THE SHELL PETROLEUM DEVELOPMENT OF NIGERIA LIMITED V. ARHO-JOE NIGERIA LIMITED
In The Court of Appeal of Nigeria
On Thursday, the 7th day of April, 2005
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
THE SHELL PETROLEUM DEVELOPMENT OF NIGERIA LIMITED Appellant(s)
ARHO-JOE NIGERIA LIMITED Respondent(s)
AMINA A. AUGIE, J.C.A. (Delivering the Leading Judgment): The respondent as plaintiff commenced the Suit as per its Writ of Summons, dated 2nd October, 2001, wherein it claimed as follows:-
1. The sum of N97,200,000.00 (Ninety seven million two hundred thousand naira) being monies the defendant is owing the plaintiff, which said debt arose from the supply of 3,600,000 litres of AGO (diesel) to the defendant at Ogunu between the 27th day of August, 2001 and 1st September, 2001 at Ogunu, within the jurisdiction of this Honourable Court. The defendant has failed and or neglected to pay the aforementioned sum of N97,200,000.00- despite plaintiff’s invoice of 1/9/2001 and repeated demands.
2. The plaintiff also claims interest at the rate of 21% per annum.
On the 3rd of October, 2001, the respondent applied to have the case placed on the undefended list, which application was granted same day by Akperi, J. Upon service on it of the relevant processes, the appellant as defendant filed:-
(i) Memorandum of appearance dated 9th October, 2001;
(ii) Notice of intention to defend dated 16th October, 2001;
(iii) Affidavit disclosing a defence, to which was exhibited a statement of defence; and
(iv) A further affidavit disclosing a defence on the merits.
On the return date, 25th October, 2001, learned Counsel on both sides proffered arguments on whether the appellant’s affidavit disclosed a defence to warrant transferring the suit to the general cause list; this was before Akperi, J., who adjourned the case “to 4/12/2001 for authority and argument if necessary”. On the 4th of December, 2001, the case was further “adjourned to 18/12/2001 for ruling”. On the 18th of December, 2001, Akperi, J, said:-
“In view of my movement from jurisdiction, writing a ruling will amount to duplicating things, it is better for the next court to take a stand on it. Case is accordingly adjourned to 14/1/2002 for argument.”
On the 14th of January, 2002, the matter came up before the new Judge, Anigboro, J, and the record of the trial court that day reads as follows:-
“Plaintiff is represented by Joseph Emecho, Managing Director. Defendant is represented by Oisamaye Longe, Legal Officer. Chief E. L. Akpofure SAN (with him F. I. Agboro Esq.) appears for the plaintiff. Chief E. L. Akpofure SAN applies that the motion to defend filed on the 16/10/2001, be struck out because the defendant’s counsel is absent. O. Longe representing the defendant informs the Court that he has no copy of the notice to defend and he cannot move the application. He asks for a date to enable the defendant to move the notice.
Court: The case was adjourned till today, when counsel for both parties were in Court. There is no reason given by O. Longe to persuade me to adjourn the notice to defend filed by the defendant which was adjourned till today for argument. In the circumstances, I accede to the application by Chief E. L. Akpofure SAN that the Notice to Defend filed by the defendant be struck out. The notice to defend filed by the defendant on the 16/10/2001 is hereby struck out for want of diligent prosecution.
Chief E. L. Akpofure SAN applies for Judgment in accordance to Order 23 Rule 4 of the High Court (Civil Procedure) Rules 1988 of Bendel State of Nigeria applicable to Delta State.
Court: The defendant in the circumstances has failed to deliver a notice to defend and the prescribed affidavit. The court is bound by the said Order to give Judgment. The defendant in this case having been duly served with the processes in this case as per the order of this court made on the 3/10/2001, judgment is hereby given for N97, 200,000. 00 being the monies due to the plaintiff from the defendant for the supply of AGO (diesel) as claimed by the plaintiff in the undefended Writ of Summons duly served on the defendant. Defendant shall pay cost of N2,000.00 to the plaintiff for this action”.
