In The Court of Appeal of Nigeria

On Thursday, the 15th day of May, 2003




IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA   Justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI   Justice of The Court of Appeal of Nigeria



    2. MR. ALI BAALBAKI Appellant(s)



IBRAHIM TANKO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The respondent herein, was the plaintiff at the High Court of Justice, holden at Minna, Niger State. It was running some business under the registered name of Oguns Electricals. The appellants were the defendants. The claim of the plaintiff against the defendants jointly and severally, was for:
(a) The sum of N550,500.00 being the balance of goods and labour supplied to the defendants remaining unpaid.
(b) Interest at the rate of 20% per annum from the 11/6/96, when the debts became due and payable up to the date of judgment and thereafter at the rate of 10% per annum, until the entire debt is finally liquidated.
(c) Plus substantial costs.
The facts giving rise to the above claim as contained in the printed record of appeal placed before this court briefly put, are that the plaintiff in 1994, in Minna, entered into an agreement with the defendants for the supply and installation of electrical materials at the Central Bank Quarters, then under construction in Abuja. The agreed cost of installing the electrical materials was N350.000.00 (Three hundred and fifty thousand Naira only) supplies of the equipments were effected through issuance of various LPO’s on different dates. There were further supplies outside LPO’s for different sums of money. The total costs of materials supplied to the defendants amounted to N461,500.00. The defendants paid the sum of N260,000.00 leaving a balance of N201.500.00.
The plaintiff claimed further, that the defendants did not pay any amount for the labour on the installation of the materials. The total balance unpaid therefore, including labour, amounted to N551,500.00 (Five hundred and fifty one thousand five hundred Naira only) as at 11/6/96.
The defendants filed a statement of defence denying all the claims. They also counter-claimed. Paragraph 19 of the statement of defence contains the amount counter-claimed:
“19. Whereof the defendants counter-claim against the plaintiff the sum of N20,000.00 (Twenty thousand Naira) being cost of replacement of sub-standard wires used by the plaintiff and N100,000.00 (One hundred thousand Naira) as general damages.”
After settlement of pleadings, learned Counsel for the plaintiff applied to the trial court to set down the suit for hearing. The suit was set down for hearing on 26/11/96. On that date, learned Counsel for the plaintiff was in court, the defendants and their counsel were not in court. The suit was fixed for hearing on the 3/12/96. On this date, the plaintiff and his counsel were in court. Defendants were not in court but one Mr. C.C. Ofule held Akin Adewale’s brief for the defendants. Hearing commenced on that day with the plaintiff testifying as PW1. He concluded his testimony that day. Cross examination by defendants’ counsel and continuation of hearing were (reserved) adjourned to 28/1/97. On 28/1/97, learned Counsel for both parties were in court. They agreed to take another date for the cross-examination and they were given the 4/2/97. It is my observation that there is nothing in the record, except what learned Counsel for the appellants said in his brief that informs us of what transpired on the 4/2/97. The next date the trial court sat was the 10/3/97. The plaintiff was in court in person. There is nothing to indicate that his counsel was in court. However, learned Counsel for the defendants was in court. The trial court re-fixed the matter for 17/3/97 for cross-examination. On 17/3/97, the plaintiff and his counsel were in court. The defendants and his counsel were not in court.
Learned Counsel for the plaintiff made the following observation:
“Mr. Eze: the matter is for the cross-examination of the plaintiff by the defendant. They are not in court and no explanation is offered. In the absence of any such explanation we close our case.
The learned trial Judge remarked:
“COURT: That is noted. Judgment shall be given on 19/3/97.
On the 19/3/97, judgment was delivered by the learned trial Judge in which he entered judgment in favour of the plaintiff in the sum of N550,500.00 plus N1000.00 costs. He made no order in respect of the claim for interest on the judgment sum. On the counter-claim filed by the defendants, the learned trial Judge found that there was no proof in respect thereof and he dismissed it.
Dissatisfied with the judgment, the defendants as appellants filed their notice and grounds of appeal. An order for leave to amend the notice and grounds of appeal was granted by this court and the appellants added one (additional) ground of appeal.
In compliance with the rules of this court, the parties filed and exchanged briefs of argument. In his brief, learned Counsel for the appellants formulated the following issues:
“(1) Whether the learned trial Judge was not error (sic) in entering judgment in favour of the respondents, when the appellants have not been given any opportunity to present their defence.
(2) Was the learned trial Judge right in entering judgment in favour of the respondent whose competence in law to institute the action was not proved.
(3) Was the learned trial Judge right to proceed with the suit based on void writ of summons.
(4) Was the learned trial Judge not in error in dismissing the appellants counter-claim instead of entering judgment for the appellants on same in the circumstance.
