THEOBROS AUTO-LINK NIG. LTD. V. BAKELY INTERNATIONAL AUTO ENGINEERING CO. LTD.
(2012)LCN/5329(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/C/182/2010
RATIO
“Also in the award of cost, it is solely at the discretion of the trial court. The court would definitely look at the cost incurred in the prosecution of any action and award cost accordingly. This award which is at the discretion of the court must be done judiciously and judicially.” Per NDUKWE-ANYANWU, J.C.A.
“The award of 5% interest post judgment is provided for under 040 R 7 of the High Court (civil procedure) Rules 1989 Akwa Ibom State. The Rule is that a court has no jurisdiction to award interest when it is determining a claim under the Undefended List procedure. See Ekerete v. UBA Plc (supra), Galadima v. Tambai (supra). However, the various states rules of court have provided for the award of post judgment interest not more than 10% FBN Ltd. v. Moba Farms Ltd (2005) pt 928 page 492.” Per NDUKWE-ANYANWU, J.C.A.
“It is also trite that the question of jurisdiction can be raised at anytime even for the first time on appeal. Ukwu v. Bunge (1997) 8 NWLR pt.518 pg. 527; Jemic Nig. Ltd. v. UBN Plc. (2000) 12 SC pt. 11 pg. 153; A.G. Lagos State V. Dosunmu (1989) 5 NWLR pt. 111 pg. 552; Nnonye v. Anyichie (2005) 2 NWLR Pt.910 pg. 623. Territorial jurisdiction of a trial court is relevant for the validity of any proceedings before a court. Wuyep v. Wuyep (1997) 10 NWLR Pt. 525 pg. 154. In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. Gafar V. Govt. of Kwara State (2007) 4 NWLR pt. 1024 pg. 375; Onuorah v. KRPC (2005) 6 NWLR Pt. 921 pg. 398; Tukur v. Govt. of Gongola State (1989) 4 NWLR Pt. 117 pg. 517.” Per NDUKWE-ANYANWU, J.C.A.
“There is distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a court and jurisdiction in relation to the jurisdiction as it relates to the jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue as aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of court of the various states of the Federation. But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one state but brought in another, the criteria is different. In such a case, the court has no jurisdiction and it cannot be conferred by agreement or consent of the parties”. I-K. Martins (Nig) Ltd vs. University Press Ltd (1992) 1 NWLR (Pt.212) pg.322 it was held that ?where no place for payment is specified by a contract it is the duty of the debtor to seek the creditor in order to pay him at his place of business or residence. See also the cases of National Bank Ltd. v. Shoyeye (1977)5 SC 181; Abia State Transport Corporation v. Quorum Consortium Ltd. (2004)1 NWLR pt.855 pg. 601.” Per NDUKWE-ANYANWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
THEOBROS AUTO-LINK NIG. LTD. Appellant(s)
AND
BAKELY INTERNATIONAL AUTO ENGINEERING CO. LTD. Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A, (Delivering the Leading Judgment): The Appellant and the Respondent entered into a contract for the Respondent to supply the Appellant with motor spare parts. The Respondent has her head office in Uyo whilst the Appellant has his head office in Aba. The Respondent supplied the Appellant with the spare part at a cost of N1.2m. The Appellant received the parts and made a full payment of N1.2m vide a Zenith Bank cheque of 20th September, 2005. This cheque was returned unpaid for lack of funds. The Respondent’s bank UBA also surcharged him with a sum of N210.00.
After several entreaties, the Appellant paid instalmentally a total of N550, 000.00 only and refused paying any further sums. The Respondent thereafter wrote the Appellant through his counsel demanding the payment of N650, 000.00 balance remaining from the transaction. Two letters were indeed written and dispatched to the appellant by courier. On receipt of these letters, the Appellant replied alleging that the parts delivered were inferior and thereafter refused to pay any further sums.
The Respondent as plaintiff took out a writ under the undefended List procedure. The Appellant as Defendant filed an intention to defend together with his affidavit. The trial Judge held that, the Defendant/Respondent did not disclose any defence on the merit and therefore set a date for hearing.
The trial Judge held in his judgment delivered on 5th July, 2006:
“The judgment be and is hereby entered in the sum of N650, 000.00 in favour of the plaintiff against the Defendant being the balance of the cost of Motor Parts (Mack clutch Assembly) supplied by the plaintiff to the Defendant. That the judgment sum shall attract interest at the rate of 5% per annum from today’s date until it is fully liquidated. That cost of this action is assessed at the sum of N10, 000.00 in favour of the plaintiff against the defendant.”