Dissatisfied with the above decision, the appellant filed three separate notices of appeal, but now relies on the notice and grounds of appeal dated 10th April, 2002, and filed on the 11th of April, 2002, Having regard to the 6 grounds of appeal filed, the appellant in its brief prepared by C. A. Ajuyah, Esq., submitted that the issues for determination in this appeal are:-
1. Was the learned trial Judge right in striking out the notice of intention to defend the action filed pursuant to Order 23 Rule 3 (1) of the Bendel State High Court (Civil Procedure) Rules, 1988 (hereinafter referred to as the High Court rules) on ground of absence of counsel for the appellant?
2. Was the learned trial Judge right to enter Judgment for the plaintiff without a consideration of the affidavit disclosing a defence on the merit filed under Order 23 Rule 3 of the Rules of Court?
3. Whether in the circumstances of this case, the trial Judge was right to enter Judgment for plaintiff?
In its own brief prepared by Chief E. L. Akpofure (SAN), the respondent adopted the above issues as formulated by the appellant.
The 1st issue relates to Order 23 rule 3 (1) of the High Court Rules, which reads as follows:-
“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”.
It is the appellant’s submission that as the party served with the Writ of Summons with a return date of 25th October, 2001, it timeously filed its notice of intention to defend the Suit on the 16th of October, 2001, and therefore complied with the requirements of the above order. Furthermore, that when the matter came up for hearing on the 14th of January, 2002, the respondent’s counsel applied for the said notice of intention to defend to be struck out because the appellant’s counsel was not in court, and in granting the application, the learned trial Judge ruled as follows:-
“This case was adjourned till today when both counsel for both parties were in court. There is no reason given by O. Longe to persuade me to adjourn the notice to defend filed by defendant which was adjourned till today for argument. In the circumstances, I accede to the application by Chief E. L. Akpofure SAN that the notice to defend filed by the defendant be struck out. The notice to defend filed by the defendant is hereby struck out for want of diligent prosecution”.
It was further submitted that it was wrong of the learned trial Judge to strike out the appellant’s notice of intention to defend for the following reasons:-
1. It is the duty of the learned trial Judge, on the return date, to see whether the notice to defend and an affidavit disclosing a defence has been filed as required by Order 23 rule 3 (1) of the High Court Rules;
2. It was not open to the learned trial Judge to strike out the notice to defence once it was duly delivered to the registrar, citing Ebong v. Ikpe (2002) 17 NWLR (Pt. 797) 504;
3. It is not a mandatory procedure or requirement of the rule that the counsel for the defendant must be present in court and/or deliver argument and since the learned trial Judge had all the processes before him, he was duty bound to consider the notice of intention to defend, citing Cross River Property Development & Investment Co. Ltd. v. Obongha (2000) FWLR (Pt. 54) 353, (2000) 8 NWLR (Pt. 670) 751;
4. The learned trial Judge gave undue consideration to the absence of counsel, and thereby came to the wrong conclusion of striking out the notice of intention to defend and entering Judgment without considering the affidavit disclosing a defence on the merit.
