FRAZIMEX NIG. LTD & ANOR v. DOATEE CONCEPTS NIG. LTD.
(2010)LCN/3851(CA)
RATIO
EVIDENCE: EFFECT OF UNCONTROVERTED FACTS
It is now settled law that facts that are not controverted are deemed to have been admitted and that no further proof is required of those facts. PER TIJJANI ABDULLAHI, J.C.A.
ACTION: MEANING AND NATURE OF A TRIABLE ISSUE OR DEFENCE
In the case of VICTOR AMEDE v. U.B.A. (supra), this court defined a triable issue or defence thus:
“when it is said that a defendant who intends to defend an action on the undefended list must disclose that he has triable issue, or a bona fide issue; or a defence on the merit, it means no more than that he must raise a genuine issue even for reason of creating the slightest doubt as to facts, which will preclude the trial judge: from entering a summary judgment.
In other words, a triabe issue or defence on the merit under the undefended list procedure is disclosed where a defendant’s affidavit in ,support of notice of intention to defend is such that the plaintiff will be expected to explain certain matters with regard to this claim or where the affidavit throws a doubt on the plaintiff’s claim. [Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; Obi v. Nkwo Market Community Bank Ltd. (2001) 2 NWLR (Pt. 696) 113; Odu v. Agbor- Hemeson (No.2) (2003) 2 NWLR (pt. 804) 355; Jipreze v. Okonkwo (1987) 2 NWLR (pt.62) 373; Ivan v. Bilante Int. Ltd. (1998) 5 NWLR (pt. 550) 396; Mar Holdings Lrd. v. U.B.A. Plc (2003) 2 NWLR (pt. 803) 71 referred to] (pp 662 paras. C – D; 666, paras A-B). PER TIJJANI ABDULLAHI, J.C.A.
COURT: DUTY OF COURT NOT TO ALLOW A DEFENDANT WITH NO REAL DEFENCE TO FRUSTRATE THE ACTION
It is trite law that a court should not allow a defendant who has no real defence to an action on the undefended list to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness, PER TIJJANI ABDULLAHI, J.C.A.
INTERPRETATION: INTERPRETATION OF SECTION 5 OF THE ARBITRATION AND CONCILIATION
Section 5(1) of the Arbitration and Conciliation Act makes it clear that the right to evoke the arbitration provision must be asserted before a party takes any other step in the proceedings. But surely, where as in the instant case the Appellants delivered their pleadings, and in it naively raised the need to utilize and exhaust: the arbitration provision in the trust deed without specifically applying to the court to stay proceedings that would amount to taking steps in the proceedings.In the case of KUROBO v. ZACN – MORISON (NIG.) LTD. (1992) 5 NWLR (pt. 239) P. 102 at 118 – 119 this court per Tobi JCA (as he then was) said:
….In the instant case, where the Appellants were involved at each and every stage of the proceedings, they cannot be heard to raise the issue of non-compliance with the arbitration clause. By their involvement in the conduct of the case, they have denied themselves of the, right to be heard by an arbitrator and I so find.” PER TIJJANI ABDULLAHI, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 7th day of June, 2010
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Rivers State in the Port Harcourt Judicial Division, Coram M.W. Danagogo (J) delivered on the 3rd day of October, 2008 whereby judgment was entered under the undefended list procedure in favour of the Respondent wherein the learned trial judge held thus:
“In conclusion and for the reasons I have given above, I hold that the claimant is entitled to judgment for the sum of N8,305,000.00 being debt owed it by the 1st and 2nd Defendants. I shall therefore give claimant judgment for this sum Pursuant to order 35 Rule 4 of the Rules of this Court, 10% interest per annum on the judgment sum from today 3rd October, 2008 until the judgment sum is paid.
Claimant’s claim for N1,500,00.00 is however incompetent as cost is at the discretion ,of the court. I shall therefore assess cost at N100,000.00 against the 1st and 2nd Defendants in favour of the claimant.”
The Respondent was the claimant whilst the Appellants were the Defendants in the Court below. The claimant commenced the action appealed against under the undefended list procedure by filing 2008 wherein it claimed a writ of summon on the 9th April, 2008 wherein it claimed thus:
The Claimant’s claims against the Defendants are as follows:
“(a) The sum of N8,305,000.000 (Eight Million, Three hundred and Five Thousand Naira) only being unpaid Invoices for,services rendered per Agreement, to wit: Hire of (NISCO 8) 800 Ton Barge, Thus:
MONTH/ YEARS AMOUNT (N)
December 2006 1,705.000.00
January 2007 1,705,000.00
February 2007 1,540,000.00
March 2007 1,705,000.00
April 2007 1,650,000.00
N8,305,000.00
(b) The sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira) only for costs resulting from Defendants, neglect/failure/refusal to pay the liquidated debt.
