NESTOIL LIMITED & ANOR. V. FIDELIS ONUOHA
(2011)LCN/4635(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of June, 2011
CA/PH/5/2007
RATIO
NOTICE OF APPEAL: WHETHER ALL THE PARTIES DIRECTLY AFFECTED BY THE APPEAL ARE MANDATORILY TO BE STATED ON THE NOTICE OF APPEAL
All parties directly affected by the appeal are mandatorily to be stated on the notice of appeal as every process of the appeal is to be served on them. Parties directly affected by the appeal necessarily include parties to the Civil Proceeding at the court below, in the same capacity they sued or were sued in the court below. See the decision of this court in CA/PH/600/2008 between LYCIOUS AMINAOWUKE & ORS V. DEREGO & ORS. Decided on 18/05/2001; ISAIAH & ORS V. ASSOR & ORS (Unreported) in Appeal No. CA/PH/329/2007 delivered on 3/3/2011. This lapse is fatal to this appeal in that it affects the Notice of Appeal which is the foundation of the appeal. See UWAZURIKE V. A.G. FED. (2003) 8 NWLR (PT. 1035) 1. The consequence is that this appeal should be struck out. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS (1999) 9 NWLR (PT. 618) 187. PER T. O. AWOTOYE, J.C.A.
INTERPRETATION OF STATUTE: PROVISION OF ORDER 23 RULE 1 OF THE 1987 HIGH COURT OF RIVERS STATE RULES AS TO WHAT A JUDGE SHOULD CONSIDER BEFORE ENTERTAINING A SUIT UNDER THE UNDEFENDED LIST
What a Judge should consider before entertaining a suit under the undefended list are provided for under Order 23 Rule 1 of the 1987 High Court of Rivers State Rules as follows: (i) It must be in respect of a claim to recover a debt liquidated money demand or any other claim. (ii) The application must be supported by an affidavit setting forth the grounds upon which the claim is based. (iii) The affidavit must state that the deponent believes that there is no defence thereto, Whether or not the claim of the plaintiff is contentious and contradictory will be determined based on the reaction of the defendant when he files his notice of intention to defend with affidavit disclosing the defence on merits. See NWORAH V. AKPUTA 42 NSCQR 302 at 336 – 338. PER T. O. AWOTOYE, J.C.A.
UNDEFENDED LIST PROCEDURE: POSITION OF THE LAW WHERE THE AVERMENTS IN THE PLAINTIFFS SUPPORTING AFFIDAVIT ARE UNCONTROVERTED AND UNCHALLENGED EVIDENCE
In this case the defendants did not file their notice of intention to defend supported by affidavit disclosing their defence on merits. This means the averments in the plaintiffs supporting affidavit are uncontroverted and unchallenged in their entirety. It means such averment can be admitted as true facts. See LONG-JOHN V. BLACK (1998) 6 NWLR (PT. 555) 524 at 532; OGOEJEOFO v. OGOEIEOFO (2006) 3 NWLR (PT. 966) 205. The implication of this is that paragraphs 1 – 15 of the plaintiff’s affidavit are deemed admitted. PER T. O. AWOTOYE, J.C.A.
JUSTICES
M. DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. NESTOIL LIMITED
2. MR. ERNEST Appellant(s)
AND
FIDELIS ONUOHA Respondent(s)
T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of an appeal against the decision of Hon. Justice I. N. Ndu delivered on 1/02/2006 at Rivers State High Court, Port Harcourt.
The plaintiff’ now the Respondent had filed a claim at the court below which reads.
“The plaintiff claims against the defendant jointly and severally as follows:-
(a) The sum of N574,400.00 (Five Hundred and Seventy Four Thousand, Four Hundred Naira) representing the sum due to the eight named welders in respect of No. 2 and 3 of the conditions of engagement as listed and contained in contract No. E. 14247 dated 21st June, 2004.
(b) Interest on the said liquidated sum at the rate of 10% per annum until the whole Judgment debt is discharged.”
The plaintiff sought and obtained the leave of court to enter the suit on the UNDEFENDED LIST. The leave was granted on 13/8/2004. The suit was adjourned to 18/8/2004. The defendants under ORDER 23 Rule 3(1) of the Rivers State High Court Rules of 1987 had to file their notice of intention to defend not less than five days to before the date of hearing.
