TRIPOD HOLDINGS LTD & ANOR v. POLARIS BANK LTD
(2020)LCN/15605(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Tuesday, December 29, 2020
CA/L/09/2005
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. TRIPOD HOLDINGS LIMITED 2. MR. PIUS AKPAIBOR APPELANT(S)
And
POLARIS BANK LIMITED RESPONDENT(S)
RATIO:
EXERCISE OF DISCRETION BY THE TRIAL COURT.
Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity. See Anyah v. A.N.N. Ltd [1992] 6 NWLR (pt.247) 319; University of Lagos v. Aigoro (supra); Niger Construction Ltd v. Okugbeni [1987] 4 NWLR (pt. 67) 787; 7-up Bottling Company Ltd v. Abiola and Sons Ltd [1995] 3 NWLR (pt. 383) 257,285; University of Lagos v. Olaniyan [1985] 1 NWLR (pt. 1) 156. EBIOWEI TOBI, J.C.A.
GRANTING OF ADJOURNMENT IS AT THE DISCRETION OF THE JUDGE.
In Ibrahim & Ors vs. Yusuf (2016) LPELR-40259 (CA), this Court held thus: “The law is trite, the granting of an adjournment is at the discretion of the Judge. Adjournments are not just granted for the asking of it. There must be cogent and reasonable materials placed before it to enable it exercise its discretion in favour of the application or not. ”EBIOWEI TOBI,J.C.A.S
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice O.A. Ipaye (Mrs.) of the Lagos State High Court in Suit No. LD/772/2003 – Afribank International Limited (Merchant Bankers) vs. Tripod Holdings Limited & Anor delivered on 16/7/2003. The claim of the Respondent as Claimant in the lower Court was for;
1. The sum of N23,705,173.33 (Twenty Three Million Seven Hundred and Five Thousand One Hundred Seventy three naira Thirty three Kobo) being balance of their indebtedness to the plaintiff as at February 28, 2003 arising out of a short term loan facility granted to the Defendant by the Plaintiff on December, 16 1996.
2. Interest on the said judgment debt at the agreed rate of 21% per annum from February 28, 2003 until judgment and thereafter at the same rate until full liquidation
3. An order of Court appointing Messrs Diya Fatimilehin & Co registered estate surveyor to sell unexpired term of the sublease of the property situate at Plot 93 Yunnis Bashorun Street, Victoria Island, Lagos in part satisfaction of the debt of N23,705,172.33 (Twenty three Million Seven Hundred and Five Thousand One Hundred Seventy Three Naira Thirty three kobo) and accrued interests owed by the Defendants.
4. N500,000.00 being the cost of this action.
The facts of the case upon which this appeal is based are not complicated at all. It is simple. The Appellants here were the Defendants at the lower Court while the Respondent was the Claimant. The 1st Appellant took a short term loan from the Respondent for the sum of N7,500,000 to re-finance the purchase of an 18 years lease that was outstanding on a property known as Plot 93 Younis Bashorun Street from Rims Securities Ltd. The 2nd Appellant was the sub lessor to the property. The 1st Appellant accepted the offer and took the facility. The security for the facility included irrevocable Power of Attorney executed by Rim Securities Ltd in favour of the Respondent, undertaken by 1st Appellant to the Respondent to execute a legal mortgage and a tripartite deed of legal mortgage of the property between the 1st Appellant, Rim Securities and the Respondent. The 1st Appellant could not pay back the facility, the capital and the interest came to N23,705.173.33 as at 28/2/2003. The Respondent believing this to be a case for the undefended list and not the general cause list decided to apply the procedure under Order 60 of the High of Lagos State (Civil Procedure) Rules. This provision makes room for procedure to fast track litigation for the matters on liquidated monetary demand which the Claimant therein believes that the Defendant has no defence. This is similar to Order 11 of the Lagos State High Court (Civil Procedure) Rules 2012. The Respondent obtained the ex-parte order to issue its writ of summons against the Appellants and have same entered for hearing in the undefended list. This order was obtained on the 8/4/2003 (pages 54-55 of the records). The order and the writ so marked were served on the Appellants on 30/4/2003. The Appellants on 20/5/2003 entered appearance (page 56 of the records). The return date was 22/5/2003. This was barely 2 days after the Appellant entered appearance. The Appellant were represented by counsel I.O. Ehizade whose main purpose in Court was to seek for adjournment. The lower Court refused the adjournment and the Respondent’s counsel urged Court to grant the prayers sought in the action commenced by undefended list.
The matter was adjourned to 16/7/2003 for judgment. On 16/7/2003, the Appellants (then Defendants) were represented by counsel who is the same counsel for the Appellants in this appeal. Counsel of the Appellant on that day asked for adjournment to enable him fie his processes. This was objected to by the Respondent’s counsel and the lower Court refused the adjournment and went on to deliver the judgment on the same day. All these proceedings are found on pages 79-83 of the records. In the judgment delivered on 16/7/2003 found on pages 86-92 of the records, the lower Court gave judgment to the Respondent (Claimant in the lower Court) along the lines of the prayers as contained in the writ. The lower Court on pages 6-7 of the judgment found on pages 91-92 of the records, held as follows:
“For all the reasons adumbrated in the preceding portion; final judgment is hereby entered for the Plaintiff against the Defendants jointly and severally in the sum of N23,705,173.33 being balance of their indebtedness to the plaintiff as at 28 February, 2003 arising out of a short term loan facility granted to the Defendants by the Plaintiff on 16th December, 1996. Interest on the said judgment debt at the agreed rate of 21% per annum from 28th February, 2003 until day of judgment being 16th day of July, 2003 and thereafter at the rate of 71/2% per annum until full liquidation of the debt.