(c) Interest at 100% of the total judgment debt from the date of judgment.”
On the 23rd day of June, 2008, the Exparte place the application to writ on the undefended list came up for hearing wherein the learned trial judge after listening to one counsel for the Applicant, Mr. B.F. Omidina of counsel held as follows:
“I shall therefore grant the appreciation and make the following Order:-
1. That this suit be and is for hearing under the undefended list and
2. That the writ be marked accordingly.”
The case proceeded to trial and after hearing arguments from both counsel including the preliminary objection raised by the Defendants/Appellants, the learned trial judge as stated a while ago entered judgment in favour of the Respondent with N100,000.00 costs in its favour and against the Appellants.
Dissatisfied with the judgment of the trial court, the Appellants approached this court and filed their notice of appeal hereby set down undefended list dated 6th day of October, 2008 consisting of three grounds and sought for the following reliefs:-
“That the judgment of the learned trial judge aforesaid hereby appealed against be, set aside and substitute with an order dismissing the Respondent’s suit.”
The backgrounds facts are that: The Respondent who was the claimant in the lower court is the owner of (NISCO B) 1300 Ton Barge which it hires out to interested institutions/organizations.
That about June, 2006, a Charter party Agreement was executed between the claimant and the defendants/Appellants in the court below which obliged the claimant to provide (NISCO 8) 800 ton Barge on hire to the Defendants/Appellants. Both parties complied with the terms and conditions of the party charter agreement.
That about October, 2006, the Appellants through the 3rd Defendant, whose name was struck out by the trial court in the course of hearing the matter under consideration, pleaded with the claimant/Respondent to grant some discount on the formally agreed daily rate of N68,000.00 (Sixty Eight Thousand Naira) on the premise that the: barge hire (initially meant to be for one month) was going to be extended for quite a while. After some negotiation, a daily rate of N55,000.00 (Fifty Five Thousand Naira) for the hired (NISCO B) 800 Ton Barge was orally agreed upon, effective from 1st August, 2007.
The claimant/Respondent submitted its monthly invoices which were paid up to 30th November, 2006. On the 24th April, 2007, the Defendants/Appellants delivered a letter to the claimant/Respondent seeking the release of the barge after 72 hours notice, to which the claimant/Respondent did not object.
That the invoices for December 2006, January, February, March and April 2007 for N 1,705,000.00, N 1,705,000.00, N1,540,000.00, N1,705,000.00 and N1,650,000 respectively, were submitted as they fell due for payment.
The Defendants/Appellants failed/neglected to pay the said sum after repeated demands. The claimant/Respondent took out a writ of summons on the undefended list for the recovery of the said amount thorough its counsel.
The Defendant/Appellants filed a Notice of Preliminary objection through their counsel supported by an affidavit of 11 paragraphs contesting the jurisdiction of the court to hear and determine the suit, that the suit is incompetent, on the grounds that there is an arbitration clause in the charter party agreement made between the parties and that the suit is not in compliance with order 11 of the rules of the trial court.
The learned trial judge after listening to the competing judgments of the parties to the suit, in a reserved judgment found for the claimant/Respondent in the sum claimed and further awarded N100,000.00 costs in its favour hence the filing of this appeal under consideration by the Appellants.
In compliance with the rules of this Court, parties filed and exchanged briefs of argument. The Appellants in their brief settled by Frank A. Chukuka dated and filed on 6/01/2009 raised three issues for determination from the three grounds of appeal.
Appellant also filed a reply brief dated 19/02/2009 but filed on 24/02/2009.
The three issues distilled by the Appellants from the three grounds are reproduced hereunder as follows:
(1) Whether the learned trial judge has jurisdiction to place the suit under the undefended list and deliver judgment thereafter.
(2) Whether the learned trial judge was right when he delivered judgment under the transferring cause list.
(3)Whether there is a dispute between the Appellants and Respondents”
The Respondent on the other hand, in a brief deemed argued by dint of Order 17 Rule 4 of the rules of the Court in a brief settled by B. F. Omidina Esq. formulated two issue for determination to wit:-
“(i) Whether the learned trial judge was not correct when he placed the suit under the undefended List and delivered judgment thereon. (Distilled from grounds 1 & 2 of Notice of Appeal).
(ii) Whether the Charter party Agreement executed by the parties on 27th June, 2005 which made Provision for arbitration if and when dispute arose from the said charter Party Agreement, rendered the suit at the High Court incompetent for failure of the undefended list without the suit to the general Respondent to refer the matter to arbitration. (Distilled from ground 3 of Notice of Appeal).”