Being dissatisfied, the Defendant/Appellant filed his notice and 3 grounds of appeal. The Appellant filed his Appellant’s brief on 14th December, 2010 and articulated 3 issues for determination as follows:
“(i) Whether upon a calm view of the affidavits, Reply and Further affidavits of both the Respondent and the Appellant, the High Court jurisdiction to entertain the suit in the first place without first calling for oral evidence to determine the bona fide of the parties.
(ii) Whether upon a calm view of the affidavit, counter affidavit, Reply to counter affidavit and further affidavit of both the Respondent and the Appellant, the High Court below was right to have Placed the suit under the undefended List instead of the general cause list in order to give both the Appellant and the Respondent the opportunity to be heard and be cross-examined to meet with the justice of the case.
(iii) Whether the judgment of the High Court below represents a dispassionate and full consideration of the issues raised by the Appellant before that court and fully made in the Appellant’s Brief vide affidavit, and further affidavit.”
Also filed is the Appellant’s Reply brief on 27th May, 2011.
The Respondent also filed his brief on 02/02/2011 but deemed properly filed and served on 17th May, 2011. In his brief, the Respondent articulated his own 3 issues namely:
“i. Whether the learned trial judge had jurisdiction to entertain the suit of the plaintiff?
ii. Whether the defendant/appellant had properly raised a case of forgery for consideration by the trial Court?
iii. Whether the learned trial judge was proper in awarding cost of N10, 000.00 and interest of 5% per annum in favour of the plaintiff against the appellant?”
The Appellants issues are very inelegant but what I can decipher to be the real issues in this appellant?
(1) Whether the High Court Akwa Ibom State had jurisdiction to hear this suit.
(2) Whether the court was right to have placed this suit under the undefended List procedure with the allegation of forgery.
(3) Whether the judgment and the reliefs granted are within the courts jurisdiction.
ISSUE 1
The Appellant in his brief argued that the contract to supply him the Mack Truck Clutch Assembly Exh. A was concluded in Aba Abia State and as such the suit should have been instituted in Aba, Abia State. Also the Defendant/Appellant carries out business in Aba, Abia State.
In response the learned counsel for the Respondent submitted that S. 251 of the 1999 constitution of the Federal Republic of Nigeria gave the court jurisdiction to hear and determine suits that occur within their territorial jurisdiction. The Respondent’s counsel submitted that the Respondent’s claim is for the recovery of a liquidated sum of N650, 000.00 being the outstanding balance for the cost of goods supplied by the Respondent to the Appellant in 2005. Learned Counsel to the Respondent referred the court to paragraphs 6, 7 and 8 of the Respondent’s affidavit as follows:
“6 That sometime in September 2005 the defendant …. Approached the Plaintiff’s Chief Executive … at the plaintiff’s head office at No. 203 Ikot Ekpene Road, Uyo and requested the plaintiff to supply to the defendant Mack Truck clutch Assembly (motor parts)…
7. That the defendant inspected the said, motor part and having being satisfied with its quality and condition agreed to purchase same at a total cost of N1, 200,000.00.
8. That the plaintiff supplied the said motor part to the defendant who took delivery in good condition and transported same to her office at Aba.
From the above the trial Judge held as follows:
“The Defendant insists that Abia State is the proper jurisdiction/venue. The law is that it is the Plaintiff’s claim that determines jurisdiction. In that respect, it is clear from paragraphs 6 and 7 of the affidavit in support of the Motion Exparte that the Plaintiff says the contract; the subject matter of this suit was concluded, executed and performed in Uyo, Akwa Ibom State. That being so, the proper jurisdiction is Uyo, Akwa Ibom State”.
Counsel referred the court to 010 R 3 Akwa Ibom State High court (civil Procedure) Rules 1980 which provides that
“Suits arising from breach of contract shall be commenced and determined in the judicial Division in which the contract was entered into or ought to have been performed or in which the Defendant resides or carries on business.
Counsel submits that under S.22 (1) of the High Court Law Akwa Ibom State that the suit-is no longer a breach of contract perse put one for recovery of a debt. See River State Govt. of Nig. vs. Specialist Konsult (2005) 21 NSCQR page 612.
Counsel referred the court to the distinction between judicial division and geographical venue enunciated by Nzeako JCA in International Niger build Construction Co. Ltd. V. Giwa (2003) 13 NWLR pt 836 page 69.
