GOD’S LITTLE TANNERY v. CHRISTOPHER NWAIGBO
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of December, 2004
BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
GOD’S LITTLE TANNERY Appellant(s)
CHRISTOPHER NWAIGBO (Trading under the name and style of Obieri & Sons Electrical Stores) Respondent(s)
KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kano State High Court, sitting at Kano, in suit No. K/238/96 delivered on 27/6/97. The plaintiff, who is the present respondent claimed against the defendant who is the present appellant under the undefended list as follows:
“The plaintiff’s claim against the defendant is for the sum of N882,569.00 (Eight hundred and eighty-two thousand, five hundred and sixty-nine Naira) being the outstanding balance of the sum of N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira) being the value of the various electrical equipments and spare parts supplied to the defendant on credit at its request between 14th June, 1995, and the 10th October, 1995, by the plaintiff. The plaintiff also claims interest on the said sum of N882,569.00 at the rate of 21% per annum from 10th October, 1995, till judgment and 10% till judgment debt is liquidated wholly.”
In support of the writ of summons, the plaintiff filed a 13-paragraph affidavit with 56 annexures marked CN1-CN56. The annexures consist of credit sales invoices and delivery notes in respect of sundry electrical items supplied to the defendant by the plaintiff.
Upon being served with the writ of summons and accompanying affidavit the defendant filed a notice of intention to defend supported by a 5-paragraph affidavit. He subsequently filed a 5-paragraph further and better affidavit in support of the notice of intention to defend with one annexure marked A. In response to the further and better affidavit, the plaintiff filed a 9-paragraph further and better affidavit in support of the writ of summons.
The suit was initially fixed for hearing on 23/5/96. However, after several adjournments it was eventually heard on 27/6/96. On that day, learned Counsel to the plaintiff addressed the court on why the suit should be heard on the undefended list, while learned Counsel to the defendant submitted that based on the affidavits before the court, the suit ought to be transferred to the general cause list for hearing. In the course of his submissions, learned Counsel to the defendant sought an adjournment in order to prepare a “proper affidavit” in respect of discrepancies, which he alleged he had just noticed in the accounts. The application was refused.
Thereafter, learned Counsel to the defendant concluded his submissions. The learned trial Judge at page 77 of the record entered judgment in favour of the plaintiff as follows:
“The court therefore gives judgment in favour of the plaintiff for the sum of N882,569.00 against the defendant.
The defendant will also pay 10% interest on the amount per annum as from today until the whole judgment debt is liquidated.
The defendant will also pay N3,000.00 as costs for filing fees, out of pocket appearance and expenses.”
The defendant/appellant being dissatisfied with the judgment appealed to this court by his notice of appeal dated 3/7/96, containing three grounds of appeal. By a motion on notice dated 27/4/98, the appellant sought leave to file and argue two additional grounds of appeal and an order deeming as properly filed and served the additional grounds of appeal attached to the affidavit in support of the motion. The application was granted as prayed on 24/9/98.
In accordance with the rules of this court the appellant filed a brief of argument on 21/1/99 and identified 5 issues for determination as follows:
“1. Whether the appellant (sic) notice of intention to defend and supporting affidavit of the 23rd day of May, 1996, and the further and better affidavit of the 30th May, 1996, disclosed a defence on the merit to justify a transfer of the suit to the general cause list.
2. Whether the trial Judge scrutinised or considered the affidavit evidence adduced by both parties, before arriving at its judgment on the 27th day of June, 1996.
3. Whether the learned trial Judge exercised its discretion judiciously and judicially in refusing the oral application of the plaintiff counsel for an adjournment on the 27th day of June, 1997, to enable him file a further and better affidavit.
4. Whilst from the additional ground of appeal filed with the leave of this Honourable Court on 24th day of September, 1998, a further issue could be crystallised. Whether there was a conflict in the affidavit evidence of the parties and if there is an answer in the affirmative, could the Honourable trial Judge still proceed to enter judgment on the undefended list?
5. Whether the Honourable Court had the requisite jurisdiction to entertain this suit, when the respondent has filed (sic) to pay the appropriate filing fees, which is condition precedent to the vesting of jurisdiction on the Honourable Court.”
The respondent also filed a brief of argument on 2/7/01 and adopted the 5 issues formulated by the appellant. He also gave notice of preliminary objection to the grounds of appeal. He argued the preliminary objection in his brief of argument and in his oral argument before the court. The grounds of the objection as stated at pages 2-3 of the respondents brief are as follows:
“i. The two additional grounds of appeal are fresh points on appeal and of which the leave of this Honourable Court, must first be sought and obtained before it can be canvassed, this court has no jurisdiction to entertain it.
ii. The mere fact that leave to file and argue additional grounds of appeal was sought and obtained does not obviate the necessity to obtain leave to argue the additional grounds of appeal as they are fresh points.
iii. That where an appellant decides to appeal against an interlocutory decision of a lower court together with a final decision, the appellant is duty-bound to seek leave to appeal against the same when the time as provided under the Court of Appeal Act has lapsed.”
The appellant filed a reply brief, deemed filed on 21/9/04 wherein he responded to the preliminary objection.
The appeal was heard on 7/10/04. Learned counsel for the respondent relied on the preliminary objection contained in his brief of argument and urged the court to strike out all the grounds of appeal and the issues formulated thereon. Learned counsel to the appellant adopted and relied on his brief and his reply brief and urged us to allow the appeal. Learned counsel to the respondent adopted his brief of argument and urged us to dismiss the appeal.