The defendants being out of time filed motion on notice extending time to file Notice of Intention to defend with an affidavit disclosing the defence on merits on 15/9/2004.
On 1/2/2006, when the case came up for hearing, the defendants and their counsel were absent. Learned counsel for the plaintiff applied for the striking out of the application of the defendants and this was granted.
The meaning is that the defendants failed to file Notice of Intention to Defend and affidavit disclosing defence on merits inspite of having been served with the order of court entering the suit on the undefended List.
The court below there and then entered judgment against the defendants and granted 10% simple interest post judgment sum. It is against this judgment that the appellants filed a notice of appeal on 14/2/2006.
Even though the action against the defendants was instituted in a representative capacity by FIDELIS ONUOHA and 7 other welders, the Notice of Appeal does not include the names of the other welders and does not state the capacity in which FIDELIS ONUOHA sued as required by Order 6 Rule 2(1) of court of Appeal Rule. He is now the sole party joined in this appeal.
This is with due respect wrong. All parties directly affected by the appeal are mandatorily to be stated on the notice of appeal as every process of the appeal is to be served on them. Parties directly affected by the appeal necessarily include parties to the Civil Proceeding at the court below, in the same capacity they sued or were sued in the court below. See the decision of this court in CA/PH/600/2008 between LYCIOUS AMINAOWUKE & ORS V. DEREGO & ORS. Decided on 18/05/2001; ISAIAH & ORS V. ASSOR & ORS (Unreported) in Appeal No. CA/PH/329/2007 delivered on 3/3/2011.
This lapse is fatal to this appeal in that it affects the Notice of Appeal which is the foundation of the appeal. See UWAZURIKE V. A.G. FED. (2003) 8 NWLR (PT. 1035) 1. The consequence is that this appeal should be struck out. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS (1999) 9 NWLR (PT. 618) 187.
In case I am wrong on the above I shall now proceed to consider the issues.
After the transmission of record of appeal, each of the parties filed brief of argument. The Appellants Brief of Argument and Reply Brief were deemed filed on 16/3/2010.
In their brief learned counsel for the appellants formulated 3 issues for determination which are:-
“1) was the learned trial judge strict adherence to technicality not tantamount to a denial of fair hearing and a defeat to the end of justice when he struck out the motion on notice to which Appellants exhibited on Affidavit disclosing a defence on the merit and proceeded thereafter to enter judgment against the Appellants without considering whether the affidavit discloses a defence on the merit?
2) Whether the plaintiff’s claim endorsed on the Writ of Summon when read together with the affidavit of grounds upon which plaintiff’s claim is brought under the undefended list does not reveal contentious and contradictory matters which ought not to have been entertained under the undefended list?
3) Whether the court had jurisdiction to entertain the suit as same is not properly constituted in view of the fact that the Welders in Exhibit A attached to the affidavit of grounds upon which plaintiff’s claim is brought under the undefended list only had a common grievance and not a common interest?”
On issue (1) learned counsel for the appellants submitted that the learned trial judge shut out the appellants when he failed to consider the affidavit disclosing a defence on the merit which was attached to the motion for extension of time and thereby denied the appellants fair hearing. He relied on CHIEFIELD NIGERIA LTD. V. ORIENT BANK OF NIGERIA PLC (2004) 3 NWLR (PT. 860) 251 at 264 EBE V. EBE (2004) 3 NWLR (PT. 860) 218 at 245 and other cases.
On issue 2 learned counsel for the appellants submitted that the plaintiff’s claim should not have been brought under the undefended list as it contained contentious and contradictory matters such as
(i) the plaintiff described CONTRACT NO E. 14247 as dated 21/6/2004 and in relief (a) endorsed the writ of summons at page 2 of record CONTRACT NO. E14247 dated 21/6/2004.
(ii) the plaintiff on record is not the welders’ Representative as Exhibit A shows Damian Chukwu is their representative.
(iii) there is no affidavit evidence by the plaintiff that the provision for SPDC to use its discretion to settle the payment of the welders if the Appellants fail to pay by 14/7/2003 as contained in exhibit A was explored.
(iv) Whereas relief (a) on the writ of summons claims the sum of 574,400.00 in respect of numbers 2 and 3 in CONTRACT No E 14247, paragraphs 9 and 12 of the said affidavit asserts that the sum claimed in the writ of summons is in respect of number 1 2, 3 and 4 in CONTRACT NO E 14 247.