Learned Counsel for the respondent distilled the following issues:
“1(a) Whether by refusing and or neglecting to cross-examine the plaintiff’s witness or even attend court for the proceedings the appellant has not abandoned the opportunity given to him to be heard; or
(b) Whether the conduct of defence did not start with cross-examination and if so, whether the abandonment by the defendant to cross-examine the plaintiff’s witness on several occasions was not a clear and unequivocal indication of the appellants lack of interest to defend the suit.
(2) Whether the competence of the plaintiff/respondent was an issue before the court at the trial.
(3) Whether by participating in the proceedings, when he was aware of the purported irregularities in the issuance and service of the writ without raising an objection, the appellant did not waive his right of protest.
(4) Whether the court can suo motu enter judgment for the counter-claimant/appellant if the court was not moved so to do in accordance with the rules of court.”
Appellant’s issue No.3 seems to raise a jurisdictional issue. I shall dispose of this issue first. A.-G., Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; NDIC v. C.B.N. (2002) 7 NWLR (Pt. 766) 272, (2002) 3 SC 1. It is the submission of learned Counsel for the appellant that from the record, the respondent did not obtain leave of court before the writ was issued and nor was leave obtained to serve the appellants in Abuja, which was outside the trial court’s jurisdiction. Further, the appellants were commanded to enter, appearance on 2nd October, 1996, to a writ issued on 23/9/96, a period of about 10 days. These offended sections 97 and 99 of the Sheriffs and Civil Process Act, Cap. 407 L.F.N. 1990 and also Order 5 rule 6 of the High Court Civil Procedure Rules of Niger State, 1987. Section 239 of the 1979 Constitution was as well offended. Learned Counsel submitted further that the breach of sections 97 and 99 of the Sheriffs and Civil Process Act is fundamental and incurable as against breach of a rule of court which may be regarded as an irregularity if no objection is raised timeously against it. He cited the case of NEPA v. Onah (1997) 1 NWLR (Pt.484) 680; (1997) 1 SCNJ 220 at page 227. Learned Counsel concluded that the combined breach by the respondent of sections 97 and 99 of the Sheriffs and Civil Process Act and Order 5 rule 6 of the Niger State High Court rules rendered the writ invalid, null and void.
Learned Counsel for the respondent submitted that before the commencement of the trial at the lower court, the appellant was aware of the purported irregularities in issuance and service of the writ of summons i.e. by his conditional appearance. He chose not to raise objections timeously before taking a step in the proceedings.
He was taken to have waived his right of protest. Learned Counsel cited the cases of Habbib Nigeria Bank v. Ochete (2002) 19 WRN 23; Kossen (Nig.) Ltd. v. Savannah (Nig.) Ltd. (1995) 9 NWLR (Pt.420) 439, among others. After reserving the appeal for judgment, this court noted that there were some vital information to be placed before the court by the parties. The following question in relation to appellants issue No.3 was formulated by the court, communicated to the parties for their further address:
“3. Validity of the writ of summons and service outside jurisdiction. (See submissions of learned Counsel for the appellant on pages 5 and 6 of the appellants brief.
Issue No.3 was there service of the writ of summons on the defendant (appellant)? Did the appellant respond to the service? Where were they served?
In response to the above question, learned Counsel for the appellants replied as follows:
“The defendants (appellants) were served. They were served in Garki, Abuja. The appellants responded by filing conditional appearance (See page 2 of the record). Even the address for service on the defendants were put at Garki, Abuja, in the writ of summons. They were served in Abuja. No demurrer was allowed under the rules of the trial court hence, we had to file statement of defence without raising the issue as a preliminary one. The respondent did not obtain leave to issue the writ against the appellants outside jurisdiction at the lower court and the appellants were given seven (7) days to enter appearance see the writ of summons at page 1 of the record.”
In his response, learned Counsel for the respondent stated:
“The respondent repeats his submission in issue No.3 of his brief and insists that though address for service was given as Garki, the writ was actually served in Minna and that was why the appellant abandoned raising objection after entering conditional appearance.
Even if the writ was served in Garki, Abuja (which is denied), the appellants took steps in the proceeding without raising an objection or raising the issue of validity or otherwise of the writ at the trial and thus, waiving their right of protest. If the appellant had intended to challenge the lower court, they are required to either raise such objection by motion or in their pleading. Neither of this (sic) was done. See Mable (Nig.) Ltd. v. Lagos State Environmental Protection Agency & Ors 12 (2001) 8 NWLR (Pt. 715) 489, NWQR 263 at 271.”