The Court appoints Messrs Diya Fatimilehim & Co., Registered Estate surveyor and valuer to sell the unexpired term of the sub-lese of the property situate at plot 93, Yunnis Bashorun Street, Victoria Island, Lagos in part satisfaction of the debt of N23,705,173.33 and accrued interest owed by the Defendant, as per the writ of summon….”
The Appellants dissatisfied with the judgment filed the notice of appeal found on pages 93-95 of the records containing 4 grounds to wit:
1. The learned trial judge grossly erred in law when he assumed jurisdiction to hear the Respondents application for judgment in total disregard of Order 60 Rule 3(1) of the Lagos State High Court Civil Procedure Rules 1994.
2. The learned trial judge grossly erred in law when he assumed jurisdiction to hear the suit without considering whether he had jurisdiction over the 2nd Defendant who was not a party to the contract or transaction and the subject matter and without looking into the claim of the Plaintiff/Respondent to ascertain if any case had been made or properly made against all the parties against whom judgment are to be made without hearing from them as Defendants as is required by rules of Natural Justices.
3. The learned judge failed to take a look at the affidavit of the Defendant/Appellant to know whether any defence at all was raised that could necessitate the suit being transferred to the General cause list from the undefended list.
4. The learned judge grossly erred in law when she assumed jurisdiction over the 2nd defendant against whom there was no disclosed cause of action in the Court processes filed by the Plaintiff.
The learned counsel for the Appellant is Adegboyega Kolade Esq., while the counsel for the Respondent is Oluwakemi Balogun Esq. I will now look at the summary of the submissions of counsel adopted on 12/10/2020. The Appellants’ brief was filed on 22/10/2008 but deemed on 7/2/12 and the Respondent’s brief was filed on 15/2/2012. Naturally, I will start with the Appellants brief. Learned counsel raised 2 issues for determination which are:
1. Whether or not it was proper for the trial judge to assume jurisdiction to hear the Respondent’s motion and give judgment in total disregard of Order 60 rule 3(1) of the High Court Civil Procedure Rules (1994) of Lagos State even after Notice of Intention to Defend with Counter-Affidavit and Exhibits have been filed and served on the Court and Respondents counsel who acknowledge same to Court.
2. Whether or not the trial Court had jurisdiction to hear the suit against the Appellants who were both improper and mis-joined parties considering that (a) the Novation Arrangement involving the respondent and the 1st Appellant who transferred the debts of 1st Appellant to T.A.C and
(b) that the 2nd Appellant was not a party to the credit facility and the legal mortgage upon which the subject matter of this suit was based i.e there was no cause of action and or locus standi against the parties.
The main thrust of the submission of Appellants’ counsel is that the lower Court in delivering judgment did not consider the true purport and interpretation of Order 60 of the Lagos State (Civil Procedure) Rules 1994 in refusing to consider the counter affidavit filed by them and thereby offended the well established principle of fair hearing. The other argument of the Appellants’ counsel is that there is no cause of action against the 2nd Appellant who is merely a sub-lessor.
Specifically on issue 1, learned counsel submitted that the refusal or failure of the lower Court to consider the counter affidavit and their notice of intention to defend the suit was a wrong approach by the Court and on that ground alone this appeal should succeed as this amount to lack of fair hearing. He relied on Socfin Consultant services Ltd vs. Asuamah (2002) FWLR (Pt.130) 1729; Abia State Transport Corporation vs. Quorum Consortium (2003) FWLR (Pt.151) 1975; Ofomata vs. Onwuzuligbo (2002) FWLR (Pt.89) 1246.
On issue 2, relying on the principle of novation, misjoinder of parties and special circumstances the lower Court should not have assumed jurisdiction over the matter especially since 2nd Appellant was not a party to the transaction. It is the submission of learned counsel that since there was a transfer of the burden of the 1st Appellant to another company T.A.C. (a sister company of the 1st Appellant which took over the liability of the 1st Appellant) with the knowledge of the Respondent it was wrong to have sued the Appellant as based on the principle of novation, the proper party to sue should have been the company and therefore for suing the wrong party, the lower Court had no jurisdiction over wrong parties sued. Counsel referred to Sofekun vs. Akinyemi (2002) FWLR (Pt.104) 592, Madukolu vs. Nkemdilim (1962) 2 SCNLR (Pt.348) 341; Funduk Engineering Co vs. Mcarthur (1995) 4 NWLR (Pt.392) 640; Nwosu vs. Imo State (1990) 2 NWLR (Pt.135) 688; Green vs. Green (2001) FWLR (Pt.76) 795; Menakaya vs. Menakaya (2001) FWLR (Pt.742) 791; Vaswani vs. Savalakh (2000) FWLR (Pt.28) 2174.
It is the further submission of counsel that the lower Court should not have embraced speed at the expense of justice relying on Menkiti vs.Menkiti (2000) FWLR (Pt.2) 293; Maharaj vs. A.G. (Trinidad & Tobacco) (1977) 1 ALL E.R. 411. Learned counsel relying on State vs. Gwonto (2000) FWLR (Pt. 30) 2583; Alake vs. Abalaka (2002) FWLR (Pt.88) 931; Buhari vs. Obasanjo (2004) FWLR (Pt.191) 1499 submitted that there was failure of justice.
