Mat Holdings Limited & Anor V. United Bank for Africa Plc (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

In the trial court, the plaintiff took out a writ of summons, claiming against the defendant, the sum of N511,401.68; 21% interest from 20th May, 1996, to the date of judgment and 10% interest, until liquidation of the judgment debt. The application for the writ of summons, brought under the undefended list, was supported by affidavit alleging that the defendant has no defence to the action. The defendants, on the service of the writ of summons on them, caused a notice of intention to defend to be filed. But on the day, fixed for hearing of the action, 30th September, 1996, neither the defendants, nor their counsel was in court and as no explanation was proffered for their absence whereupon, the action was entertained and judgment entered in favour of the plaintiff. The defendants, on their part, explained that they wrote to the court explaining their absence, but the clerk of court failed or neglected to bring their letter to the attention of the learned trial Judge.

I do not think that it is proper for counsel to seek, from the comfort of their chambers, to conduct court proceedings by writing letters asking for adjournments. In the good old days, if counsel for whatever reason cannot go to court, the practice is to send another counsel to hold his brief and ask for adjournment. If the practice of correspondence, recently rearing its ugly head, is allowed to gain currency, in no distant future our courts will become court by correspondence as counsel would start conducting other proceedings, such as adoption of briefs by correspondence. The defendants should, therefore, count themselves lucky that the learned trial Judge entered judgment for the plaintiffs in respect of the reliefs claimed by it on account that the affidavit supporting the notice of intention to defend contains no defence. Learned Counsel could have struck out the notice of intention to defend in the absence of the givers of the notice or their counsel to canvass same.

The defendants were unhappy with the judgment, and being dissatisfied, appealed to this court, on 3 grounds of appeal. Pursuance of the memorandum of appeal, briefs of argument were filed and exchanged in accordance with the provisions of Order 6 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990. At the hearing of the appeal, learned Counsel representing the parties adopted and placed reliance on their respective briefs of argument. The appellants’ brief dated 16th November, 2000, was filed apparently within time on 17th November, 2000. The respondents’ brief, filed out of time on 30th July, 2001, was deemed to be properly filed and served on 12th November, 2001.

The appellants’ brief contained 3 issues for determination. The 3 issues identified as calling for determination in their brief read as follows:-

“1 Whether the appellants have disclosed a good and triable defence or issue to warrant being let to defend the suit.

2. Whether by the conduct of the plaintiff in keeping mute for 3 1/2 years and collecting money from the appellants as proposed and asserted in exhibit M.6 of the notice of intention to defend does not constitute estoppel and whether the appellants cannot plead estoppel by inaction and therefore amounting to a waiver.
3. Whether from the affidavit evidence which is accompanied by various documents as exhibits thereto the presiding trial Judge ought not to look at them and evaluate them before reaching any conclusion.

At the hearing of the appeal, learned Counsel for appellants related the issues to the grounds of appeal by relating issue 1 to ground 2; issue 2 to ground 3 and issue 3 to ground 1 of the grounds of appeal.

Respondent’s brief identified only one issue encompassing the 3 grounds of appeal as calling for determination. The formulation read as follows:-

“Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondent’s claims.”

The defendants (hereinafter referred to as appellants) frame three issues. Issue one is respectfully a variant of the appellant issue 3, which I think is not a valid or good issue. Issue 3 is not well thought out because it appears to me academic as there is nothing on the face of the record showing or portraying that the learned trial Judge did not look at and evaluate the affidavit in support of the notice of intention to defend as well as documents exhibited thereto. Indeed, the learned trial Judge after stating the claim of plaintiff (hereinafter referred to as respondent) observed thus:-

“The defendant filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no defence.”

This is clearly a proof that the learned trial Judge within the limit of assistance offered him by counsel considered the affidavit in support of the notice of intention to defend and found that it contains no defence on the merit as required by Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 and rejected the defence allegedly contained therein. It is not enough for counsel to dump materials on the court and refuse to go to court to advocate their position. It is within the right of the learned trial Judge to consider any defence accept or reject it. But the rejection of same does not imply refusal, failure or neglect to “look at and evaluate them”.

On the other hand, it is not clear why learned Counsel for respondents relies on a single issue when his brief in the sole question canvassed issues ranging from appraisal and evaluation of evidence to estoppel by conduct. I do not know how the learned counsel for appellants, whose habit it has become to muddle things expect the court to assist him in sifting argument in respect of one issue from those relevant to the other. He is lucky his client is not the appellant, I would have struck out its brief and dismiss the appeal. It seems learned Counsel are not prepared to learn or comply with simple rules of procedure such as those contained in the Court of Appeal Rules Cap. 62.

Having concluded my discussion on the preliminaries, I propose to commence the consideration of the appeal with the only issue calling for determination which is appellants’ issue I, which is co-terminus with the respondent’s only formulation.