The statutory provisions referred to by learned Counsel for the appellant are: sections 97 and 99 of the Sheriffs and Civil Process Act of Cap. 407 L.F.N. 1990 (to be referred to herein as (Civil Process Act) and Order 5 rule 6 of the Niger State High Court (Civil Procedure) Rules, 1987 (to be referred to as the Rules). The sections of the Civil Process Act provide as follows:
“97. Every writ of summons for service under this part out of the State or the Capital Territory in which it was issued shall, in addition to any other endorsement or notice required by the law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say):-
“This summons (or as the case may be) is to be served out of the … State (or as the case may be).”
“99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court within which the writ of summons is issued, not less than that longer period.”
Order 5 rule 6 of the Rules provides:
“Subject to the provisions of these rules or of any written law in force in the State, no writ or summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction, shall be issued without the leave of court or a Judge in chambers.”
Now from the printed record of appeal, it is clear that:
(a) A writ of summons was issued against the defendants whose address for service simply reads “GARKI, ABUJA”. (page 1 of the record).
(b) The writ of summons was issued by the High Court of Justice, Minna, in Niger State. The endorsement stipulated by section 97 of the Civil Process Act has not been reflected in this writ of summons. (page 1 of the record).
(c) Conditional appearance was entered by the defendants whose address of service is given as suite 64A Nouakchott Street, Wuse Zone 1, Wuse, Abuja. (page 2 of the record).
(d) On the 9th of October, 1996, the lower court sat. The plaintiff was represented by Mr. Bob Eze, who was present in court. The defendants were represented by Mr. Akin Adewale, who was present in court. (page 3 of the record).
(e) Pleadings were ordered, filed and exchanged by the parties. The defendants embedded a counter-claim in their statement of defence. (pages 3, 4-8 of the record).
(f) Except on some few occasions, the defendants were fully represented throughout the hearing period up to judgment. (pages 10-16 of the record).
These actions have in my view, shown that both parties, especially the defendants have taken steps in defending the suit against them. As against the respondent’s submission that the writ was served in Minna, there is nothing in the record to establish that. It is therefore a ruse and can easily be discountenanced. I will however, agree with learned Counsel for the respondent in his submission that the appellants failed to raise an objection to the validity of the writ and the mode of service timeously and that the appellants took steps in the proceedings thus, waiving their right to protest. The decisions on cases cited by learned Counsel for the appellant, such as NEPA v. Onah (supra) were reconsidered further by the Supreme Court and distinctions drawn in Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1 at page 51 paragraphs G-H. Before I come to such distinctions made by the Supreme Court, let me expatiate on the general law as it affects service out of jurisdiction generally.
As is clear from the provision of the Sheriff and Civil Process Act and the Rules quoted (supra), it is mandatory for a plaintiff to endorse in the writ of summons to be served out of jurisdiction, the address of the defendant(s) where service on him/them is to be effected out of jurisdiction of the trial court. Secondly, a period of not less than thirty days within which a defendant shall answer to the writ of summons shall be granted to him. Thirdly, no writ of summons for service out of jurisdiction, except where there are some statutory exemptions, shall be issued without the leave of court or a Judge in Chambers. These are fundamental issues, breach of which affects the jurisdiction of a trial court. See Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195; Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250; Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664; NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680. This is only applicable in a situation where the defendant has timeously raised a protest against the manner of the issuance and or service of the writ of summons out of jurisdiction. But where, inspite of such glaring irregularities, the defendant decided to waive his right of protest by taking steps in the proceedings after service, then he cannot be heard to complain of non-compliance. In the case of Odu’ a Investment Co. Ltd. v. Talabi (supra) the Supreme Court, per Ogundare, JSC, stated:
“Reading carefully the wordings of sections 97 and 99 of the Act I am of the firm view that the provisions of these section are for the benefit of defendants alone rather than of the general public. The purpose of section 99 is to give a defendant served in a State outside the one in which the writ was issued sufficient time to enable him make appearance. The endorsement to the writ required by section 97 informs him that the writ was issued in another State. With this view of these sections I cannot say that a breach of any of them is of such incurable nature that cannot be waived by the person for whose benefit they are provided, that is, the defendant. I think he can waive them if he so chooses. What is waiver? Defining the word ‘waiver’. Idigbe, JSC at page 22 of the Ariori’s case said:
‘By way of a general definition, waiver is the intentional and voluntary surrender or relinquishment of a known privilege and or right; it, therefore, implies a dispensation or abandonment by the party waiving of a right or privilege which, at his option, he could have insisted upon.
Obaseki, JSC at page 25 added:
‘Waiver is according to words and phrases legally defined volume 5p.301 1969 edition, reprinted 1974, defined as the abandonment of a light. A person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provisions did not exist.’