In support of the preliminary objection, learned counsel to the respondent submitted that an issue not raised before nor pronounced upon by the lower court cannot be taken before the appellate court without leave of that court being sought and obtained. He relied on Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523; Akpabio v. State (1994) 7 NWLR (Pt.359) 635. He submitted that in the instant case, the appellant did not obtain the leave of this court to raise ground 6 as an additional ground of appeal and canvassed as issue no. 5 in the appellant’s brief of argument. He urged the court to deem issue No. 5 as raised in the appellant’s brief as incompetent and to discountenance all the arguments offered in respect thereof. He relied on the following cases: Egbunike v. A.C.B. Ltd. (1995) 2 NWLR (Pt.375) 34; U.B.N. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt.421) 558; Abaye v. Ofili (1986) 1 NWLR (PU5) 134.
He further contended that grounds 1-6 are incompetent for non-compliance with the provisions of Order 3 rule 2(4) of the Court of Appeal Rules, because the allegations contained therein are vague and general. He urged the court to strike them out. He submitted that the grounds of appeal allege errors in law that are not supported by the passages of the judgment where the errors are contained. He submitted that this violates the provisions of Order 3 rule 2(2) of the Court of Appeal Rules and urged the court to strike them out. He cited the case of: Amojaine v. Eguegu (1996) 1 NWLR (Pt.424) 341 at 348-349 H-A in support of this submission. He also argued that the particulars in support of the grounds are mere narratives.
The third ground of the objection is that ground 1 of the notice of appeal, which is in respect of an interlocutory decision, is incompetent because the appellant failed to seek leave to appeal against that decision, the time within which to do so pursuant to section 25 of the Court of Appeal Act having lapsed. Learned Counsel to the respondent therefore urged the court to strike out ground 1 of the notice of appeal and issue No.3 formulated in relation thereto. In response, learned Counsel to the appellant urged the court to discountenance the preliminary objection on the ground that the respondent failed to comply with the provisions of Order 3 rule 15 of the Court of Appeal Rules, which requires that a motion on notice should be filed after the objection has been included in the brief and oral argument entertained in respect thereof. In support of this contention he relied on: Odjegba v. Odjegba (2004) 2 NWLR (Pt. 858) 566, (2003) FWLR (Pt.187) 802 at 815-816 E-E; Okolo v. Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt.539) 618; Arewa ile Plc. v. Abdullahi & Bros. Ltd. (1998) 6 NWLR (Pt.554) 508.
Alternatively, he submitted that the appellant duly sought and obtained leave to file and argue the additional grounds of appeal on 24/9/98, which application was not opposed by the respondent. He submitted that in any event the additional grounds of appeal raised the issue of jurisdiction, for which leave is not required. He relied on: Michael v. Yousuo (2004) 15 NWLR (Pt. 895) 90, (2004) FWLR (Pt.209) 1015 at 1023 B-C.
With regard to the respondent’s submission that the grounds of appeal do not comply with Order 3 rule 2 of the Court of Appeal Rules, he submitted that technicalities should not be allowed to defeat substantial justice. He argued that the respondent is under no misapprehension as to the purport of the issues distilled from the grounds of appeal. Learned Counsel to the appellant submitted that to strike out the grounds of appeal on this ground would occasion a serious miscarriage of justice to the appellant and would negate the decision of the Supreme Court in: Humbe v. Hueze (2001) 4 NWLR (Pt. 703) 372, (2001) FWLR (Pt.42) 1 at 11-12 H-C. He also cited the case of: Aderounmu v. Olowu (2000) 4 NWLR (Pt. 652) 253, (2000) 2 SCNJ 180. He urged the court to discountenance the preliminary objection.
I have considered the submission of learned Counsel to the appellant, challenging the competence of the preliminary objection. A similar objection was raised in the case of: Okolo v. Union Bank of Nigeria Plc. (2004) 3 NWLR (Pt. 859) 87, (2004) 1 SC (Pt.1) 1. His Lordship Uthman Mohammed, JSC had this to say at page 24 lines 10-16:
“With respect to the learned Justice, the respondent had raised the preliminary objection in the respondent’s brief and the learned counsel for the appellants had treated the issue in the plaintiffs/appellants’ reply brief. The Court of Appeal is therefore wrong to say that the respondent did not comply with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules.”
In the present case, the preliminary objection was raised in the respondent’s brief. The appellant reacted to it in its reply brief. Learned Counsel to the respondent also addressed the court on the objection at the hearing of the appeal. In the circumstances and guided by the above authority, I hold that the preliminary objection is competent.
Although learned Counsel to the respondent objected to the two additional grounds of appeal filed, his argument at page 3 paragraph 5(A) of his brief relates only to the second ground, which reads as follows:
“That the Honourable trial Judge lacked jurisdiction, to adjudicate over the dispute and grant the respondent the relief claim (sic).
(a) The respondent in order to obtain the relief claimed before the court must comply with Order 54 rule 1(1) of the High Court of Kano State (Civil Procedure) Rules, 1988, as amended by Civil Procedure Rules (Amendment) Edict No.2, 1991 as regards appropriate filing fees.
(b) That the payment of the sum of N2,660.00 by the respondent, without leave of the trial court for a claim of N822,569.00 is inadequate and a gross non-compliance with the legislation above listed.
