MAJOR CONCEPT LTD & ANOR v. EZE (2020)

MAJOR CONCEPT LTD & ANOR v. EZE

(2020)LCN/14429(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, July 10, 2020

CA/E/118/2015

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

1. MAJOR CONCEPT LTD 2. MR. MAJOR E. OKWUOSA APPELANT(S)

And

PRINCE (ENGR) ARTHUR EZE (Suing Through His Attorney Mr Obi Orakwe) RESPONDENT(S)

RATIO

THE PROPER VENUE FOR THE ADJUDICATION OF A CASE OF BREACH OF CONTRACT

The proper venue for the adjudication of a case of breach of contract is;
(1) where the contract was made;
(2) where the contract is to be performed;
(3) where the defendant resides. See Arjay V Airline Management Support Limited (2003) 7 NWLR (Pt. 820) 879 and Mudiaga – Odje V YPS (Nig) Ltd (2014) 5 NWLR (Pt. 1400) 412. PER EKANEM, J.C.A.

FACTORS THAT DETERMINES THE COMPETENCE OF A COURT

A Court is said to be competent when:
(1) It is properly constituted as regards numbers and qualification of its members of the bench and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction and there is no feature in case which prevents the Court from exercising its jurisdiction;
(3) The case comes up before it initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V Nkemdilim (1962) 2 SCNLR 341 and Shell Petroleum Development Company Nig. Ltd V Agbara (2016) 2 NWLR (Pt. 1496) 353. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The respondent took out a writ of summons endorsed with a statement of claim at the High Court of Enugu State, Enugu Judicial Division (the lower Court) against the appellants. The claim of the respondent against the appellants was for the sum of US$1,000,000 for refund of money had and received by the appellants for a consideration that had totally failed. Pursuant to Order 11 Rule 2 of the High Court Rules of Enugu State, 2006, the respondent applied for an order entering judgment in the said sum of money against the appellants. The application was supported by a 5 – paragraph affidavit deposed to by one Obi Orakwe, an accountant, who acted as the attorney of the respondent. Attached to the affidavit are Exhibits A, B, C, D, E, F, G, H and I. The processes were said to have been served on the appellants on 12/6/2012. The appellants filed a notice of intention to defend coupled with an affidavit in support of the notice on 11/7/2012. The said affidavit was sworn to by one Nkem Okwuosa and has Exhibits AA, BB, CC, DD, EE1 – EE6, FF1 – FF11, GG, HH, JJ, KK, LL, PP

and QQ attached to it. The appellants also filed a further affidavit in support of the notice of intention to defend.

After listening to counsel on both sides, the lower Court (coram: Umezulike, CJ) held that the notice of intention to defend was lodged out of time and was therefore incompetent, and as such there was no defence to the action. It then proceeded to enter judgment in favour of the respondent against the appellants in the sum of US$1,000,000:00.

Aggrieved by the decision, appellants appealed to this Court by means of a notice of appeal filed on 27/9/2012. The notice of appeal incorporates four grounds of appeal.

Appellants filed a brief of argument on 12/9/2017 (which was deemed duly filed and served on 22/1/2018) and a reply brief on 9/2/2020. The respondent filed his brief of argument on 19/6/2018 and it was deemed filed on 12/5/2020. It must also be mentioned that the respondent filed a notice of preliminary objection to the hearing of the appeal on 22/6/2018.

At the hearing of the appeal on 15/6/2020, counsel for the respondent Chief G. Tagbo Ike sought for and was granted leave to argue his preliminary objection.

He referred to arguments in respect thereof at pages 2 – 4 of the respondent’s brief of argument and adopted the same in urging the Court to strike out the appeal.

R. C. Madu, Esq., for the appellants referred to a counter – affidavit filed on 9/6/2020 as well as arguments against the objection at pages 2 – 4 of the reply brief. He urged the Court to dismiss the preliminary objection.

In respect of the substantive appeal, appellants’ counsel adopted and relied on his arguments thereon in the briefs filed on behalf of the appellants in urging the Court to allow the appeal. He referred to Section 251(1)(d) of the Constitution of Nigeria, 1999 (as amended) and submitted that the matter has to do with foreign exchange, and therefore fell within the exclusive jurisdiction of the Federal High Court.

Chief Tagbo Ike for the respondent adopted and relied on the respondent’s brief of argument in urging the Court to dismiss the appeal. He urged the Court to discountenance the reply brief particularly paragraphs 1.02 – 1.04 and 2.01 – 2.23 as they do not arise from the arguments in respondent’s brief of

argument. He then proceeded to submit that the claim of the respondent was for money had and received and not a case of foreign exchange. Therefore, he posited, the lower Court had jurisdiction to entertain the claim.

In the appellants’ brief of argument, the following issues have been presented for the determination of the appeal:
1. Whether this action was initiated by due process of law.
2. Whether the appellants ought to be heard in the circumstances of the case by the lower Court.
3. Whether the Honourable trial Court was not bound in law to transfer the matter to the general cause list for full blown trial and adjudication.
4. Whether the Court processes relative to this suit was served on the defendants/appellants.
5. Whether Enugu State High Court was right to have heard and determined this matter.

In the respondent’s brief of argument 2 issues have been formulated for the determination of the appeal, to wit:
1. Whether this action was duly initiated by due process of law? (DISTILLED FROM GROUND 3)
2. Was the lower Court’s non-consideration of the Appellants’ notice of intention to

defend and affidavit in the suit right? And if so, does the non-consideration amounts to denial of fair hearing of the Appellants? (DISTILLED FROM GROUND 2 & 4)

Before treating the appeal, I shall first consider the preliminary objection of the respondent.

The preliminary objection of the respondent is based on 2 grounds, to wit; (i) that there was non – service of the notice of appeal on the respondent which robs the Court of jurisdiction and (ii) that the issues distilled from the grounds of appeal are prolix since five issues have been distilled from four grounds of appeal, and are therefore liable to be struck out.