(v) there is no proof that each of the eight welders worked for two hours overtime from 21/6/2003 to 11/7/2003 as no overtime log book was exhibited by the plaintiff. He relied on KABIRU V. TBRAHTM (2005) ALL FWLR (PT.240) 94 at 116.
Issue 3 Learned counsel submitted that the plaintiff’s action was incompetent as the plaintiff did not have a common interest and the reliefs claimed were not beneficial to the eight welders even though they had common interest. He cited IDISE & 5 ORS. V. WILLIAM INTERNATIONAL LIMITED (1995) 1 NWLR (PT. 370) page 143 at 151- 152.
He finally urged the court to allow the appeal.
The learned counsel for the Respondents in the Respondent’s brief reacted to the arguments of the appellants in respect of their formulated issues.
On Issue(1) learned counsel submitted that the proper procedure was followed and so there was no question of fair hearing. He relied on STABILINI VISIONI LTD V. EJIKE (2000) FWLR (PT. 84) page 44; BARMANI V. VENTURES LTD. V. KINGSFOAM & CHEMICAL INDUSTRY LTD. (2002) FWLR (PT. 24 page 412. He submitted that a court had power to terminate any proceedings before it where an applicant failed to appear or failed to move his application. He referred to STABILINI’S case (supra).
On Issue (2) learned counsel submitted that the contradictions pointed out by the appellants were minor. He relied on SALAWU V. YUSUF (2002) FWLR (PT. 88) page 1043.
On Issue 3 learned counsel submitted that it was not distilled from Ground 4 of the Notice of Appeal and that it was not raised in the court below. He urged the court to discountenance issue 3.
He finally urged the court to dismiss the appeal.
The Appellants also filed a Reply brief in reaction to the respondents’ brief of argument. I have carefully considered all the arguments canvassed alongside the contents of the record of appeal transmitted to this court from the court below. The three issues formulated by the appellant can be condensed to form the following issue:
Was the learned trial judge right to have entered judgment on 1/2/2006 against the defendants in the undefended suit?
The events that culminated in the entry of judgment on 1/2/2006 has earlier been narrated in this judgment.
In brief, the defendants failed to file their notice of intention to defend and affidavit disclosing defence on merits within the time stipulated by the Rules hence the need to apply for extension of time to do so. On 1/2/2006 when the case was called, the defendants application was struck out. I find it difficult to understand the grouse of the appellants on the striking out of their application at the court below. There is nothing in the Record of Appeal to explain why they were not in court. If anything transpired at the court below which the appellants considered relevant to this appeal, it was their duty to bring this to the notice of the Registrar of the court below or cause supplementary record of appeal to be transmitted to this court. The court will not speculate on what transpired at the court below. With the absence of any explanation for the absence of the appellants and their counsel on 1/2/2006 when the application was to be heard, the learned trial judge was justified to strike out the said application. See STABILINI’S case (supra). Should the suit have been entered on the Undefended List?
What a Judge should consider before entertaining a suit under the undefended list are provided for under Order 23 Rule 1 of the 1987 High Court of Rivers State Rules as follows:
(i) It must be in respect of a claim to recover a debt liquidated money demand or any other claim.
(ii) The application must be supported by an affidavit setting forth the grounds upon which the claim is based.
(iii) The affidavit must state that the deponent believes that there is no defence thereto,
Whether or not the claim of the plaintiff is contentious and contradictory will be determined based on the reaction of the defendant when he files his notice of intention to defend with affidavit disclosing the defence on merits. See NWORAH V. AKPUTA 42 NSCQR 302 at 336 – 338.
In this case the defendants did not file their notice of intention to defend supported by affidavit disclosing their defence on merits. This means the averments in the plaintiffs supporting affidavit are uncontroverted and unchallenged in their entirety. It means such averment can be admitted as true facts. See LONG-JOHN V. BLACK (1998) 6 NWLR (PT. 555) 524 at 532; OGOEJEOFO v. OGOEIEOFO (2006) 3 NWLR (PT. 966) 205.
The implication of this is that paragraphs 1 – 15 of the plaintiff’s affidavit are deemed admitted. For clarity’s sake I hereunder quote the said paragraphs.