(c) That the non-payment of the proper filing fees by virtue of the Supreme (sic) decision of Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252, (1996) SCNLR 1 has the effect of divesting the court with (sic) the necessary jurisdiction to entertain the claim of the respondent.”
With regard to this additional ground of appeal (referred to in the respondent’s brief as ground 6), the issue to be determined is whether it was an issue raised or argued before the lower court and if not whether leave was sought to raise it as a fresh issue before this court.
The reason for this can be found in the following cases: Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631, (1994) 10 SCNJ 48 at 64; Adio v. State (1986) 2 NWLR (Pt.24) 581-588, where it was held that an appellant will not be allowed to raise, on appeal, a question which was not raised or argued in the court below without first applying for and obtaining the leave of this court. It is also well settled that a point not taken in the trial court cannot, without leave of the Court of Appeal be taken for the first time in the Court of Appeal. See Alade v. Alemuloke (1988) 1 NWLR (Pt.69) 207 at 218 and Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271. It is equally settled that the application for leave to argue fresh issues should be made by way of motion and must be duly granted before the date of arguing the appeal. See Lebile v. Regd. Trustees of E & S & Ors. (1996) 2 NWLR (Pt.431) 494. See the decision of this court per Ba’aba, JCA in K.B. Dallaz Motors Ltd. v. S.A. Borokini & 2 Ors. suit No. CA/K/346/2001 delivered on 13/5/04.
I have carefully examined the record of proceedings, particularly the affidavits of the defendant/appellant at pages 68-72 and pages 75-76 thereof wherein learned counsel to the defendant/appellant addressed the court.
The issue of the payment of the appropriate filing fees was neither raised nor argued before the court below. It is therefore, a fresh issue being raised for the first time before this court. It is contended on behalf of the appellant that the payment of prescribed filing fees is a condition precedent, which affects the jurisdiction of the court to entertain the claim and that being an issue of jurisdiction no leave is required even where it is being raised for the first time on appeal. It was held in the case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252 at 292 per Iguh, JSC inter alia that:
“It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such fees are payable by any Government Ministry or non-Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State.”
The Supreme Court in the recent case of: Okolo v. Union Bank of (Nig.) Plc. (2004) 3 NWLR (Pt. 859) 87, (2004) 1 SC (Pt.1) 1 at 9, cited the above decision with approval. If issue No.5, which is predicated on the second additional ground of appeal, alleges non-payment of prescribed filing fees, I would agree with learned counsel to the respondent that it raises the issue of jurisdiction. On the authority of Obiakor v. The State (2002) 10 NWLR (Pt. 776) 612, (2002) 6 SC (Pt.11) 33 at 37 lines 38-42 the appellant would be entitled to raise it for the first time on appeal without the leave of this court.
However, from page 3 of the record and pages 18-23 of the appellant’s brief, it is clear that this is not a case of non-payment of filing fees in respect of a claim. The fees as assessed, paid and receipted are endorsed on the writ of summons. It is the appellant’s contention that the filing fees paid are inadequate. Inadequacy of fees paid and the failure or refusal to pay any fees at all are no doubt two entirely different considerations. In the case of: A.C.B. Ltd. v. Henshaw (1990) 1 NWLR (Pt.129) 646 at 651 A-B His Lordship, Uwaifo, JCA (as he then was) said:-
“I do not agree with counsel for the appellant that this is a question of jurisdiction … Failure to fulfil any of the alternatives is, in my view, a mere irregularity which when not taken up timeously or then acquiesced it becomes incapable of affecting the proceedings in any way: See Sonuga & Ors. v. Anadein & Ors. (1967) 1 All NLR 91; (1967) NMLR 77; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202-203, (1985) 2 SC 260; Noibi v. Fikoiati (1987) 1 NWLR (Pt. 52) 619 at 632; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406.”
On the same page of the report, Oguntade, JCA at paragraph G said:
“But as my learned brother has pointed out in the lead judgment, even if the defendant/respondent had not paid the requisite court fees, this was a matter to be settled before the lower court. The usual remedy being an order by the lower court that the appropriate fees or any shortfall be paid. It certainly has nothing to do with the jurisdiction of the lower court to entertain the counter-claim”
See also: Oguamanam Eke v. Nzekwe Eluwa & Another (2000) 14 NWLR (Pt.688) 560 per Akpiroroh, JCA.
In light of the foregoing authorities, I hold that the alleged inadequacy of filing fees paid by the respondent does not raise an issue of jurisdiction. It is a matter that ought to have been taken up at the court below. It is being raised for the first time in this court and no leave was sought or obtained to raise it as a fresh issue before this court. I therefore hold that, ground 2 of the additional grounds of appeal and issue No.5 formulated thereon are incompetent and are hereby struck out.
Learned Counsel to the respondent also raised the issue of non-compliance with Order 3 rule 2(2) and (4) of the Court of Appeal Rules, which provide:
“(2) If the grounds of appeal allege misdirection or error in law, the particulars and nature of the misdirection or error shall be clearly stated.
(4) No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted.”
I have considered the grounds of appeal filed and agree that some of them are general in terms such as ground 3 and additional ground 1. However, despite this shortcoming it is possible to determine the main complaint of the appellant. I am of the view that the inelegance in drafting is the mistake of counsel, which should be overlooked in the interest of substantial justice. See: A. -G., Federation v. A.N.P.P. (2003) 15 NWLR (Pt. 844) 600 at 645 paras G-H, (2003) FWLR (Pt.l67) 839 at 876-877 H-A. The objection is therefore overruled in this regard.