The appellants filed a counter – affidavit to the preliminary objection to which the respondent filed a reply. The preliminary objection is not supported by an affidavit. It is therefore out of place for the appellants to file a counter – affidavit to the objection. A counter – affidavit only counters an existing affidavit. How can one file a “counter – affidavit” when there is no affidavit for it to counter? The curious situation notwithstanding, I shall not overlook the “counter

– affidavit” as it is only irregular and the respondent filed a reply affidavit in response to it.

What emerges from the “counter – affidavit” is that the record of appeal containing the notice of appeal was served on respondent’s counsel, Chief Tagbo Ike, who accepted service and did not return it to the Court. Apart from this, in the counter – affidavit filed on 6/5/2015 the respondent did not mention that the notice of appeal was not in the record. I state in passing that I am entitled to look at the process as it is the law that a Court is at liberty to look at and utilize any document in its file while writing its judgment or ruling even if the document was not tendered and admitted as an exhibit. See Usman V Kaduna State House of Assembly (2007) 11 NWLR (Pt. 1044) 148, Uzodinma V Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 and Akeredolu V Abraham (2018) 10 NWLR (Pt. 1628) 510.
Apart from the foregoing, the notice of appeal is at pages 218 – 224 of the record of appeal the receipt of which respondent’s counsel has admitted. I am satisfied that the notice of appeal was thus communicated to the

respondent. Order 2 Rule 1 (a) of the Court of Appeal Rules, 2016 provides that;
“Every Notice of Appeal shall, subject to the provisions of Order 2 Rules 7, 8 and 9, be served personally; provided that if the Court is satisfied that the notice of appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
It is noteworthy that counsel for the respondent did not return the record of appeal but rather acted on it on behalf of his client including filing a notice of motion on 27/5/2020 for extension of time to file respondent’s brief of argument and a counter – affidavit. The respondent therefore submitted to jurisdiction of the court and cannot be heard to complain about non – service. SeeIdiata V Ejeko (2005) 11 NWLR (Pt. 936) 349, 365 and UBA Plc V Ademola (2009) 8 NWLR (Pt. 1142) 113, 129.
Again, by receipt of the record of appeal without protest, respondent’s counsel was served with the notice of appeal contained in the record on behalf respondent and that suffices. In Saleh V Abah (2017) 12

NWLR (Pt. 1578) 100, the notice of appeal was served on counsel for the 1st and 2nd respondents and not personally on them. At page 127 Bage, JSC, held:
“The contention that the respondents should have been served personally is misplaced. Service on the counsel, S.I. Ameh, SAN, being the legally and formally acknowledged representative of the respondents, is good, competent and effective enough. Both respondents were duly served via their counsel, we so hold. The real essence of the Supreme Court Rules on Notice (which is to prevent any party being taken by surprise which in a significant way amounts to denial of adequate opportunity to be heard) is achieved as both first and second respondents were actively (and more than constructively) served via counsel. And there is no dispute as to this state of affairs. Any assumed irregularity is only as to form, rather than substance and seeming irregularity does not bear on our jurisdiction and does not amount, by any definition, to denial of notice to the respondents. The case of Ihedioha V Okorocha (2016) 1 NWLR (Pt. 1492), 147 at pages 176 – 179 and a host of other authorities were wrongly

referred to as their facts and circumstances are fundamentally distinguishable to present case.”
The case of Ihedioha V Okorocha supra cited and relied upon by respondent’s counsel is distinguishable from the instant case in that in that case there was no endorsement of addresses for service on 2nd – 36th respondents and the processes meant for service on them were dumped on the 37th respondents. Consequently, this Court struck out the notice of appeal for being incompetent and the Supreme Court affirmed the order. In this instance, there is endorsement of address for service on the respondent on the notice of appeal and counsel for the respondent received the record of appeal containing the notice of appeal on behalf of his client and acted on it.

I therefore discountenance the first leg of the grounds of the preliminary objection.

The second leg of the grounds of the objection touches on prolixity of issues. The notice of appeal at pages 218 – 224 of the record of appeal contains four grounds of appeal while the appellants’ brief of argument bears five issues for the determination of the appeal. On no account

should issues for the determination of an appeal outnumber the grounds of appeal. This is because issues for determination must arise from the grounds of appeal and one ground of appeal cannot be used to formulate two or more issues. The penalty for proliferation of issues is that the proliferated issue/s are to be struck out. See Okwuagbala V Ikwueme (2010) 9 NWLR (Pt. 1226) 54, Egbirika V State (2014) NWLR (Pt. 1398) 558 and Adeyemi V State (2014) 13 NWLR (Pt. 1423) 132.
In appropriate cases, the Court may re – formulate the issues to meet the justice of the case or adopt issues properly formulated by the opposite party. SeeUPS Ltd V Ufot (2006) All FWLR (Pt. 314) 337, 354 or (2006) 2 NWLR (Pt. 963) 1, 20 – 21, Eke V Ogbonda (2007) 144 LRCN 391, 401, Okponipere V State (2013) 10 NWLR (Pt. 1363) 209, 220 and Eresia – Eke V Orikoha (2010) 8 NWLR (Pt. 1197) 421, 440.

Before determining which course of action to take, I note that appellants’ counsel did not state the grounds of appeal from which the issues are distilled. This is a mere inelegance and does not render the issues void so long as the issues can be traced to the

grounds of appeal. See Adejumo V Olawaiye (2014) 12 NWLR (Pt. 1421) 252, 273 and Diamond Bank Plc V Opara (2018) 7 NWLR (PT. 1617) 92, 106 – 107.

That brings me to the point made by Chief Tagbo Ike for the respondent that apart from appellants’ issue 1, the rest of the issues are too wide or not based on the grounds of appeal. R.C. Madu, Esq. for the appellants did not respond to the point. He thus acceded to it. Nevertheless, I shall still consider its merits. It is trite law that needs no citation of authority that an issue for determination must arise from or be based on a competent ground of appeal. Where an issue for determination of an appeal does not arise from or is not related to any ground of appeal or competent ground of appeal such issue is incompetent and must be struck out together with arguments thereon. See Shanu V Afribank (Nig) Plc (2002) 17 NWLR (Pt. 795) 185, Ibator V Barakuro (2007) 9 NWLR (Pt. 1040) 475 and James V INEC (2015) 12 NWLR (Pt. 1474) 538.

