PRINCE RAPHEAL AJIDE v. ALHAJI SAKA ADELEKE ADUA
(2019)LCN/12899(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of March, 2019
CA/IL/2/2018
RATIO
COURT AND PROCEDURE: JURISDICTION
“Instructively, the issue of jurisdiction is most fundamental, as it can be raised at any stage of the proceedings by the parties or even suo motu by the Court of trial or appellate Court. Any declaration by a Court thereby granting or dismissing a relief is predicated on the assumption of the subsistence of jurisdiction to make a valid and binding pronouncement in the action. As authoritatively reiterated by the Apex Court:The declaration of jurisdiction in respect of the subject matter of the claim is an admission of legal incompetence and impotence to make any such valid and binding declaration in the cause before it. Hence, the only course open to the Court in such situation is to strike out the action subject matter of the claim before it. This is the more reasonable because any declaration made will infringe the fundamental principle of adjudication. The Court having not heard the case of the parties on its merits, is incompetent to make a pronouncement therein. See UTIH VS. ONOYIVWE (1991) 1 NWLR (Pt. 166) 166; (1991) LPELR ? 3436 (SC); (1991) 1 SC (Pt. 1) 61; (1991) LPELR 3436 (SC) per Bello, CJN @ 69 paragraphs B – E.” PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
PRINCE RAPHEAL AJIDE Appellant(s)
AND
ALHAJI SAKA ADELEKE ADUA Respondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment):
The instant appeal is consequent upon the ruling of the Kwara State High Court holden at Ilorin, which was delivered on February 20, 2017 in Suit No. KWS/302/2016. By the said ruling, the Court below entered judgment in an undefended list in favour of the Respondent (Claimant) against the Appellant (Defendant).
BACKGROUND FACTS
On November 9, 2016, the Respondent instituted the said Suit vide a Writ of Summons in the Court below. By the endorsement to the Writ of Summons, the Respondent claimed against the Appellant as follows:-
The sum of Two Million Naira (N2,000,000.00) only against the Defendant being the unrefunded difference between the sum of Six Million Naira (N6,000,000.00) only he collected from the Claimant for the purchase of 5 plots of land situate and laying at along Federal High Way, Baale Road, Oro Town, Kwara State in which the sum of Four Million Naira (N4,000,000.00) only was actually remitted to the Balogun family as the owner of the land.
The Writ of Summons was supported by a 28 paragraphed affidavit personally deposed to by the Respondent. Attached thereto are various documents marked as Exhibits SA1 ? SA3, respectively. Contrariwise, in reaction to the said suit, the Appellant filed a notice and an affidavit of intention to defend the action.
On January 25, 2017 when the matter came up for hearing, Messrs S. U. Jabata with M. J. Ayinla ? Edun appeared for the Respondent, while Messrs A. H. Sulu-Gambari with K. G. Abdul-Rahman appeared for the Appellant. Consequent upon the submissions of the learned counsel to the respective parties, the Court below adjourned to February 20, 2017 for ruling. On the date in question, the Court delivered the vexed ruling to the conclusive effect:
In sum, I am satisfied that the defendants? affidavit in support of notice of intention to defend does not disclose any defence on the merit or raise any triable issue to warrant granting him leave to defend this suit.
Accordingly, judgment is hereby awarded the Claimant in the sum of Two Million Naira (N2,000,000.00) only against the defendant. I also award 10% Court interest from today until the entire judgment sum fully liquidated. Costs is assessed at Ten Thousand Naira (N10,000.00) only in favour of the Claimant against the defendant.
Not unnaturally, the Appellant was vehemently dissatisfied with the vexed judgment. Thus, he filed a Notice of Appeal on May 12, 2017 thereby urging upon the Court to allow the appeal, set aside the judgment (ruling) of the Court below and transfer the case (KWS/302/2016) to the general cause list for proper hearing before another judge of the State High Court.
On January 14, 2019, when the appeal came up for hearing, both learned counsel had the opportunity of addressing the Court, thereby adopting their respective briefs of argument. Thus, resulting in reserving judgment.