It follows, therefore, that where a defendant is served with a writ of summons in breach of sections 97 and 99 of the Act, he has a choice either to object to the service by applying to have it set aside and the court ex debito justitiae will accede to the application or ignore the defect and proceed to take steps in the matter. By entering unconditional appearance and filing pleadings, as in the case on hand, he is deemed to have waived his right to object and cannot later in the proceedings seek to set same aside because of the original defect. I am not unmindful of the fact that in Skenconsult and Nwabueze this court had held that non-compliance with these sections would render the proceedings null and void. It would appear that this declaration was unnecessary in those cases as the defendants were ex debito justitiae entitled to have the proceedings set aside because (1) in Skenconsult there was no service at all on the 2nd defendant and the service on the 1st defendant was irregular and he did not waive the irregularity and (2) in Nwabueze, the service on the defendants were irregular and they did not waive the irregularity. In NEPA there was indication in the lead judgment of Mohammed, JSC, that there was no waiver which would suggest that had there been waiver the decision might have been otherwise.
In Skenconsult, Nwabueze and NEPA, there was no waiver and this court in those cases, rightly in my respectful view, set aside the defective service on the application of the defendants. In Adegoke Motors, there was waiver and this court rejected similar application. And rightly, too, in my humble view.
From all I have been saying, my answer to the question set out in this judgment, therefore, is that noncompliance with sections 97 and/or section 99 of the Sheriffs and Civil Process Act and the rule of court requiring leave of the court or a Judge for a writ to be served out of jurisdiction renders the writ and/or service of it voidable and the defendant, who complains of such non-compliance is entitled to ex debito justitiae to have same set aside as was done in Skenconsult, Nwabueze and NEPA, provided he has not taken fresh steps in the matter which will amount to a waiver of the irregularity complained of. Where the latter is the case, his application to set aside must be refused. I need point to out, for the avoidance of doubt, that the power to set aside is without prejudice to the power of the court, to allow, in appropriate cases, such amendments to be made and to make such order dealing with the proceedings generally as it thinks fit.
Turning to the case on hand, the appellant from the various steps it took in the proceedings after service on it of the writ of summons cannot now be heard to complain of defects in the issue and service of the writ.
It is too late in the day to do so. He has waived his right to complain. The trial court must go on. Technicalities are a blot upon the administration of the law and the courts have moved a long way from allowing them to make an ass of it and dent the image of justice. As I am satisfied that Ezemo and Adegoke Motors were, on their facts, rightly decided I find no reasons to accede to the appellant’s request to overrule them. They are not in conflict either with Skenconsult and Nwabueze.”
Therefore, I think it is too late in the day for the appellants, who, by the various steps they took in the proceedings before the trial court, must be taken to have waived their right to challenge non-compliance with such procedural rules. I find it difficult to accede to the order sought by the appellant in declaring the issuance and service of the writ of summons out of jurisdiction of the lower court as invalid null and void.
I now proceed to consider the other issues. I go back to issue No.1. The allegation in ground one from which this issue is distilled is that the appellants were not given any opportunity to present their defence. This will amount to a denial of hearing. The argument of learned counsel for the appellant was that he was not afforded opportunity to cross-examine the plaintiff, when he testified on 3/12/96 and nor on the subsequent adjourned dates. The respondent’s counsel sought to close his case on 17/3/97 and the learned trial Judge acceded to this request and adjourned the suit for judgment on 19/3/97. This, learned Counsel submitted, violated the rules of procedure of the Niger State High Court. By so doing, the appellants were effectively prevented from presenting their own case thereby denied fair hearing. The learned trial Judge, he said, should have adjourned the case for defence on 17/3/97 after the respondent applied to close his case instead of adjourning for judgment which the respondent did not even ask for.
Learned Counsel for the respondent submitted on this issue that the appellants were given adequate opportunity to conduct the defence, but chose not to do so. Appellants were in court on 3/12/96, when respondent testified but they chose to reserve cross examination. This was what happened on subsequent adjournments. Appellants had nothing to offer in defence and only wanted to employ the ‘time killing’ strategy to prolong the evil day.
Let me start by re-iterating the well known principle of the constitutional law that a fair hearing is one conducted in accordance with all the legal rules formulated to ensure that justice is done to the parties. See Ntukidem v. Oko(1986) 5 NWLR (Pt. 45) 909. What is clear from the printed record of this appeal is that one Samuel Onukuyem an electrict contractor, testified as PW1 on the 3rd day of December, 1996. The plaintiff was represented by one Bob Eze, a legal practitioner. The defendant was absent but represented by one C.C. Ofule, who was holding brief for Akin Adewale for the defendant. At the end of PW1’s testimony, below is what is recorded by the trial court.
COURT: 28/1/97 is fixed for cross-examination and continuation of hearing.