On the 28th April, 2010 whirrs the appeal came before us for hearing, learned counsel for the Appellants, Mr. Chukuka adopted the Appellant’s briefs as their argument in the appeal and urged us to allow it and set aside the judgment of the lower court.
The Respondent though served with a hearing notice, they did not put up appearance and since the brief is in, we deemed same as argued under the rules of this court as stated a while ago and reserved the appeal for judgment.
A hard look at issues No. 1 and 2 formulated by the Appellants will reveal the fact that they are one and the same thing though couched differently. I shall therefore consider the two together in this judgment.
Issue No.1, is whether the learned trial judge has jurisdiction to place the suit under the undefended list and deliver judgment thereafter. And issue No. 2 is whether the learned trial judge was right when he delivered judgment under the undefended list without transferring the suit to general cause list. The learned counsel for the Appellants submitted that I the learned trial judge erred in law and facts when he assured jurisdiction and proceeded to place the suit under the undefended list and delivered judgment without considering the fact that the said Respondent’s affidavit in support of his application did not contain material facts to warrant placing the suit under the undefended list.
It is the contention of the learned counsel that the supporting affidavit of the Respondent did not disclose material facts to the effect that the Appellants are indebted to the Respondent as required by order 11 Rule B(1) of Rivers State High Court (Civil Procedure) Rules, 2006. It is his further contention that the affidavit must set forth the grounds upon which the claims are based, must also disclose material fact as well as documentary evidence if the Respondent intends to rely on the said documentary evidence.
It is the submission of the learned counsel that three conditions must co-exist before a writ of summons can be successfully issued. He listed the three conditions as follows:
“(a) A claim to recover a debt or liquidated money demand;
(b) An affidavit setting forth the grounds upon which the claim is based; and
(c)An averment stating that in deponent’s belief the defendant has no defence to the action. See the case of A.I.B V. PACKOPLAST NIG. LTD. (2003) 1 NWLR Ft 802 P. @ Pp 523 -524, Para, H = A, 543, para A – E).”
In support of the above submission, learned counsel relied on the case of A.I.B V. PACKO PLAST (NIG.) LTD, (2003) 1 NWLR (Pt 802) P. 502 at Pp 523 – 524, paras, H – A; A C.B PLC, V. EMEDO (2003) 10 NWLR (Pt. B2B) P.244.
It is the contention of the learned counsel that the processes relied upon by the learned trial judge to place the suit under the undefended list and delivered judgment in favour of the Respondent are incompetent as the rules of court do not provide for filing of claim in an undefended suit procedure; The word used in the said rule is “shall”. He relied on the case of F.A.B.S. LTD. V. IBIYEYE (2008) 14 NWLR (pt. 1107) P.375 at P.393 paragraphs G – H were the word “shall” is judicially defined.
Learned counsel for the Appellant submitted that the trial judge did not carefully consider the processes filed by the Respondent before placing the suit under the undefended list. It is his further submission that if he (trial judge) had carefully considered the processes filed by the Respondent, he should have realized that the Respondent’s affidavit in support of the application did not disclose undisputed indebtedness to the Respondent. The learned trial judge, he went on, should have realized that the Respondent suit is incompetent on the ground that the said Respondent filed a statement in an undefended suit procedure.
It is the submission of the learned counsel that the learned trial judge was wrong to have held that the claim of N1,500,000.00 as contained in the statement was immaterial. The learned counsel opined that the said statement of claim is unknown to undefended list procedure and therefore fundamentally defective and ousts the jurisdiction of the court.
We were urged to resolve this issue in favour of the Appellant and against the Respondent.
For his part, learned counsel for the Respondent begun his consideration of this issue by contending that the learned counsel for the Appellants is wrong to have submitted that the Respondent’s affidavit has no material facts to warrant placing the suit under the undefended list. It is the contention of the learned counsel that there is avalanche of authorities to the effect that the trial judge has the discretionary power as to whether or not a particular suit should or should not be heard under the undefended list procedure. In support of this contention, learned counsel relied on the High Court of Rivers State (Civil Procedure) Rules, 2006 Order B (i) (ii), and DANGE SHUNI LOCAL GOVERNMENT COUNCIL V. OKONKWO (2008) ALL FWLR (pt. 415) Page 7757 at 7759 Ration 2; MASSEKEN NIGERIA LIMITED V. AMOAKA (2007) ALL FWLR (pt. 387) Page 902 at 905, Ratio 3 and UNIVERSITY OF BENIN V. KRAUS THOMPSON ORG. LTD, (2007) ALL FWLR (Pt. 362) 1910.