It was however argued for the respondent that Order 23 rule 3 (1) of the High Court Rules gives the trial Judge a discretion, whether or not to grant leave to the defendant to defend the Writ of Summons under the undefended list procedure; that the said provision do not make it mandatory for the trial Judge to look at the notice of intention to defend even when the defendant is absent; that it does not make it mandatory or impose a duty on the trial Judge to argue for the defendant the said notice and the affidavit filed thereto; that the defendant and its counsel are duty bound to appear in court to prosecute its case diligently rather than staying away from court and expecting the trial Judge to argue its said notice and affidavit: that the appellant or its counsel did not exercise due diligence in the prosecution of its case by failing to appear in court on the return date which was fixed for hearing under the undefended list; that the cases of Ebong v. Ikpe (supra) & Cross River P. D. I. C. Ltd. v. Obongha (supra), could be distinguished, from this case because the issue of the discretion of the learned trial Judge was not referred to in those cases and the defendants and counsel were in court to argue the notice and affidavits; and that the principle of Audi Alteram Partem does not apply to cases under the Undefended list, citing Chief B. C. Aglleze v. Pan African Bank (1992) 4 NWLR (Pt 233) 76. Now, a claim under the undefended list is by its very nature an action for a liquidated sum, which is an amount previously agreed on by the parties, or which can be precisely determined or ascertained from their terms of agreement, and it is designed to enable a plaintiff obtain summary Judgment without necessarily proceeding to trial. Simply stated, the undefended list procedure is meant for a quick disposal of cases which by their very nature are virtually uncontested. See Abdulahi v. Buhari (2004) 17 NWLR (Pt. 902) 278; Dala Air Services v. Sudan Airways (2005) 3 NWLR (Pt. 912) 394; Dalko v. U.B.N. Plc. (2004) 4 NWLR (Pt.862) 123, where this Court per Nzeako, J.C.A. pointed out that that the undefended list procedure is:-
“A special procedure, peculiar in its subject and application meant to provide a quick channel for recovery of debts or claims for liquidated demand, yet ensuring and creating an opportunity for fair hearing and doing substantial justice between the parties.”
It is however not as simple as it sounds. There are conditions to be fulfilled and procedures to be followed by all concerned in the process – the plaintiff, the court itself and the defendant. The plaintiff must:-
a) Make an application to the court for the issue of the Writ;
b) Support the application with an affidavit; and
c) State in his affidavit that in his belief the defendant has no defence to the action.
When the plaintiff has fulfilled these conditions, then the court shall:-
a) Satisfy itself that there are good grounds for believing that there is no defence to the claim;
b) Enter the suit for hearing on the “undefended list” and
c) Mark the writ of summons with the words “undefended list” and enter on it a date for hearing as it is suitable in the circumstances of the case.
Where a defendant is served with the said Writ, together with the plaintiff’s affidavit, and he intends to defend the action, he must I fulfill the following:-
a) File a notice in writing, not less than 5 days before the hearing date fixed by the court, that he intends to defend the action.
b) Accompany the notice with an affidavit disclosing a defence on the merit.
When these conditions are fulfilled, the court may grant the defendant leave to defend on such terms as it thinks fit and remove the action from the undefended list to the general cause list, order pleadings if it thinks fit or proceed to hear the case without pleadings – see Dalko V. U.B.N. (supra).
A trial Court, in a matter filed under the undefended list procedure must consider the evidence of both parties filed in support of the Writ of Summons and the Notice of Intention to defend respectively. Even where there is no Notice of Intention to defend, the trial Court still has the obligation to consider whether the Plaintiff has made out his claim in his Affidavit evidence in support of his Writ. See Oloko V. Ube (2004) 17 NWLR (pt. 903) 647; & Abdulahi V. Buhari (supra). In other words, the Plaintiff will not just be given Judgment on a platter of gold – because he asked for it; because the Defendant did not file a Notice of Intention to defend, or even because there was no defence on the merit shown in the Notice that is filed.
As I stated earlier, the object of the undefended list procedure is to shorten the hearing of a Suit where the claim is for a liquidated demand, and it is designed to eliminate the technicalities entailed in a normal hearing in Court.Unfortunately, as Umoren, J.C.A” observed in Haido v. Usman (2004) 3 NWLR (Pt.859) 65, the procedure, which he likened to an unruly horse, has created more problems than it was intended to obviate. The unruliness, he explained, is largely due to the language of the rules, and lawyers bringing in extraneous matters in an attempt to pull wool across the eyes of the Court; and other times it is due to the “hasty attitude of some Judges of the Court below to dispose of a good number of matters before them”.
In this case, the learned trial Judge was clearly being hasty when he struck out the notice of intention to defend because the appellant’s counsel was not in court. What the law says is that where the defendant files his notice of intention to defend and his affidavit disclosing his defence on the merit, it is incumbent upon the trial court to consider it along with the claim and affidavit of the plaintiff and decide whether from the defendant’s affidavit a defence on the merit has been made out. It is not the aim of the undefended list procedure to shut out a defendant, who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice. See U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244; Oloko v. Ube (supra), & Ebong v. Ikpe (supra).
