SAFIUDEEN ADEMOLA EDU v. SHELL TRUSTEES (NIGERIA) LIMITED
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2002
Before Their Lordships
JAMES OGENYI OGEBEJustice of The Court of Appeal of Nigeria
SYLVANUS ADIEWERE NSOFORJustice of The Court of Appeal of Nigeria
ABOYI JOHN IKONGBEHJustice of The Court of Appeal of Nigeria
SAFIUDEEN ADEMOLA EDUAppellant(s)
SHELL TRUSTEES (NIGERIA) LIMITEDRespondent(s)
NSOFOR, J.C.A.: (Delivering the Leading Judgment): The respondent was the plaintiff in the trial court. It had claimed against the defendant, herein the appellant, as follows:-
“1. The sum of N36,000,000 being money paid by the plaintiffs to the defendant in September, 1993 for a consideration which has wholly failed on the part of the defendant in that the plaintiffs made the said payment to the defendant for a 20 year sub-lease of a parcel of land covering about 20.945 acres at Elelenwo Area of Port Harcourt and it has since turned out that the head lease is a nullity and therefore no lease could be created from same.
2. The sum of N2,000,000 as special damages being legal expenses incurred by the plaintiffs in the perfection of the purported sub-lease until it turned out that the head lease is a nullity.
3. Alternatively to (1) and (2) above, the sum of N38,000,000 comprising N36,000,000 being payment for the purported sub-lease referred to in paragraph 1 and N2,000,000 being the legal expenses all of which the defendant covenanted under clause 3(v) of the sub-lease to refund and/or secure the appropriate consent to the transaction.
4. Interest on the sum of N36,000,000 at 15% per annum until judgment and a further 15% per annum until judgment shall have been satisfied.”
Before the writ of summons initiating the suit was issued, the plaintiffs, by way of a motion ex-parte, filed on the 14/6/95, applied pursuant Order 23 rules 1 and 5, Rule 6 of the Rivers State High Court (Civil Procedure) Rules, 1987 and the inherent jurisdiction of the Honourable court praying for the following reliefs:-
“1. An order of this court entering the suit herein in the undefended list.
2. An order of this court granting the plaintiff leave to issue and serve the writ of summons and the attached statement of claim and the affidavit verifying the claim on the defendant in Lagos State outside the jurisdiction of this Honourable court.
3. For such further order or other orders as this Honourable court may deem fit to make in the circumstances.”
The application was heard. The motion was allowed. Granting the application, (see p.47 of the Record), the learned trial Judge ordered as follows:-
“Therefore I order (1) that the suit be entered in the undefended list and processes be so marked. (2) Leave is granted to the plaintiff/applicant to issue and serve the writ of summons and the attached statement of claim and the affidavit verifying the claims on the defendant in Lagos State outside the jurisdiction of this court. 32 days granted for the defendant to enter appearance. Case is adjourned to 26/7/95 for hearing.
Sig. Mrs. M.U.Ofili Judge – 16/6/95
The writ of summons was duly served on the defendant on the 20th of June, 1995, vide the affidavit of service sworn by Godson Olomo, bailiff, High Court, Lagos, at page 50 of the record of appeal on the same 20th day of June, 1995.
The defendant, although served with the writ of summons duly marked as “Undefended List”, did nothing assuming he was minded to contesting the claims and defending the action. He did not comply with Order 23 rule 3(1) of the Rivers State High Court (Civil Procedure) Rules, 1987 (infra).
On the return date being the 19th of October, 1995, the suit was heard as undefended in accordance with Order 23 rule 4 of the Rivers State High Court (Civil Procedure) Rules, 1987. See p.59 to 61 of the record of appeal.
In his judgment, after hearing the counsel of the plaintiff, the learned trial Judge wrote, inter alia, at pages 60/61 of the record as follows:-
“…Therefore this court grants judgment to the plaintiff in the terms stated in their writ and statement of claim.