Learned counsel argued that to transfer a case from undefended list to the general cause list, the defendant must not less than five days before the case fixed for hearing, send a notice in writing that he intends to defend the suit, supported by an Affidavit which disclosed a defence on the merit or a triable issue. He referred us to the cases of FADIALLAH V. NIGERIA AMERICAN MERCHANT BANK LTD (2007) ALL FWLR (pt. 385) P. 350 at 534 Ration 6, THE FEDERAL MILITARY GOVERNMENT OF NIGERIA AND OTHERS V. ABACHA MALAM SANI (1990) 4 NWLR (Pt 147) 688 at 699 and ATAGUBA AND CO. V. GURA NIG. LTD. (2005) ALL FWLR (Pt 256) P. 1219 at 1223, Ratio 7.
Learned counsel further argued that instead of the Appellant to file their notice of intention to defend with an affidavit within five days to the hearing as required by the rules of this court, they filed a Notice of Preliminary objection, the jurisdiction of the court which according to the learned counsel is not permitted under the undefended list procedure. He relied on the case of ABDUKADIR V. USMAN (2002) ALL FWLR (p. 92) Page 1737 at 1739, Ratio 9.
Learned counsel contended that the learned counsel has made heavy weather in respect of the statement of claim filed by the Respondent. Learned counsel referred us to the case of ONADEKO V. UNION BANK OF NIGERIA PLC (2006) ALL FWLR (Pt. 301) page 1872 at 1879 and submitted that the filing of a statement of claim in the hearing of an undefended suit is a mere surplus sage and he urged us to treat it (filing of statement of claim) as such. Learned urged us to resolve this issue in their favour and against the Appellants.
Now, let me begin by considering the provisions of Order 11 Rule 8 (2); order 11 Rule 10 (i); 2 and 11 Rule 11 of the High Court (Civil Procedure Rules) 2006 under which the suit under consideration was filed and decided in the lower. The provisions are hereunder reproduced for further consideration.
UNDEFENDED LIST
8(1) Where claimants in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim, he shall make an application to a court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto.
(2) 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.
10(1) if the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day 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 claimant shall then comply with Order 3 Rule 2 and the case shall proceed in the normal way.
11 Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (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 claimant to prove his case formally.
A careful perusal of the provisions set out supra will reveal the fact that they are straight forward and unambiguous. They provide for a straight forward procedure in the determination of simple and non contentious claims in respect of specific or liquidated sum of money, usually due and payable to a claimant either arising out of a debt or money had and received from him. The undefended list procedure requires that the sum to be recovered should be a clear cut debt for which there is an incontestable proof against the Defendant ex facie a liquidated demand which the Defendant must have no defence. See A.I.B. v. PACKOPLAST NIG. LTD. (2003) l NWLR (Pt.802) Page 502 at PP 523 524, paras. H- A, VICTOR AMEDE V. U.B.A (Pt. 1090) (2008) B NWLR P. 623 at pp. b62-663 para. F-C; 664, para, F; SBN PLC V. KYENTU (1988) 2 NWLR (Pt. 536) p. 1; NDUKWE V. DOMSEY INT. SALES CORP. (1991) 7 NWLR (Pt.206) P. 680
It is pertinent at this stage to pause and consider whether from the affidavit evidence adduced by the both parties, the claim of the Respondent in the court below was for recovery of debt or liquidated money demand. In considering this point, one needs to know the definitions of the terms debt, and “liquidated” money demand”. The word “debt” is defined in Black Law Dictionary at page 403, sixth Edition as:
“A sum of money due by certain and express agreement. A special sum of money owing to one person from another, including not only obligation of the debt or to pay but right of creditor to receive and enforce payment.”
And “liquidated demand” is defined in the same Black’s Law Dictionary at page 930 as:
“A demand the amount of which has been ascertained or settled by agreement of the parties or otherwise.”
The Respondent, in his supporting affidavit in support of his application to recover the amount owed to it by the
Appellants sworn to by its Executive Director (operation) deposed inter alia as follows:
“3) That the claimant is the owner of (NISCO B) 800 Ton, Barge which it hires out to interested institution/organizations.
That about June 2006, a Charter Party Agreement was executed between the Claimant and the Defendants which obliged the Claimant to provide (NISCO B) 800 Ton Barge on hire to the Defendants. A copy of the Agreement is annexed herewith and marked as Exhibit Y.
That the Claimant complied with the terms and. conditions required of it in course of providing the hired 800 Ton Barge, and the Defendants also performed their own side of the contract in taking delivery of the barge.
6) That about October 2006, the Defendants through the 3rd Defendant pleaded with the Claimant to grant some discount on the formally agreed daily rate of N68,000.00 (Sixty-eight Thousand Naira) on the premise that the barge hire (initially meant to be for one month) was going to be extended for quite a while.