He finally urged Court to allow the appeal.
Respondent’s counsel also raised two issues for determination, viz;
The respondent submits with the utmost respect, that the issues arising for determination in this Appeal are:
I. Whether the learned trial judge was right to have entered judgment for the plaintiff/Respondent in the absence of a Notice of Intention to Defend and an Affidavit disclosing a Defence on the Merit from the Appellants.
II. Whether the learned trial judge’s discretion was exercised judicially and judiciously in refusing the Appellant’s application for adjournment on the 16th day of July 2003.
On issue 1, learned counsel answered in the affirmative. It is the submission of counsel that on the return date fixed for an action under the undefended list what is required of the Defendant was to file the notice of intention to defend along with affidavit showing good defence to the action. It is on the strength of those documents that the case will be transferred to the general cause list. It is the submission of counsel that the Appellants did not file any of those processes when judgment was delivered on 16/7/2003. Counsel relied heavily on Ben Thomas Hotel Ltd vs. Sebi Furniture Co Ltd (1989) 5 NWLR (Pt.123) 523; U.T.C. (Nig) Ltd vs. Pamotei (1989) 2 NWLR (Pt.103) 244; Nya vs. Edem (2000) 8 NWLR (Pt.669) 349. It is further submitted that the Appellants cannot complain of fair hearing as they were given time to present their case that is to file the notice of intention to defend which they did not file. On this proposition counsel relied on Governor of Oyo State vs. Folayan (1995) 8 NWLR (Pt.413)292; Reynold Construction Company Ltd vs. Okpegboro (2000) 2 NWLR (Pt.645) 367; Umo vs. Udonwa (2000) 13 NWLR (Pt.683) 157. The inability to file the notice of intention to defend and counter affidavit to the motion filed by the Respondent at the lower Court, it is submitted means admission of the case of the Respondent and therefore the lower Court was right to deliver judgment in favour of the Respondent. Counsel cited Ajomale vs. Yaduat (No. 2) (1991) 5 NWLR (Pt.191) 266; Ekpeto vs. Wanogho (2004) 18 NWLR (Pt.905) 394.
On issue 2, it is the submission of counsel that adjournment is not granted as of right as the Court must consider the interest of the other parties to grant or refuse a request for adjournment since decisions of Courts are not based on sentiment. Learned counsel cited Alsthom S.A. vs. Olusola Saraki (2005) 3 NWLR (Pt. 911) 208; Okotcha vs. Herwa Limited (2000) 15 NWLR (Pt. 690) 249; Kaduna Textiles Limited vs. Uma (1994) 1 NWLR (Pt.319) 143; Effiom vs. Ironbar (2000) 11 NWLR (Pt.678) 344. It is the final submission of counsel that the appeal be dismissed and the decision of the lower Court be affirmed.
I have looked at the notice of appeal, the grounds of appeal, the issues raised by the parties and the argument of counsel, the main thrust of this judgment will be to determine whether the lower Court in its judgment on 16/7/2003 complied with the provision of Order 60 of the Rules of Lagos State. As a corollary to that, is a further issue whether there was a process before the lower Court filed by the Appellants showing their intention to defend the action with a counter affidavit. The answer to these questions will handle the issue of fair hearing and the attitude of the lower Court to the application for adjournment. Before I formulate the issues for determination in this appeal, let me quickly look at some preliminary issues that will assist this Court in arriving at a just decision in this appeal.
The Appellant in very few but weighty words challenged the record of the lower Court when counsel submitted that the lower Court did not record properly his submission in the Court. This in legal parlance simply means that the Appellants are challenging the record of appeal. Any party to an action has the prerogative to challenge the record of Court but this must be done within legal acceptable limit and the procedure must be followed in doing that. In challenging the record of appeal, the Appellants are simply saying that the Court was not diligent enough to record all that transpired in Court. Some counsel go as far as alleging bias while those that are courteous do not allege bias directly but reading in between the lines, they make a case that the Judge was not accurate in the recording. This is not a very good commentary on a trial Judge as the duty of the Court is to ensure justice is done and this includes recording properly the proceedings before it. It is because of the implication and the consequences of challenging the record of a Court that the law has laid down procedure on the way such a challenge can be done more so when there is a presumption of regularity in favour of the record of a court. See Nobis-Elendu vs. INEC & Ors (2015) 16 NWLR (Pt. 1485) 197; Engineering Enterprises of Niger Contractor Company of Nig vs. A.G. Kaduna State (1987) 2 NWLR (Pt. 57) 381.
The procedure as laid down in a cloud of cases shows clearly that any party challenging the record of a Court must go beyond just making such a submission in the address of his counsel. The law requires that the party must file an affidavit challenging the records and serve same on the Court for their response. In Andrew & Anor vs. INEC & Ors (2017) 7 SC 90, the apex Court held:
“Furthermore the application before the Court of Appeal sought to amend the record of the Chairman of the Tribunal as was kept by Hon. Justice A. T. Badamasi. It has been judicially noticed that where a Tribunal consists of more than one member, it is the record maintained and signed by the Chairman that is the authentic record. See: Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 at 182 and 231. The record of proceedings of a Court is presumed by law to be correct until the contrary is proved. See: Section 147 Evidence Act. And a party who seeks to challenge the correctness of the record must swear to an affidavit setting out the facts or parts of the proceedings wrongly stated in the record. Such affidavit must be served on the trial Judge and/or the Registrar of the Court who would then, if he desires to contest the affidavit, swear to and file a counter-affidavit. See: Ehikioya v. C.O.P. (1992) 4 NWLR (Pt. 233) 57 at 70; Agwarangbo v. Nakande (2000) 9 NWLR (Pt. 672) 341 at 360.