The appellant in this case complied fully with the requirements of Order 23 rule 3 (1) of the High Court Rules applicable in Delta State, and there is no provision therein for the striking out of a defendant’s notice of intention to defend together with the accompanying affidavit disclosing a defence on the merit at any stage of the proceedings under the undefended list procedure – see Ebong v. Ikpe (supra), which does not need to be distinguished from this case, as urged by the respondent, because the issue therein, which is relevant to this appeal, is simply whether a notice of intention to defend and affidavit in support disclosing a defence on the merit can be struck out under the undefended list procedure. What is more, I agree with the appellant that the learned trial Judge was duty bound to consider the notice of intention to defend, and the absence of the appellant’s counsel in court should not have beclouded that duty imposed on him by Order 23 rule 3 (1) of the said Rules.
The principle has been well established that the sins of counsel should not be visited on the litigant. See Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403; NEPA v. Savage (2001) 9 NWLR (Pt.717) 230. In the circumstances of this case, an adjournment would have sufficed. It is true that an adjournment is not granted as a matter of course. However, a court has to strike a medium in determining whether to grant or refuse an application for adjournment, and usually, the deciding factor is the quest for justice; justice for the parties on both sides. If the interest of justice will be better served by granting the application than refusing it, the trial court is obliged to grant it – see Mains Ventures Ltd. v. Petroplast Ind. Ltd. (2000) 4 NWLR (Pt.651) 151. See also, U.T.C. (Nig.) Ltd. v. Pamotei (supra), where Karibi-Whyte, J.S.c., stated as follows at p. 287:-
“It is a well established principle that the duty of the court is to decide the rights of the parties and not to punish them for errors, if any, in the conduct of their case by deciding otherwise than in accordance with their rights. Hence where the defendant has a good defence, and is willing and ready to defend the action, it is clearly inequitable to shut him out by technical rules – The Rules are designed to assist the parties in putting forward their case before the court. They are not intended to deny parties of the opportunity of presenting their case thereby resulting in injustice”. (Italics mine)
In resolving the above issue in favour of the appellant, I have also touched on the second issue for determination. Obviously, it was wrong of the learned trial Judge to enter Judgment for the respondent without a consideration of the appellant’s affidavit disclosing a defence on the merit. The issue now is whether this court can validly interfere with the Judgment. The appellant argues in the affirmative, citing the following authorities – Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Nkado v. Obiano (1997) 5 NWLR (Pt.503) 31; Ansha v. State (1998) 2 NWLR (Pt.537) 246; Eastern Plastics Ltd. v. Synco W. A. Ltd. (1999) 1 NWLR (Pt.587) 456, where this court, per Salami, J.C.A., observed as follows:-
“The failure of the learned trial Judge to consider the grounds disclosed in the affidavit supporting the notice of intention to defend is prejudicial to the appellant who has thereby been denied its right to fair trial. In the circumstance, this court will interfere with the Judgment.” (Italics mine)
In this case, the learned trial Judge struck out the appellant’s notice to defend for want of diligent prosecution, and in another breath held:-
“The defendant in the circumstances has failed to deliver a notice to defend and the prescribed affidavit. The court is bound by the said Order to give Judgment. The defendant in this case having been duly served with the processes in this case as per the order of this court made on the 3/10/2001, judgment is hereby given for N97,200,000.00 being the monies due to the plaintiff from the defendant for the supply of AGO (diesel) as claimed by the plaintiff in the undefended writ of summons duly served on the defendant”.