The Appellant?s brief, filed on 30/10/2018, spans a total of 22 pages. At page 3 thereof, five issues have been raised for determination viz:
1. Whether the lower Court failure to comply with Order 23 (1) of the Kwara State High Court Civil Procedure Rules 2005 did not rob the Court of its jurisdiction.
2. Whether the Claimant has locus standi to institute this action for the trial Court to have jurisdiction.
3. Whether the trial Court made adequate and correct findings as regards the affidavit evidence placed before it? (Grounds 1, 2 and 5 of the amended Notice of Appeal).
4. Whether there is conflict in the affidavit evidence of the parties placed before the trial Court which ought to be resolved by calling oral evidence? (Grounds 3 of the Amended Notice of Appeal).
5. Whether or not there is a privity of contract between the Appellant and one Yemisi necessitating her joinder as a necessary party for the just determination of the case? (Ground 4 of the Notice of Appeal).
The Issue 1 is canvassed at pages 3 ? 7 of the said brief, to the effect that the procedural directive as contained in Rule 1 of Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005, was not followed by the Court below in this case before proceeding to hearing the case. It was submitted, that there is nothing in the record to show that any application for placement of the writ under the undefended list was made, not to talk of the Court?s ruling on same. Therefore, this failure has robbed the Court of its competence to entertain this matter. The Court is urged to so hold, and declare the entire proceeding a nullity. See CHIEF S. S. OBARO VS. ALHAJI SALE HASSAN (2013) 7 SCNJ (Pt. 111) 788 @ 807; INTERCONTINENTAL BANK LIMITED VS. BRIFINA LIMITED (2012) 5 SCNJ 115 @ 130.
The Court is urged to so hold, and allow the appeal.
The Issue 2 is canvassed at pages 7 ? 9, to the effect that the Respondent was not misled as to all particulars relating to the land or any fraudulent misrepresentation by the Appellant. Further submitted, that the Respondent did not allude to the fact that he sustained any injury by the fact relayed thereto in regard to the land sold by the Appellant.
It was contended, that the payment of the agreed purchase price to the Respondent by the Appellant and the fact that he took possession of the land and he was disturbed on the land, is enough assurance that the land sold thereto is genuine. Further contended, that if anybody was to institute an action for the recovery of the balance of the purchase price from the Appellant, it should be the Balogun family and not the Respondent.
The Court is urged to so hold, and allow the appeal.
The Issue No. 3 is extensively argued at pages 9 – 15 of the brief, to the effect that the Court below did not make any adequate and correct findings in regards to the affidavit evidence placed before it before arriving at the vexed ruling. SeeARISONS TRADING AND ENGINEERING CO. LIMITED VS. THE MILITARY GOVERNOR OF OGUN STATE (2009) 6 SCNJ 141 @ 167; ALHAJI MUJAHID DOKUBO ASARI VS. FRN (2007) 6 SCNJ 192 @ 208; OKWU NWOKONOB VS. BENEDICT UDEORAH (2012) 4 SCNJ 32 @ 47.
Further submitted, that the issue leading to this case was purely that of concluded contractual relationship between the parties and not of debt or liquidated money demand which can be accommodated under Order 23 of the Kwara State High Court (Civil Procedure) Rules, 2005 (Supra).
It was postulated the Court below failed to make specific findings on the issues of measurement of the land in dispute, as to whether he was satisfied with either the Appellant’s or Respondent’s position. That the Court equally failed to make a finding on the issue of Exhibits SA2 and SA3 relied on by the Respondent, which the Appellant denied knowledge of.
Further postulated, that a highly contested debt cannot rightly be decided by affidavit evidence only; oral evidence is most proper. Thus, the Court failed to make a specific finding on the issue of refund of Four Million Naira (N4,000,000.00) made installmentally by Balogun family through one Mrs. Awoyemi Yemisi. That paragraphs 10, 13, 15, 16, 17 and 21 of the Respondent?s supporting affidavit are contradictory of each other which can only be resolved by oral evidence. See INTERCONTINENTAL BANK LIMITED VS. BRIFINA LIMITED (Supra).
