ILA ENTERPRISES LIMITED & ANOR v. UMAR ALI AND COMPANY (NIGERIA) LIMITED
(2013)LCN/6107(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of April, 2013
CA/K/379/2004
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE ABIRU Justice of The Court of Appeal of Nigeria
Between
1. ILA ENTERPRISES LIMITED
2. ALH. NASIRU BABA NA ILA Appellant(s)
AND
UMAR ALI AND COMPANY (NIG.) LTD. Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN ONLY ADJUDICATE ON MATTERS BROUGHT BEFORE IT
It is a trite law that a Court of law can only adjudicate upon a matter brought before it in light of the materials that have been placed before it. See Ushae v. Commissioner of Police, Rivers State Command (2006) All FWLR (Pt. 313) at 89. PER ABOKI, J.C.A.
THE ESSENCE OF THE UNDEFENDED LIST PROCEDURE
The real essence of the Undefended List Procedure, as we often state, was to discourage the employment of undue technicalities, by opponents, to frustrate justice, namely, the recovery of monetary claims which are obviously, indefenceable by the Defendant. Having elaborately admitted the claim, one wonders what the Appellants were up to with their counter-claim and strenuous effort to abort the summary trial. See the case of ILORIN EAST LOCAL GOVT. VS. ALASINRIN (2012) ALL FWLR (Pt.645) 226 at 244
“Order 22, Rule (1) of the Kwara State High Court (Civil Procedure) Rules allows a claim for debt or liquidated money demand to be taken out and heard under what is called the undefended procedure or undefended list, when it is adjudged that the defendant has no defence to the action. Of course, it is well known that proceedings taken under the Undefended list procedure are sui generic, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and Counsel at the hearing.
Order 22 Rule 1 of the Kwara State High Court (Civil Procedure) Rules is equivalent of Order 22 Rule 1 of the High Court (Civil Procedure) Rules, of Kano State. PER MBABA, J.C.A.
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Kano, delivered on 30th day of July, 2004 by A. M. Halliru J.
The summary of the facts that gave rise to this appeal were that the plaintiff (hereinafter called the respondent) via an action initiated under the undefended list procedure claimed the sum of N11,408,431.00K (Eleven Million Four Hundred and Eight Thousand Four Hundred and Thirty One Naira) against the appellants. The said amount represented the outstanding monetary value of the cotton lint the Respondent had supplied to the Appellants by virtue of an oral agreement that was entered between the Appellants and the Respondent.
At the conclusion of the trial, the lower Court ordered the Appellants to pay the sum of N11,408,431.00K as well as a 10% interest until the final liquidation of the said sum.
Aggrieved by the said decision, the Appellants appealed to this court through a notice of appeal containing 5 grounds of appeal.
Briefs of argument were in accordance with the relevant rules of this Court duly filed and exchanged and at the hearing of this appeal, the parties duly adopted and relied on the arguments and submissions contained in their respective briefs of argument.
The Appellants in their brief of argument formulated the following issues for determination to wit:
“2.1 Whether the learned trial judge was right when he held that part payment allegedly made by the appellant/defendants will not be a sufficient triable issue to transfer the case to the general cause list because the appellant failure to supply the dates of such payments in their affidavit.
2.2 Whether the learned trial judge was right when he discountenanced the allegation of fraud raised by the appellants/defendants in their affidavit against the plaintiff/respondents.
2.3. Whether the learned trial judge was right when he ignored the appellant/defendant counter-claim against the respondents/plaintiffs.
2.4 Whether the learned trial judge was right when he entered judgment under the undefended list despite the fact that the respondents/plaintiffs have filed at the hearing, a “reply to affidavit in support of notice of intention to defend, and whether that fact alone was not sufficient to transfer the case to the general cause list.
2.5 Whether the fact that the respondent/plaintiff’s affidavit was unsworn is enough to invalidate the writ even if the “one before the Court was sworn”.
The Respondent in the other hand equally relied and adopted the issues for determination formulated by the Appellants. I adopt issue 4 with some modification as the sole issue in the consideration of this appeal to wit:
“Whether from the totality of the evidence that was adduced before the lower Court, the lower Court erred in law when it failed to transfer the matter to the General Cause List”.
But before considering the above issue, I shall first and foremost consider the preliminary objection that was filed by the Respondent against this appeal.
