Mc Investments Ltd & Anor Vs Core Investments & Capital Markets Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C. 

The parties in this appeal were before the Federal High Court Ikoyi, Lagos where the Respondent as the Plaintiff in that Court brought an action against the Appellants who were the Defendants under the provisions of the undefended list procedure of that Court pursuant to Order 3 of the the Federal High Court (Civil Procedure) Rules of 1976. The action was placed on the undefended list of the trial Court on 11th September, 1995 with the return date fixed at 16th October, 1995. On being served with the Plaintiffs marked writ of summons together with affidavit and documentary exhibits in support of the claims, the Defendants chose not to respond to the action by filing a Notice of intention to defend the action supported by an affidavit specifying its defence to the action but rather decided to file a motion on Notice for stay of proceeding in the matter on the grounds that the action was premature. This motion by the Defendants was duly heard by the trial Court which dismissed the application on 27th May, 1996 when the Defendants Counsel was in Court. It was on this same date that the Plaintiffs case placed on the undefended list of the Court was adjourned to 3rd July, 1996 for hearing.

The record shows that on this date fixed for the hearing of the case, on the application of the learned Counsel to the Defendants by a letter written to the Court, the case was further adjourned to 10th July, 1996 for hearing on which date the Defendant was again absent and not represented by Counsel. The Court then on being satisfied that there was no notice of intention to defend the action in accordance with the rules of the Court, proceeded and heard the action under the undefended list of the Court and adjourned the case to 19th July, 1996 for Ruling/Judgment. Meanwhile, on 18th July, 1996, the Defendants Counsel decided to respond to the undefended action against it by filing yet another motion for stay of proceedings pending appeal against the earlier Ruling of the trial Court refusing its application for stay of proceedings in the same action on grounds among other that the action was premature.

The trial Court proceeded to deliver its Ruling/Judgment in the undefended action granting all the reliefs sought by the Plaintiff on the 19th July, 1996. Although the record of the trial Court shows that the learned Counsel to the Defendant Mr. S. H. Agmoh was in Court on this date 19th July, 1996 when the Ruling/Judgment was delivered, he made no attempt to inform or draw the attention of the Court of the motion filed the previous day for stay of proceedings.

Not satisfied with the judgment of the trial Court against them, the Defendants all the same came to the Court of Appeal on appeal against the Ruling/Judgment of 19th July, 1996, accusing the trial Court of ignoring its motion for stay of proceedings before giving judgment for the Plaintiff. This appeal was heard and dismissed by the Court of Appeal Lagos Division in its judgment delivered on 22nd June, 2004, hence the present further appeal to this Court by the Defendants/Appellants on a Notice of appeal filed on 30th July, 2004 containing a single ground of appeal from which one issue for the determination of the appeal was identified in the Appellants brief of argument which issue was also adopted in the Respondents brief of argument. The issue in the Appellants brief of argument is:

‘Whether the Court of Appeal was right in dismissing the appeal in the circumstances of this case, when the Court of Appeal held that it is the duty of Counsel who filed the application to draw the attention of the Judge to it.’

Arguing in support of this issue, learned Counsel for the Appellants quoted a portion of the judgment of the Court of Appeal which blamed the learned Counsel for the Appellants for the failure of the trial Court to hear and determine the Appellants application for stay of proceedings pending appeal before the delivery of the trial Courts judgment against the Appellants in the undefended action filed against them by the Respondent.

Learned Counsel further argued that the stand taken by the Court below on the Appellants application at the trial Court, is quite contrary to the laid down principles of law as regard the duty of litigants and their Counsel in respect of the conduct of cases as laid down in the case of Alawode v. Semoli (1959) N.S.C.C. 36 at 39; that since the fixing of cases or applications for hearing is not the function of the litigants or their Counsel, the Court below was wrong in blaming the Appellants Counsel for the failure of the trial Court to hear the Appellants application for stay of proceedings filed on 18th July, 1996 before delivering its judgment against the Appellant on 19th July, 1996.

This is because, according to learned Counsel, that the application having been in the Courts file, the knowledge of it by the Registrar of the Court is imputed to the Court, as decided by the Court of Appeal in SBM Services (Nig.) Ltd. & 4 Ors. v. Catherine Sede Okon & 18 Ors (2004) 9 N.W.LR. (Pt. 879) 529 at 551; that since the application had been in the Courts file and the Court failed to look at it, neither the Appellants nor their Counsel can be penalized for failure of the trial Court to hear it as decided by this Court in Famfa Oil Ltd v. Attorney General of the Federation (2003) 18 N.W.LR. (Pt. 852) 453 at 471. In conclusion, learned Counsel for the Appellants urged this Court to allow this appeal, set aside the judgment of the Court of Appeal and order a hearing of the Appellants motion on Notice dated 17th July, 1996 and filed on 18th July, 1996.

As far the learned Counsel to the Respondent is concerned, the real issue in this appeal is whether the Court of Appeal was right in dismissing the appeal in the circumstances of this case; that the complaint of the Appellants that the trial Court did not hear their application filed on 18th July, 1996 before that Court delivered its judgment on 19th July, 1996, is mere allegation in the absence of the evidence that when the motion was filed on 18th July, 1996, it was brought before the Court and put in the Courts file for the attention of the Judge or that the learned Counsel to the Plaintiff/Respondent was served with the motion in question which was clearly on Notice; that in the circumstances of this case, the Court of Appeal was right in dismissing the Appellants appeal as the cases of Alawode v. Semoli (supra) S.M.B. Services (Nig.) Ltd. & Ors. v. Catherine Sede Okon & Ors. (Supra) and Famfa Oil Ltd. v. Attorney General of the Federation (Supra), relied upon by the Appellants in their Appellants brief of argument, are distinguishable with the present case which was rightly decided by the trial Court in the absence of any application to arrest the Judgment/Ruling of the trial Court that was fixed for delivery on 19th July, 1996. Concluding his argument learned Counsel to the Respondent urged this Court to uphold the decision of the Court below that it was the duty of the Appellants Counsel to have drawn the attention of the trial Court to the pending motion and take necessary steps to ask for time to move the application in line with the decision of this Court in Osuji Okoro Oforkire & Ors. v. Johnson Maduike & Ors. (2003) 5 N.W.LR. (Pt. 812) 166 at 182 and dismiss this appeal.

It is very important to note that this appeal arose from the judgment of the Court of Appeal dismissing the Appellants appeal from the Judgment/Ruling of the trial Federal High Court delivered on 19th July, 1996 granting all the reliefs claimed against the Appellants who were the Defendants in an undefended suit brought against them in that Court under the provisions of Order 3 Rules 9, 10, 11, 12, 13 and 14 of the Federal High Court (Civil Procedure) Rules, 1976 which specified procedure for dealing with undefended suits. Rules read:

‘9. Whenever application is made to the Court for the issue of a writ of summons in respect of a claim to claim to recover a debt or liquidated money demand 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 no 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 circumstances 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.

If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, then and in such case the suit shall be entered in the general list for hearing.