In this case, it is noted that the appellants relied on two (2) documents in an attempt to impugn the record of the Tribunal namely:-
(i) Exhibit B – the notes made by Hon. Justice Gilbert A. Ngele, a member of the Tribunal;
(ii) Exhibit C – the notes kept by A. O. Obayomi Esq., said to be counsel to the appellants.
There was no affidavit annexed to the appellants’ application served on the members of the Tribunal alleging an error in the record of the Tribunal. What appears to have been served on the Chairman and members of the Tribunal was a motion on notice in which their names appeared as persons to be served. But the Chairman and members of the Tribunal were not parties to the motion. It would therefore be absurd for the Chairman and Members of the Tribunal to react to the motion in a proceeding in which they were arbiters.
A record of appeal cannot be amended without the Court’s approval in exercise of its discretionary power to grant or refuse to sanction an amendment of the record of appeal. See: Thynne v. Thynne (1955) 3 WLR 466 which was approved in Akinyede v. Opere (1967) 5 NSCC 299 at 301; (1967) SCNLR 523. So the proper procedure of challenging the records would be:-
(i) The affidavit challenging the record; and
(ii) motion on notice supported by affidavit seeking the Court’s discretion to amend the records.
The appellants failed to follow the procedure outlined above and so the lower Court reached the right decision when it refused to accede to the request made by the appellants to amend and/or correct the record of the Tribunal.”
Any challenge of the proceedings of a Court outside this procedure will amount to nothing and achieve no useful purpose and is of no moment.
I have looked at the record of appeal, there is no such affidavit filed by the Appellants before the lower Court. In the circumstance, I will not be persuaded not even for a second by the argument of the Appellants challenging the record of appeal particularly the lower Court’s proceeding found on pages 79-83. I will therefore deem as proper the record of appeal and I will be guided according by the record of appeal as it is deemed regular in law. The Appellants have not been able to impeach the record of appeal specifically the proceeding of the lower Court of 8/4/2003,22/5/2003 and 16/3/2003 which are found on pages 79-83 of the records.
The second preliminary point for address is the subject of adjournment. The point must be emphasized that adjournment is a request by a party through his counsel who cannot go on with the case for any reason whatsoever for a further date that he will be ready and prepared. The point must be made that it is a request made to the Court and not an order made to the Court. In fact, orders are only made by the Court and no one else in Court. Since it is a request, the Court has the exclusive prerogative to either grant or refuse an application for adjournment. This is a great power that a Court can exercise. It is a discretionary power of a Court. Being a discretionary power, an appellate Court will not overrule the decision of the lower Court to refuse or grant adjournment simply because it would have decided otherwise except if the exercise of the discretion is perverse. This will defeat the purport of discretion if an appellate Court at will set aside the discretion of the lower Court. In this respect, the apex Court in Nzekwe vs. Anaekwenegbu (2019) LPELR-49002 (SC) held thus:
“Where exercise of discretion is perverse, such can be reversed, University of Lagos v. Aigoro [1985] 1 NWLR (pt 1) 743, 148-149. Discretion must be exercised not only judicially but judiciously as well, Saffiddine v. C.O.P (1965) 1 All NLR 54, 58; Ugboma v. Olise(1971) I All NLR 8. What is more, an appellate Court will usually not interfere with an exercise of discretion in its quest to obtain substantial justice except where it is satisfied that the discretion was exercised arbitrarily or illegally or without due regard to all necessary consideration having regard to the circumstances of the particular case, United Spinners (Nig). Ltd. v. Chartered Bank Ltd [2001] 14 NWLR (pt. 732) 195; Nzeribe v. Dave Engineering Co. Ltd[1994] 8 NWLR (pt. 361) 124.
Even then, it is well – established that an appellate Court will not, in principle, interfere with the exercise of discretion by the trial Court unless that discretion is shown to have been exercised upon wrong principles or that the exercise was tainted with some illegality or substantial irregularity. See Anyah v. A.N.N. Ltd [1992] 6 NWLR (pt.247) 319; University of Lagos v. Aigoro (supra); Niger Construction Ltd v. Okugbeni [1987] 4 NWLR (pt. 67) 787; 7-up Bottling Company Ltd v. Abiola and Sons Ltd [1995] 3 NWLR (pt. 383) 257,285; University of Lagos v. Olaniyan [1985] 1 NWLR (pt. 1) 156.
In all, it is also well settled that in an appeal against the exercise of discretion by a lower Court, the appellate Court cannot substitute its own discretion for that of the lower Court. The appellate Court must be satisfied that the discretion was exercised on wrong principles by the lower Court before it interferes with that exercise of discretion. Such wrong principles may include exercising discretion by reference to extraneous matters or doing so without adverting to relevant considerations. See Josiah Cornelius Ltd and Ors v Ezenwa (2002) LPELR- 1631 (SC) 19; B-D; Okafor v. Bendel Newspapers Corporation [1991] 7 NWLR (pt. 206) 651….The appellate Tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the Judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way.”
