his defence. PER AWOTOYE, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
F. K. CONSTRUCTION CO. LTD. – Appellant(s)
AND
TREVI FOUNDATION NIG. LTD. – Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): The appeal is against the ruling and the final judgment of the learned trial judge Akpughunm of Port Harcourt High Court, delivered on 29-06-2004 in which the appellant’s preliminary objection to the plaintiff but now respondent’s suit, was dismissed or overruled. The suit was on the undefended list. The trial judge heard the undefended list in favour of the respondent.
Dissatisfied with the judgment, the appellant filed a notice of appeal on 29-06-2004 containing 4 grounds of appeal.
From the 4 grounds, the appellant has raised 3 issues for determination.
They read thus:
1. “Whether the suit was fixed for ruling on the preliminary objection or hearing of the substantive suit. If it was for ruling, whether final judgment can be entered in the course of delivering ruling on an interlocutory application (ground 4)
2. Whether the learned trial judge should not have given the defendant/appellant the opportunity to file and serve its notice of intention to defend with affidavit disclosing a defence on the merit before proceedings to judgment in the undefended list since the matter was fixed for ruling (ground 1)
3. Whether in the face of the writ of summons, the affidavit in verification and the affidavit in support of the application under the undefended list, the trial judgment can enter the suit or the undefended list and judgment in favour of the plaintiff/respondent (grounds 2 and 3)”.
On the part of the respondent a sole issue is raised. It reads thus:-
“Whether the decision of the High court is correct having regard to the circumstances of the case”.
This appeal is straight forward and I will treat jointly, the appellant’s three [3] issues along with the respondent’s sole issue
The appellant’s issue 1 is, whether the suit was fixed for ruling on the preliminary objection or hearing of the substantive suit. In my considered opinion, the undefended list proceedings, is a special procedure and it is peculiar in its subject and application. The respondent’s claim against the appellant at the lower court was for the sum of N48,579,052.75 being and representing unpaid invoices expended in the execution of the contract which was clearly awarded to the respondent. The contract was for construction of the Woji Trans-Amadi Bridge Port Harcourt. When the respondent’s suit was filed, it was under the undefended list. The trial judge made order that, the appellant should be served with the order, which would give the appellant, an opportunity to file a notice of intention to defend as required by Order 23 Rule 2 of the Rules of Rivers state High Court. When the appellant was served with the undefended list along with hearing notice, instead of filing a notice of intention to defend, it filed a preliminary objection on the ground that, the trial court had no jurisdiction to hear the undefended list. Despite the failure to file the notice of intention to defend, the trial judge, still gave the appellant sufficient time to consider if it had a defence. In the enrolled order as contained at page 41 of the record, it reads:
“IT IS ORDERED that this suit be placed for hearing in the undefended list and that the Writ of’ Summons be marked accordingly.
IT IS ALSO ORDERED that the Writ of Summons, the order and all other processes in this suit shall be served on the defendant/respondent before the date filed for hearing”.
The appellant has not denied that, the enrolled order was effectively served on it. On 01-02-2004, the appellant argued his objection despite the respondent’s reminder to the trial judge that the matter was earlier on adjourned to hear the undefended list. The argument was adjourned to 24th March 2004 for reply on the preliminary objection, but could not be heard on the adjourned date and the trial court further adjourned to 24th June 2004. After parties had argued on the objection, the trial judge held that the writ of summons was not wrong, and that the trial court had jurisdiction to hear and determine the writ on the undefended list. The trial court dismissed the preliminary objection.
I have considered the trial judge’s proceedings, and at page 65 of the record, his Lordship effectively stated as follows:-
“Having dismissed the notice of preliminary objection, I shall now look at the claim before me. The present action was commenced under the undefended list procedure. By the rules, a defendant served with such process is enjoined to file a Notice of Intention to Defend supported by an affidavit disclosing a defence on merit, not less than 5 days to the date fixed for hearing if he intends to defend the action.
The records show that the Defendant was served with all the processes in respect of this case on 10-7-2003. The records also show that no Notice of Intention to Defend was filed by the Defendant which as a clear indication that it had no defence to the action.
In accordance with the provisions of Order 23 Rules 4 of the Rules of Court, judgment is hereby entered in favour of the plaintiff against the Defendant in the sum of N48,579,052.75 being and representing unpaid invoices expended by the plaintiff in the execution of the contract awarded to it by the defendant for the construction of Woji- Trans -Amadi Bridge Port Harcourt. Interest at the rate of 10% per annum from the date of judgment until liquidation of same”.
The above findings and reasonings of the trial judge can not be assailed.
It is a lame excuse for the appellant to complain that, it was not given an opportunity to file its intention to defend. The Writ of Summons was served on it along with the enrolled order, but it deliberately failed to comply with the rules made in Order 23 Rules 2 of the Rules of High court Rivers State 1987.