I have carefully examined the five issues raised by the appellants vis – a – vis the 4 grounds of appeal and their particulars. Issue 1 which raises the

question whether the action was initiated by due process of law is traceable to ground 3 which complains that the trial Court erred in relying on respondent’s processes when the suit was not initiated by due process of law.

Issue 2 though tersely couched seems to be a complaint about the appellants not being heard by the lower court. It can be linked to grounds 2 and 4, which complain about the lower Court’s finding that the respondents’ processes were filed out of time and the lower Court refusing to consider the processes, leading to a denial of fair hearing, respectively.

Issue 3 is as to whether or not the lower Court was not bound to transfer the matter to the general cause list. It is not traceable to any ground of appeal. Therefore counsel withdrew it. Issue 4 raises a query as to service of the processes of Court on the appellants. There is no ground of appeal which supports the issue. Nevertheless, I shall not ignore it since it borders on the jurisdiction of the lower Court.

Issue 5 questions whether or not the Enugu High Court was right to have heard and determine the matter. It is not supported by any ground of

appeal. Nevertheless it raises an issue of jurisdiction and so I shall not discountenance it. This is because the issue of jurisdiction can be raised for the first time at any stage and in any manner. In the case of Agricultural Development Corporation V Okedi (2004) 11 NWLR (Pt. 884) 369, 379 – 380 it was held that a point on jurisdiction may be raised for the first time on appeal without a ground of appeal.

Consequent upon the foregoing, I find no merit in the objection except as it relates to issue 3 and I hereby strike out issue 3 for being incompetent and as having been withdrawn.

On account of the above, and for purpose of precision, I formulate the following issues for the determination of the appeal:
(1) Was the action initiated by due process of law?
(2) Was the lower Court right in not considering appellants’ notice of intention to defend the suit and if so did the appellants suffer a miscarriage of justice?
(3) Did the Enugu State High Court have jurisdiction to hear and determine the matter?

I shall first consider issue 3 since it raises a radical issue of jurisdiction. Appellants’ counsel noted that

an order for substituted service on the 2nd appellant was granted by the lower Court on the basis that he resides at 18 Okwuosa Avenue, Ogui, Enugu within jurisdiction. Counsel referred to several exhibits attached to the affidavit in support of the motion for summary judgment and submitted that it is clear that the 2nd respondent resides in Abuja. Furthermore, he stated, when the order was made the 2nd appellant was in either the United States of America or Europe and so an order for substitute service could not be made relating to him. He relied on Kida V Ogunmola (2006) All FWLR (Pt. 327) 402. Again, he noted that instead of pasting the processes as ordered, the bailiff delivered it to one Mr. Innocent Odinaka Ike. In respect of 1st appellant, counsel contended that the purported service of the processes of court at 18 Okwuosa Avenue, Ogui, Enugu was bad as it is not the registered or Head Office of the 1st appellant.

Counsel argued that the Abuja High Court was the proper venue to try the matter as the contract was signed there, it was to be performed there and the appellants reside there.

Respondent’s counsel did not respond to the

arguments summarised above. I am still under a duty to consider the merits of the same though the implication is that the respondent acceded to them.

The trial Court on 22/5/2012 ordered for service of the originating processes on the 2nd appellant by substituted means, to wit; by pasting on the door of his abode; namely; No. 18 Okwuosa Avenue, Ogui, Enugu, being his usual and last known place of abode. The appellants did not apply for the order to be set aside nor did they appeal against it. The order therefore stands and cannot be set aside. See Zakirai V Muhammad (2017) 17 NWLR (Pt. 1594) 181, 251 – 252. It follows therefore that the substituted service based on it stands. It is curious that 1st appellant would complain that its office is not at 18 Okwuosa Avenue Ogui, Enugu, when its letter headed paper upon which the 2nd appellant gave a guarantee to the respondent (Exhibit F of respondent’s affidavit) bears at its foot that address. (See page 19 of the record of appeal). Furthermore, the affidavit of the appellants in support of the notice of intention to defend is of no value on the issue of service of the originating processes.

(I shall deal with the issue of its rejection by the lower Court in the course of this judgment).

I shall take the liberty of setting out the relevant paragraphs thereof, namely; paragraphs 4, 5, 6, 7, 8, 9 and 10:
“4. I was informed by Miss Ashley Okwuosa and I verily believe her that a man introduced himself to her at about 9. 06 am on 13th June, 2012 at the gate of No. 18, Okwuosa Avenue, Ogui Enugu as a Staff of Red Star Express Courier Service Company Limited.
5. Ashley Okwuosa informed me and I verily believe her that the man asked her if she lives at No. 18, Okwuosa Avenue, Ogui Enugu and she answered in the negative but told him that she was on vacation in her grand-mother’s residence located in one of the buildings within the compound.
6. The man told her that he had a parcel for Major Concepts Limited, showed her the parcel and the address on the document which is No. 18, Okwuosa Avenue, Ogui Enugu. Ashley Okwuosa so informed me and I verily believe her also that she told the man that she does not know the particular building in which the company has its office within the compound.
7. Ashley Okwuosa informed the man that

she is not a staff of the Company but he pleaded with her to receive the parcel on behalf of the company as he had other mails to deliver elsewhere. I was so informed by Ashley Okwuosa and I verily believed her.
8. Ashley Okwuosa collected the document from the man at the said gate and acknowledged the receipt of same in writing on behalf of the company. Miss Ashley Okwuosa later gave me the parcel and I am still in possession of the said parcel.
9. I was also informed by Mr. Innocent Odinaka Ike and I verily believe him that a man who introduced himself to him as a bailiff of the High Court Enugu, delivered a set of documents to him at about 4.20 pm on 12th July, 2012 for his further delivery to Mr. Major Emmanuel Okwuosa. He also gave me the document and I am in possession of it.
10. Mr. Innocent Odinaka Ike informed me and I verily believe him that he does not know where he can locate Mr. Major Emmanuel Okwuosa and has no capacity to reach him or inform him that he was given the parcel by the court bailiff.”