This does not mean that a Court can abuse this power hence the law requires that like in all discretion of a Court, the power to grant or refuse an application for adjournment must be exercised judicially and judiciously. See Nwadiogbu & Ors vs. Anambra/Imo Rivers Basin Development Authority & Anor (2010) 19 NWLR (Pt. 1226) 364; Pam & Anor vs. Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1. This means that the Court in exercising the discretion must be guided by the tenet of justice. The Court will consider whether the reasons given for the adjournment sought is tenable. If it is, adjournment will be granted but if not it will be refused. With that in mind, no counsel no matter how highly placed or his seniority at the bar should come to Court arrogantly to seek for adjournment. Arrogant attitude in seeking for adjournment will make it look like a command or order. No Court will accept that. Adjournment is therefore not for the asking or the picks by counsel like a person who goes for shopping to pick an item he had already paid for. This is not what an application for adjournment entails. The counsel seeking for adjournment must not see it as a right but passionately plead for it giving compelling reasons why adjournment should be granted. An appellate Court will not be in haste to set aside the decision of a lower Court for adjournment if the decision takes into cognizance the principle of judicial and judicious consideration. In Ibrahim & Ors vs. Yusuf (2016) LPELR-40259 (CA), this Court held thus:
“The law is trite, the granting of an adjournment is at the discretion of the Judge. Adjournments are not just granted for the asking of it. There must be cogent and reasonable materials placed before it to enable it exercise its discretion in favour of the application or not.”
Having dealt with the preliminary points, it is now time to address the appeal on its merit by formulating the issues for determination. In doing that I am at liberty to adopt the issues as formulated by any the parties, combine issues from the parties or the Court can formulate its own issues absolutely. The only caveat is that, the issues formulated must not offend the rule against proliferation of issues and the issues must be based on the grounds of appeal. See Molokwu & Anor vs. Divine Power Gospel Mission International & Ors (2020) LPELR-49840 (CA); FRN vs. Borisade (2015) 1 S.C. 107. Operating under the liberty of the law, I will formulate my own issues for determination which in my opinion will properly address the grounds of appeal. The issues formulated for determination are as follows:
1. Whether the lower Court was right in entering judgment in favour of the Respondent in line with the provisions of Order 60 of the High Court of Lagos State 1994.
2. Whether at the time the judgment was delivered on 16/7/2003, there was before the Court an intention to defend the action and a counter affidavit showing any defence.
3. Whether the lower Court was right in assuming jurisdiction over the 2nd Appellant when in all the transaction, he was just the sub-lessor.
I will address issues 1 and 2 together for free flow of this judgment. The operative provision to decide on this issue is Order 60 of the Rules of Lagos State. The specific provisions of great relevance here is Order 60 Rules 1, 3 and 4 of the Rules. I reproduce same for ease of reference:
1. Whenever application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponents belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is not defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.
There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3. (1) If the party served with the writ of summons and affidavit delivers to the Registrar 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. (2) Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List, and the Court may order pleadings, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case.
The purport of the above provision is clear. The lower Court on page 88 of the record stated correctly in my view what the Respondent should do in a situation which calls into play Order 60 Rule 1. The Respondent on record must obtain an exparte order for leave to issue the writ of summons and to place same under the undefended list. This application will be granted if the Court is satisfied that the claim is on liquidated monetary demand which the Plaintiff (Respondent on record) believes the Defendant (Appellant on record) has no defence to stating therein the grounds upon which the belief is based. This will be contained in the affidavit which will be filed along with the exparte motion. There is no dispute that the Respondent satisfied the provision of Order 60 of the Rules. From the records, the exparte application was filed by the Respondent and the order was granted on 8/4/2003. The matter was placed on the undefended list. The writ along with the affidavit and the order were served on the Appellants on 30/4/2003. The Appellants entered appearance on 20/5/2003.
After service on him of the Appellants’ processes, Rule 3 of Order 60 states that if the Appellants intend to defend the action, they are to file in the Court registry a notice in writing that they intend to defend the suit and file along with it an affidavit disclosing a defence on the merit. When the Court is satisfied that there is a defence not necessarily on the merit the Court will give the Appellants leave to defend the action and in this instance, the action will now be moved to the general cause list from the undefended list. What the Appellants ought to file is notice of intention to defend and affidavit disclosing defence on the merit. This is the procedure open to the Appellants. This is a procedure which the Appellants must take advantage of at the return date. This appears to be the only option the Appellant had on the return date, failure to do this, the Court is at liberty to enter judgment for the Respondent on the presumption that the Appellants have no defence to the action. In Bona V. Textile Ltd & Anor vs. Asaba Textile Mill Plc (2012) 12 S.C. (Pt. 1) 25, the apex Court summarized the above procedure in these words:
“In other words, the Procedure under the Undefended List, commences with the plaintiff’s application for the issuance of a Writ of Summons for a claim for liquidated money demand which application is to be accompanied by an affidavit setting forth the grounds upon which the claim is predicated and stating that in the belief of the plaintiff or deponent to the affidavit, the defendant does not have any defence to the action. It is entirely the duty of the High Court to which the application is made to consider same ex parte without hearing the grounds which the claim is predicated and stating that in the belief hearing the grounds upon which the claim is predicated and stating that in the belief of the plaintiff or deponent to the affidavit, the defendant does not have any defence to the action. It is entirely the duty of the High Court to which the application is made to consider same ex parte without hearing the argument as to whether to hear the matter under the Undefended List or transfer same to the General Cause List to be dealt with accordingly, where the Court is satisfied, and this is subjective, if I may say so, that there are good grounds for believing that there is actually no defence to the plaintiff’s claim, enters the suit for hearing in the Undefended List. The Writ of Summons will then be marked as such and a date for hearing entered thereon. Thereafter, the entire processes are to be served on the defendant who if he desires to defend the action, must deliver to the Registrar of the Court a Notice in writing of his intention to defend the claim. The Notice must have attached to it, an affidavit disclosing defence on the merit. However, after considering the affidavit support of the defendants’ notice of intention to defend the action, the Court may on the basis of the facts, disclose the affidavit of the defendant, grant leave to defend the action upon such terms as the Court may think fit. Where leave to defend is granted by the Court, the action is automatically removed from the Undefended List to the General Cause List, bringing an end to the procedure for summary judgment. See: Ekulo Farms Ltd. & Anor Vs. Union Bank of Nigeria Plc (2006) 6 SCM 78 at 100; BONA V. TEXTILE LTD & ANOR V. ASABA TEXTILE MILL PLC. (2006) 4 SCNJ 1641 (2006) All FWLR 895; Dange Shuni Local Government Council Vs Stephen Okonkwo. (2008) All FWLR (Pt. 415 1757 at 1775.”