“11. That for condition No. 2 each welder worked 2 hour overtime for the said 21 days between 21/06/2003 – 11/07/2003.
12. That since 11/07/2003 on which the welders were demobilized from site, the welders have severally made demands for the Defendants to pay the welders the said total sum in respect of Nos. 2 and 3 including No. 4 of the said condition of engagement which demands mate with failure.
13. That when the welders had exhausted themselves in so making demands, they instructed their solicitor, N. Oyeacholam Esq. of counsel through the plaintiff on record, upon which instruction the said N. Onyeacholam Esq. counsel a demand letter and a reminder fetter thereof dated 16/04/04 and 3/05/04 respectively to be sent to the Defendants to which letters they did not react whatsoever. The demand letters dated 16/04/04 and 3/05/04 are hereby attached and marked as exhibits B and C respectively.
14. That the 2nd defendant used this position to make it impossible for the 1st defendant to pay the welders the money subject matter of this suit.
15. That I honestly believe that the Defendants have no defence to this suit whatsoever.
16. That the 2nd defendant is a man with wide contracts and often travels overseas and as such he rarely stays in his office at the said #27 Nzimiro Street for personal service of the writ of summons and affidavit to this suit to be effected on him.
17. That the foregoing paragraph makes it a matter of necessity for the 2nd defendant to be served the writ of summons and affidavit to this suit by substituted means, which service will be tidier and more economical than for the plaintiff to come back to this Honourable court with a fresh motion for substituted service after a failed attempt on the 2nd defendant at personal service.
18. That the said writ and affidavit is to be served on the 2nd defendant by leaving same with the receptionist at the said office of the 1st defendant.
19. That it will serve the interest of justice to grant this application.
20. That I depose to this application in good faith.’
In the light of this the decision of the trial judge to hear and determine this suit under the Undefended List cannot be faulted. The processes filed by the Plaintiff complied with the requirements of Order 23 Rule 1 of the High Court Civil Procedure Rules of Rivers State of 1987.
Learned counsel for the appellants under his third issue had submitted that the plaintiffs had only common grievance and not common interest and so the action was not properly constituted. He rested on the case of IDISE V. WILLIAMS INT’L LTD. (supra) to buttress his submission.
IDISE’s case turned on the interpretation of ORDER 7 Rule 9 of the High Court Civil Procedure Rules Cap. 65 of the Laws of Bendel State of Nigeria 1976 applicable in Delta State. It reads thus:
“Where there are numerous persons having the same interest in one cause or matter one or more of such persons may sue or be sued or may be authorized by the court or Judge to defend in such cause or matter on behalf or for the benefit of all persons so interested”‘
Order 7 Rule 9 above is pari material with Order 11 Rule 8 of the 1987 Rivers State High Court Rules.
“11(8)Where more persons than one have the same interest in one suit, one or more of them may, with the approval of the Court, be authorized by the other persons interested to sue or to defend in the suit for the benefit of or on behalf of all Parties so interested.”
However this objection ought to have been raised much earlier when the defendants were served with the processes.
Order 11 Rule 8 of the Rivers State High Court Rule 1987 should be read with Order 11 Rule 1 and Rule 7(2) and 16 of the Rules.
I quote the said Rules hereunder.
“11(1) All persons may be joined in one action as plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in the alternative, where , if such persons brought separate actions, any common question of law or fact would arise; and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment:
Provided that if, upon the application of any defendant, it appears that the joinder may embarrass any of the parties or delay the trial of the action, the court or a Judge in Chambers may order separate trials, or make such other order as may be expedient in the circumstances.
11(7)(2) The Court may order any of the persons represented to be made parties either in lieu of, or in addition to, the previously existing parties.
11(16)Any application to add or strike out or substitute a plaintiff or defendant may be made to the Court or Judge in Chambers at any time before trial by motion or summons, or in a summary manner at the trial of the action.”