On the 28/1/97, the trial court resumed its sitting and this is what transpired:
“MR. BOB EZE: For the plaintiff
MR. A. ADEWALE: For the defendant
MR. EZE: The matter is for cross-examination but we have agreed to take a date.
COURT: 4/2/97 is refixed for cross-examination and continuation of hearing.
On 10/3/97, the plaintiff was present in court. A. Adewale for the defendant was also in court. Apparently, learned Counsel for the plaintiff was not in court. The trial court adjourned the matter to 17/3/97 for cross-examination. On the 17/3/97 Mr. Bob Eze and his client (the plaintiff) were in court. The defendant and his counsel were not in court. Mr. Eze was recorded to have said:
“The matter is for the cross-examination of the plaintiff by the defendant. They are not in court and no explanation is offered. In the absence of any such explanation we close our case.
The learned trial Judge, then ruled:
“COURT: That is noted. Judgment shall be given on the 19/3/97.”
And judgment was indeed delivered by the learned trial Judge on 19/7/97.
From what has been reproduced from the record of appeal, it is clear that ample opportunity had been given to the appellants to conduct their cross-examination of the PW1. Learned Counsel for the appellants kept on playing with time. This issue is one of those raised by this court for the parties further address. In his written address, learned Counsel for the appellants stated:
“The reason why the cross-examination was not conducted on 3/12/96, was not stated in the record. See page 13 of the record. The counsel who was there for the appellants, Mr. C. Ofule, Esq. is no more with my Chambers. The reason for non cross-examination may just be a matter of conjecture at this stage as there was no reason stated in the record.
Non cross-examination on 28/1/97.
I was in court on that day, I left Abuja for Minna that day, to conduct the case and to proceed with cross-examination. However, the counsel for the respondent then C.B. Eze, appealed to me to take another date as he had another matter before another High Court Minna, which was stood down for him and which he considered more urgent. I conceded to adjournment, but I asked him to make the application for adjournment, which he did; but the learned trial Judge did not record the reason for adjournment. See page 14 of the record. I would not have left Abuja for Minna, just to take adjournment.
Non cross-examination on 10/3/97.
On that day, I was again in Minna to cross-examine the plaintiff. (now respondent) however, his counsel was absent. I urged the court to allow me cross-examine the plaintiff, but this was refused on the ground that his counsel was absent. See page 14 of the record, the reason was also not recorded as usual by the trial Judge. But the fact that the respondent’s counsel was absent on that day is on the record. On 17/3/97, we were absent and the plaintiff closed his case. The Judge suo motu adjourned to 19/3/97 for judgment a period of 2 days. The case should have been adjourned for defence and hearing notice issued in the interest of justice and fair hearing.”
In his response to the question raised by this court on the above issue as explained further by the appellants, learned Counsel for the respondent repeated his argument relating to issue No.1 his brief of argument. I already summarized that argument earlier in this judgment. It is clear to me from the submissions, that learned Counsel for the appellants has nothing to offer to this court, which will convince me that he was refused any opportunity to cross-examine PW1. If one examines what has transpired from the very day PW1 testified up to the day when plaintiff decided to close his case, the learned trial Judge patiently exercised his role as an umpire. He was acceding to the requests of the parties as if it were the parties that were conducting the proceedings by themselves. He accommodated the parties to all bearable limits. Yet, learned Counsel for the appellant was condemning the learned trial Judge that he did not afford him an opportunity to conduct his cross-examination on PW1’s evidence and that the learned trial Judge delivered judgment two days thereafter. But if I am to assess the performance of the learned trial Judge on the proceedings before me, I will certainly give him a pass mark, if not for any thing but for his patience, consistence, accommodation and hard work. To the best of my knowledge, there is no rule of law which prohibits or limits a Judge from delivering a judgment within two days after date of hearing the matter so long as he is satisfied that he is acting within the law and procedure in operation.
I agree that fair hearing is one in which authority is fairly exercised, consistent with the fundamental principles of justice, embraced within the conception of due process of law. It must also have in contemplation the opportunity afforded to a party to present his grievance without obstruction from the authority. This means that a party must be afforded the right to present evidence; cross examine witnesses called and shall be appraised of the evidence against him so that at the conclusion of the hearing, he may be in a position to know all the evidence on which the matter is to be decided.