Now, let us look at the case file to know what happened. The Appellant filed the memorandum of appearance found on page 56 of the records on 20/5/2003. The order made on 8/4/2003 found on pages 54-55 of the record was served on the Appellants on 30/4/2003. The order stated the return date as 22/5/2003. The memorandum of appearance was filed 20 days after service of processes on the Appellants and 2 days to the return date. The Appellants did not file the notice of intention to defend the action and/or the affidavit as he filed only the memorandum of appearance. The notice of intention to defend was filed on 16/7/2003, the day the judgment was delivered. I will return to this later. For now, let us see what happened on 22/5/2003. On 22/5/2003, the parties were absent but the counsel to the parties were present. I.O. Ehizede Esq., appeared for the Appellants (Defendants at the lower Court). He sought for adjournment before the lower Court in these words found on page 80 of the records:
“We have met with our clients. He wants to defend the matter. We would like an adjournment.” It is as straight forward as that. It was opposed by counsel to the Respondent. Instead of making a passionate plea, the counsel of the Appellant reply was this:
“We did not prepare for this matter. We came for an indulgence for an adjournment.”
This appears too casual and a bit arrogant for me in an application for adjournment. To this application for adjournment, the lower Court order on page 81 reads thus:
“I find and hold that the defendant inspite of service of process, inspite of the Hearing Notice clearly indicated on the order served on them and in deviance of the rules have not taken the right steps as they should have. They are in Court asking for an indulgence for non-compliance. I am not prejudiced that excuse proferred is of such in nature as to justify the plaintiff being cheated out of its judgment. Accordingly, the request is considered frivolous and is refused. The plaintiffs shall proceed go the hearing of its clients (sic). “
Based on the above, the Respondent’s counsel moved and urged the Court to grant the prayers sought. The lower Court did not deliver judgment that day but adjourned to 16/7/2003 for judgment. This is a period of about two months precisely one month and twenty three days.
On the 16/7/2003, the Court delivered its judgment in line with Rule 4 of Order 60 which provides that where the Appellants refuses to file intention to defend, judgment will be entered for the Respondent. The Appellants’ counsel was present in Court that day. This time it was Appellants’ counsel on record who appeared for the Appellant as Defendants in the lower Court. Here again counsel sought for adjournment. This is what he said:
“I am sorry that we did not file our affidavit of defence before now. The management of the defendants are based in Abuja and this resulted in the delay to filling our processes. We ask for an adjournment.”
The above clearly shows that at the time that the lower Court was to deliver the judgment the necessary processes the Appellants should have filed to enable the Court move the case to the general cause list had not been filed. He sought for adjournment again. The reason given is that the management of the Appellants is in Abuja. Learned counsel admitted that he has not filed the processes. Respondent’s counsel objected. This is the short ruling of the Court on the application for adjournment on page 83 of the records:
“This is a matter placed in the undefended list of the Court, at the hearing date on 22/5/03 the defendant failed and neglected to deliver its notice of intention to defend and of disclosing a defence. I (sic) asked for adjournment when the Court refused and the matter was adjourned for judgment today. Today again, the defendant is asking for adjournment to enable him file pleadings, and application of the defendant for an adjournment is refused. Adjournment is not granted as a matter of course. The judgment of the Court is hereby delivered in open Court.”
The Appellants’ counsel has submitted that the lower Court was wrong in delivering judgment without considering the notice of intention to defend and the affidavit found on pages 72-74 of the records. It is the further submission of counsel that by that singular act, the Appellants were denied fair hearing.
This is the appropriate place to address issue 2. I must make the point here and now that if the Appellants are correct then the appeal will succeed because if truly the lower Court did not consider the processes mentioned above, that is, the notice of intention to defend and the affidavit showing defence on the merit, the Appellants would have been denied fair hearing that is if the processes are before the Court when judgment was delivered. Any proceeding conducted wherein any of the parties is denied fair hearing will be null and void and consequently any judgment from that proceeding no matter how brilliant will be declared null and void. See Eye vs. FRN (2018) 7 NWLR (Pt. 1619) 495; MFA & Anor vs. Inongha (2014) 1-2 SC (Pt. 1) 43.