There is absolutely no statement that the parcels or documents alleged to have been delivered were the originating processes

in this matter. The contention of appellants’ counsel to that effect is founded on quicksand as it does not lie in his mouth to supply facts that are lacking in the affidavit. This is because he is a counsel of law and not of facts and his brief cannot take the place of credible evidence. See BFI Group Corporation V BPE (2012) 18 NWLR (Pt. 1332) 209 and NITEL Ltd V Okeke (2017) 9 NWLR (Pt. 1571) 439.

Exhbit F attached to respondent’s affidavit as I have already stated shows that the office of the 1st appellant is at 18, Okwuosa Avenue, Ogui, Enugu. Exhibit AA attached to the affidavit of the appellants in support of notice of intention to defend at page 42 of the record shows the same address. That document was received by the appellants without any grouse as to that address for service. I think that

appellants were not sincere in their contention that Enugu High Court had no jurisdiction to adjudicate on the matter. The trial Court had jurisdiction to do so.

It is perhaps fitting for me at this stage to treat the issue raised in the oral argument of appellants’ counsel, namely; that on account of Section 251(1)(d) of the Constitution of Nigeria, 1999 (as amended) the trial Court had no jurisdiction as the matter has to do with foreign exchange. Counsel for the respondent submitted that the claim is for money had and received and being a simple issue of contract falls within the jurisdiction of the lower Court.
Section 251(1)(d) of the Constitution states:
“Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters –
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the

Central Bank of Nigeria – arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures …”
The jurisdiction of a Court is determined by looking at the claim of the plaintiff. See Adetayo V Ademola (2010) 15 NWLR (Pt. 1215) 169 and PDP V Sylva (2012) 13 NWLR (Pt. 1316) 85. A study of the claim of the respondent shows that it is a claim for money had and received for a consideration which has failed. No issue of foreign exchange is involved though the claim is in foreign currency. Perhaps appellants did not reckon with the position that Nigerian Courts have the jurisdiction to award claims in foreign currency depending on the facts of the case. A claim based on a simple contract falls outside the jurisdiction of the Federal High Court; rather it is within the jurisdiction of a State High Court. See Hallmark Bank Plc V Obasanjo (2014) 4 NWLR (Pt. 1397) 209.

I therefore enter an affirmative answer to issue 3 and resolve it against the appellants.

Issue 1
Was the action initiated by due process of law?

Appellants’ counsel stated that

the motion for summary judgment was brought under Order 11 Rule 2 of the High Court Rules of Enugu State, 2006. He referred to Order 11 Rule 1(1) which is to the effect that application for summary judgment applies only to liquidated money demands. He submitted that the claim of the respondent was not a liquidated money demand as defined in Wema Security and Finance Plc V NAIC (2015) 16 NWLR (Pt. 1484) 93. This, he stated, is because the affidavit in support of the motion for summary judgment does not show that the amount awarded in favour of the respondent was arithmetically ascertained, stated or agreed upon. He stressed that the amount payable on breach of the contract is not stated as having been agreed to. He posited that a look at the affidavits of the parties suggests a very contentious and controversial dispute which calls for oral hearing. He added that the appellants disclosed a defence on the merit and should have been let in to defend the action.

Respondent’s counsel submitted that the phrase “initiation of action by due process of law” which the appellants distilled as an issue is a component of the principle enunciated in

Madukolu V Nkemdilim (1962) NSCC 612. Thus, he stated, for the appellants’ to canvass their challenge on that basis, they must point out the condition precedents prescribed by the law that were not complied with. He noted that appellants did not do so in their brief of argument. He referred to Order 11 Rule 2 of the High Court Rules and stated that the only condition precedent for the plaintiff to initiate a suit under the summary judgment procedure, where he believes that there is no defence to his claim, is three – fold, namely (i) writ of summons (ii) motion on notice and (iii) affidavit stating the grounds of his belief. He added that the belief of the plaintiff is subjective. He contended that the respondent satisfied those conditions.

Counsel stated that the appellants wandered from the task of showing which condition precedent was not met into the definition of terms such as ‘liquidated money demand’ etc. Even then, he posited, the argument of appellants that the claim of respondent is not arithmetically ascertainable became otiose as the claim is known, specific and ascertainable. Counsel referred to paragraph 2(f)(j) and

(k) of respondent’s affidavit and Exhibit “I” attached thereto in support of his position.

The reply of appellants’ counsel was a fresh argument on the allegation that the transaction upon which the case was based is illegal and unenforceable. This is a completely new argument and not a reply to issues or points raised in respondent’s brief. In any event, there is absolutely nothing in the writ of summons that suggests an illegal transaction. Furthermore, the law is that no person shall, after reaping the benefit from a transaction of which he is a party, be heard to say that such a contract is illegal or void or voidable when it comes to fulfilling his obligation under the transaction so far as the other party has done all he pledged to do under it. It is unconscionable and perhaps dishonest for such a party to raise such a defence. See Solanke V Abed (1962) 1 SC NLR 371, Oilfield Supply Centre Limited V Johnson (1987) 2 NWLR (Pt. 58) 265 and Fasel Services Limited V NPA (2003) 8 NWLR (Pt. 821) 73. I shall therefore discountenance the submission.

A Court is said to be competent when:
(1) It is properly constituted

as regards numbers and qualification of its members of the bench and no member is disqualified for one reason or another;
(2) The subject matter of the case is within its jurisdiction and there is no feature in case which prevents the Court from exercising its jurisdiction;
(3) The case comes up before it initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See Madukolu V Nkemdilim (1962) 2 SCNLR 341 and Shell Petroleum Development Company Nig. Ltd V Agbara (2016) 2 NWLR (Pt. 1496) 353.