It was held:
“The test of where the defendant reside, applied by counsel in his argument to show that jurisdiction ties in the Lagos High Court, applies when the matter in controversy is the issue of judicial division to bring a suit, this is a different issue from the wider issue of territorial or geographical venue or jurisdiction which is their bone of contention under this issue in this appeal. There is distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a court and jurisdiction in relation to the jurisdiction as it relates to the jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue as aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of court of the various states of the Federation. But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one state but brought in another, the criteria is different. In such a case, the court has no jurisdiction and it cannot be conferred by agreement or consent of the parties”.
I-K. Martins (Nig) Ltd vs. University Press Ltd (1992) 1 NWLR (Pt.212) pg.322 it was held that “where no place for payment is specified by a contract it is the duty of the debtor to seek the creditor in order to pay him at his place of business or residence. See also the cases of National Bank Ltd. v. Shoyeye (1977)5 SC 181; Abia State Transport Corporation v. Quorum Consortium Ltd. (2004)1 NWLR pt.855 pg. 601.
Counsel submitted finally that the contract was entered into, performed and or executed to completion at Uyo Akwa Ibom State. Counsel urges the court to hold that Akwa Ibom State High Court has jurisdiction to entertain this suit.
The question of jurisdiction is very fundamental that, it should be dealt with first before continuing with any proceedings. If a court proceeds without jurisdiction it would amount to a nullity.
It is also trite that the question of jurisdiction can be raised at anytime even for the first time on appeal. Ukwu v. Bunge (1997) 8 NWLR pt.518 pg. 527; Jemic Nig. Ltd. v. UBN Plc. (2000) 12 SC pt. 11 pg. 153; A.G. Lagos State V. Dosunmu (1989) 5 NWLR pt. 111 pg. 552; Nnonye v. Anyichie (2005) 2 NWLR Pt.910 pg. 623.
Territorial jurisdiction of a trial court is relevant for the validity of any proceedings before a court. Wuyep v. Wuyep (1997) 10 NWLR Pt. 525 pg. 154.
In considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it, by critically looking at the writ of summons and the statement of claim. Gafar V. Govt. of Kwara State (2007) 4 NWLR pt. 1024 pg. 375; Onuorah v. KRPC (2005) 6 NWLR Pt. 921 pg. 398; Tukur v. Govt. of Gongola State (1989) 4 NWLR Pt. 117 pg. 517.
In the instant appeal, the writ in the trial court was brought Under the Undefended List procedure, therefore the court has to critically look at the writ and the affidavit of the plaintiff. The plaintiff/Respondent in his affidavit deposed as follows:
“3. That the plaintiff is a private limited liability company established under the Laws of the Federal Republic of Nigeria with its business headquarters at No. 203 Ikot Ekpene Road, Uyo, Akwa Ibom State.
4. That the plaintiff/applicant deals on automobile products such as trucks and car9 including the sales and supply of motor spare parts.
5. That the Defendant/Respondent is a private limited liability company established under the Laws of the Federal Republic of Nigeria with administrative head office at No.77 Azikwe Road, Aba, Abia State and branch office at, Plot 499, Port Harcourt Road, Aba in Abia State of Nigeria. She carries out: the business of supply of motor vehicle spares Parts and general contract, among others.
6. That sometime in September, 2006 the defendant through her chairman/Managing Director, one Mr. T.C. Umemadumelu, approached the plaintiff’s Chief Executive, Mr. Michael Effiong at the plaintiff’s head office at, No.203 Ikot Ekpene Road, Uyo and requested the plaintiff to supply to the defendant Mack Truck Clutch Assembly (motor parts). Exhibit “A” hereto is the complimentary card given by the defendant’s Chairman to the plaintiff.
7. That the defendant inspected the said motor part and having been satisfied with its quality and condition agreed to purchase same at, a total cost of N1, 200,000.00 (One million, two hundred thousand naira).
8. The Plaintiff supplied the said motor part to the defendant who tool delivery in good condition and transported same to her office at Aba.
9. That upon taking delivery of the said motor part the said Chairman of the defendant told the said plaintiff’s chief Executive to send somebody to follow him to Aba to collect the said sum of N1.2 million which was the agreed cost of the part.
10. That following paragraph 9 above, the said Chief Executive of the plaintiff mandated me to follow the defendant’s Chairman to Aha to collect the said sum of N1.2 million and I did.”