The concept of fair hearing therefore need to be properly understood as counsel has always seen it as an easy anchor to hold unto when the boat of their case is sinking. In view of the serious effect of lack of fair hearing in a case, it is a subject when raised, Courts should look at seriously. The law is settled, the concept of fair hearing implies that parties in a matter must be given equal opportunity to present their case before the Court. None of the parties should be denied that right. The established principle therefore is that a party cannot complain of lack of fair hearing or that his right to fair hearing is breached if he is afforded opportunity to present his case. If he however refuses to present his case the party cannot complain of denial of fair hearing. See Ukwuyok & Ors vs. Ogbulu & Ors (2019) LPELR-48741 (SC); Ayoade vs. State (2020) LPELR-49379 (SC).
If however he presents his case and the Court ignores his case, he can be said to have been denied fair hearing that is to say in a situation where a Court does not consider the case of any of the parties and subsequently arrives at a decision, the Court will be said to have denied that party fair hearing. In Wilson & Anor vs. Oshin & Ors (2000) 6 SC (Pt. III) 1, the apex Court held in this regard thus:
“In the first place not considering one of the many contentions of a party in a case cannot by itself constitute a denial of fair hearing. A denial of fair hearing connotes a refusal to consider the pertinent and relevant issues in the case essential to its determination. In such a situation, a fair minded objective observer will come to the conclusion that the hearing of the case has not been fair to the person affected. The principle of adjudication fundamental to the administration of justice is that the Court is bound to consider every material aspect of a party’s case validly put before it. Hence where the issue placed before the judge is one not relevant or crucial to the determination of the case before the Court, non-reference to it is not a denial of fair hearing. This is because having heard the appellant present his case, the consideration of the relevance velnon of the point will be determined by the judgment deciding the case on the issues and facts before him.”
Can the lower Court be accused to have denied the Appellants the opportunity to present their case or neglecting to consider their case presented before it? This is the crucial point for discussion here. I have gone through the proceedings for the days and I cannot seem to agree with the Appellants that they were denied fair hearing. The lower Court did not deny them the opportunity to present their case. They were served with the order and the processes on 30/4/2003. Between then and 16/7/2003, the Appellants had enough time to file the processes required under Order 60 Rule 3. This is about a period of 4 months. On two occasions the matter came up that is 22/5/2003 and 16/7/2003, the Appellants’ counsel did not file the necessary processes but came to Court seeking for adjournment on grounds that could not persuade the lower Court to grant the adjournment sought. I really cannot understand why counsel did that. In both situations, the reasons for the adjournments sought are not tenable. The first date that is 22/5/2003, no reason was given for the application for adjournment apart from the Appellants’ counsel saying he was not ready. On 16/7/2003, the reason counsel gave for the inability to file the necessary processes is that the management of the 1st Appellant is in Abuja. This in my opinion clearly shows that Appellants are not ready to defend the action. The Appellants were given enough time to present their case, this they did not take advantage of.
At this point, it is worth mentioning that on pages 72-78 of the records there is a notice of intention to defend filed by Adegboyega Kolade Esq., on behalf of the 2nd Defendant (2nd Appellant) the notice on page 72 reads thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
“NOTICE OF INTENTION TO DEFEND
TAKE NOTICE that the 2nd Defendant intends to defend this action and shall rely upon the grounds set out in the affidavit accompanying this notice.
Dated this 15th day of July, 2003.”
This was signed by Adegboyega Kolade for the 2nd Appellant. This is the only notice of intention to defend in the record of appeal. This means there is no notice filed by the 1st Appellant. In the absence of any notice filed on behalf of the 1st Appellant at the lower Court, the lower Court was right in holding that the 1st Appellant was not interested in defending the action and therefore the 1st Appellant has admitted the facts therein and I hold that the lower Court was right in invoking Order 60 Rule 4 to enter final judgment for the Respondent. I find the two cases cited by the learned counsel for the Respondent as to what the Court would do on the return date if the Defendant to an undefended action does not file the necessary processes as useful and instructive. These are the cases of U.T.C. (Nig) Ltd vs. Pamotei (supra) and Ben Thomas Hotel Ltd vs. Sebi Furniture Co., Ltd (supra). It will not be out of place to add one or two cases of mine. Where the Defendant in an action under undefended list fails to file the notice of intention to defend and affidavit, the Court has no option but to enter judgment for the Claimant. See Jarvis vs. Oden (2014) LPELR-24678 (CA). I will add one more case from the Supreme Court, that is the case of Abia State Transport Corporation & Ors vs. Quorum Consortium Ltd(2009) 3-4 S.C. 187, where the apex Court held thus:
“Having found, rightly in my view, that the appellants did not enter appearance and did not file notice of intention to defend the respondent’s claim, I am satisfied that the trial judge was entitled to enter judgment in accordance with Order 23(4) of the Plateau State High Court Civil Procedure Rules, 1987, as he did.”
On the strength of the above cases and the record of appeal, the 1st Appellant really has no solid ground to urge the Court to set aside the judgment of the lower Court. The 1st Appellant having not filed the notice of intention to defend and the affidavit to show defence on the merit cannot successfully challenge the decision of the lower Court.