7) That after some negotiation, a daily rate of N55,000.00 (Fifty-five Thousand Naira) for the hired (NISCO 8) 800 Ton Barge was orally agreed upon, effective from 1st August, 2006.
8) That the Claimant submitted its monthly invoices which were paid up to 30th November, 2006.
9) That on 24th April 2007, the Defendants delivered a letter to the Claimant, seeking the release of the barge after 72 hours, notice, to which the Claimant did not object. Copy of the letter is annexed herewith and marked as Exhibit Z. The Claimant retrieved the released barge and took note of the Defendant’s written acknowledgment that they were satisfied with Claimants performance of its contractual terms.
10) That the invoices for December 2006, January, February, March and April 2007, for N1,705,000.00, N1,705,000.00, N1,540,000.00 and N1,650,000.00 respectively, were submitted as they fell due to the Defendant.
11) That the Defendants had failed/neglected/refused to pay these overdue invoices, thus putting the Claimant in virtual financial strangulation.
12) That after repeated demands for the invoices’ settlement failed to yield any positive result; the Claimant was compelled to brief a Solicitor, B. F. Omidina Esq., who also wrote a letter of demand, dated 17th March, 2008 to the Defendants herewith annexed and marked Exhibit K which letter the defendants have also disregarded without any response.
13) That the liquidated debt of N8,305,000.00 (Eight Million, Three Hundred and Five Thousand Naira) has remained unpaid by the Defendants, apart from litigation costs and solicitor’s fees now fostered on the Claimant.
14) That I believe that the Defendants have no defence to this action.”
On the other hand, the Appellants in compliance with order 10 Rule 1 of the High court (civil Procedure) Rules, 2006, in a document titled “Notice of Intention to defend and affidavit in support of Notice of Intention to Defend, sworn to by one Chinedu Obiukwu, an Accountant under the employment of the 1st Appellant averred as follows:
6) That having read the affidavit, paragraph 7 of the said affidavit is false as there is no oral agreement relating to the hiring of the at a daily rate of Fifty Five Naira only (N55,000.00).
7) That 1st defendant offered to pay Thirty Five Thousand Naira only, as daily rate (N35,000.00), which claimant duty accepted. B) That paragraph 10 of the said affidavit is false as 1st defendant did not received (sic) any invoice from the claimant based on the purported daily claim of Fifty Five Thousand Naira only, (N55,000.00).
11) That I am informed by our said counsel Frank A. Chukuka Esq., that the said Charter party Agreement contains arbitration clause and because of the said arbitration clause, this suit is pre-mature.
12) That our said counsel Frank A. Chukuka Esq. informed me and I verily believe him that the purported debt of Eight Million, Three Hundred and Five Thousand Naira only (N8,305,000.00) is not a liquidated sum as there is no materials or evidence placed before this court that 1st & 2nd defendants acknowledged the said indebtedness.
13) That 1st & 2nd defendants have defence to this suit as the said defendants never agreed for a daily hiring fees of Fifty Five Thousand Naira only (N55,000.00) which claimant is now claiming.
14) That our counsel Frank A. Chukuka Esq. informed me and I verily believe him that, on or before the trial, defendants shall raise objection as to competence of this suit.
15) That the said counsel Frank A. Chukuka Esq. informed me I verily believe him that at the hearing of the said objection, defendants shall rely on Notice of Preliminary Objection and Written Address filed by the defendants on 8-7-2008.
It is instructive to note that after the Notice of Intention to defend together with the supporting affidavit were served on the Respondent, their counsel through one Goodnews Ekeke, a litigation officer deposed to a further and better affidavit and the pertinent paragraphs are stated hereunder as follows:
“(3) That the law firm’s principle counsel – B.F. OMIDINA Esq. has shown me the Defendants, Affidavit supporting their Notice of Intention to defend, dated 5th August 2008, and save for paragraphs 1, 2, 4 and 5, the contents of other paragraphs are most untrue and are absolutely denied.
4) That paragraphs 6, 7 & B are most untrue, and absolutely denied.
5) That based on the 3rd Defendant’s plea for a reduction of daily hiring rate to N55,000.00 (Fifty-Five Thousand Naira) only, on the ground that the barge hiring would be for a prolonged period, the Claimant agreed, and Claimant’s’ invoices for August and September 2006 were submitted Defendant at to the daily rate of N55,000.0O(Fifty _Five Thousand Naira) and the invoices were settled at that rate by the Defendants.