As I pointed out earlier, it is the duty of the trial court to maintain an even balance in the consideration of the affidavits filed by the parties respectively, in order to arrive at a just decision – see Abdulahi v. Buhari (supra) & Brifina Ltd. V. InterContinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540, where the court held that in an action on the undefended list, there is a duty on the court to apprise itself of the plaintiff’s claims and be satisfied that, prima facie, it is non-contentious in the sense that from the plaintiff’s verifying affidavit, there is evidence of admission of the claims by the defendant as a justification for dispensing with a trial of the action on the merits. The learned trial Judge clearly failed in his duty to do just that.
He was of the erroneous view that he was bound in the circumstances to give Judgment to the respondent, which he did and thereby failed to do justice in this case. What is even more absurd is that the same learned trial Judge who acceded to learned senior counsel for the respondent’s application and struck out the appellant’s notice and affidavit because its counsel was absent from court, turned round to give judgment to the respondent because the appellant “failed to deliver a notice to defend and the prescribed affidavit”. Certainly, this court will interfere with the said Judgment.
The point has been made that the notice of intention to defend must be accompanied by an affidavit. I must add that, it is the affidavit that discharges the burden imposed on the defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster the proceedings. He must show that there is dispute between the parties – see A. C. B. Ltd. v. Gwagwada (1994) 4 SCNJ (Pt. 11) 268; (1994) 5 NWLR (Pt. 342) 25. The grounds of his defence must satisfy the court that there is a triable issue, and a “triable issue or defence on the merit” is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the affidavit throws some doubt on the plaintiffs claim. In other words, a complete defence need not be shown, it will suffice if the defence set up shows that there is a triable issue or question, or that for some reason there ought to be a trial. See Haido V. Usman (supra); Dala Air Services v. Sudan Airways (supra); Ebong v. Ikpe (supra), where this Court held:-
“It is not the duty of the court at the stage of considering whether the defendant has a defence under the undefended list procedure to consider whether the defence will ultimately succeed as all that is needed at that stage is to determine whether a good defence has been disclosed in the defendant’s affidavit in support of his notice of intention to defend. Again, the appellant’s affidavit disclosing his defence on the merit should not provide a cast-iron or an air-tight defence or disclose a defence beyond reasonable doubt before the suit could be transferred to the general cause list for hearing. It is now a well established principle that when a court is proceeding under the undefended list, it is desirable that the court must call into play a measure of liberality when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed”.
In this case, the respondent averred as follows in paragraphs 3-5 of its affidavit in support of the application for the issue of the Writ:-
(3) That sometimes on the 27th of August 2001, the defendant issued the plaintiff/applicant with an LPO with number SSW-SUP/01/08/125 to supply her with 3,600,000 (Three million, six hundred thousand) litres of AGO Diesel. Attached and marked as exhibit ‘A’ is a copy of the LPO.
(4) That consequently, the plaintiff/applicant commenced supply of the said 3,600,000 (Three milion, six hundred thousand) litres of AGO Diesel on 27/8/01 and ended on 1/9/2001. All supplies were duly received at Ogunu by Omede A., and Apakhmhe B. I. Attached and marked as exhibit ‘B’ is a copy of the diesel receipt form.
(5) That Mr. A. Omede and B. I. Apakhmhe on the court applicant waybill No. 010 made to the defendant with the LPO number quoted on it. Attached and marked as exhibit ‘C’ is a copy of the waybill.
In the Appellant’s affidavit, the deponent, Benjamin Apakhumhe, denied the above averments, and further averred as follows in paragraph 17 (a) -(d)-
a) The document marked as exhibit B has been altered by putting “,” – commas – between the figures 3 and 6 and by putting an additional figure “0” – Zero – which were not on the exhibit at all material times between when it was submitted to defendant and when the plaintiff’s managing director collected it 12/9/2001.
b) The document marked as exhibit C has been altered by putting – commas – between the figures 3 and 6; by putting an additional figure “0” – Zero – to the “0,000”; stating in words “Three Million, Six Hundred Thousand” which were not on the exhibit at all material times between when it was submitted to defendant and when the plaintiff’s managing director collected it 12/9/2001.
c) The document marked as exhibit D was not document submitted to me by the plaintiff. The invoice that was submitted to me and which I was to process states that 360,000 litres of AGO was supplied and the price indicated on that invoice was N9,720, 000.00 and not “3,600,000 Three Million, Six Hundred Thousand” for a price at N97,200,000.00 as now claimed by plaintiff.
d) Exhibits B and C were altered by the plaintiff after the defendant’s officers had signed them acknowledging receipt for 360,000 litres of AGO.