The third and final issue raised in the preliminary objection is the failure of the appellant to seek leave to appeal against the interlocutory decision of the trial Judge, refusing an application for adjournment, the time for doing so having elapsed by virtue of section 25 of the Court of Appeal Act. Issue No.3 in the appellant’s brief is predicated on ground 1 of the notice of appeal. By virtue of section 242(1) of the 1999 Constitution, the lower court’s ruling on the application for an adjournment in the course of proceedings is an interlocutory decision. The appellant therefore requires leave to appeal against it. Pursuant to section 25(2)(a) of the Court of Appeal Act, the time within which to apply for leave is 14 days. There is nothing in the record of proceedings from the lower court or in the record of this court to show that leave to appeal against the interlocutory decision of the lower court was sought or obtained.
Ground 1 of the notice of appeal is therefore incompetent and issue No.3 formulated thereon cannot stand. Ground 1 of the notice of appeal and issue No.3 formulated thereon are accordingly struck out.
From the issues for determination formulated by the appellant in his brief, with the exception of issue Nos. 3 and 5, which have been struck out, I am of the view that issues for determination in this appeal are:
1. Whether the notice of intention to defend and supporting affidavit of 23/5/96 and the further and better affidavit of 30/5/96 disclosed a defence on the merit to justify a transfer of the suit to the general cause list.
2. Whether the trial Judge scrutinised or considered the affidavit evidence adduced by both parties before arriving at its judgment on the 27th day of June, 1996.
3. Whether there was a conflict in the affidavit evidence of the parties and if so could the Honourable trial Judge still proceed to enter the judgment on the undefended list?
I shall now consider the remaining issues for determination seriatim.
In order to properly appreciate the submissions made in respect of this issue it is necessary to reproduce the relevant paragraphs of the various affidavits filed at the court below in support of the writ of summons and in support of the notice of intention to defend. In paragraphs 4-13 of the affidavit in support of the writ of summons deposed to on 22/4/96 it is averred as follows:
“4. That between 14th June, 1995 and 10th October, 1995, the plaintiff supplied the defendant on credit at its request various electrical equipment and spare parts amounting to N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira only) which is made up as follows: – the details of credit invoices and delivery notes are set out in sub-paragraphs (a) to (b) and annexed thereto as exhibits CN1-CN56 respectively.)
5. That all the above exhibits CN1-CN56 were issued to the defendants evidencing the supply and delivery of all the items contained therein on credit at the request of the defendant.
6. That the total value of the electrical items supplied to the defendants at its request amounts to N1,432,569.00 (One million, four hundred and thirty-two thousand, five hundred and sixty-nine Naira only).
7. That I am informed by Barrister I. N. Ambule and I verily believe him that the defendant has no defence to this suit.
8. That on 25/10/95 after much pressure was mounted on the defendant for payment it paid the sum of N300,000.00 leaving the balance of N1,132,569,00 outstanding.
9. That on 16/12/95 another sum of N150,000.00 was paid to the plaintiff leaving the sum of N982,569.00 outstanding as the balance due to the plaintiff.
10. That on 25/3/96, another sum of N100,000.00 was paid after several repeated oral and written demands by the plaintiff leaving the balance of N882,569.00 outstanding.
11. That in spite of further demand for payment of the outstanding sum of N882,569.00, the defendant has bluntly refused to yield further payment to the plaintiff.
12. That as a result, I briefed my solicitors Messrs. J. B. Majiyagbe & Co. who then wrote a letter of demand to the defendant, but refused to burge (sic). The said letter which was copied to me is herewith attached and marked as exh. CN56.
13. That I swear to this affidavit in good faith, believing all the above stated facts to be true and correct in accordance with the Oaths Act, 1963, as amended.”
In paragraph 3 of the affidavit in support of the notice of intention to defend, deposed to on 23/5/96 it was averred as follows:
“That I am informed by Mr. Kofi Ndubuisi Ndegha, Managing Director to the defendant on the 21st day of May, 1996, at No. 6 Ibrahim Taiwo Road, Kano, around 7.30 p.m. during the course of interview and I verily believe him to be true as follows:
(a) That [on] or about the 12th of June, 1995, he on behalf of the defendants entered into a civil agreement wherein the plaintiff agreed to supply him goods.
(b) That it was a term of the agreement that upon supply of the said goods, same would be inspected, and approved by both parties before payment would issue from the defendant.
(c) That upon the supply of the goods and inspection, it was discovered that the goods supplied were not in the nature and fit for the purpose for which they were supplied.
(d) That it was a condition precedent that the goods be produced from China, but most of the goods supplied were of Taiwanese origin and thus a breach of the fundamental terms of the agreement.
(e) That upon supply of the goods he did consult an expert who informed him that most of the goods were goods which had been recalled by their manufacturer as they in their usage had proved [to] be very combustible and are not merchantable and had been replaced by the manufacturer with new ones.
(f) That when he observed this, he made payments for the ones on which both parties approved and have called on the plaintiff to come and pack the remainder unused.
(g) That the defendants have had to buy alternative to those goods from other supplier and would be placed in jeopardy, if he had to pay for these goods.
