University Press Ltd.V. I.K.martins (Nig.) Ltd. (2000)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C. 

The respondent, as plaintiff, instituted this action on 5/4/90 at the High Court, Onitsha, claiming the outstanding debt of N22,100.00 in respect of reams of newsprint paper sold and delivered to the appellant, as defendant, together with interest. The defendant entered a conditional appearance to the writ. Subsequently, the plaintiff filed a statement of claim. Its paragraphs 4, 5 & 6 are relevant to the issue now contested by the parties and are hereunder reproduced:

“4. Sometime in November, 1989, during scarcity of newsprint, the defendant at Onitsha approached and pleaded with the plaintiff to supply it, the defendant with some reams of newsprint to enable the defendant execute a contract with the Federal Government

5. The defendant at Onitsha ordered by means of Local Purchase Orders Nos. 2257 and 2262, 6000 reams of newsprint paper at the rate of N85 per ream valued five hundred and ten thousand naira (N510,000.00) from the plaintiff. The plaintiff hereby pleads the Local Purchase Orders and will rely on them at the trial.
6. Pursuant to the said Orders, the plaintiff duly supplied and delivered to the defendant a total of 5000 reams of newsprint paper on two occasions of firstly 2000 reams on LPO No. 2257 and later 3000 reams on LPO No. 2262 about 10/11/89 the defendant duly acknowledged the delivery by signing the waybill thereof at Onitsha after physically counting same. The plaintiff will at trial rely and found on various waybills issued the defendant at Onitsha. The defendant is hereby given notice to produce the originals of the waybills”.

The first supply of 2000 reams was duly paid for; the delivery in respect thereof was acknowledged by signing the waybill at Onitsha. The second supply was similarly acknowledged but a few days later, the defendant resident at Ibadan complained in writing that there was a short supply of 240 reams. On receipt of this complaint, the plaintiff traveled to Ibadan and held discussion with the defendant whereupon both agreed that the reams of newsprint were correctly supplied. However, the plaintiff made repeated demands for the payment of the short-delivered reams but to no avail hence the institution of this action, to which, as earlier stated, the defendant entered a conditional appearance on protest.

Thereafter the defendant filed a motion praying the court first, to strike out the suit in that the action was commenced at Onitsha High Court in Anambra instead of at Ibadan High Court which, according to the defendant, is the appropriate venue. Second defendant complained that the writ of summons which was for service was issued out of jurisdiction without leave of the court. The second ground was however abandoned. The affidavit in support of the motion was deposed to by one Adewusi, a Credit Controller in defendant’s employment. In paragraphs 6 to 11, including paragraphs 13 and 14 he deposed that the contract for the supply of the newsprint was concluded in Ibadan whereat the two LPOs, Exhibits A and B attached to the affidavit, were issued. Also exhibited to the affidavit were receipt note. Exhibit C, letter dated 15th November 1989 from the appellant’s Production Manager to the respondent’s Managing Director, i.e. Exhibit E. letter dated 28th November, 1989 written by respondent’s Managing Director to the appellant’s Production Manager – Exhibit F, Minutes of the Meeting dated 9th January, 1990 attended by officials of both parties – Exhibit ‘G’ and photocopy of Bank draft for the sum of N402,475 raised by the appellant in favour of the respondent – Exhibit H.

The respondent also filed a counter-affidavit to which were attached Exhibits A. A1 & B being three copies of the respondent’s waybill issued to the appellant, letter dated 22nd December, 1989 written by the appellant’s company secretary to the respondent, Exhibit C and two cheque leaves of United Bank for Africa – Exhibits D & E .

After submissions by parties’ counsel and due consideration of the statement of claim and the affidavit evidence placed before him, Uzodike, J, ruled and declined jurisdiction. He held that the proper venue was the High Court Ibadan, Oyo State. Accordingly, he struck out the action.

Dissatisfied, the respondent appealed to the Court of Appeal, Enugu. Allowing the appeal, that court ordered the Onitsha High Court to assume jurisdiction but before another judge and determine the case on its merit. The lower court said, obiter, that ordinarily “the debt arising from contract between the parties should be paid by the defendant/appellant in Onitsha which incidentally is the plaintiff/creditor’s residence or place of business”.

The appellant formulated three issues for determination, namely:

“1. Was the Court of Appeal right to hold that the trial judge ought to have assumed jurisdiction to hear the claim ensuing out of the contract and to make it the duty of the appellant to pay at Onitsha which is the respondent’s residence or place of business when according to the said court, there was conflict in the affidavits of the appellant and the respondent as to venue which conflict was not resolved by the High Court and when the Court of Appeal failed to resolve the said conflict ,

2. Was the Court of Appeal right to hold that the contract was entered into at Onitsha by looking at the statement of claim when it had already regarded such approach as a misconception (sic)
3. Was the Court of Appeal right to have delved into the substantive issue of the appellant’s indebtedness or not to the respondent when what was on appeal before it was the question of the appropriate venue of trial”

Respondent neither filed a brief nor was it represented at the hearing. I think it is desirable to make a cursory remark touching on the issues submitted for the determination of this appeal. I am satisfied that the issues as formulated partly affect the main point in controversy between the parties i.e. the question of venue for trial, on the one part, and partly affect some questions which incidentally arose from the body of the leading judgment of the lower court, on the other pan. One is therefore tempted, for the purpose of this appeal, to characterize the above three issues in two categories namely, in terms of major or main issues and minor or subsidiary issues. Issue No. 1 undoubtedly belongs to the first category while Issues Nos. 2 and 3 will readily be subsumed under the second category. Nevertheless, the consequence attributable to a successful issue will obviously depend on whether it is a major or subsidiary issue; if the former, the effect will be crucial such that it may upturn the appeal in favour of the appellant but if the latter the effect may be no more than a pyrrhic victory without the sting that would radically change the judgment appealed against. From my close study of the three issues, I would wish to consider the three issues in the reverse order.

Issue No.3

“Was the Court of Appeal right to have delved into the substantive issue of the appellant’s indebtedness or not to the respondent when what was on appeal before it was the question of the appropriate venue of trial”

Learned appellant’s counsel submitted that the learned Justices of the lower court were right to hold that the presumption is that the plaintiff who is the alleged creditor should be sought by the defendant, (herein appellant, the alleged debtor, to be paid where he lives, reliance being placed on the authority of National Bank of Nigeria Ltd and Ors v. John Akinkunmi Shoyoye & Anor (1977) 5 SC 181 at 192. But it is counsel’s further submission that the facts of Shoyoye were inapplicable to the circumstances of the present case in many respects. For example, in Shoyoye the amount of the indebtedness was not in dispute whereas in the present case the appellant has seriously contested its continued indebtedness to the respondent to the tune of N22,100. Furthermore, it is submitted on behalf of the appellant that the issue of indebtedness goes to the substantive matter yet to be raised before the trial court whereas the preliminary issue before the trial court was simply the venue for trial. It is counsel’s submission that the Court of Appeal erred in law to have made a pronouncement on the substantive matter wherein he adjudged the appellant a debtor to the respondent. Counsel relies on several authorities, to wit, Odumegwu Ojukwu v. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 at 45 and Ogbonnaya v. Adapalm (1993) 6 SCN J 23 at 32. (1993) 5 NWLR (Pt. 292) 147.