Learned counsel to the Respondent by an application dated 2/1/2010 and filed on 5/1/2010 sought to challenge the competency of this appeal based on the following grounds:
“1. All the grounds of appeal are alleging errors of law but failed to state clearly particulars of that error.
2. The five issues formulated by the appellants are not distilled from the grounds of appeal”.
In support of the said preliminary objection, learned counsel to the Respondent posited that all the 5 grounds of appeal contained in the Appellants’ notice of appeal were incompetent as the said grounds of appeal did not clearly and specifically enumerated the particulars of error as required by law.
Learned counsel referred the Court to the provisions of Order 3 Rules (2)(3) and (4) of the court of Appeal Rules 2002.
Counsel submitted that all the 5 issues for determination that were formulated by the appellants were incompetent as they were neither distilled nor borne out of the grounds of appeal.
He referred the Court to the cases of Omagbemi v. Guinus (1995) 25 SCNJ 147 at 253 and Odjegbe v. Odjegba (2003) FWLR (Pt. 187) 844 at 854.
In Zaccheus Abiodun Koya A v. United Bank for Africa (1997) 1 NWLR (Pt. 481) 251, the Court held that:
“Generally, where error of law or misdirection is made in a ground of appeal the particulars of the error of law or misdirection must be given.
The particulars however, need not be separately set out if it may be embodied in the ground itself provided the ground is framed as to leave no one in doubt of the errors being complained of. This is because the whole purpose of grounds of appeal is to give notice to the other side of the case it has to meet in the appellate Court. Thus there is nothing wrong in including the particulars of the error in the error itself. This will accord justice by allowing the appeal to be determined on its merit”.
Further more in Ministry for Works v. Tomas (Nig). Ltd. (2002) 2 NWLR (Pt.752) 740, the court held that:
“There is no legal requirement to the effect that the particulars of a ground of appeal must be set out separately. The nature and particulars of a ground of appeal can be embedded in the ground”.
In the instant appeal, the Appellants in their notice of appeal raised 5 grounds of appeal. None of the said 5 grounds of appeal was accompanied with its own separate and distinct particulars. Instead of providing each ground of appeal with its own particulars as contended by the learned counsel to the Respondent, what the Appellants did was that they clustered and summed up all the particulars of all the 5 grounds of appeal in one place.
In the light of the cases quoted above, it is succinctly clear that it is not a requirement of the law that each and every ground of appeal must be accompanied by a separate particulars. More so, the particulars can even be interjected or fused into the ground of appeal. Thus, since the Appellants have in the instant appeal provided a detailed particulars of error for all the 5 grounds of appeal, even though not separately or in a manner that each ground of appeal is accompanied by it’s own particulars of error, I therefore hold that the Appellants have satisfied the requirement of the law which provides that a ground of appeal must be accompanied by a particulars.
On the second leg of the respondent’s objection, that the 5 issues for determination formulated by the Appellant were not distilled from the grounds of appeal, it is a trite law that for any issue for determination to be valid and competent it must necessarily emanate from a particular ground of appeal. Thus in Ibator v. Barakuro (2007) 9 NWLR (Pt. 1040) 475 the Court held that:
“Issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue.
Consequently, any argument in the brief in support of such issues will be discountenanced by the Court”.
In the instant appeal, I have painstakingly perused both the 5 grounds of appeal as well as the issues for determination that were formulated by the Appellants and I have consequently realized that all the 5 issues for determination emanated from the 5 grounds of appeal. Issues for determination 1, 2, 3, 4 and 5 were distilled from grounds of appeal 1, 2, 3, 4 and respectively. Accordingly, the said issues for determination are therefore competent.
In conclusion, the objection that was filed by the Respondent is accordingly jettisoned for lack of merit,
On the sole issue for determination, it is the contention of the learned counsel to the Appellant that the lower Court erred in law when it failed to transfer the matter to the general cause list.
Learned counsel referred the Court to the cases of Daniel v. Samad (Nig). Ltd (1997) 7 NWLR (Pt. 514) 673 at 681,
Yahaya v. Waje Community Bank Ltd (2001) FWLR 804 (Pt.46),
John Holt and Company Ltd v. Henry Fajenikorum (1961) All NLP 513 and paragraphs 15 – 23 of the appellants’ affidavit.