(h) That the defendant would counter-claim for general damages for breach of contract.
(i) That the defendant have a defence to this suit.”
The defendant further averred in paragraph 4(a), (b), (c), (d), (e) and (g) as follows:
(a) That when I discovered that the goods supplied were not in the nature and fit for the purpose for which they were supplied, Mr. Chuks Uduagha, the Purchasing Manager caused a letter to be written to the plaintiff complaining of same and advised that they come and carry the rejected goods and replace them with the proper ones. The letter dated 5/8/95 is hereby attached and marked Annexure A.
(b) That the plaintiff came and, apologised and carried some of the goods and promised that he will replace the remaining ones as soon as possible.
(c) That when the ones he replaced were inspected by technicians, they discovered that some of the replaced ones were used products that were painted by the plaintiff. The old but painted items are still in the factory as they are not used.
(d) That the remaining ones he promised to replace as soon as possible is yet to be replaced and the defendant has bought them from some other places at far more cheaper prices.
(e) That the plaintiff in spite of his old age has been out rightly fraudulent and mischievous.
(g) That the defendant is not indebted to the plaintiff in the sum claimed or any sum at all.”
The plaintiff/respondent in a further and better affidavit in support of the writ of summons denied the averments in the defendants’ various affidavits and denied that the defendant at any time invited him through Annexure A or through any other means to come and take away any of the items supplied to it.
It is contended on behalf of the appellant that the notice of intention to defend and the supporting affidavits raised various defences in law and questions of fact, which ought to be adjudicated upon at a full trial under the general cause list and which ought not to have been resolved on the conflicting affidavits of the parties. In support of this contention learned Counsel relied on: U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.119) 19 at 29 D-E; 322 Nigerian Weekly Law Reports 9 May 2005 (Kekere-Ekun, J.C.A.) A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt.342) 25 at 36 C-D.
He referred to the following issues:
(a) The merchantability and suitability of the goods for the purpose for which they were purchased under the Sale of Goods Act.
(b) Whether the goods met the specification requested by the appellant.
(c) That the appellant informed the respondent of the rejected goods through a document pursuant to which the respondent apologised and came and carried away some of the goods and promised to replace the remaining.
(d) Fraud that the replaced goods were inspected by a technician and discovered to be used goods which were painted to deceive and defraud the appellant.
He submitted that these issues could not be adjudicated upon on affidavit evidence and ought to have been transferred to the general cause list. He also relied on: Agwuneme v. Eze (1990) 3 NWLR (Pt.137) 242 at 254 and 256 F-G. He urged the court to resolve this issue in favour of the appellant.
In response, learned Counsel to the respondent submitted that the undefended list procedure is a special procedure designed to aid the courts in the speedy disposal of cases in a claim for a debt or liquidated demand. He referred to: Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt.412) 176 at 188 and Peter Tiwell (Nig.) Ltd. v. Inland Bank (1997) 3 NWLR (Pt.494) 408 at 419. He submitted that the transfer of a claim from the undefended to the general cause list is not automatic and that the defendant is required to tackle the plaintiff’s claim in every material particular and demonstrate to the court that he has a defence on the merit.
Learned Counsel noted that the plaintiff/respondent annexed 56 exhibits to his affidavit in support of the writ of summons in respect of numerous goods supplied to the defendant between June, 1995 and October, 1995. He submitted that in the face of these specific documents the defendant’s depositions in paragraph 3(c), (d), (e) and (f) of the affidavit in support of its notice of intention to defend are feeble and do not meet the standard of a defence on the merit. He argued that the averments in those paragraphs lack particulars, such as the specific goods among those contained in exhibits CN1-CN56 that were not fit for the purpose for which they were supplied or that were of Taiwanese origin; that the name and qualification of the engineer who allegedly inspected the goods was not stated. Learned Counsel was of the view that the engineer ought to have deposed to an affidavit. He argued that the three instalments paid by the appellant as averred in paragraphs 8, 9 and 10 of the respondent’s affidavit in support of the writ were well rounded lump sums that do not reflect any discrimination on the part of the appellant between payment for goods that were accepted and those that were rejected. He submitted further that the letter Annexure A annexed to the appellant’s further and better affidavit at page 72 of the record, allegedly sent to the respondent complaining about the quality of the items supplied is dated 5/8/95 whereas the evidence on record showed that the appellant continued to receive and accept supplies from the respondent up till 10/10/95. He also noted, as found by the learned trial Judge at page 76 of the record, that there was no evidence before the court that the letter was in fact received by the appellant.
Learned Counsel to the respondent urged this court to resolve this issue in favour of the respondent and to hold that the appellant’s affidavit in support of its notice of intention to defend failed to disclose a defence on the merit to warrant the transfer of the suit to the general cause list.
In order to resolve this issue it is necessary to consider the requirements of the undefended list procedure.
Order 23 rules 1, 2, 3 and 4 of the Kano State High Court (Civil Procedure) Rules, 1988, provide:
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3(1) If the party served with the writ of summons and affidavit delivers to the Registrar, 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.”
The position of the law with regard to the undefended list procedure was succinctly stated by His Lordship, Uwaifo, JCA (as he then was) in the case of: U.N.N. v. Orazulike Trading Co. (1989) 5 NWLR (Pt.l19) 19 at 29 D-E as cited by learned Counsel to the appellant at pages 4-5 of the appellant’s brief. It is however equally well settled that:
“Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and the facts relied on to support it. It should also state whether the defence goes to the whole or part of ‘the claim, and in the latter case it should specify the part.