I agree with respondent’s counsel that the implication of issue 1 is that the appellants is challenging the action on the basis that the steps required to be taken in filing the action were not taken thus implying that the suit was not initiated by due process of law. I also agree with him that the appellants did not point out any condition precedent that was not complied with in the initiation of the suit. Order 11 Rule 2 of the High Court Rules of Enugu State, 2006 provides that:
“Where a plaintiff believes that there is no defence to his claim, he shall file with his writ of summons,

a motion on notice for summary judgment which shall be accompanied by an affidavit stating the grounds for his belief.”
I have examined the originating process in this suit. It is the writ of summons accompanied by a statement of claim, a motion on notice for an order entering judgment in the sum of US$1,000,000:00 and by an affidavit in support of it with documents attached as exhibits. In the affidavit, the deponent deposed that he believed that the appellants have no defence and the grounds for the belief are set out therein by way of facts deposed to. See paragraph 3 of the affidavit at page 11 of the record. I therefore fail to see what procedural requirement the respondent failed to comply with as required by Order 11 Rule 2. In UTC (Nig) Ltd V Pamotei (1989) LPELR – 3276 (SC) Uwais, JSC, as he then was, gave a nod of approval to such steps by saying that the plaintiff took all the necessary steps. That should be the end of the issue.
However, the appellants went ahead to argue that the claim of the respondent did not fall within the category of claims envisaged by Rule 1 of Order 11, namely; “Liquidated money demands”.

It is for the plaintiff to express his belief that a defendant has no defence to the claim and set out his grounds for his belief. The Court bears the ultimate responsibility of determining whether indeed the claim is a liquidated money demand and should therefore be brought under the summary judgment procedure. Where the Court is satisfied that the claim is a liquidated money demand and that the affidavit in support of the notice of intention to defend does not disclose a good defence, it is obligated to enter summary judgment. Where, on the other hand, the Court finds that the claim is not a liquidated money demand or the affidavit in support of the notice of intention to defend discloses a good defence, it is obligated to transfer the case to the general cause list. See Nishizawa Ltd V Jethwani (1984) 12 SC 234, UTC V Pamotei supra and Thor Limited V FCMB Ltd (2003) 128 LRCN 1445.
The real complaint of the appellants is that the claim of the respondent is not a liquidated money demand. What then is a liquidated money demand? In Denton-West V Muoma (2010) 2 NWLR (Pt. 1177) 19, 38 Abdullahi, JCA, quoted with approval the definition of the term as stated

in the Black’s Law Dictionary 6th Ed. Page 930 thus:
“A demand the amount of which has been ascertained or settled by agreement of the parties or otherwise.”
In the case of Wema Securities & Finance Plc V NAIC (2015) 16 NWLR (Pt. 1484) 93, 145 Fabiyi, JSC opined that;
“It is now clear that the factors for determining a liquidated sum are as follows:
(a) The sum must be arithmetically ascertainable without further investigation.
(b) If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach
(c) The agreed and fixed amount must be known prior to the breach.”
I have examined paragraph 2 (d) (f) (1)(j) k and (1) of the affidavit in support of the motion for judgment as well as the exhibits attached to the affidavit. The case of the respondent is that he paid a total sum of US$1,019,137.00 to the appellants for the supply of a Maybach 62Sarmouredcar to him, that he agreed with the appellants for them to supply the car at the sum of US$830,000:00; that he first paid US$700,000:00 with the balance of US$130,000 to be paid

to the appellants after delivery of the Car to him by the appellants in Abuja. The appellants failed to deliver the car as agreed even after passage of the time agreed or guaranteed by the 2nd appellant as well as payment of additional US$300,000:00. In a bid to stop the police from investigating and prosecuting him for obtaining money by false pretences, the 2nd appellant filed an application for the enforcement of his fundamental rights. In the affidavit in support thereof paragraph 5(e) and (m), the 2nd appellant admitted collecting the total sum of US$1,000,000:00 (See Exhibit 1 at pages 22 – 25 of the record). The respondent therefore based his claim on the admission, apart from other facts.
Clearly therefore there is a written admission by the 2nd appellant of the receipt of the sum of USB1,000,000:00 from the respondent for a transaction that did not materialize or for a consideration which has failed. In Denton – West V Muoma supra 38 a liquidated money demand was held to be an amount which has been ascertained or settled by agreement of the parties or otherwise. The admission of the 2nd appellant in Exhibit 1 in a solemn oath settled

the amount due. The claim was therefore eminently qualified to be pursued under the summary judgment procedure.
I therefore enter an affirmative answer to issue 1 and resolve it against the appellants.

Issue 2 –
Was the lower Court right in not considering appellants’ notice of intention to defend?

Appellants’ counsel submitted that the trial Court denied the appellant fair hearing by discountenancing their notice of intention to defend on the ground that it was filed out of time. Counsel submitted that non – compliance with rules of Court is generally treated as an irregularity. He referred to UTC (Nig) Ltd V Pamoteisupra. He stated that the respondent did not tell the lower Court the injustice he would suffer if the appellants were allowed to defend. He then referred to Order 11 Rule 1 of the High Court Rules and several cases including Mobil Producing (Nig) Unltd V Monokpo (2003) 18 NWLR (Pt. 852) 341 and lamented that the lower Court did not look at the processes filed by the appellants to see if they disclosed a defence. It was his position that a Court has the power to waive non – compliance with its

rules in the interest of justice.

Respondent’s counsel referred to Order 11 Rule 4 of the Rules of Court and noted that processes of the appellants were filed out of time. He stated that this was pointed out to appellants’ counsel but their counsel did not deem it necessary to seek the regularization of the irregular notice of intention to defend and the affidavit. He posited that the lower Court was not expected in that circumstance to order for regularization of the processes as no indulgence was sought. Referring to Morecab Finance (Nig) Ltd V Okoli (2011) 12 NWLR (Pt. 729) 400, he submitted that the lower Court was right in discountenancing the processes. He argued that in the case of UTC Nig Ltd V Pamotei supra relied upon by appellants’ counsel, the defendant took positive steps to seek for enlargement of time to file its defence and the application for regularization was before the Court two days before the entry of summary judgment. He further submitted that where a party is afforded an opportunity to be heard and he refuses to take the opportunity, he cannot say that his right to fair hearing has been breached.