The Court is urged to so hold, and resolve the Issue 3 in favour of the Appellant and allow the appeal.
The Issue No. 4 is argued at pages 15 ? 19 of the brief, to the effect that there was a serious conflict of facts in the affidavit evidence of the parties which ordinarily calls for oral evidence for resolution of same. SeeJIPREZE VS. OKONKWO (1987) 3 NWLR (Pt. 62) 737; NKWO MARKET COMMUNITY BANK LIMITED VS. OBI (2010) SCNJ 8 @ 92.
It was submitted, that the Appellant has clearly shown through his affidavit evidence that he has a defense on the merit that a trial issue necessitating the transfer of the claim to the general cause list on the ground the claim is not that of debt but contract simpliciter. See TRUE GRADE ENGINEERING LIMITED VS. LEAD BANK PLC (2008) ALL FWLR 451 @ 470 ? 471 A ? F.
The Court is urged to so hold.
The Issue No. 5 is argued at pages 19 ? 21 of the said brief, to the effect that there was no sealed contract between the Respondent and the Balogun family to warrant anybody from that family to refund money without his consent and knowledge. Therefore, the Court is urged to hold that the Court below failed to make specific findings on issues joined by the parties through their respective affidavit evidence; that there were serious conflict in the said affidavit evidence which need oral evidence for resolution; and that the Court was wrong to have held that there is no privity of contract between the Respondent and one Mrs. Yemisi.
The Court is urged to resolve the Issue 5 in favour of the Appellant.
Conclusively, the Court is urged upon to allow the appeal, set aside the vexed ruling and remit the case to the Court below to be heard and determined by another judge.
Contrariwise, the Respondent?s brief filed on December 10, 2018, spans a total of 23 pages. At page 5 thereof, three issues have been formulated viz:
1. Whether the lower Court complied with the provisions of Order 23 (1) (sic) of the Kwara State (Sic) (Civil Procedure) Rules, 2005 in its judgment.
2. Whether there were triable issues in this suit to warrant its transfer to the general cause list.
3. Whether there was the need for joinder of Awoyemi Yemisi as a co-defendant.
The Issue 1 is extensively canvassed at pages 5 ? 10 of the brief, to the effect that neither the Court below nor the Respondent had committed any procedural breach affecting the Court?s jurisdiction, as such the decision stands. See KWARA HOTELS LIMITED VS. ISHOLA (2002) FWLR (Pt. 135) 759; NGIGE VS. OBI (2006) 14 NWLR (Pt. 999) 1 @ 230 ? 231 paragraphs G ? H; ANDREW VS. INEC (2017) 7 ? 12 MJSC 1.
It was submitted that the Appellant?s affidavit in support of notice of intention to defend disclosed no defence to the suit but rather an admission of the Respondent?s claim. And that the claim in the instant suit was against the Appellant and not the Balogun family of Oro. Exhibit SA1 recited in paragraph 10 of the Respondent?s affidavit in support of the Writ of Summons was issued by the Appellant.
The Court is urged to so hold, and dismiss the appeal.
The Issue No. 2 is extensively argued at pages 10 ? 17 of the brief. In a nutshell, it is submitted that the decision of the Court below has not offended any provision of the law. That under the undefended list procedure where the affidavit in support of intention to defend discloses no defence, the matter is not to be transferred to the general cause list. See JIPREZE VS. OKONKWO (1987) 3 NWLR (Pt. 62) 737 @ 745 D; ZAHKEM INTERNATIONAL VS. OFOMAC (2000) 11 NWLR (Pt. 679) @ 618.
It was submitted that the case of INTERCONTINENTAL BANK LIMITED VS. BRIFINA LIMITED (Supra) cited by the Appellant, is not applicable to the instant case because the Appellant?s brief has not raised any issue requiring re-instatement of the correct position of the law.
Further submitted, that the Appellant?s depositions in support of the notice of intention to defend disclosed no iota of defence to the suit. See ILORIN EAST LOCAL GOVERNMENT VS. ALASIRIN (2012) ALL FWLR (Pt. 645) 226 @ 246 A ? E; et al.