I do not think in determining the matter before him the learned trial Judge omitted any of the requirements postulated by the principles of fair hearing. If anything, it was the defendants/appellants who refused to utilize the opportunity afforded them to do what the law entitled them before a court of law. They cannot complain that their right to fair hearing had been breached. See Malgit v. Dachen (1998) 5 NWLR (Pt. 550) 384 at page 394 paras. A-B. I find myself bound to repeat what I said on allegation of denial of fair hearing by some counsel in Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 765) 188 at page 212 paras. D-H:
“In applying the principles enunciated above, the record of appeal speaks for itself. It behoves me to conclude that the learned trial Judge tried his best and carried the parties, especially the appellant to what I consider to be a bearable limit.” I think there was no opportunity that was not afforded to the appellant to prosecute his case diligently. But to the disdain of the trial court, each time the matter was adjourned, the appellant would come up with one reason or another that would stultify the progress of the case. I think a Judge in his court should not be a back pusher. He cannot be the kind of toothless bull-dog that can only bark but not bite. If indolence, laissez faire attitude and general lackadaisical attitude conceived by a party to a proceeding shall be employed to defeat the realization of justice without tears, I am afraid, the much cherished concept of justice shall be far away from the door step of a yearning litigant, who would have otherwise got it cheaply, easily and without unnecessary delay. ‘Justice delayed’ it is said, ‘is justice denied.’ I am convinced that the appellant was not denied any of the fundamental rights conferred on him by the Constitution or any other law while prosecuting his matter before the lower court.”
I am quick to state that same applies in this appeal. I may even go further to say, looking at the various allegations levied against the learned trial Judge, counsel should not be making frivolous allegations against Judges, such as non-recording of some facts which a party considers vital to his case and adjournment for judgment suo motu by the Judge. I am yet to know of a rule of law which mandates a Judge to consult a party before he fixes a date for the delivery of his judgment. Remember, the trial Judge or any other Judge for that matter, whose decision is to be considered by others on appeal, shall not be present before the deciding authority to defence himself. One should be fair to the Judges in one’s accusations against a Judge. For what I have so far said, issue No.1 of the appellant’s brief lacks merit and same is dismissed hereby.
Issue No.2
This issue is on the competence of the respondent to institute the suit. The arguments of learned Counsel for the appellants on this issue are that in both the writ of summons and statement of claim, the plaintiff (now respondent) is ‘Oguns Electricals’. While the 1st and 2nd defendants (1st and 2nd appellants) are ‘Jadcom (Nig.) Ltd.’ and ‘Mr. Ali Baalbaki’. It was averred in the statement of claim that the plaintiff is a businessman trading under the registered name of ‘Oguns Electricals’. The appellants denied this assertion in paragraphs 1 and 2 of their statement of defence and counter-claim. Again, while giving evidence, the respondent’s witness one Mr. Samuel Onukwe stated that he was an electric contractor and was the plaintiff. From the evidence of the respondent there was no where the name ‘Oguns Electricals’ either registered or not was mentioned. Thus, there was need to resolve who the plaintiff was in the trial court. Further, the respondent has failed to prove that it is a registered name authorized to carry out business in the name of Oguns Electricals. The onus of proof of registration of the business name lies on the respondent as required by section 139 of the Evidence Act, Cap. 112 L.F.N. 1990. Section 667 (3) of CAMA, Cap. 59 L.F.N. 1990, prohibits the use of unregistered business name and even made it a criminal offence. The name used in the suit, being unregistered, cannot be used to institute civil action in court.
The name of Samuel Onukuye being plaintiff was not pleaded by the respondent in its statement of claim and evidence on unpleaded facts goes to no issue. Learned Counsel urged the court to expunge the name of Samuel Onukuye from the respondent’s evidence. He relies on: Adejumo & Co. v. Ayantegbe (1989) 3 NWLR (Pt.110) 417; ((989) All NLR 468 at 480. As there was no competent plaintiff before the lower court, the only course open to the trial court was to strike out the suit.
It was submitted for the respondent that the defendant by general traverse denied every allegation of the plaintiff, but the law is that general traverse does not amount to denial. The defendant did not join issue with the plaintiff/ respondent on the competence or otherwise of the plaintiff and the plaintiff was not called upon to prove anything as facts admitted need no further proof. Oguns Electrical (the plaintiff) is an artificiality that cannot act except through some persons. PW1 acted on behalf of Oguns Electrical as can be inferred from the totality of the evidence placed before the trial court.
In answer to further question raised by this court on the competence of the respondent to institute the suit, learned Counsel for the appellants repeated his submissions made in his brief. He said that issues were joined that ‘Oguns Electricals’ was unregistered. It was not a new issue for which leave to raise it was necessary. Learned Counsel for the respondent replied that issues were not joined at the lower court with respect to the status of the plaintiff. The issue was never raised and canvassed at the lower court and neither did it arise from the decision appealed against it and does not fall within the sphere of points of law which can be raised at any stage of the proceedings without leave of court.
I perused the record of appeal. There is no reference on the competence of the plaintiff/respondent in the learned trial Judge’s judgment. In the pleadings the plaintiff, as per paragraph 1 of the statement of claim stated:
“1. The plaintiff is a business man trading under the registered named (sic) of Oguns Electricals.”