That is to say:-
1. The defendants (sic) to pay to the plaintiff the sum of 36 million naira (N36,000,000) being the payment for the purported sub-lease that failed.
2. Defendant to pay to the plaintiff N2,000,000 (two million naira) being the legal expenses which was covenanted by the defendant.
3. The defendant also to pay the interest on the sum of N36,000,000 at 15% per annum up to date and a further 15% per annum until the judgment is satisfied”.
The court awarded the sum of N10,000 as costs in favour of the plaintiff against the defendant.
It is worth stating to be borne in mind, in view of what I might be disposed to say later in the judgment, that on the 10th of February, 1996, the defendant had applied by way of motion on notice pursuant to Order 22 rule 3 of the Rivers State High Court (Civil Procedure) Rules, 1987 and inherent jurisdiction of the court praying the court, inter alia, to set aside the judgment of the 19th of October, 1995 against him on the ground, among others, (See Pp.67 – 83 of the record of appeal):-
“(a) The defendant/applicant has not been served with the relevant originating processes in this case.
The application came on for the hearing on the 13th of May, 1996. At the conclusion of the hearing, the learned trial Judge in a reserved and considered ruling, on the 5th of March, 1997, dismissed the application. At page 20 of the “supplementary records of appeal” the learned trial Judge also wrote, inter alia, as follows:-
“Also service was properly made on the defendant who chose to hide under some technical cover which cannot avail him in the circumstances of this case.”
Dissatisfied with the ruling, the defendant lodged an appeal against it. The notice of appeal together with the grounds of appeal is copied at pages 92 to 93 of the record of appeal.
The defendant thereafter took no further steps to prosecute the appeal. Consequently, the Registrar of the court below filed in the Court of Appeal a “Certificate of Non-Compliance” with the conditions of appeal pursuant to Order 3 rule 20 of the Court of Appeal Rules. The “Certificate of non-compliance” is copied at page 108 of the record of appeal. The legal consequence thereof is obvious.
Now, the defendant had appealed from the judgment on the 19/10/95 on four grounds of appeal. The notice of appeal together with the grounds of appeal is copied at pages 109 to 111 of the Record of appeal.
It is also necessary to note that the appeal is being heard based on two (2) bundles of documents compiled by the plaintiff with leave of this court. These are the “record of appeal” and the “supplementary record of appeal.”
It becomes necessary to give the background facts of the case giving rise to the present appeal. By a sublease agreement dated the 14th of September, 1992, the defendant had granted to the plaintiff a sublease of a parcel of land measuring 20.945 acres at Elelenwo area of Port Harcourt in the Rivers State for a consideration of 11,000,000 (United States of American Dollars) which was equivalent to N36,000,000.
The defendant covenanted in clause 3(v) of the said agreement to indemnify the plaintiff against all moneys paid by the plaintiff pursuant to the agreement and undertook further to make a proportionate refund to the plaintiff in the event of any failure to obtain the Governor’s consent. The plaintiff through its solicitors Messrs A.I. Garrick & Co. thereafter applied on the 20th of September, 1994, for the consent of the Military Administrator, Rivers State, to the sublease. The authorities requested the plaintiff to furnish the head-lease between the defendant and the head-lessor the Wodi family of Elelenwo, Port Harcourt. Upon the application by the plaintiff’s solicitors to the defendant, the head-lease and a power of attorney were produced by the defendant. But the Military Administrator by a letter dated the 9th of November, 1994, through the State Director of Land declined to consent to the sub-lease on the ground that neither the head-lease nor the power of attorney pursuant to which it was granted, complied with the provisions of the Land Use Act because the Military Administrator’s consent was neither sought nor obtained for either the head-lease or the power of attorney. The plaintiff had paid the sum of N2,000,000 to Messrs Garrick & Co. solicitors who worked on the sub-lease. The plaintiff through its solicitors wrote to the defendant informing him of the Military Administrator’s refusal to consent to the sub-lease and accordingly demanded of the defendant to refund to it the sum of N36,000,000 paid to him for the sub-lease and the sum of N2,000,000 being the legal fees of the solicitors, Messrs Garrick & Co. Because the defendant neglected or failed to refund the money to the plaintiff despite repeated demands, hence the action!