It was contended, that the claim of the sum of Two Million Naira (N2,000,000.00) only, being the balance of the failed consideration is a sum due to the Respondent as the balance of the Six Million Naira (N6,000,000.00) he offered as consideration for the land in question. The amount was due to the Respondent and not to the Balogun family as alleged by the Appellant. Thus, the locus standi in this action resides in the Respondent who furnished the failed consideration and in none else.
It was posited that the Respondent contracted under a unilateral mistake as to actual dimension of the land and the price thereof. And that the mistake was induced by the misrepresentation from the Appellant. As such no diligence was required of the Respondent to discover the falsity of the Appellant?s misrepresentation. See SULE VS. AROMIRE (1951) 20 NLR 20.
The Court is urged to so hold, and resolve the issue against the Appellant.
The Issue No. 3 is argued at pages 17 – 19 of the brief, to the effect that Mrs. Awoyemi Yemisi is neither a proper nor desirable/necessary party in this suit. That the Appellant has admitted in paragraph 13 of his affidavit to paragraph 10 of the Respondent’s affidavit in support of the merit, that the Respondent paid to the Appellant the sum of Six Million Naira (N6,000,000.00).
Further submitted, that no fact was before the Court that the said Yemisi took part in receiving the consideration or that she was a member of the Balogun family. See MOBIL PRODUCING UNLIMITED VS. LASEPPA (2002) 12 SCNJ 1 @ 25 et al.
It was equally posited, that Exhibit SA3 as a document attached to the affidavit forms part and parcel of the affidavit, and same cannot be detached because it is an evidence on oath before the Court. See ADEJUMO VS. GOVERNOR OF LAGOS STATE (1970) NSCC 134; ILORIN EAST LOCAL GOVERNMENT VS. ALASIRIN (Supra) @ 252 C ? F.
The Court is urged to so hold.
Conclusively, the Court is urged upon to dismiss the appeal in its entirety.
In reaction to the Respondent?s submission contained in the said brief thereof, the Appellant filed a reply brief on December 27, 2018. It spans a total of five pages. By the said reply brief, the Appellant once again urged upon the Court to allow the appeal as being meritorious.
I have accorded due regard upon the submissions of the learned counsel contained in their respective briefs of argument, vis–vis the record of appeal, as a whole. I am appreciative of the fact that the five issues raised by the Appellant in the brief thereof have been distilled from specific grounds of the notice of appeal. Ironically, however, none of the three issues raised by the Respondent in the brief thereof has been distilled from or predicated upon any ground of the Notice of Appeal. Thus, having convinced myself that the five issues raised in the Appellant’s brief are germane to the grounds of the Notice of Appeal, I hereby deem it expedient to adopt them for the determination of the appeal, anon.
ISSUE NO. 1
As copiously alluded to above, the first Issue mutatis mutandi, raises the very vexed question of whether the Court below has failed to comply with Order 23 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005 thereby resulting in robbing the Court of its jurisdiction to determine the suit.
Instructively, the issue of jurisdiction is most fundamental, as it can be raised at any stage of the proceedings by the parties or even suo motu by the Court of trial or appellate Court. Any declaration by a Court thereby granting or dismissing a relief is predicated on the assumption of the subsistence of jurisdiction to make a valid and binding pronouncement in the action. As authoritatively reiterated by the Apex Court:The declaration of jurisdiction in respect of the subject matter of the claim is an admission of legal incompetence and impotence to make any such valid and binding declaration in the cause before it. Hence, the only course open to the Court in such situation is to strike out the action subject matter of the claim before it. This is the more reasonable because any declaration made will infringe the fundamental principle of adjudication. The Court having not heard the case of the parties on its merits, is incompetent to make a pronouncement therein.
See UTIH VS. ONOYIVWE (1991) 1 NWLR (Pt. 166) 166; (1991) LPELR ? 3436 (SC); (1991) 1 SC (Pt. 1) 61; (1991) LPELR 3436 (SC) per Bello, CJN @ 69 paragraphs B – E.