Now to the 2nd Appellant on whose behalf counsel filed the notice and the affidavit, the point must be made that the notice was dated 15/7/2003 but filed on 16/7/2003. This is the same day the judgment was delivered. Looking at the proceedings of the lower Court of the 16/7/2003 on pages 82-83 of the records, it is clear that as at when the case was called, the 2nd Appellant has not filed the notice and the affidavit. If he had filed, he could have asked for stand down and not adjournment. Stand down means the case can still be heard that same day but later in the day. Adjournment means it will be heard another day. What is so clear here is that as at when the case was called and the judgment delivered, the processes the 2nd Appellant said he had filed was not before the Court. The counsel did not even inform Court that the process had been filed. What he asked for is adjournment to enable him file the processes. The only reasonable conclusion that could be deduced from this is that the process was filed after the judgment was delivered on that same day. The question will now be of what purpose will that be? If this is true, it speaks volume of the attitude of counsel. I just hope it is not true and it is not what I am thinking. Whether it is true or not, the point made here is that the process was not in the case file before judgment was delivered and it was not brought to the attention of the Court that such a process had been filed. In the circumstance, I have no difficulty in resolving issues 1 and 2 in favour of the Respondent.
On issue 3, the Appellants’ counsel submitted that the lower Court should not have assumed jurisdiction over the 2nd Appellant as there was no cause of action against him since he did not take the facility or made a guarantor to the 1st Appellant. He was just a sub-lessor to the subject property that is Plot 93 Yunnis Bashorun Street, Victoria Island, Lagos. The Respondent sued the 2nd Appellant in the lower Court. To determine whether there is a cause of action against the 2nd Appellant the only document to look at is the processes filed by the Respondent. This is the position of the law. To determine jurisdiction and the cause of action the document to look at is the writ of summons and the statement of claim. See Emeka vs. Chuba-Ikpeazu & Ors (2017) 15 NWLR (Pt. 1589) 345. In this respect, the relevant documents to determine the cause of action are the writ and the verifying affidavit in support of the suit under the undefended list. The Respondent’s claim in the lower Court against the Appellants jointly and severally is for payment of the balance of the indebtedness of the Appellants to the Respondent and interest on the judgment debt. The third prayer is to appoint an Estate Surveyor and Valuer to sell the unexpired term of the sub-lease of the property. It is not in dispute that the 2nd Appellant was not the person who borrowed the money from the Respondent. I cannot go into the affidavit on pages 61-62 of the record on the ground that in determining jurisdiction and the cause of action, the averment of the Appellants that is Defendants at the lower Court does not count. So the whole argument that the 2nd Appellant is just a sub-lessor will only be relevant if it is so stated in the affidavit of the Respondent at the lower court. At this stage, I will look at the affidavit of the Respondent to see where the Respondent mentioned the 2nd Appellant in relation to the claim and see how his interest will be affected so as to make him a proper party in this suit. A cause of action is said to exist when there is an issue that the Court will determine to establish the rights and liabilities between the parties as presented by the Claimant in a case. That is what the Court will pronounce upon which consist the facts which the Claimant in a case must prove to establish his rights. See SPDC Nig Ltd & Anor vs. X.M. Fed Ltd & Anor (2006) 16 NWLR (Pt. 1004) 189; Ogar & Ors vs. Igbe & Ors (2019) LPELR-48998 (SC).
In the 24 paragraphs in support, the 2nd Appellant was only mentioned in paragraph 12. I will reproduce it for ease of reference. It is averred thus:
“That the said 2nd Defendant/respondent consented to the Re-purchase/Finance of the unexpired term of the sublease attached and marked Exhibit AT5 is the said letter of consent dated March 12, 1997.”
The 1st Appellant took the facility to re-finance the purchase of 18 years outstanding on plot 93 Yunnis Bashorun Street from Rim Securities. The 2nd Appellant merely consented to the re-finance of the unexpired term as shown in the letter of 12/3/1997. He is the sub-lessor to the sub-lease. Nothing less and nothing more. He has nothing to do with loan facility and he did not guarantee the loan. He is not even a party to the tripartite agreement. The moment he sublet the subject property that is the unexpired term of the lease to Rim Securities which the 1st Appellant took the loan to re-finance, the purchase of the unexpired term from Rim Securities and he gave his consent, he has no business or interest to protect in the property any more. The claims do not affect him and therefore he is not a proper party in the suit at the lower Court. For claim one, he has no connection whatsoever with the facility and therefore justice will not be served to ask him to pay for a facility he did not take or enjoy. None of the prayers affected him and therefore there is a misjoinder. The effect of misjoinder in a suit does not affect the judgment as the judgment can be enforced against the proper party while the name of the misjoined party will be struck out. See T.M. Lewin (Nig) Ltd vs. Smartmark Ltd (2017) LPELR-43136 (CA); Obasanjo & Ors vs. Yusuf & Anor (2004) LPELR-2151 (SC).
I resolve this issue in favour of the Appellants. In the circumstance, this appeal succeeds in part. The judgment of the lower Court in Suit No. LD/772/2003 as it affects the 1st Appellant is upheld and affirmed while as it affects the 2nd Appellant, the judgment is set aside. This appeal therefore succeeds in part.
Parties are to bear their own cost of the appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I agree with the erudite leading judgment delivered by my learned brother Ebiowei Tobi, JCA.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA, afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the judgment as mine with nothing further to add.
Appearances:
Adegboyega Kolade Esq. For Appellant(s)
O. Adebayo Esq. For Respondent(s)