Order 11 R ule 4 of the High Court Rules provides:
“Where a defendant served with the process referred to in Rule 2 of this Order intends to defend the suit, he shall within 5 days of service on him (or in the case of a person served outside Enugu State within 30 days of the service) file notice in writing of his intention to defend the suit together with an affidavit setting out the grounds of his defence.”
The lower Court found as follows at page 162 of the record:
“By an affidavit of service in the Court’s filed lodged by a Chief Bailiff of the High Court, Mr. Emmanuel C. Ugwu, the plaintiff’s processes were served on the defendants on the 12th day of June, 2012. Under Order 11 Rule 4 of the High Court Rules, 2006, the defendants had up till the 17th day of June, 2012 to lodge the notice of intention to defend the action. But the defendants’ notice of intention to defend was lodged in Court more than twenty days as demanded by the Rules that, therefore, makes it incompetent and irrelevant for this determination. The surmise, therefore, is that at the hearing of the suit, there was no defence to the action or there

was no valid intention to defend the action by the defendants. And the defendants have not sought leave of this Court to defend the action.”
There is no ground of appeal which challenges the finding that the notice of intention to defend and the affidavit to show cause were filed out of time and it stands. But was the trial Court right in refusing to look at the affidavit to see if it disclosed a good defence for that reason? Order 5 Rule 1 of the High Court Rules state that:
“Where in beginning or purporting to begin any proceedings or at any stage, in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirement of these rules, whether in respect of time, place, manner, form or content or in any other respect, failure may be treated as an irregularity and if so treated will not nullify the proceedings, or any document, judgment or order therein.”
The effect of the provision is that the High Court has the discretionary power to treat a wide range of non – compliances with the rules as an irregularity. The rule applies inter alia to

documents filed out of time. I find therefore that the appellants’ processes filed out of time were not incompetent but only irregular. The trial Court erred in holding to the contrary. In Nishizawa Ltd V Jethwani supra. Oputa, JSC, stated:
“Also in a former decision of this Court, it was held that a statement of defence filed in contravention of the rules, (there the Statement of Defence was filed out of time)” though irregularly filed” was not a nullity but a voidable document which remains a valid document until it is set aside”. This was the case of United Bank for Africa Ltd V Dike Nwora (1978) 11 – 12 SC 1 at 6/7; (1978) 11 – 12 SC. (Reprint) 1. In that case this Court approved and adopted the dictum of Lord Selborne L.C. in Gibbings V Strong (1884) 26 Ch 66 (C.A.) and emphasised that:
“… if a defence has been put in, though irregularly, I think the Court would do right in attending to what it contains”
In other words, the Court in exercise of its primary duty to do justice, can invoke its rather extensive discretionary powers, and look at the invalid but not void document

(Statement of Defence) and then do what the justice of that particular case demands.”
See also UTC (Nig) Ltd V Pamotei supra.
The concern of the lower court should not have been that the notice of intention to defend and the affidavit disclosing a defence were filed out of time and without application to regularize the same but whether the irregular (not void) processes disclosed a defence on the merit. The whole essence is to ensure that the rights of parties are determined on the merit and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. See Nishizawa Ltd V Jethwani supra. and Dangote General Textiles Products Ltd V Hascon Associates Nig Ltd (2013) 16 NWLR (Pt. 1379) 80. It is my further view that it was of no moment that counsel for the appellants refused to apply for the regularization of the processes. Refusing to look at the processes for that reason amounted to punishing the appellants for the mistake of their counsel for which they were not responsible. See Mobil Producing (Nig) Unltd V Monokpo (2003) 13 NWLR (Pt. 852) 346.
Respondent’s counsel

cited the case of Morecab Finance (Nig) Ltd V Okoli (2011) 12 NWLR Pt. 729 400 and stated that it was decided in that case that where notice of intention to defend was filed out of time and no attempt was made by the defendant to obtain extension of time to regularize the same, the notice of intention and affidavit accompanying it ought to be discountenanced and judgment entered summarily for the plaintiff. With due respect to counsel, the citation is misleading. Part 729 of NWLR does not fall into the 2011 volumes of that law report; rather it is in 2001 series. There is no such case in Part 729 nor is it in 2011 series. Rather there is Okoli V Morecab Finance (Nig) Ltd reported in (2007) 14 NWLR (Pt. 1053) 37. In that case, the Supreme Court affirmed the judgment of this Court to the effect that the affidavit of the defendant did not disclose a defence on the merit. The Court of Appeal from the excerpts of its judgment quoted by the justices of the Supreme Court considered the affidavit of the defendant and held that it raised a sham defence. The case cited by respondent’s counsel does not advance his position at all.

The trial Court therefore erred in discountenancing the notice of intention to defend and the affidavit in support thereof. The question then is was a miscarriage of justice occasioned to the appellants? In the alternative, can this Court look into the processes to see if they disclose a good defence? I think the answer to the second question is that this Court can do so, for it is in as good a position as the lower Court to determine if the appellants ought to have been let in to defend. See Nishizawa Ltd V Jethwani supra. By Order 11 Rule 8 of the High Court Rules a defendant can only be let in to defend if it appears to a Judge that he has a good defence. The defendant must set out sufficient facts and give particulars to show that there is a bona fide defence. The defence must set out facts which would require explanation on merit from the plaintiff. Facts must be disclosed which throw some doubt on plaintiff’s claim. See Nishizawa Ltd V Jethwani supra., UBA Plc V Jargaba (2007) 11 NWLR (Pt. 1045) 247 and Wema Bank Securities and Finance Plc V NAIC supra. In determining the existence of a good defence, the Court is to consider the processes filed by the parties. I therefore