It is obvious from the foregoing that the Appellant’s defence in its “Affidavit disclosing a defence to the Suit of the Plaintiff” is that the Respondent’s claim that it supplied 3,600,000 litres of diesel is based on fraud and forgery. These are very serious allegations indeed, involving a huge sum of money.
Clearly, the learned trial Judge should have been more careful, and should not have been so hasty to strike out the Appellant’s Notice and Affidavit, and rush, as it were, to give Judgment to the Respondent. At the end of the day, he only succeeded in giving Judgment in the sum of N97,200,000.00 to the Respondent on a platter of gold, which they got by merely standing up in Court and asking for it. Justice and all that it connotes is a very serious business and should not be seen to be toyed with lightly. Apart from the fact that the learned trial Judge was not bound in any way to give Judgment that day and to the Respondent in particular, the amount of money involved in the claim and the serious allegation of fraud and forgery raised in the Appellant’s Affidavit should have. elicited an apprehension in him to tread with care. Undoubtedly, this is not a proper case to be heard under the undefended list.
In the final analysis, I have no hesitation whatsoever in allowing this appeal and it is hereby allowed. The Judgment entered in favour of the Respondent in the sum of N97,200, 000.00 on the 14th day of January 2002 by Anigboro, J., is hereby set aside. In its stead, the Suit filed by the Respondent as Plaintiff is hereby transferred to the general cause list to be tried by another Judge other than Anigboro. J. There will be N5,000 costs to Appellant
RABIU DANLAMI MUHAMMAD J.C.A.: I have read before now the judgment just delivered by my Lord Augie, J.C.A. She has exhaustively dealt with all the issues raised in this appeal and I am in complete agreement with her reasonings and conclusion. The appeal clearly has merit and it must succeed. I too allow the appeal and abide by the consequential orders made in the leading judgment including the order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read before now the judgment just delivered by my learned brother, Augie, JCA. I agree entirely with the reasons and conclusion therein.
It would appear that the Court below misinterpreted and ipso facto misapplied Ord. 23 rule 3(1) of the Bendel State High Court (Civil Procedure) Rules 1988 applicable in Edo State in its hasty disposal of the case.
The appellant was required by the said rule to deliver and he did deliver to the Registrar within the stipulated time a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit.
There was no motion before the Court as to require Counsel for the appellant to move same. In my humble view, the procedure is for the Court to consider the facts averred in the affidavit filed with the notice of intention to defend as well as the claim endorsed on the writ and the Plaintiff’s affidavit in which he deposed that the appellant has, to his belief, no defence to the suit. Neither the plaintiff nor the defendant is obliged to address the Court in its determination whether or not to grant the defendant leave to defend.
See U.A.C Ltd v. Anglo canredion Cement Ltd (1966) NMLR 349 at 350.
I think the Court was of the view that it needed the address of Counsel to deal with the appellant’s notice of intention to defend the suit when all that was necessary was a consideration of the materials already before it. What was before the Court was a notice of intention to defend and the Court is not required to take address in order to give or deny the defendant leave to defend. The notice is not the same thing as a motion that has to be moved before it can be granted or denied.
The Court below resorted to a mechanical response to the processes before it, before erroneously stricking out the appellant’s notice and affidavit only to turn round to say that “the defendant in the circumstances has failed to deliver a notice to defend and the prescribed affidavit”, thus occasioning a grave miscarriage of justice.
For the above and the detailed reasons in the lead judgment, I also allow the appeal. I adopt the orders including the order as to costs in the lead judgment.
- A. Ajuyah, Esq.For Appellant
- O. Akpobasa, Esq.For Respondent