6) That for October and November 2006, Claimant’s Invoices No. NSB.005 and NSB.006 submitted at the daily rate of N55,000.00. (Fifty _Five Thousand Naira) were also received by the Defendants for N1,705,000.00 (One
Million, Seven Hundred and five Thousand Naira) and N1,650,000.00 (One Million Six Hundred and fifty Thousand Naira), respectively totaling N3,355,000.00 (Three Million, Three Hundred ,and Fifty-five Thousand
Naira)- annexed herewith as Exhibits 1 and 2 , and the Defendants by their cheques NO. 00000157, 00000156,00000159 and 00000158, dated , 11th December, 2006 for N1,000,000.00 (One Million Naira), N1,000,000.00 (One Million Naira), N355,000 (Three Hundred and fifty five thousand Naira) and N 1,000,000.00 (One Million Naira) totaling N3,355,000.00 (Three Million, Three Hundred and fifty-five Thousand Naira) only duly paid for those October and November 2006 Claimant’s invoices at the same daily rate of N55,000.O0(Fifty-five Thousand Naira) as herewith annexed and marked Exhibit 3.
7) That contrary to paragraph B of the Defendants aforesaid affidavit, the Defendants received Claimant’s invoices NSB 007 for N 1,705,000.00 (One Million, Seven Hundred and five Thousand Naira) NSB 008 for N1,705,000.00 (One Million, Seven Hundred and five Thousand Naira), NSB. 009 for N 1,540,000.00 (One Million, Five Hundred and forty Thousand Naira), NS8.0010 for N 1,705,000.00 (One Million, Seven Hundred and five Thousand Naira), NSB 0011 for N1,650,000.00 (One Million Six Hundred and fifty Thousand Naira)for December 2006, January, February, March and April, 2007 , respectively duly acknowledged and received by the Defendants at the same agreed daily rate of N55,000.00 (Fifty-five Thousand Naira), which invoices still remain unpaid for services satisfactorily rendered till date by the Defendants annexed herewith as Exhibits 4,5,6 and 7 respectively.
8) That the cumulative sums of these outstanding invoices for December 2006, January February, March and April, 2007, amount to N8,305,000.00 (Eight Million, Three Hundred and five Thousand Naira) which is a liquidated sum at the daily rate of N55,000.00 (Fifty-five Thousand Naira), offered by the 3rd Defendant on behalf of the Defendants and agreed upon by the Claimant, as against the earlier formalized agreement of N68,000.00 (Sixty Eight Thousand Naira) per day.
9) That there was no time that a daily hiring rate of N35,000.00(Thirty Five Thousand Naira) was ever discussed with the Claimant, let alone agreed.
10) That the Bailiff of this Court Mr. Chinda informed me and I verily believe him that all the Defendants in this suit are aware of the suit having been duly served the court processes relating to the suit, which processes were duly acknowledged for all the Defendants.
11) That I .was informed by Principle Counsel of B. F. Omidina & Co the law firm handling the matter for the
Claimant, B.F. Omidina Esq., and I verily believe him that the Defendants’ Counsel, Frank A. Chukuka Esq., of
Chukuka & Chukuka, at No. 1C Igbodo Street, Old GM, Port Harcourt, and also duly entered Memorandum of Appearance albeit conditional, on behalf of all the three Defendants, vide his process dated 8th July 2008.
12) That the 3rd Defendant is a party to the Charter Party Agreement, not only as the Managing Director, of the Ltd and 2nd Defendants but also the as the person who called for the hire of the barge and personally negotiated for the reduction of daily rate from N68,000.00 (Sixty Eight Thousand Naira) to N55,000.00 (Fifty -five Thousand Naira).
It is also instructive to note that after the filing of the further and better affidavit by the Respondent, the appellants did not file a reply to controvert their contents. It is now settled law that facts that are not controverted are deemed to have been admitted and that no further proof is required of those facts.
A hard look at the affidavit evidence will reveal the fact that at page 17 of the adduced by both sides record of proceedings, in the supporting affidavit of the claimant/Respondent it’s monthly invoice which we submitted are paid up to 30th November, 2006 after they agreed orally that the sum of N55,000.00 shall be paid daily. This to my mind has clearly shown that the parties are not in dispute as to amount to be paid daily.
That aside and more importantly, claimant/Respondent by further affidavit produced and annexed invoices as exhibits to show that the amount stated on the said exhibits are due and have not been paid by the Appellants, As I have said a while ago, facts not disputed are taken as established.
The question to be asked at this stage is this, was there any dispute as to the amount to be paid by the Appellants to the Respondent? Learned counsel for the Appellant through conceding in his paragraph 6.04 of his brief that there was no dispute as to the performance of the contract but there was a dispute as to the amount owed and that same (dispute) ought to be referred for arbitration as provided for in the charter party Agreement.