take the liberty of setting out hereunder the relevant depositions of the parties in paragraph 2 (d) (e)(f)(1)(j)(k) & (i) of the respondent’s affidavit and paragraphs 13, 21, 23, 24, 27, 30, 31, 33, 34, 37 and 40 of the appellants affidavit.
Respondent’s Affidavit
“2d. Subsequently in November, 2010, plaintiff and Defendants agreed for the Defendants to supply a Maybach 62 S armourd card to the plaintiff on a consideration of the sum of eight hundred and fifty thousand United State dollars (US$830,000) following defendant’s representations to the plaintiff that they deal in sale and supply of customized cars. It was a term of the contract that an initial deposit of the sum of seven hundred thousand United States dollars (US$700,000) shall be made to the defendants, and upon delivery of the car to the plaintiff in Abuja, Nigeria the balance of the sum of one hundred and thirty thousand united State dollars (US $130,000) shall be paid to the Defendants. It was a further term of the contract that the car shall be delivered in four months.
e. Following the aforesaid agreement for the supply of armoured Maybach 62 S Car,

Defendants requested from the plaintiff payment of the initial deposit of approximately the sum of seven hundred thousand United State dollars (US$700,000) in their nominated account with Bank of America vide e-mail of 17th November, 2010. Copy of the Defendants’ said request for payment is attached and marked exhibit “A”.
f. Pursuant to the Defendants’ request, plaintiff as per his letter of 19/11/2010 instructed his bankers, Standard Chartered Bank Plc, London to effect payment to the Defendants through their nominated account, and which payment was duly made to the defendants. Plaintiff’s instruction to his bankers for payment to the defendants is attached and marked Exhibit “B”.
g. With the payment made, plaintiff looked forward for the delivery of the car at Abuja within 4 months, and which never came to be. Rather, what emerged was litanies of antics of the defendants of either upwardly changing the figure of outstanding balance payable by the plaintiff on the car or coming up with sundry charges to be borne by the plaintiff on the car or postponing delivery dates of the car or colluding with the

armour-fixing manufacturers to threaten stoppage of production schedule.
h. The plaintiff notwithstanding having over – paid the consideration for the car, was bent on getting the transaction done with. Plaintiff kept reminding the defendants of the terms of the contract and the need to have delivery date and for the Defendants to stick to the terms of the contract. Plaintiff’s position was exemplified in his two (2) e-mails of 24/3/2011 and 12/5/2011 and which the defendants did not object to in their reply of 25/3/2011. Copies of the plaintiff’s e-mails in this regard are herein attached as Exhibits “C” & “D” and 2nd defendant’s response is attached as Exhibit “E”.
i. As the defendants’ inaction in coming to terms with the contract of supply wore on, plaintiff out of exasperation sought for the final solution out of the unending impasse brought about by the defendants and demanded from the defendants what else was to be done to conclude the performance of the contract. Defendants in response demanded for payment of three hundred thousand dollars United State dollars (US$300,000)

as final payment for the delivery to be made at Abuja in August 2011.
j. Plaintiff, out of sheer caution, demanded for exact date of delivery of the car and personal guarantee of the 2nd defendant as condition for further remittance of the sum of three hundred thousand United States dollars (US$300,000). Defendants, determined to rip off the plaintiff, put up a new delivery date and gave out the 2nd Defendant’s personal guarantee even though they never intended to stand by it in a guarantee letter of 11th, July, 2011 and herein attached as Exhibit “F”.
k. Plaintiff buoyed by the Defendants’ letter of guarantee, was induced to further cause his bankers to remit the sum of three hundred thousand United States dollars (US$300,000) to the Defendants, and thereby bringing the cumulative receipts of defendants from plaintiff in the sum of one million and nineteen thousand one hundred and thirty – seven United State dollars (US$1,019,137.00). However, based on the admission of the Defendants, the plaintiff claims only the admitted sum of one million United States dollars (US$1,000,000).
l. Notwithstanding the personal

guarantee of the 2nd defendant to deliver the car to the plaintiff in Abuja on 31st August, 2011, defendants had as usual not only woefully failed to deliver on their covenant but have come up with their usual notorious excuses”.
Appellants’ Affidavit
“13. I know that the plaintiff agreed with the 1st defendant for the purchase of a brand new Maybach 62, 2009 model luxury car, made by Daimler Benz, from America and armouring of same in Belgium.
21. The plaintiff also requested the 1st defendant to assist him buy a pre owned Mercedes Benz S550, 2007 model for use by Mr. Cosmas Agagbo at an agreed price of $35,000.00 (USD) (thirty five thousand United States of America dollars).
24. Mr. Cosmas Agagbo later instructed the 1st defendant to discontinue with the purchase of the Mercedes Benz S550 2007 model and apply the $35,000.00 meant for it, to the purchase of the Mayback 62. I was so informed by the 2nd defendant and I verily believe him. The relevant e-mail in respect of the said instruction of 4th February, 2012 is hereto annexed and caused to be marked as Exhibit “CC”…..
27. The defendants informed me and

I verily believe them that the registration, insurance and freighting costs were paid by the 1st defendant. The 1st defendant also paid the custom duty for clearing the vehicle in Belgium. The above costs are yet to be compositely computed at the end of the transaction for the plaintiff to re-imburse the 1st defendant. …….
30. The defendants informed me and I verily believe them that immediately after the signing of Exhibit “AA” hereof, the plaintiff and the 1st defendant had a meeting in the plaintiff’s suite at Conrad Hotel, Brussels Belgium where they agreed on the price of the base unit Maybach 62 (2009 model) for $350,000.00, the cost of the Mercedes Benz S550 (2007 model) for $35,000.00 and $314,137.00 representing over 50 of the deposit payable for the armouring by the plaintiff who was to provide the funds to discharge the contracts aforementioned……
31. I know that the plaintiff for inexplicable reasons failed to comply with the schedule of payment which delayed the production of the armoured car. The plaintiff later sent two of his staff and/or agents to the factory of Carat DuchateletS.a. in Belgium for an intermediate