Learned counsel to the Appellants insisted that they have raised a counter claim, and that the lower Court ought to have transferred the matter to the general cause list.
Learned counsel referred the Court to the case of Ivan v. Bilante International Ltd (1998) 5 NWLR (Pt. 550) 396 at 402.
Learned counsel submitted that the filling of a reply brief to the affidavit in support of notice of intention to defend had further made it incumbent upon the lower Court to transfer the matter to the general cause list.
Learned counsel referred the Court to the case of Yahaya v. Waje Community Bank (2001) FWLR 804 (Pt.46).
Learned counsel contended that the lower Court ought not to have given judgment in favour of the Respondent as the affidavit accompanying the writ they filed before the lower Court was not duly sworn to.
Learned counsel referred the Court to the provision of section 81 of the Evidence Act.
In conclusion learned counsel to the Appellants urged the Court to resolve this issue in favour of the Appellants and accordingly transfer the suit to the general cause list for hearing on the merit.
Learned counsel to the Respondent on the other hand opined that the lower Court was not in error when it entered judgment in favour of the Respondent as the appellants have not adduced or disclosed a defence on the merit that would have necessitated the lower Court to transfer the matter to the General Cause List.
Learned counsel referred the Court to pages 18 – 22, 44 of the records and the cases of
Ataguba and Company v. Gura (2000) FWLR (Pt. 24) 1522 at 1542,
Bature v. Savannah Bank of Nigeria Ltd (1999) 4 NWLR (Pt.546) 438 at 446.
Learned counsel to the respondent posited that the issue of fraud and a counter claim embedded in the processes that were filed by the Appellants before the lower Court were mere sham and not a defence on the merit.
He also referred the court to the cases of
NEPA v. Adegbero & others (2003) FWLR (Pt. 139) 1556 and
Ivan v. Bilante International Ltd (1998) 5 NWLR (Pt. 550) 396 at 404
Learned counsel contended that the affidavit as well as the annexure that were filed by the Respondent before the lower Court were duly sworn to before the Commissioner of Oath.
Counsel referred the Court to pages 1 -11 of the records.
In conclusion, counsel urged the Court to dismiss this appeal.
In Mat Holdings Ltd v. UBA (2003) 11 FR 66, the Court held that:
“It is trite that a party who has admitted indebtedness to the other has duty to amply demonstrate to the trial Court how the indebtedness admitted was liquidated”.
In the instant appeal, the Appellants have specifically in paragraph 11 of their affidavit in support of their notice of intention to defend admitted being indebted to the Respondent to the tune of N11,408,431.00 (Eleven Million Four Hundred and Eight Thousand, Four Hundred and Thirty One naira only). The said paragraph provides:
“(1). That to show their commitment in liquidating the outstanding money, the defendants surrendered their DAF truck worth N1,700,000.00 (One Million Seven Hundred Thousand Naira) thereby bringing down the balance outstanding to N11,408,431.00k (Eleven Million Four Hundred and Eight Thousand, Four Hundred and Thirty One naira only)”.
Furthermore, in annexure “FY1” attached to the affidavit that was filled by the respondent before the lower Court, the Appellants had through the 2nd Appellant confirmed being indebted to the respondent to the tune of N13,108,431.00.
However, the said amount was reduced to N11,408,431.00 sequel to the surrender of DAF truck worth N1,700,000.00 by the Appellants to the Respondent.
In the Appellants’ bid to establish the fact that their indebtedness towards to the Respondent had further been reduced to N8,030,000.00, the Appellants specifically stated in their paragraphs 14 – 15 of their affidavit that:
“(4) That the fact at paragraph 9 above was communicated to the plaintiff who agreeing that the materials supplied by them was defective agreed to bring down the price of the supplied commodities. The letter of 19th July as annexed by the plaintiff in their affidavit evidenced this fact.
(5) That by the agreement of the parties the amount due to the plaintiffs was reduced to N8,030,000.00 million (Eight Million, Thirty Thousand naira only) from the N11,408,000.00 balance stated above due to the defect in the materials and consequent loss of value and additional cost of rebating by the defendant”.
I have carefully perused the letter that the Appellants referred to in their paragraph 14 of their affidavit and I have not seen where any reference was made to the fact that the amount outstanding against the Appellants had been reduced from N13,108,431,00 to N8,030,000.00.