His Lordship, Bello, CJN in his usual erudite characteristics likened jurisdiction to blood which nourishes and sustains an animal.
Moreover, jurisdiction is blood that gives life to the survival of an action in a Court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.
See UTIH VS. ONOYIVWE (supra) 1 NLWR (Supra) per Bello, CJN @ 46 Paragraphs C D.
It has been reiterated in a plethora of authorities that the relevant law applicable in any given action or cause is the (extant) law in force at the very point in time the cause of action arose and in the case of the law relating to jurisdiction when the action was instituted. See UTIH VS. ONOYIVWE (supra) @ 36 paragraphs E-F.
In the instant case, the Respondent filed the Writ of Summons along with an affidavit in support thereof. The Court below proceeded under the Undefended List Procedure pursuant to Order 23 Rule 1 of Kwara State High Court (Civil Procedure) Rules, 2005, which provides:
1. Where a claimant files a Writ of Summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent belief there is no defence to the action, the judge shall if satisfied that there are good grounds for believing that there is no defence thereto enter the suit for hearing in what shall be called the Undefended List and cause the Writ of Summons to be so marked accordingly and enter thereon a date for hearing.
The provisions of Order 23 Rule 1 of the High Court (Civil Procedure) Rules (supra) have been interpreted upon by the Apex Court in a plethora of cases. Most particularly, in the case of OBARO VS. HASSAN (2013) LPELR SC. 98/2004, the Apex Court comprehensively reiterated the procedure that ought to be adhered to in instituting a suit under the Undefended List pursuant to Order 23 of the High Court (Civil Procedure) Rules (supra):
There is no doubt the procedure under the Undefended List Rules is a bit technical and must be understood properly to be of benefit to parties employing it and the Court.
As clearly shown in the Rules, an application being made to Court for issuance of a Writ of Summons is to be accompanied with a supporting affidavit and other necessary relevant documents to be considered by the Court to make a firm decision, before the adversary is brought in, whether or not the action is fit for trial under the Undefended List. Yet, after the Court is convinced that with the facts disclosed in the endorsed claim, the affidavit and if any, the documents attached as Exhibits, a writ is ordered to be issued by the Registrar, there shall then be delivered by the plaintiff to the Registrar upon the issue of the Writ of Summons as stated in Rule 1 of Order 23, as many copies of the said affidavit as there parties against whom relief is sought and the Registrar shall then annex one such copy of the affidavit to each copy of the Writ of Summons for service on the defendant(s). See Order 23 Rule 2 (supra).
In other words, the plaintiff is expected to file definitive affidavit as evidence on oath separately, verifying the cause of action, the amount being claimed and state clearly that the defendant does not have a defence to the action where the Writ of Summons served on the defendant by the Court upon issuance under Undefended List procedure does not have the required definitive separate affidavit, the defendant cannot be said to have been served with the required processes.
Regrettably, the fundamental procedure laid down in Order 23 of the Kwara State High Court ( Civil Procedure) Rules, 2005 (supra) as comprehensively stated by the Apex Court in OBARO VS. HASSAN (supra). There is nothing in the record of appeal to show that the Respondent had filed any application (exparte) in the Court below prior to the filing of the Writ of Summons in question talk less of the Court granting same by way of a ruling. Thus, the competence of the entire Writ of Summons and the purported affidavit filed therewith is doubtful.
It must be reiterated, for the avoidance of doubt, that an action pursuant to Order 23 of the High Court Rules (supra) under an Undefended List, is not in any way a real substitute for trial of actions. The whole essence of the rule is to reduce congestion of cases in the Courts and to save unnecessary costs of litigation thereby creating an avenue for speedy hearing and determination of actions. See CHIEF HAROLD SODIPO VS. LEMNIKAINEN OY (NO. 2) (1986) 1 NWLR (Pt. 15) 220 per Eso, JSC, 230 ? 231.