inspection in accordance with the provisions of Exhibit “AA”. They took several photographs of the completely armoured vehicle in January, 2012 which they showed to the plaintiff….
33. I know that the plaintiff later requested that a special partition feature be added to the armoured vehicle which cost extra 37,500 Euros which the plaintiff was to pay for before the vehicle was released by Carat Duchatelets.a. for export to Nigeria.
34. The defendants further informed me and I verily believe them that after the suspension of production of the armoured car, the plaintiff later caused another sum of $3,00.000.00 USD to be paid for the armouring of the vehicle and production was re-commenced. ……
37. I was informed by the defendants and I verily believe them that they are not owing the plaintiff any money whatsoever, rather the plaintiff is owing the 1st defendant the several sums of money for insurance and registration of the Maybach 62 Mercedes Benz vehicle in America, the cost of freighting the vehicle to Belgium, Europe for armouring and customs duty paid at Belgium. The plaintiff also owes Carat Security Group the sum of 37,500.00

Euros for partitioning of the armoured vehicle.”
It is clear that the appellants agreed to supply a Maybach 62Samoured Car to the respondent at the sum of US$830,000 with initial payment US$700,000 and upon delivery the payment of the balance of US$130,000:00. The agreement was entered into in November, 2010 and the delivery was to be made in 4 months’ time. The sum of US$700,000:00 was paid by the respondent to the appellants who failed to deliver as agreed. Rather, upon appellants’ demand, a further sum of US$300,000:00 was paid to the appellants for delivery of the car in August, 2011. 2nd appellant gave a personal guarantee for the delivery. The 2nd appellant admitted on oath, in an affidavit, receipt of the sum of US$1,000,000. (Exhibit 1 at pages 22 – 25 of the record, paragraph 5 (e) and (m).
The appellants’ defence is that the 2nd appellant bought the vehicle and freighted it to Belgium for armouring by Carat DuchateletS.a. and paid for its registration, insurance and freighting costs; that the costs are yet to be compositely computed at the end of the transaction for the respondent to re – imburse the 1st

appellant; that the respondent failed to comply with the schedule of payment which delayed the production of the armoured car; that respondent later requested for special partition feature to be added to the armoured vehicle which cost extra 37,500 Euros which the respondent was to pay before the release of the vehicle by Carat DuchateletS.a; that respondent is owing the appellants and not the opposite.
It is common ground that the respondent paid at least a total of US $1,000.000 to appellants for the supply of the said car. If the respondent is owing the appellants moneys for registration, freighting and custom duty, why did the 2nd appellant guarantee in Exhibit F attached to the respondent’s affidavit as follows:
“I wish to state that if I get paid the sum of $300,000. Today 7th July, 2011, being the last day of payment given by Carat Security Company that I will deliver the May Bach to Nigeria on the 31st of Aug., 2011.”
The money was paid to him and yet there was no delivery of the car to Nigeria. The best that can be said is that if the appellants are serious about the issue of the costs of the registration etc, they can

sue the respondent for the same. The other defence is that the respondent requested for special partitioning which is yet to be paid for. The contract for the partitioning was between the appellants and Carat Duchatelet and payment was to be made by the appellants. Thus in Exhibit G attached to appellants’ affidavit (page 83 of the record) an official of Carat wrote to 2nd appellant for the money. Again, the appellants may sue the respondent for the cost of the partitioning. Even then, for the purpose of peaceful resolution of the matter, the 2nd appellant was requested to utilize the sum of $35,000:00 for a cancelled earlier contract in settling part of the outstanding cost of the partition. (See Exhibit CC of the appellants at page 61 of the record). The appellants still failed to deliver and are using the excuse of non – payment of the cost of the partition to defend their failure.
The appellants unequivocally acknowledged and admitted receiving the sum of US$1,000,000:00 from the respondent for a consideration which has failed. The appellants should therefore not be allowed longer time to delay the refund or repayment of the money.

See Ifeanyichukwu Trading Investment Ventures Ltd V Onyesom Community Bank Ltd (2015) 17 NWLR (Pt. 1487) 1, 27.
A defendant who has no real defence to an action under the summary judgment procedure should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligations and indebtedness. See Ben Thomas Hotels Ltd V Sebi Furniture Co. Ltd (1989) 5 NWLR (Pt. 123) 523. All that the appellants have done has been to dredge up as many phantom issues as possible to serve as a red herring to enable them postpone the day of reckoning for them. This is condemnable.
I hold therefore, in answer to issue 2, that the lower Court was wrong in not considering appellants’ notice of intention to defend but that the appellants suffered no miscarriage of justice.

On the whole, I find no merit in this appeal which therefore fails. I accordingly dismiss the same and affirm the judgment of the lower Court.

I assess the costs of the appeal at against the appellants in favour of the respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading in advance the well considered and erudite Judgment of my Learned Brother J.E. Ekanem, JCA and I am in total agreement with his reasoning and conclusions on all the issues distilled for determination culminating in his decision that the Appellants’ Appeal lacks merit and same appropriately dismissed.

As was properly observed by my Noble Lord and Brother, by the acknowledgement of the Appellants and their unequivocal admission that they received the sum of US$1,000,000.00 (One Million Dollars) from the Respondent for the consideration that failed, the Appellants who actually had no defence in law under the Undefended List or Summary Judgment ought not be allowed to dribble the Court and indeed the Plaintiff/Respondent thereby cheating the latter out of the Judgment Seat by delay tactics and frustrating the discharge of the Defendant/Appellant’s indebtedness and obligations.

I agree completely with my Lord that all that the Appellants have done in this case has been to trump many phantom issues as possible to postpone the dooms day which is highly deprecated.

For the above reasons and the more elaborate reasons advanced in the Leading Judgment which I adopt completely as mine, I also dismiss the Appeal and abide by the order as to costs.

ABUBAKAR SADIQ UMAR, J.C.A.: I agree.

Appearances:

R.C Madu, Esc. For Appellant(s)

Chief G. Tegbo Ike with him, Adaobi I. Ike For Respondent(s)