However, what I have seen is that the amount outstanding against the Appellants stood at N13,108,431.00. Further more, the aforesaid amount according to the said annexure was subject to change based upon an agreement between the Appellants and the respondent due to the defective materials that were supplied by the latter to the former.
I have carefully and painstakingly gone through all the processes that were filed by the Appellants before the lower Court and I have not seen where the Appellants annexed any agreement that would have supported their contention that the amount outstanding against them had further been reduced to N8,030,000 as contemplated by the said annexure.
It is a trite law that a Court of law can only adjudicate upon a matter brought before it in light of the materials that have been placed before it. See Ushae v. Commissioner of Police, Rivers State Command (2006) All FWLR (Pt. 313) at 89.
The Appellants had also purportedly claimed to have made several payments in their bid to reduce the debt outstanding against them in favour of the Respondent to the Managing Director as well as the duly authorized agents of the Respondent.
The Appellants further claimed to have paid the respondent the sum of N500,000.00 at the Borno State Police CID through the Respondent’s agent.
Thus according to the Appellants as evidenced in paragraph 23 of their affidavit, sequel to the aforesaid payments that were made by the Appellants to the Respondent, the outstanding balance against the Appellants dropped to N6,000,000.00 (Six Million Naira Only).
I have carefully examined paragraphs 16-23 of the Appellants’ affidavit and I have not seen in any of the said paragraphs wherein the Appellants stated the dates the said payments were made to the Respondent through it’s managing Directors or to it’s authorized agents.
This Court is still kept within the realm of speculation as to the date the said payments were made by to the Appellants to the Respondent, the question that must be asked at this juncture is why did the Appellants issued a cheque in favour of the Respondent dated 30/10/2001 to be paid the sum of N11,408,431.00 if the Appellants were not indebted to the Respondent to the tune of the said amount. See Exhibit “FY2”.
In Dala Air Services v. Sudan Airways (2005) 3 NWLR (Pt.912) 394, the Court held that:
“The issue of cheque by a party to liquidate its indebtedness to another party is nothing but admission of the latter claim”.
In the instant appeal, the appellants having issued a cheque in favour of the respondent to be paid the sum of N11,408,431.00 by Union Bank which was eventually not honoured by the said bank, are deemed in law to have acknowledged being indebted to the Respondent to the tune of N11,408,431.00 and I so hold.
In conclusion therefore, this appeal is hereby dismissed for lack of merit.
ITA G. MBABA J.C.A.: I have had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, ABDU ABOKI JCA, and I agree with his reasoning and conclusions, that having admitted the outstanding balance of the debt due from them to the Respondent, as per paragraphs 14 and 15 of Appellants’ affidavit, the learned trial judge was perfectly in order to hear the suit under the Undefended List procedure and to enter judgment for the Respondent, accordingly.
The real essence of the Undefended List Procedure, as we often state, was to discourage the employment of undue technicalities, by opponents, to frustrate justice, namely, the recovery of monetary claims which are obviously, indefenceable by the Defendant. Having elaborately admitted the claim, one wonders what the Appellants were up to with their counter-claim and strenuous effort to abort the summary trial. See the case of ILORIN EAST LOCAL GOVT. VS. ALASINRIN (2012) ALL FWLR (Pt.645) 226 at 244
“Order 22, Rule (1) of the Kwara State High Court (Civil Procedure) Rules allows a claim for debt or liquidated money demand to be taken out and heard under what is called the undefended procedure or undefended list, when it is adjudged that the defendant has no defence to the action. Of course, it is well known that proceedings taken under the Undefended list procedure are sui generic, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and Counsel at the hearing.
Order 22 Rule 1 of the Kwara State High Court (Civil Procedure) Rules is equivalent of Order 22 Rule 1 of the High Court (Civil Procedure) Rules, of Kano State.
With this and other reasons in the lead judgment, I too dismiss the Appeal and abide by the consequential orders therein.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Abdu Aboki, JCA, His Lordship has painstakingly considered and resolved the issue in contention in this appeal. I agree with the reasoning and conclusions contained therein. I have nothing to add.
Appearances
Appellants absent and unrepresentedFor Appellant
AND
M. BulamaFor Respondent