To answer be made to the consideration. It this question, needless to say, recourse had, to processes filed by the parties to the suit under is not in dispute that the claimant/Respondent submitted monthly invoices at the rate of N55,000.00 which were paid by the Appellants, Though the Appellants are claiming that the dairy rate was N35,000.00, one cannot fathom why they agreed to pay N55,000.00 for the invoices which were paid up to 30th November, 2006. Let me say at this stage, that in the absence of any explanation from the Appellants as to why they chose to pay the said sum of N55,000.00 instead, of N35,000.00 they are now claiming, one is entitled to believe the Respondent that they had all agreed and, the amount to be paid dairy which was N55,000.00 at the risk of being repetitive.
Let me come back to the Notice of Intention filed by the Appellants. It is clear from the provisions of order 11 Rule 10 (1) of the Rules of the High Court of Rivers State, Defendant had 5 days to file his Notice of Intention to defend the action.
The Notice of Intention to defend filed by the Appellants was filed on the 5th of August, 2008 which was clearly outside the period stipulated by the High Court Civil procedure Rules of the Rivers state High court. I have meticulously looked at ail the processes filed by the Appellants, I have not come across any application for extension of time to file the said Notice of intention to defend the action under consideration, The said Notice of Intention to defend is of no moment being null and void ab initio.
One interesting part to be made on the Notice of Intention to defend the action is this, that on page 31 of the records, Defendants/Appellants filed their memorandum of appearance on 8th of July, 2008 which suggested that they were served much earlier. I say no more on this aspect of the matter under consideration save to say that even if the Notice to defend was filed within time (which is not conceded), the Appellants have by their owning showing have admitted a disputed balance of N20,000.00, claimant/Respondent therefore is entitled to N35,000.00 while the balance of N20,000.00 should be subjected to trial.
In the light of the foregoing, the question I posed a while ago must be answered in the negative. For avoidance of doubt, there was no dispute as to the amount to be paid by the Appellants.
The next question that must be asked and answered at this stage is whether the affidavit evidence deposed to by the Accountant of the 1st Appellant has raised a triable issue or defence. To answer this question, one needs to find out the meaning of triable issue or defence as judicially defined by our Courts of Law over the years.
In the case of VICTOR AMEDE v. U.B.A. (supra), this court defined a triable issue or defence thus:
“when it is said that a defendant who intends to defend an action on the undefended list must disclose that he has triable issue, or a bona fide issue; or a defence on the merit, it means no more than that he must raise a genuine issue even for reason of creating the slightest doubt as to facts, which will preclude the trial judge: from entering a summary judgment.
In other words, a triabe issue or defence on the merit under the undefended list procedure is disclosed where a defendant’s affidavit in ,support of notice of intention to defend is such that the plaintiff will be expected to explain certain matters with regard to this claim or where the affidavit throws a doubt on the plaintiff’s claim.
[Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51; Obi v. Nkwo Market Community Bank Ltd. (2001) 2 NWLR (Pt. 696) 113; Odu v. Agbor- Hemeson (No.2) (2003) 2 NWLR (pt. 804) 355; Jipreze v. Okonkwo (1987) 2 NWLR (pt.62) 373; Ivan v. Bilante Int. Ltd. (1998) 5 NWLR (pt. 550) 396; Mar Holdings Lrd. v. U.B.A. Plc (2003) 2 NWLR (pt. 803) 71 referred to] (pp 662 paras. C – D; 666, paras A-B).
Having defined what a triable issue or defence is, let me go back to the affidavit evidence of the parties to the dispute with a view to finding out whether or not a triable issue or defence has been made out. The claimant/Respondent averred that the agreement to reduce the daily rate of hiring from N68,000.00 to Fifty Five Thousand Naira was orally agreed upon. But on the other side, the Appellants vehemently denied the assertion of the Respondent wherein they stated thus:
“The said affidavit is false as there is no oral agreement relating to the hiring of the said barge at a daily rate of Fifty Five Thousand Naira only (N55,000.00).”
They further averred that:
“The 1st Defendant offered to pay Thirty Thousand Naira only, as daily rate (N35,000.00) which the claimant duly accepted.”
However, after the Appellants had denied the averments; of the supporting affidavit of the Respondent; the Respondent filed a further affidavit in which some invoices as exhibits were exhibited showing that there has in fact been an agreement between the parties as to the amount to be paid by the Appellants which have not been paid.
It is trite law that a court should not allow a defendant who has no real defence to an action on the undefended list to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness, I am of the considered view that based on the affidavit evidence adduced by both parties (supra), the Appellants have not raised a triable issue or defence and the trial court was right not to have transferred the suit to the general cause list for trial.