A mere general denial that the defendant is not indebted will not suffice unless the grounds on which the defendant relies as showing that he is not indebted are stated.” See: Peter Tiwell (Nig.) Ltd. v. Inland Bank (Nig.) Ltd. (1997) 3 NWLR (Pt.494) 408 at 419.
It was held in: Nya v. Edem (2000) 8 NWLR (Pt.669) 349 at 357-358 G-A, that the requirement of Order 23 rule 3 of the Cross River High Court (Civil Procedure) Rules, 1987, which are in pari materia with Order 23 rule 3 of the Kano State High Court (Civil Procedure) Rules, 1988, is not satisfied by a general statement that the defendant has a good defence to the action if such general averment is unsupported by particulars which, if proved would constitute such a defence. It was held in: Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt.412) 176 at 188 B, that the defendant must raise in his affidavit bona fide issues for trial between the parties.
It is against the backdrop of these authorities that the affidavits filed in support of the notice of intention to defend must be considered.
The appellant contends that the issue of merchantability and suitability of the goods for the purpose for which they were purchased were raised in its affidavits and constitute sufficient grounds to warrant the transfer of the suit to the general cause list. The factor to be considered in this regard is whether in raising the issue the appellant “condescended upon particulars” or whether it merely made general statements. There is no doubt that in an affidavit disclosing a defence on the merit a defendant does not need to show a cast iron defence to the plaintiff’s claim. He must however, show prima facie that he has a defence to the plaintiff’s action. See: Nya v. Edem (supra); Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737.
In paragraph 3(c) of the affidavit in support of the notice of intention to defend it is averred that it was discovered that the goods supplied were not fit for the purpose for which they were purchased. The defendant did not refer to any of the items contained in exhibits CN1- CN56 as falling within this category. This is a serious omission having regard to the averment in paragraph 3(d) and (e) of the same affidavit that most of the goods were of Taiwanese origin and had been recalled by the manufacturer. Those goods found to be of Taiwanese origin or recalled by the manufacturer were not specified from among the numerous goods supplied and evidenced by exhibits CN1 – CN56. It was averred in paragraph 3(f) of the same affidavit that the defendant only paid for those items approved by both parties. The items so paid for are not stated. In paragraph 3(g) of the aforesaid affidavit, it is averred that the defendant had to buy alternative goods from another supplier. No receipt was annexed to this affidavit to show that indeed alternative goods were purchased. I am of the view that the above averments are mere general statements. They have not dealt specifically with the plaintiff’s claim.
As observed by learned Counsel to the respondent, the defendant did not link the payments he made amounting to N550,000.00 as averred in paragraphs 8, 9 and 10 of the plaintiff’s affidavit in support of the writ to specific invoices or delivery notes as contained in exhibits CN1 – CN56, nor did he indicate which of the items supplied he accepted as meeting his requirements and which ones he rejected.
It is also contended on behalf of the appellant that the rejected goods were communicated to the respondent vide a letter dated 5/8/95, which can be found at page 72 of the record; that he apologized and carried away some of the goods and promised to replace the remaining. (See paragraph 4(a) and (b) of the defendant’s further and better affidavit). The letter, Annexure A is couched in very general terms. Paragraphs 2 and 3 thereof read as follows:-
“Our technician who came to inspect and install them discovered to our shock and dismay that most of the goods were cheap and inferior materials made in Taiwan instead of the Chinese products that were agreed upon by you and our Managing Director.
We were also informed by the technicians that most of the goods were goods which had been racked (sic) by the manufacturers as they in their usage had proved to be very combustible and are not marketable and had been replaced by the manufacturers.”
In his judgment at page 77 of the record lines 15-21 the learned trial Judge held thus:
“In fact, even if the letter has been shown to be delivered to the plaintiff it would not amount to a complete defence.
The defendants have alleged that their engineer have reflected (sic) these goods but they have not mentioned the goods or the engineers. Their defence must therefore fall.”
Indeed, the letter under reference is as general in its contents as the averments in the defendant’s affidavits. The specific goods allegedly inspected and found wanting were not stated, the identity of the engineer or technician who carried out the inspection is not disclosed. I cannot therefore fault the finding of the learned trial Judge that even if the letter was shown to have been delivered to the plaintiff it would still not have amounted to a defence on the merit. This is particularly so having regard to the fact that notwithstanding Annexure A dated 5/8/95, the defendant continued to accept deliveries from the plaintiff up till October, 1995, as evidenced by exhibits CN39-CN55.
It has also been argued on behalf of the appellant that the fact that the issue of fraud was allegedly raised in the affidavits in support of the notice of intention to defend is sufficient to warrant the transfer of the suit to the general cause list. In paragraph 4(c) of the further and better affidavit, found at page 71 of the record, it is averred that the goods allegedly replaced by the defendant were found to be used products that were painted over by the plaintiff. Again the actual goods that fall within this category were not specified. There is no document exhibited by the defendant to show that this issue was taken up with the plaintiff at any time. Surely where an allegation of fraud is being made the accuser must “condescend upon particulars” being an allegation of the commission of a criminal offence. The defendant failed to do so in the instant case.