The above paragraphs described the plaintiff/Respondent and his address, the defendant/Appellant and address and then the value of the contract. Order 10 rule 3 Akwa Ibom State High court (Civil Procedure) Rules, 1989 provides that suits arising from breach of contract shall be commenced and determined in the Judicial Division in which the contract was entered into or ought to have been performed or in which the defendant resides or carries on business.
In the instant case, the Respondent stated that, the contract of sale of the Mack clutch was entered into in Uyo Akwa Ibom State. The plaintiff took delivery of the spare parts and took it to Aba. The Appellant asked that the Respondent should send one of his employees with him to Aba to collect the money with the foregoing no one is in doubt where the transaction took place. If the contract was entered into in Uyo by the Appellant and Respondent, it therefore means that Akwa Ibom state High court had jurisdiction to hear and determine this liquidated money demand. Issue 1 is therefore resolved against the Appellant.
ISSUE 2:
The Appellant submitted that the trial Judge was wrong to have placed this suit under the undefended List procedure. Learned counsel for the Appellant submitted that there was conflict in the affidavits of both parties, and only oral evidence can resolve it and therefore the suit should be transferred to the general cause list. Where a defendant has shown in his affidavit that he has a defence on the merit, he will be granted leave to defend the suit. Counsel therefore urges the court to hold that this suit ought to have been transferred to the general cause list.
In Reply, the learned counsel to the Respondent submitted that the allegation of fraud made against the Respondent cannot stand.
This is so because the fraud must be on matters relevant to the case set up by the Plaintiff. See the cases of Okoti v. Morecab Finance Nig Ltd (2007) 30 NSCQR pt. 1 page 453, John Holt (Liverpool) Ltd vs. Fajemirokun (1961) ANLR (Reprint) page 513. Counsel argued that Exhibit D the sales invoice allegedly forged is of no moment. The Appellant has not denied his indebtedness but alleged that Exhibit D the sales invoice was forged. Having admitted his indebtedness there was nothing left to contest.
Counsel urged the court to hold that the trial court was right to hear and determine this suit under, the Undefended List Procedure.
The undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A suit is maintainable under the Undefended List Procedure if it relates to a claim for a debt or liquidated money demand. This procedure when adopted shortens the hearing of the suit SBN Plc V. Kyentu (1998) 2 NWLR pt 530 page 41, Garba V. Sheba Int. (Nig) Ltd (2002) 1 NWLR pt 748 page 372, Haido V. Usman (2004) 3 NWLR pt 859 page 65.
A defendant, who intends to defend an action brought under the Undefended List Procedure, must file a notice of his intention to defend the suit with an affidavit disclosing a defence on the merit. Haido v. Usman (supra). After this it is left for the trial court to determine whether the defendant’s affidavit discloses a defence or not. Where the court holds that the Defendant has a defence, the suit is transferred to the General Cause List. Ebong v. Ikpe (2002) 17 NWLR pt 859 page 65. Where the defendant fails to disclose a defence on the merit, the trial court will set the suit down for hearing under the Undefended List procedure. On the return date for hearing, the trial court would proceed to enter judgment without calling on the defendant even if present in court, to answer or be heard. Haido v. Usman (supra). It is trite that in exercising its discretion whether to place a Suit under the undefended List Procedure a court must make a definite finding that the defendant has not disclosed a defence on the merit. This is a condition precedent to the validity of any trial under the Undefended List Procedure Kabiru v. Ibrahim (2004) 2 NWLR pt.857 page 326.
The trial court made a specific finding that the Defendant/Appellant had no defence to the claim of the Respondent. The Appellant did not deny that he was indebted to the Respondent for a balance of N650, 000.00.
A defendant who is indebted to a plaintiff and has no defence on the merit would be stopped from delaying to pay his indebtedness. See the case of Okoli vs. Morecab Finance (Nig) Ltd. (supra) where Onu JSC held:
“I cannot but agree with and in effect, solemnly affirm and ratify the decision of the Court of Appeal. This is because the courts have, over the years, treated allegations in affidavits in defendants, Notices of Intention to Defend with circumspection, to the effect that … a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and his indebtedness”.
The Appellant has no defence on the merit and would not he allowed to continue in his indebtedness. The trial Judge was right in placing this suit under the undefended List procedure. Issue 2 is therefore resolved against the Appellant.