In my respectful view, where as in this case a defendant objects to the representative capacity of the plaintiff, he should bring his application under Order 11 Rule 16. If before trial and the application is successful in that the court holds that the plaintiff and those sought to be represented do not have common interest, the court may if the right to relief alleged exists jointly or severally in respect of the same transaction or any common question of law or fact would arise, as in Order 11 Rule 1 Order the name of any of the persons represented to be made parties in addition to the existing parties. See Order 11 Rule 2. In other words, an objection to the capacity of the plaintiff does not necessarily vitiate his case and in any case such an objection has to be raised timeously. If the defendants had raised this objection when they were served the court below could have ordered the other 7 welders being represented by the plaintiff to be joined as plaintiffs in the action since a common question of fact would arise under the same contract E14247 (Exhibit A). See NEWSPAPER CORPORATION V. ONI (1995) 1 SCNJ 281 at 232; EBIGBAMI V. MIL. GOVERNOR OF EKITI STATE (2004) 21 WRN 53 at 72 – 73. In any case was the appellant prejudiced? Was any miscarriage of justice occasioned against him? Are the welders complaining? It needs be stressed that it is not every error that will result in an appeal being allowed except errors that occasioned miscarriage of justice. See NWAEZE V. THE STATE (1996) 2 NWLR (PT.428) This issue is resolved in favour of the respondents in the light of the above.
I resolve all issues formulated in this appeal against the appellants.
I would have dismissed this appeal for want of merit if not for its incompetence as earlier stated.
This appeal is struck out for lack of competence. I award N50,000.00 cost in favour of the respondent.
M. DATTIJO MUHAMMAD, J.C.A. (OFR): I read in draft the lead judgment of my learned brother Awotoye JCA. I entirely agree with him that the appeal is incompetent and that for all the reasons contained in the lead judgment it should be, and is hereby struck out.
I abide by the order on cost his lordship made in favour of the respondent.
EJEMBI EKO, J.C.A.: Appellants, as the defendants in the suit No. PHC/1277/2004 brought on the Undefended List, were out of time in filing the Defendant’s Notice of Intention to Defend. They brought an application for extension of time to file the said Notice with an affidavit allegedly disclosing their defence on the merits, which Notice by the extant Rules of the trial court must be filed not less than 5 days before the date for the hearing of the suit.
The application for extension of time within which to file the Notice of Intention to defend together with an affidavit disclosing the defence on the merits came up for hearing on 1st February, 2006. It seemed to have been adjourned severally previously. On 1st February, 2006 neither the defendants/Appellants nor their counsel were in court to move the application. Consequently, the application was struck out. The obvious implication of that is that there was no notice of Intention to defend supported by an affidavit disclosing any defence on merits. The trial court entered judgment summarily on the Undefended List. That is what has aggrieved the appellant to file this appeal.
In this appeal the appellants criticized the trial court for strict adherence to technicality. There was no notice of intention to defend supported by affidavit disclosing any defence on the merits. Appellant wants the trial court to look at the process it had struck out with the motion for extension of time within which to file the said Notice. No law permits the trial court to commit such illegality for a litigant who is too big to come to court to pursue his matters. No litigant and no counsel retained by a litigant, can hold the court to ransom.
Justice in the law courts is governed by and administered in accordance with Rules of procedure known to the counsel and their clients. It is trite that rules of court are meant to be complied with by all, including the judge presiding in the court.
The purpose of Rules of court providing time table for conducting proceedings is for orderliness and certainty in the manner the proceedings will be, and are, conducted. It ensures quick dispensation of justice. Any person who fails to act within the proper time for doing things in the court of law ought to suffer. See RATNAM v. CUMARASAMY [1964] 3 All E.R. 983.
A party provided a level playing ground with his adversary in litigation and given an opportunity to present his case would not be heard to complain if he abused the opportunity and/or failed to utilize the opportunity. These appellants can not be heard to complain that the trial court did not over indulge them by looking at a process that had been struck out for want of prosecution. That process in law is no longer before the court. Nor can the appellants complain that strict compliance with the Rules of the trial court by the trial court had denied them fair hearing. Our apex court has held in a number of cases that strict compliance with the rules of court makes administration of justice quicker. See SOLANKE V. SOMEFUN (1974) 1 All NLR 586 at 592 and F.B.N. v. ABRAHAM (2008) 36. 2 NSCQ 1058 at 1076.
That is all I have to say in this appeal since I am in total agreement with the lead judgment just delivered by my learned brother, T.O. Awotoye, JCA. I hereby adopt all the consequential orders made therein, including order as to costs.
Appearances
J. I. Ofor Esq.For Appellant
AND
Respondent absentFor Respondent