In conclusion on this issue, I hold that the appellant’s affidavits in support of his notice of intention to defend did not disclose a defence on the merit to warrant the transfer of the suit to the general cause list. I therefore resolve this issue against the appellant in favour of the respondent.
Whether the trial Judge scrutinized or considered the affidavit evidence adduced by both parties before arriving at its judgment on the 27th day of June, 1996.
On the duty of the court to scrutinize the affidavit evidence before it before coming to a decision one way or the other as to whether to transfer a suit to the general cause list, learned Counsel to the appellant relied on the decision of this court in: Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462 at 472 B-F. He submitted that a proper scrutiny of the affidavits of the plaintiff would have revealed a discrepancy between the indebtedness of the defendant per the attached annexures and the total amount claimed as deposed to in paragraph 6 of the affidavit in support of the writ of summons. He quoted part of the judgment of the lower court at page 77 of the record thus:
“This is also a case on the undefended list, which is to be heard on affidavit and documentary evidence. The court must hold that the defendants have been served with the writ and affidavits since 23/5/96 and they have been served with the counter-affidavit since 4/6/96, but they have failed to reply; so the court cannot grant them any indulgence. In fact even if the letter has been shown to be delivered to the plaintiff it would not amount to a complete defence.”
Learned Counsel submitted that the last sentence is an indication that the learned trial Judge went into the merits of the case and reached a conclusion that the defence was not complete. He argued that this is contrary to the decision of this court in: U.N.N. v. Orazulike (supra) at 31 A-B. He submitted that the learned trial Judge failed to consider seriously the appellant’s counter affidavit and the defences raised therein. He contended that the learned trial Judge had found that a triable issue had been raised although incomplete. He therefore urged the court to uphold his submission in this regard and to allow the appeal and direct the case to be remitted back to the lower court for trial before another Judge.
In his response, learned Counsel to the respondent urged the court to discountenance the issue of alleged discrepancy between the defendant’s actual indebtedness to the plaintiff as revealed by exhibits CN1 – CN56 and the total amount claimed by the plaintiff in the writ of summons on the ground that the issue was never raised in any of the defendant’s affidavits before the lower court. He referred to the judgment at pages 76-77 of the record wherein the learned trial Judge observed, “The learned Counsel for the defendant also wanted to raise the issue of discrepancy in the list of items and the total amount … All these were not contained in any affidavit” and submitted that the appellant did not challenge this finding in its notice of appeal and is therefore bound by it.
He submitted that under the undefended list procedure, once the court finds that the defendant’s affidavit in support of his notice of intention to defend does not disclose a defence on the merit, the case would be heard under the undefended list and the court would proceed to enter judgment in favour of the plaintiff. He submitted that at this stage the court has no business evaluating the evidence of the parties. He relied on: Nigerian Victory Assurance Co. Ltd. v. Grain Processing Co. Ltd. (1995) 3 NWLR (Pt.386) 671 at 681 and 684 B-C. He submitted that the dictum of Mohammed, JCA in the case of: Azumi v. Pan African Bank Ltd. (supra) cited by learned Counsel to the appellant in support of his contention that the court is obliged to scrutinise the affidavits of the parties, could not be interpreted to mean that the Judge is required to evaluate the affidavit evidence.
With regard to the submission of learned Counsel to the appellant that there were discrepancies between the amount of the defendant’s indebtedness to the plaintiff as shown in exhibits CN1 – CN56 and the total amount claimed in the writ of summons, I have examined the two affidavits filed by the defendant as contained at pages 68-72 of the record. The issue was not raised therein. It was in the course of his oral submissions before the court at page 76 of the record that learned Counsel attempted to raise the issue from the Bar. The learned trial Judge correctly stated in his judgment that the issue was not contained in any affidavit before the court. There was therefore no reason to consider it when entering judgment in favour of the plaintiff.
The other contention of the appellant is that the learned trial Judge did not consider the appellant’s counter-affidavit and the defences raised therein. This view is based on the part of the judgment at page 77 of the record, reproduced earlier in this judgment to the effect that the defendant was served with the plaintiff’s counter-affidavit since 4/6/96 and failed to reply and that even if the letter Annexure A was shown to have been delivered to the plaintiff it would not amount to a complete defence. The letter Annexure was annexed to the further and better affidavit sworn to on 30/5/96 (at page 70 of the record). The plaintiff filed a further and better affidavit in response thereto on 4/6/96 (at page 64 of the record). It was this affidavit wherein the plaintiff averred that Annexure A is an afterthought and that he was never invited to come and take away any of the supplied goods that the trial Judge referred to as not having been replied. His reference to Annexure A which was filed before the further and better affidavit of 4/6/96 shows that the learned trial Judge did in fact consider all the affidavits before him. I agree with learned Counsel to the respondent that having determined that the defendant’s affidavit did not disclose a defence on the merit the next step was for the court to enter judgment in favour of the plaintiff. An evaluation of the affidavit evidence could not arise where no defence on the merit or triable issue was disclosed. I am of the view that this submission is misconceived and has no place in the undefended list procedure. I therefore resolve this issue against the appellant and in favour of the respondent.
The final issue for determination in this appeal is whether there was conflict in the affidavit evidence of the parties, and if so whether the learned trial Judge could still have entered judgment on the undefended list.