There is no doubt. That, the suit was placed under the undefended cause list, and the return date is always for hearing, see UTC LTD v. PAMOTEI (1989) 3 SC (Pt. 1) 79, BEN THOMAS HOTEL v. SEBI FURNITURE CO. LTD (1939) 12 SC 160. The failure of the appellant to comply with the rules of court has thus nailed it’s complain that it was not fair on it. The appellant is thus estopped from complaining about the effect of its failure to obey rules of court. The appellant had over 4 months to file its intention to defend the suit in the undefended list. The appellant did not even feel that it could have filed an application for extension of time to file its notice of intention to defend. What it did therefore, is a total waiver of its right, see ARIORI V. ELEMO (1983) 1 SCNLR 1.
In the final analysis, the appeal has no merit whatsoever, and it is dismissed with costs of N50,000.00 in favour of the respondent.
EJEMBI EKO, J.C.A.: The suit, in which decision was delivered by Akpughunun, J of Rivers State High Court on 29th June, 2004, was brought under the undefended list procedure. Under order 23 of the extant Rules of the court below the appellant, as the defendant, served the writ under the undefended List procedure was enjoined to file his Notice of Intention to defend together with an affidavit disclosing his defence on the merit. The defendant is neither expected, nor allowed, to split his defence in order to delay trial under the Undefended List Procedure.
This appellant, as the defendant, upon being served the writ on the undefended List procedure filed a preliminary objection to the suit. And who says preliminary objection by a defendant is not a defence? It is a defence, though not on the merits. A preliminary object that is capable of completely aborting the hearing and determination of a suit against the defendant has the same effect as a defence on the merits.
It is clear from the Record of the appeal that the court below heard the preliminary objection and the merits of the suit jointly. Nothing stopped the court from doing so. I will not interfere with the decision of the court below on the ground only that the court consolidated the suit and the preliminary objection thereto. Having dismissed the Preliminary Objection, and there being no defence on the merits to the suit on the Undefended List, the court below was right in proceeding to deliver judgment in the suit.
I agree with my learned brother, ISTIFANUS THOMAS, JCA, that there is no substance in this appeal. The appeal is hereby dismissed with costs assessed at N50, 000.00 in favour of the respondent against the appellant.
AWOTOYE, J.C.A.: I have had a preview of the judgment just delivered by my learned other ISTIFANUS THOMAS JCA. I am in complete agreement with the conclusion therein.
I wish to add some additional comments however Rules of court are meant to be obeyed. See AGIP V. AGIP PETROL (2010) 42 NSQR 167.
According to Adekeye JSC in AGIP v. AGIP PETROL (supra) at page 243.
“This court has held in numerous decisions that rules of court must be obeyed by litigants and they are binding on all parties before the court. Rules of court are not mere rules but are by nature akin to subsidiary legislations by virtue of section 18(1) of the Interpretation Act and therefore have the force of law. See Oba Aramolaran & Anor V. Oladele & 2 Ors 1990 7 NWLR (PT. 162) page 359; Bango V. Chado (1988) 9 NWLR (Pt. 564) 139; Duke V. Akpabyo Local Govt. (2005) 19 NWLR (pt. 959) 130 at 148 – 157, Owners of llie M.V. Arabella V.N.A.I. C. (2008) 11 NWLR PT. 1097 page 182 at 205 – 206”.
The procedure on the Undefended List procedure is well stated under order 23 Rules 1, 3 and 4 of the Rivers state High court Rules of 1987. Order 23 Rules 1, 3 and 4 of the Rules read:-
“23(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, liquidated money demand or any other claim and the 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 circumstances of the particular case.
3. (1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day affixed 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(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.”
Filing of notice of defence and affidavit prescribed under order 3(1) of the Rules are mandatory requirement for any defendant who has good defence to the action filed. If they are not filed, the court has no option but to enter judgment. In BEN THOMAS HOTEL LTD V. SEBI FURNITURE (1989)5 NWLR (PT. 123) 523 the Supreme Court held that if they are not filed the court must proceed to judgment.
It is true an action under the undefended list procedure can be challenged by filing a preliminary objection other than a notice of intention to defend. See SODIPO v. LEMMINKAINGEN (1986) 1 NWLR (PT. 15) 220 at 231, NISHIKAWA LIMITED V. JETHWANI (1984) 12 SC. 234 at 257, UTC NIG. LTD. V. PAMOJEL (1989) 2 NWLR (Pt. 103) 244, however the affidavit supporting the objection must contain facts wide detailed enough to disclose good defence should the preliminary objection fail. Otherwise the defendant would have nothing to fall back on to sustain his defence. This was what happened in this case.
The appellant put all his eggs in one basket.
The defendant despite having been served with the plaintiffs processes filed a preliminary objection that the writ if was defective and that there was no proper claim before the court. He supported the objection with scanty 6 paragraph affidavit. The preliminary objection was well considered by learned trial judge after hearing the parties and dismissed. There was bring left for the learned trial judge to do other than to enter judgment in favour of the plaintiff.
The appellant took a big risk and can not be heard to complain. That was how he laid his bed. He should lie on it as it is.
For the above reasons and the fuller reasons ably adduced in the lead judgment I also hold that this appeal lacks merit. It is hereby dismissed. I abide the order as to costs as made in the read judgment.
Appearances
UCHE EWULE Esq.For Appellant
AND
G. N. Okonkwu Esq.For Respondent