ISSUE 3
The Appellant had argued that the trial Judge acted without jurisdiction when he awarded N10, 000.00 costs in favour of the Respondent and 5% interest on judgment debt. He argued further that the rule is that a court has no jurisdiction to award interest when it is determining a claim under the undefended List procedure. Counsel argued that the procedure is for speedy dispensation of justice for a liquidated money demand. Where a court intends to consider, the issue of interest the proper thing to do is to transfer the suit to the general cause list. See Ekerete v. UBA Plc. (2005) 9 NWLR pt 950 page 401, Galadima v. Tambai (1994)8 NWLR pt 565 Page 742.
Counsel finally urges the court to resolve this issue on behalf of the Appellant.
The Respondents counsel submitted that the principle governing costs was succinctly stated in the case of coomassie vs. Tell communication Ltd (2003) 1 NWLR pt 802 page 551.
“The law is that costs usually follow event and are at, the discretion of the court. Costs should not be awarded as a means of punishing a loosing party. Also, an Appeal Court must not interfere with the discretion of the trial court on the award of cost unless it is shown that the discretion was not properly, judiciously and judicially exercised. The object of awarding cost is to compensate the successful litigant of his expenses”.
Counsel to the Respondent submitted that the N10, 000.00 awarded by the trial court was a consequential order flowing from the judgment. The cost was awarded to the Respondent for the expenses incurred in the prosecution of his case.
Learned counsel submitted that the 5% interest on the judgment sum was awarded with jurisdiction. Counsel referred the court to 040 R 7 of the High Court (civil procedure) Rules 1989 of Akwa Ibom State which provides as follows:
“At the time of making any judgment or order may order interest at a rate not exceeding ten naira per centun per anum to be paid upon judgment, commencing from the date thereof or afterwards as the case may be.
See Idakula v. Richard (2000) FWLR pt 14 pape 2439” where the Court of Appeal held that post-judgment interest otherwise called “Discretionary Interest” provided for in the rules of court can be awarded to a successful litigant at the end of the trial at the rate fixed by the rules.
Learned counsel for the Respondent urges the court to hold that 5% interest in favour of the Respondent was in order.
The award of 5% interest post judgment is provided for under 040 R 7 of the High Court (civil procedure) Rules 1989 Akwa Ibom State. The Rule is that a court has no jurisdiction to award interest when it is determining a claim under the Undefended List procedure. See Ekerete v. UBA Plc (supra), Galadima v. Tambai (supra). However, the various states rules of court have provided for the award of post judgment interest not more than 10% FBN Ltd. v. Moba Farms Ltd (2005) pt 928 page 492. The trial Judge was within his jurisdiction when he awarded only 5% Interest. The trial Judge exercised his discretion judiciously and judicially therefore this court cannot question it.
Also in the award of cost, it is solely at the discretion of the trial court. The court would definitely look at the cost incurred in the prosecution of any action and award cost accordingly. This award which is at the discretion of the court must be done judiciously and judicially.
In the instant case, the exercise of discretion by the trial Judge cannot be faulted and I so hold.
The third issue is also resolved against the appellant in favour of the Respondent. All the three issues have been resolved against the Appellant.
This appeal is therefore unmeritorious and is hereby dismissed.
The Judgment of the trial court is affirmed. The judgment entered in the sum of N650, 000.00 is hereby affirmed. Interest rate of 5% per annum to be paid by the Appellant from the 5th July, 2000 until the debt is fully liquidated. Cost of N10, 000.00 awarded to the Respondent is also affirmed.
In addition the Appellant is to pay N50, 000.00 cost of this appeal to the Respondent.
MOHAMMED LAWAL GARBA, J.C.A: I have read a draft of the lead judgment delivered by my learned brother, Ndukwe-Anyanwu, JCA, in this appeal before today. All the. views expressed and conclusions reached on the germane issues that call for decision in the appeal, as contained in the lead judgment are the same with mine.
I agree with all the terms of the lead judgment and do not wish to say more.
ISAIAH OLUFEMI AKEJU, J.C.A: I have had the opportunity of reading in advance the lead judgment of my learned brother, Uzo I. Ndukwe-Anyanwu JCA just delivered. I agree that the appeal is unmeritorious and it is dismissed by me. I abide by the consequential orders in the lead judgment, as well as the award of costs of N50, 000.00 in favour of the Respondent.
Appearances
EBERE UZOATU ESQ.For Appellant
AND
DASIL AKPAN, ESQ.For Respondent