The defendants/appellants in their statement of defence denied in general terms contents of paragraph 1. These paragraphs provide as follows:
“Save and except as herein after admitted, the defendants deny every allegation of fact contained in the plaintiff’s statement of claim as if same has been specifically set out and traversed seriatim.
1. The defendants deny paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11.
2. In further answer to paragraphs 1, 2 and 3 of the claim, the defendant aver (sic) that initially they were based in Minna, and there they knew the plaintiff and they transacted business together apart from the one that gave rise to this dispute.”
It is no doubt that the opening statement (unnumbered paragraph) is a general traverse. But whether this general traverse is capable to amount to a denial to a specific fact which is of essence to the whole claim is what I need to consider here. In A.C.E. Jimona Ltd. v. Nigerian Electrical Constructing Co. Ltd. (1966) 1 All NLR 122, the Supreme Court held that the denial of a particular paragraph in the statement of claim by means of the general traverse had the same effect as a specific denial of it and that this effect was solely to put the plaintiff to proof of the allegation in that paragraph. In the earlier case of Attah & Ors. v. Nnacho & Ors. (1965) NMLR 28, the same court per Idigbe, JSC, said:
“By common practice a general traverse… has always been accepted and when employed it puts the opponent to proof of the fact therein stated or alleged.”
However, in respect of essential and material allegations in the statement of claim, the Supreme Court, in Lewis & Peat (N.R.I.) Ltd. v. Akhimien (1976) 7 SC 157, held that the general traverse ought not to be adopted and that such essential and material allegations should be specifically traversed. This principle was adopted and applied by the same court in Akintola v. Solano (1986) 2 NWLR (Pt.24) 598, where it was held that the general traverse is not enough to controvert material and essential important averments in the statement of claim which are the foundation of the plaintiff’s case and that such averments are radical and must be specifically denied. See further: Lagos City Council v. Ogunbiyi (1969) 1 All NLR 297 at 299; Wallersteiner v. Moir (1974) 1 WLR 991 at 1002; Grocott v. Loratt (1916) WN 317. The essence of a specific, rather than general traverse is that a traverse should be clear and specific. It should show how much of the statement pleaded that is denied and how much that is admitted. Thus, when a party denies an allegation he must not do so evasively but must answer the point of substance i.e. the substance of the allegation. An evasive denial is ambiguous in that the extent of what is denied is not clear. See: Tildesley v. Harper (1878) 7 Ch. D 403. In the lower court’s rules of practice, Order 24 rules 14 provides:
“When a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance. And when a matter of fact is alleged with diverge circumstances, it shall not be sufficient to deny it as alleged along with those circumstances, but a full and substantial answer shall be given.”
In the appeal on hand, I do not think the denials made by the appellants in a general form has met the requirements of the law as above stated. And, Order 24 rule 9 of the rules provides:
“Every allegation of fact in any pleadings, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the opposite party, shall be taken to be admitted, except as against an infant, a lunatic, or person of unsound mind not adjudged lunatic.”
Approaching the issue from the other side of the submissions made by learned Counsel for the respective parties, that the issues of competence of the plaintiff is a new issue which requires leave of court before raising. It is true that the judgment of the learned trial Judge did not contain anything on that issue. Issue of competence of plaintiff is in my view so vital and important which touches on the jurisdiction of the trial court. If it has been raised, the lower court would have been bound to make a decision on it. See A.-G., Anambra State v. A.-G., Federation (1993) 6 NWLR (Pt. 302) 692. All the same, the issue whether with leave of court or not, can be raised at any stage even at the Supreme Court. INEC v. Musa & Ors. (2003) 3 NWLR (Pt. 806) 72, (2003) 1 SCNJ 1; Shaka v. Salisu (1996) 2 NWLR (Pt. 428) 22; RTEA v. NURTW (1996) 8 NWLR (Pt. 469) 737; Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506; Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195. The appellant has raised this issue in his issue No.2. This court raised the issue as well. Both learned Counsel made their submissions hereon which are now being considered.