The parties in obedience with the rules of this court had filed their respective briefs of argument. The defendant/appellant in his brief of argument filed on the 31/10/2000 had identified three (3) issues for determination. They are:-
“1. Whether from the nature of the plaintiff’s claim a matter can be entered under the undefended list.
2. Whether judgment can be given against the defendant under the undefended list having not been served with the writ of summons and other processes in this matter.
3. Whether separate prior leave of court for the issuance of the writ of summons ought to be sought and obtained before applying to enter the suit under the undefended list.”
For the plaintiff/respondent, three issues were formulated in the respondent’s brief filed on 5/2/2001. These are:-
“(i) Whether the learned trial Judge was right in entering judgment on the facts in favour of the respondent.
(ii) Whether the appellant had been properly served.
(iii) Whether it was right for the learned trial Judge to have placed the case on the undefended list.”
In addition, the appellant had filed “reply” to the respondent’s brief on the 24/4/2001.
At the hearing of the appeal, the counsel adopted and relied on their respective briefs of argument. I shall pause here for a while for a comment on the appellant’s reply brief. The reply opened, at paragraph 1.01 as follows:-
“In reply to the submission in issue 1 on the respondent’s brief … ”
Counsel continued with the submissions on the issue from page 1 of the reply to page 8 thereof. And paragraph 2.00 of the reply opened as follows:-
“In reply to the argument of the respondent on page 6…”
The submissions thereon went on from page 8 of the reply to page 15 whereat paragraph 4.00 opened as follows:”
On issue 3 of the respondent’s brief which talks of service, we submit…”
It concluded at page 17 with a “conclusion.”
Now, Order 6 rule 5 of the Court of Appeal Rules provides:-
“The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal, file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.”
I studied the appellant’s reply brief herein. It is my firm view, with respect to the solicitor who settled it, that the reply brief was wholly unnecessary. It did not deal in any way or manner with any new points arising from the respondent’s brief. The appellant’s reply brief, therefore, is not the type contemplated in or by Order 6 rule 5 (supra). It ought, on that account, to be disregarded. I disregarded it accordingly.
Issue No.1: Arguing in support of the issue No.1 in the appellant’s brief, learned counsel for the appellant drew attention to both the claim as endorsed on the writ of summons and the accompanying affidavit evidence of the grounds forming the basis of the claims. It was the contention of the counsel in the appellant’s brief that by the nature of the claims the appellant was entitled to interrogate the respondent on the facts and to cross-examine the respondent’s witnesses on the accompanying affidavit. It was further contended by the counsel that the claim of N2,000,000 the alleged legal fees of the solicitors being of the nature of special damages, ought to be strictly proved. Reliance was placed on the decisions in Agro Millers Ltd. v. C.M.B. (1997) 10 NWLR (Pt.523) 469, 477, paragraph G; U.N.N v. Orazulike Trading Co. (1989) NWLR (Pt.119) 19 and NEPA v. Alli (1992) 8 NWLR (Pt.259) 279. Concluding at page 14 of the appellant’s brief, learned counsel submitted that the claims of the respondent as formulated were not a liquidated money demand and so ought not to be placed on the “Undefended List.”
In reply, learned counsel for the respondent in the respondent’s brief at page 9 thereof had submitted that the learned trial Judge was right and justified to have placed the suit on the undefended list. As the learned counsel contended, it was for the trial Judge on an application made to him to determine, based on the materials placed before him, whether or not a suit ought to be placed on the undefended list. Counsel cited and relied on the decision in U.T C. (Nigeria) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 as setting out in clear terms how an undefended list case is treated.