It is equally well-settled, that for the Rules on Undefended List Procedure to successfully apply, and enable the Court to proceed to summary judgment, some fundamental requirements must be met:
i. The defendant must not only have been served with the required processes, he must also have entered appearance;
ii. A claim must have been endorsed on, or attached to the Writ of Summons served upon the defendant;
iii. There must be a definitive affidavit (which is evidence on oath) verifying the cause of action and the amount claimed and also that the defendant has no defence to the action;
iv. The defendant must not have filed a defence to the action.
See CHIEF HAROLD SODIPO VS. LEMNINKAINEN OY (supra) @ 230 ? 231; OBARO VS. HASSAN (supra).
It is so obvious from the foregoing postulates, that the Court below was devoid of the fundamental competence to adjudicate and determine the matter before it. Yet, it is well-settled, that a Court is competent to adjudicate upon an action:
a) It is properly constituted as regards numbers and qualifications of the members thereof, and no member is disqualified for any reason whatsoever;
b) The subject matter of the case is within its jurisdiction, and there is no feature therein preventing the Court from exercising its jurisdiction; and
c) The case is initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The fulfillment of the foregoing fundamental requirements is most fundamental. This is due to the fact that any defect in competence is fatal, for the proceedings are tantamount to a nullity, however well conducted and decided, because the defect is extrinsic to the adjudication process in all ramifications thereof. SeeMADUKOLU VS. NKEMDILIM (1962) 1 ALL NLR 587; (1962) 2 SCNLR 341; (1962) 2 NSCC 374; MARK VS. EKE (1997) 11 NWLR (Pt. 527) 501; SLB CONSORTIUM LIMITED VS. NNPC(2011) 9 NWLR (Pt. 317); (2011) 5 SCM 187; OBARO VS. HASSAN (supra).
In the circumstance, the answer to the first issue is the positive, and the said issue is hereby resolved in favour of the Appellant.
It is apparent that having resolved the first issue in favour of the Appellant, there is no doubt that it would amount to a sheer academic exercise to proceed to determine the remaining issues on the merits. As aptly held by the Apex Court in UTIH VS. ONOYIVWE, (supra):
The declaration of lack of jurisdiction in respect of the subject matter of the claim is an admission of legal incompetence and impotence to make any such valid and binding declaration in the cause before it. Hence, the only course open to the Court in such situation is to strike out the action subject matter of the claim before it. This is the more reasonable because any declaration made will infringe the fundamental principle of adjudication. The Court having heard the case of the parties on its merits, is incompetent to make a pronouncement therein.
Per Bello, CJN @ 69 paragraphs B ? E.
In the circumstance, I think the most viable order to make at this point in time is to allow the appeal. Consequently, the appeal is hereby allowed by me. The decision (Ruling) of the Kwara State High Court delivered by E. B. Mohammed, J.; on February 20, 2017 is hereby set aside. The Suit No. KWS/302/2016 in question is adjudged incompetent for not having been initiated by due process of the law.
The Appellant shall be entitled to Costs of Fifty Thousand Naira only (N50,000.00) against the Respondent.
HAMMA AKAWU BARKA, J.C.A.: The judgment of my learned brother Ibrahim Mohammed Musa Saulawa JCA, was made available to me in draft before now.
I agree entirely with the reasoning and the conclusion reached therein. I agree that the appeal for obvious reasons admirably highlighted in the lead judgment has abundant merit, and is thereby allowed by me. I also agree that costs of N50,000.00 only, be awarded against the Respondent.
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I agree entirely with the reasoning therein and the conclusion arrived thereat that the appeal has merit and should be allowed. I hold that the Court below lacks jurisdiction to determine the respondent’s suit before it. Consequently I also allow this appeal and set aside the ruling of the Kwara State High Court delivered by Hon. Justice E. B. Mohammed in respect of suit NO: KWS/302/2016. I abide by the order of cost in the lead judgment.
Appearances:
Afolabi Gambari, Esq. with him, Aliyu Yahaya, Esq.For Appellant(s)
S. U. Jabata, Esq. with him, O. K. Kareem, Esq.For Respondent(s)