In the light of the foregoing, issues No. 1 and 2 which I treated together as formulated by the Appellants are resolved in favour of the Respondent against the Appellants. Similarly issue No.3 which is whether there is a dispute Appellants between the and the Respondent has been subsumed whilst considering issues Nos. 1 and 2. For avoidance of any doubt, I have held while considering the said two issues that there was no dispute between the parties as to the amount to be paid and that the Appellants have not raised a triable issue or defence and I so find.
Last but not the least issue for determination is issue No. 2 formulated by the Respondent which is whether the charter Party Agreement executed by the parties on 27th June, 2006 which made provision for arbitration if and when dispute arose from the said charter party Agreement, rendered the suit at the High court incompetent for failure of the Respondent to refer the matter to arbitration. (Distilled from ground 3 of Notice of Appeal)”
Learned counsel for the Respondent submitted that there was no controversy in the performance of the terms and conditions of the agreement. What was in contention, the learned counsel went on, is the refusal of Appellants to pay for service satisfactorily enjoyed by them from the Respondent.
Learned counsel further submitted that the instant case is simply a case of recovery of debt. He referred us to the case of ONADEKO V. UNION BANK OF NIGERIA PLC (2006) ALL FWLR (pt. 301) 1872 to buttress his submission on this point.
It is not in dispute that the parties have entered charter party agreement as; such they are bound by all the conditions stipulated therein. In the said agreement, there is a, clause titled Governing Law and Dispute Resolution which contains the following:
“All dispute arising or in connection with this Agreement which the parties are unable to resolve amicably shall be finally settled under the rules of conciliation and Arbitrators (sic). Each party shall appoint one arbitrator each while the two shall jointly appoint one who shall be the chairman.”
It is instructive to note that the contents of the clause reproduced supra are clear and unambiguous and no aid is required for their interpretation. Simply put is that all disputes arising from or in connection with the said agreement which the parties are not able to resolve must be referred for arbitration.
Learned counsel submitted that by the contents; of the Appellants’ letter to the Respondent dated 24rh April 2007, the charter Party Agreement ceased to exist, having come to its end by the release of the barge NISCO 8 on 27th April, 2007 .It is his further submission that having come to an end, no arbitration clause in the agreement could come into play any more. With respect due to the learned counsel, I am unable, based on the contents of the charter party Agreement, to agree with his submissions on this point. The contents of the charter
Agreements are very clear and that same are emphatic that all disputes arising in connection with the charter agreement must be referred for arbitration. That being the case, the parties; are bound by the arbitration clause and should have restored for arbitration before coming to court for redress.
However, that is not the end of the matter. Section 5(1) of the Arbitration and Conciliation Act makes it clear that the right to evoke the arbitration provision must be asserted before a party takes any other step in the proceedings. But surely, where as in the instant case the Appellants delivered their pleadings, and in it naively raised the need to utilize and exhaust: the arbitration provision in the trust deed without specifically applying to the court to stay proceedings that would amount to taking steps in the proceedings.In the case of KUROBO v. ZACN – MORISON (NIG.) LTD. (1992) 5 NWLR (pt. 239) P. 102 at 118 – 119 this court per Tobi JCA (as he then was) said:
….In the instant case, where the Appellants were involved at each and every stage of the proceedings, they cannot be heard to raise the issue of non-compliance with the arbitration clause. By their involvement in the conduct of the case, they have denied themselves of the, right to be heard by an arbitrator and I so find.”
Consistent with the decision of the court reproduced above, I hold that the parties having partook in the prosecution or defence of this matter up to the judgment was delivered, they have denied themselves of the right to be heard by an arbitrator and I so hold.
In the light of all that has been said this appeal is unmeritorious and must be and it is hereby dismissed. The judgment entered by the Court below under the undefended list procedure in favour of the Respondent is hereby affirmed with N40,000.00 costs to the Respondent and against the Appellants.
ISTIFANUS THOMAS: I have had the opportunity of reading judgment in draft, the lead judgment of my learned brother, T, AbdullahI, J.C.A, and I am in total agreement with my learned brother, that the appeal is unmeritorious, and it is hereby dismissed, by me. I abide with consequential orders, including in the lead judgment.
EJEMBI EKO, JCA: I had an opportunity to read, in advance, the judgment just delivered by my learned brother, TIJJANI ABDULHHI, J.C.A. Satisfied that the judgment resolved all the salient and material issues in the appeal, I have nothing further therefore to add. I hereby adopt the judgment including all consequential orders made therein. For avoidance of doubt I hereby dismiss the appeal for lacking in merits.
Appearances
Frank A. Chukuka Esq.For Appellant
AND
B.F. Omidina EsqFor Respondent