I have carefully considered the learned submissions by the counsel in their respective briefs on the issue. With respect to the learned counsel for the appellant, he appeared to me to have missed the points. But before I go any further I shall pause here to consider one or two of the cases relied on by the counsel in the appellant’s brief to see what assistance, if any, it may offer us.
Agro Millers Ltd. v. Continental Merchant Bank (Nig.) Plc (1997) 10 NWLR (Pt.525) 469 (supra) was an appeal from the decision of the Kaduna State High Court, Dogara, J. on the 30/11/92. The respondent, qua plaintiff, sued claiming the sum of N7,913,346.64 as debt from the defendant/appellant. The action was placed on the undefended list. On being served with the writ of summons together with the affidavit evidence of the facts forming the grounds for the claim, the defendant filed a notice in writing of his intention to defend the suit together with an affidavit of the facts forming the basis of his defence.
On the return date, the trial Judge after hearing the counsel on whether the defendant would be let in to defend the action or not, refused to let in the defendant to defend. The trial Judge entered judgment in favour of the plaintiff. The defendant appealed to the Court of Appeal. The question turned out to be whether the trial Judge was right, based on the material placed before him, not to have let in the appellant to defend the action. In other words, did the affidavit evidence of the appellant discloses a prima facie defence to the action?
The Court of Appeal considered paragraphs 10 to 17 of the affidavit of the appellant accompanying the notice in writing of the intention to defend. At page 479 of the report, the Court of Appeal per Mohammed, J.C.A., said:-
“The learned trial Judge in his judgment at pages 37 to 40 of the record duly considered, all the facts averred in the paragraphs and came to the conclusion that no real defence has been disclosed thereon to justify granting the appellant leave to defend the action. I have myself examined these paragraphs…” and having regard to the claim of the respondent contained in the writ of summons and supported by clear averments in the affidavit. I entirely agree that the bare averments of facts unsupported by the vital documents from which the facts were averred did not disclose any defence to the respondent’s claim for the repayment of the sum N7,891,346.64 granted to the appellant.”
The court unanimously dismissed the appeal and affirmed the trial court’s decision.
I have read all the cases cited by the counsel in the appellant’s brief with some profit. I am disposed to say that none of them offers me any assistance, and on that account they are wholly irrelevant. In this appeal, the appellant unlike in any of the cases cited, filed no notice in writing of an intention to defend the suit together with an affidavit disclosing a defence in accordance with Order 23 rule 3(1) of the Rivers State High Court (Civil Procedure) Rules, 1987.
The Order and rule, for the purpose of clarity, says:-
“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just”.
The present appeal is therefore quite distinguishable from the facts of those cases cited and relied on in the appellant’s brief by the counsel.
The main purpose under the undefended list is to ensure justice to a plaintiff where there is obviously no defence to his claim and prevent the grave injustice that might occur through a protracted and ultimately frivolous litigation. The entry of the suit in the undefended list is not automatic. The court must be satisfied that there are good grounds for believing that there is no defence to the claim before entering the suit in the undefended list.
It becomes necessary to carry Order 23 rule 1 of the Rivers State High Court (Civil Procedure) Rules, 1987. It provides in parts as follows:-
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based… the court 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 mark the writ of summons accordingly…”
An application for commencement of a suit in undefended list is, therefore, specifically considered as such by the court and the summons does not issue until after such consideration.
The learned trial Judge just did that on the application by the respondent, ex parte. See pages 47/48 of the record of appeal. But see also U.T C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 cited and relied on by the counsel in the respondent’s brief.
In conclusion, my resolution of the issue No.1 (supra) is obvious. The issue is answered affirmatively.
It was contended in the appellant’s brief in support of issue No.2 that the writ of summons in the suit was not served on the appellant and, therefore, he was not in a position to file a notice in writing of an intention to defend the suit and so, no judgment could be entered against him having not been served with the process. A line of cases including Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 S.C. 6 at page 26: Public Finance Securities Ltd. v. Jefia (1998) 3 NWLR (Pt.543) 602 at p.612 para.8 – 9 was cited and relied upon.