In support of this issue learned counsel to the appellant at pages 15-16 of the appellant’s brief submitted that certain controversial questions of fact arise from the affidavits of the parties, which could only be resolved by oral evidence through a full trial. He referred to the following issues:
1. The terms of the agreement between the parties in the absence of any written contract.
2. The merchantability of the goods supplied.
3. Whether the defendant had ever requested the plaintiff either orally or in writing to come and collect rejected goods and whether any goods were replaced.
4. Whether the transaction was tainted with fraud.
5. Whether the plaintiff ever gave an oral guarantee regarding the quality of the goods.
On the need to resolve conflicts in affidavit evidence by oral evidence learned Counsel referred to: Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) 110 at 117-118; Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391 at 398 BC. He submitted that what the court ought to consider at this stage is whether what was stated in the affidavit if proved by evidence after leave of court would be a good defence. He referred to PAC Enterprises Ltd. v. Carl Ploeter (Nig.) Ltd. suit No. FCA/K/40/83 delivered on 15/3/83 per D.C. Coker, JCA.
In response learned Counsel to the respondent submitted that the issue of the resolution of conflict in affidavit evidence does not arise under the undefended list procedure, because the only issue to be determined is whether the plaintiff has satisfied the court that the defendant has no defence to the action and whether the defendant has shown that he has a defence on the merit.
He submitted that where fraud is alleged it must be distinctly and expressly alleged and proved. He submitted that general allegations of fraud do not meet this requirement. He relied on: Obora v. R.S.H. & P.D.A. (1997) 9 NWLR (Pt.521) 425. He submitted that the learned trial Judge was correct to have disregarded and discountenanced the averments in paragraph 3(c) – (e) of the further and better affidavit because they are general allegations without particulars. He submitted that the alleged defences relating to the merchantability of the goods were not substantiated and were properly discountenanced by the trial Judge.
He submitted further that having regard to the averment in paragraph 3(a) of the affidavit in support of the notice of intention to defend, which refers to an agreement between the parties, no extrinsic evidence would be admissible to add to, vary or subtract from or to contradict the terms of the written agreement. He relied on: U.B.N. v. Ozigi (1994) 3 NWLR (Pt.333) 385. He also relied on section 133(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. He submitted that the onus was on the defendant to produce the agreement and that for his failure to produce it the provisions of section 149 (d) of the Evidence Act should be invoked against him.
The state of the affidavits before the court wherein the appellant alleges conflict is that whereas the affidavit in support of the writ of summons filed by the respondent contained averments as to specific facts relating to the transaction between the parties and supported with documentary evidence, the affidavits of the appellant consist of general statements and allegations not supported by any particulars or documentary evidence whatsoever. I have already dealt with this issue in the course of this judgment and do not propose to repeat the exercise. Having regard to the fact that the appellant’s affidavits failed to condescend upon particulars in response to the respondent’s averments, I hold that there was no conflict in the affidavit evidence before the lower court such as to warrant the transfer of the suit to the general cause list. I hold that the learned trial Judge was correct to have entered judgment in favour of the plaintiff on the undefended list. I therefore, resolve this issue against the appellant in favour of the respondent.
In conclusion, I find no merit in this appeal. It is hereby dismissed. There shall be N5,000.00 costs to the respondent against the appellant.
BA’ABA, J.C.A.: I was privileged to have read in advance, the judgment just delivered by my learned brother, Kekere-Ekun, JCA. In that judgment he has carefully reviewed the facts of this appeal and considered the issues raised therein in order to consider whether the appeal is meritorious. I agree entirely with his reasoning and conclusion that the appeal lacks merit, and must be dismissed. I am unable to agree with the submission of the learned Counsel for appellant that the affidavit in support of the notice of intention to defend discloses a defence on the merit justifying the suit being transferred from the undefended to the general cause list.
To secure the transfer of the action from the undefended to general cause list, appellant must disclose or raise in the affidavit accompanying notice of intention to defend a defence on the merit. Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988, provides as follows:
“3(1) if the defendant served with the writ of summons and affidavit delivers to the Registrar 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.”(Italics mine)
The governing words in the provisions set out are “a defence on the merit” which have been construed by the Supreme Court per Uwais, JSC (as he then was) in the case, The Federal Military Government of Nigeria & Others v. Abache Malam Sani (1990) 4 NWLR (Pt.147) 688, 699 as follows:-
“What is required is simply to look at the facts deposed to in the counter-affidavit or indeed the facts averred in the statement of defence, where applicable, and see if they can prima facie afford a defence to the action. In that regard, a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.”
It is clear from the passage just set out from the judgment of the Supreme Court, the affidavit accompanying the application by the defendant to defend must disclose a defence showing that there is a triable issue. In other words, the triable issue envisaged should not be at large but related to the defendant’s defence. Defence, in my respectful opinion, are facts, which, if proved, would exonerate the defendant from the plaintiffs claim. The affidavit is required to set up a defence against the plaintiff’s claim and not to rake up fresh suit or cause or causes of action against the plaintiff.
For these and more fuller reasons contained in the leading judgment, I, too dismiss the appeal. I abide by the consequential orders contained in the leading judgment.
ALAGOA, J.C.A.: I have had the advantage of reading before now, the judgment of my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JCA, just delivered and I also am of the view that there is no merit in this appeal. I also dismiss it with N’5,000.00 costs to the respondent against the appellant.
Charles Asogwa, Esq. (holding the brief of Okechukwu Nweze, Esq.For Appellant
- D. Onietan, EsqFor Respondent