From the totality of the evidence placed before the trial court, it is clear to me that there was nothing to disprove that the defendants/appellants did not enter the transactions in dispute with the plaintiff/respondent as plaintiff. Exhibits were tendered and admitted by the trial court. I will cite some of such exhibits. Exhibit ‘A’ is a Local Purchase Order No. 000056. It emanated from Jadcom Limited 1st appellant. It was dated 26/9/94. It was authorized and signed by A. Baalbaki (M.D.), 2nd appellant. It was addressed to Oguns Electricals, Minna, Niger State, with delivery address at CBN Senior Staff Quarters, Utaka – Abuja. It carries a total amount of N253,800.00 for the supply of various items mentioned therein. So also exhibit B, which was dated 23/5/95, but carrying almost same information except the amount which is N152,000.00 and the addresses as Oguns Onukwe. Exhibit C1 was a cash credit sales invoice from Oguns Electrical Works, Minna. It was addressed to Jadcom (Nig.) Ltd. Abuja, carrying the amount of N253,800.00 exhibits D, E and F, dated on different dates and carrying different amounts, were cash credit sale invoices from Oguns Electrical Works addressed to Jadcom (Nig.) Ltd., Abuja. Thus, from all intents and purposes, the appellants dealt with the respondent in its capacity, a plaintiff. It will be unreasonable now to try to raise a technical issue of incompetence of the plaintiff/respondent to institute the suit in question. It is too late in the day. The fundamental aim of a court of law is the realization of justice free of technicality. The courts have moved far away from strict adherence to technicalities at the expense of substantial justice. A. -G., Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646. SBN Plc v. Kyentu (1998) 2 NWLR (Pt. 536) 41.
Thus, issue No.2 lacks merit and same is dismissed.
I shall now consider appellant’s issue No.4. It is on the counter-claim by the defendants/appellants. Learned Counsel for the appellants questioned the rightfulness or otherwise of the dismissal of the appellants’ counter-claim instead of entering judgment in favour of the appellants per the counter-claim.
He submitted that the respondent did not file a defence to the appellants’ counter-claim as against the provision of Order 27 rules 5, 8 and 9 of the rules, yet the trial court dismissed the counterclaim. The dismissal was a grave error.
Learned Counsel for the respondent, on his part, submitted that the learned trial Judge was right in dismissing the appellants’ counter claim. This is because the court was not moved to enter judgment for the claimant in the absence of the plaintiff filing any defence and the Judge cannot suo motu move himself to enter judgment.
I think the learned trial Judge gave reasons why he had to dismiss the appellants’ counter-claim. He stated among others:
“I take note that the defendants filed a counter-claim of N20,000.00, being cost of replacement of sub-standard wires used by the plaintiff in the execution of the said job and a hundred thousand Naira as general damages. The defendants absented themselves. There is no proof of such a counter-claim. Consequently, the said counter-claims are ordered dismissed.”
It is true, as rightly pointed out by learned Counsel for the appellants, that a counter-claim is a separate action. That is the more reason why any claim made therein must be supported by its own evidence. This is in accordance with the general principle of burden of proof. He who asserts must prove. See section 135(1) of the Evidence Act, Cap. 112 L.F.N. 1990; Famuroti v. Agbeke (1991) 5 NWLR (Pt.189) 1; Iyalekhue v. Omoregbe (1991) 2 NWLR (Pt.177) 94.

Further, it is elementary law of pleadings, that pleadings not supported by evidence goes to no issue as well as evidence led on unpleaded facts. See Mohammed v. Klargester (Nig.) Ltd. (2002) 14 NWLR (Pt. 787) 335, (2002) 7 SC (Pt. 11) 1; Ugochukwu v. Unipetrol (2000) 7 NWLR (Pt. 765) 1, (2000) 3 SC 80; N.I.P.C. Ltd. v. Thompson Organization & Ors. (1969) 1 NMLR 99; Adeoye v. Adeoye (1961) All NLR 792; Cardozo v. Doherty (1938) 4 WACA, 78; Ogiamien v. Ogiamien  (1967) 1 NMLR 245; Adu v. Enang & Ors. (1981) 11-12 SC 25 at 63; Emegokwbe v. Okadigbo (1973) 1 NMLR 192 at 195.
I therefore find it difficult to interfere with the learned trial Judge’s finding and conclusion on the counter-claim.
Finally, I find no merit in this appeal and same is dismissed by me. I affirm hereby, the decision of the learned trial Judge on the main claim and the counter-claim before him. The respondent is entitled to N5,000.00 costs from the appellants in this appeal.

ZAINAB ADAMU BULKACHUWA, J.C.A.: I have read before now, the lead judgment just delivered, by my learned brother, Muhammad, JCA. I agree with his reasoning and the conclusions reached in dismissing this appeal.
I dismiss the appeal as lacking in merit. I abide with all consequential orders made therein, including order as to cost.

ALBERT GBADEBO ODUYEMI, J.C.A.: I have had the advantage of reading, in advance, the judgment just delivered, by my learned brother, Muhammad, JCA.
I am in full agreement with the reasonings in and the conclusions to which his Lordship has reached in respect of each of the issues raised for determination in this appeal.
I have nothing to add.
I adopt the reasonings and conclusions as mine.
I too, dismiss the appeal.
I abide by the order as to costs.

Appeal dismissed.



Akin AdewaleFor Appellant



Ikechukwu EzechukwuFor Respondent


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