Counsel to the respondent in the respondent’s brief at page 7 had submitted that the appellant was duly served with the writ of summons and the accompanying processes. Learned counsel contended that the learned trial Judge had found as a fact that the appellant was duly served with the writ of summons when the appellant applied to set the judgment aside on the ground, among others, for lack of service of the writ on him.
I had painstakingly set out above the effort by the appellant to set aside the judgment now appealed from that on grounds, inter alia, that there was no service of the writ of summons in the suit on him. See page 67 of the record. I did also reproduce above the finding by the learned trial Judge in his ruling of the 5th of March, 1997. See page 20 of the supplementary record, that the appellant was duly served with the writ of summons in the suit. That finding is subsisting. It puts paid to the issue. I have no difficulty whatsoever in resolving the issue against the appellant. And I do so resolve it.
Issue No.2, therefore, fails and the ground of appeal from which it was distilled is dismissed accordingly.
Arguing issue No.3, learned counsel contended in appellant’s brief that leave to issue the writ of summons for service out of jurisdiction ought to be first obtained separately and after the writ was issued a separate application for leave to place the suit on the undefended list ought to be sought and obtained. Failure so to do, counsel contended, rendered the entire proceeding in the suit a nullity. Counsel referred to Order 5 rule 6 of the Rivers State High Court (Civil Procedure) Rules, 1987. Learned counsel however admitted that the applications would be made, ex-parte.
It is the respondent’s counsel’s submission in the respondent’s brief that the learned trial Judge was justified in not only granting leave to issue the writ of summons for service out of jurisdiction but also in placing the suit on the undefended list on the motion ex-parte, filed on the 14/5/95. Learned Counsel contended that it hardly made any sense that leave to issue the writ must be separately sought, ex-parte and prior to an application ex-parte, to place the suit on the undefended list. No law – rule of court, counsel argued, says so.
I have considered the submissions by the counsel for the appellant. With respect, they are unacceptable. Order 5 rule 6 of the Rivers State High Court (Civil Procedure) Rules, 1987 cited by the counsel provides, inter alia, that:
“…no writ of summons for service out of jurisdiction… shall be issued without leave of court or Judge in chambers.”
Order 23 rule 2 of the Rivers State High Court (Civil Procedure) Rules, 1987 stipulates, in parts, thus:-
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim….
Now, there is no provision in the rules of court or practice for or a distinction between an application to the Judge or court for leave to issue a writ of summons for service on the defendant out of jurisdiction, and an application for leave to issue a writ of summons in respect only of a debt or liquidated money demand, where the party to be served with the writ of summons is outside the jurisdiction of the court issuing the writ. In the absence of any such provision in the rules, a motion, ex parte, for leave to issue a writ of summons for service out of jurisdiction in respect of a debt or liquidated money demand such as the respondent filed on the 14th of June, 1995, in my view, cannot be objectionable and no miscarriage of justice is occasioned thereby. In my view, issue No.3 (supra) is a mere red-herring. It ought to be answered in the negative. I do answer the issue negatively.
In my judgment the appeal lacks any merit. It ought to be dismissed. It is dismissed. I, therefore, affirm the judgment of the court below on the 19/10/95. There shall be costs against the appellant fixed at N5,000.00 in favour of the respondent.
OGEBE, J.C.A.: I read in advance the lead judgment of my learned brother Nsofor, JCA just delivered and I agree entirely with his reasoning and conclusion.
Accordingly, I dismiss the appeal with costs of N5,000.00 in favour of the respondent.
IKONGBEH, J.C.A.: I have read in draft the judgment just delivered by my learned brother Nsofor, JCA. I agree entirely with the reasoning and conclusion reached by him.
I abide by the orders made including the orders as to costs.
Mohammed Fawehinmi, Esq.For Appellant
Prof. S. A. Adesanya, SAN;
W. Kasali, Esq. )For Respondent