Alhaji Musa Bello & Anor V. Farmers Supply Company (Kds) Limited (1994)
LawGlobal-Hub Lead Judgment Report
UMARU ABDULLAHI, J.C.A.
This appeal is against the judgment of Kaduna State High Court delivered on 20th day of February, 1992.
The respondent in this appeal sued the appellants and two other parties, foreign based companies called Folkrose Limited and Ratten Limited before the Kaduna High Court claiming a total sum of 422,190.08 U.S. Dollars (Four hundred and twenty-two thousand, one hundred and ninety dollars, eight cents) or the equivalent of N6,586,165.20, being money had and received and/or paid by the respondent to the appellants and the two other companies for the supply of certain agro-chemicals and Cuban sugar bags, which were not supplied.
The suit was brought on the undefended list suing the present appellants and the two foreign based companies mentioned above as 1st, 4th, 2nd and 3rd defendants respectively.
I think for the purpose of clarity and also in view of the way the appeal was approached by both learned counsel for the parties, it will be better to set out the writ of summons in full. It reads as follows:-
Application for the issuance of a writ of summons marked in the undefended list pursuant to Order 22 rules 1-5 of the High Court (Civil Procedure) Rules, 1987.
Kindly cause a writ of summons marked in the “Undefended List” pursuant to Order 22 rule 1 – 5 to issue against the defendants at the instance of the plaintiff in the following terms:
- Against the 1st and 2nd defendants (jointly and severally) the sum of $143,800 (One Hundred and Forty Three Thousand Eight Hundred Dollars) or its Nigerian Naira equivalent of N2,243,280.00 (Two Million, Two Hundred and Forty three Thousand, Two Hundred and Eight naira) being money had and received and or paid by the plaintiff to the said defendants for the supply of certain agro-chemical to wit:
Quick concentrate, 24 D Sel Amine and Renster (PL) 2 SEC upon the plaintiff’s purchase Order No.311, 312, and 313 variously dated 29th June, 1990 and 3rd July, 1990 – all with 180 days as the delivery cum validity period and which orders the defendants have failed, neglected or refused to honour despite repeated and persistent demands by the plaintiff.
- Against the 1st and 3rd defendants (jointly and severally), the sum of $87,874.08 (Eight Seven Thousand, Eight hundred and Seventy Four Dollars and Eight Cents) or its Nigerian Naira equivalent of N1,370,835.60 (One Million, Three Hundred and Seventy Thousand, Eight Hundred and Thirty Five Naira, Sixty Kobo) being money had and received and or payments made by the plaintiff to the said defendants for the supply of 61,024 No. Cuban Sugar Bags upon the plaintiff’s purchase Orders Nos.314 and 315 both dated 4th July, 1990 with 180 days as the validity cum delivery period and which orders the defendants have failed, neglected or refused to honour their contractual obligations.
- Against the 1st and 4th defendants (jointly and severally) the sum of $190,516.00 (One hundred and ninety thousand five hundred and sixteen dollars) or its Nigerian Naira equivalent of N2,972,049.60 (Two Million, Nine Hundred and Seventy Two Thousand and Forty Nine Naira, Sixty Kobo) being money had and received and or payment made by the plaintiff to the said defendants for the supply of certain agro-chemicals to wit: Ingram Combi 500 EC, Gradonprim A500 FW, Apron plus 50 DS Polytrine 440 EC upon the plaintiff’s purchase Orders Nos. 315, 317, 318 and 319 all dated 20th July, 1990 with 180 days as the validity and or period within which delivery is to be made and which orders the defendants have failed, neglected or refused to honour, despite repeated and persistent demands by the plaintiff.
Total value of payments $422,190.08
Total value of payments (Nigerian Naira Equivalent) N6,586,165.20
Consideration has totally failed due to non-delivery of either the relevant documents or goods by the defendants to the plaintiff.
Defendants have failed, refused and or neglected to discharge their obligation by the tendering of genuine, authentic and valid shipping documents covering the ordered goods and or the goods to the plaintiff in spite of several demands.
The plaintiff further claims on each of the stated sums or total sums interest at the rate of 21% from 21st January, 1991 until judgment is delivered and thereafter at the rate of 10% until eventual liquidation.
Dated at Kaduna this 8th day of January, 1992.”
The writ of summons was accompanied with a lengthy 37 paragraphs affidavit. In paragraph 36 of the affidavit, it was averred that the defendants have no defence to the suit.
The writ of summons in respect of all the four defendants was served in the office of the 1st defendant now 1st appellant, which is also the place of business of the 4th defendant now 2nd appellant, on the personal assistant to the 1st appellant, one Alh. Mohammed Ali.
The said Mohammed Ali tried to reach the 1st appellant, who was then outside the country. He succeeded on 4/2/92 and 1st appellant instructed Mohammed Ali to forward the papers to the present learned counsel for appellants.
On 5/2/92, learned counsel for appellants prepared and filed a motion on notice praying for the following orders:-
(1) An order enlarging the time within which the defendants/applicants should enter their notice of intention to defend.
(2) An order deeming the annexed notice of intention to defend exhibited hereto as Exhibit’ A’ as properly filed and served; and for such other orders as this honourable court may deem fit to make in the circumstances.
The application was equally supported with an affidavit explaining the reasons for the delay as well as averring that the defendants have a very good defence to the case and that in the interest of justice the matter should be transferred to a general cause list and determine same on the merits.
I think it is important to mention at this juncture, that the motion for extention of time within which to enter notice of intention to defend the suit, the notice of intention to defend the suit were supported with one joint affidavit.
On the 6th of February, 1992, when the learned counsel for the parties appeared in court, learned counsel for appellants raised the issue that the two foreign companies, as 2nd and 3rd defendants had no business office in Nigeria and no leave was obtained to serve them outside jurisdiction of the court. The learned counsel for respondent conceded to the issue raised by the counsel for appellants about the validity of services on the 2nd and 3rd defendants and he made an oral application to withdraw the action against the two defendants. The application was granted and consequently the 2nd and 3rd defendants were struck off as parties in the suit. Thus leaving the present two appellants.
The matter was then adjourned to 20/2/92 for the motion on notice of intention to defend the action. The motion was moved on that day and no objection was raised.
In a short ruling, the trial court ruled as follows:-
“Court: Very well, defendants give (sic) leave to file their (sic) intention to defend out of time. The annexed notice is deemed file (sic) and served subject to payment of necessary fees.”
The learned counsel for appellants, then moved and prayed the court to transfer the action to the general cause list.
The learned trial Judge then wrote his ruling and it reads as follows:-
“Court: I do not call on Mr. Oredola to reply, Order 22 rule 3(1) provides that if a defendant files a notice of intention 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”.
The defendants have just been given leave to file their notice of intention to defend out of time. This is sequel to their application on notice, dated the 5th day of February, 1992 but filed on 6th day of February, 1992. The application for extention of time was accompanied as usual, by an affidavit in support of the application for extention of time. The notice of intention to defend was annexed to the application and marked as “Exhibit A”. However, the notice of intention to defend is not accompanied by an affidavit attached to it, disclosing a “defence on the merit”.
The notice of intention to defend is therefore grossly defective as it has not complied with Order 22 rule 3(1). It is the affidavit that will disclose a defence on the merit, to enable the matter to be transferred to the general cause list. If there is no affidavit, then there is nothing before this court to exercise its discretion judicially and judiciously in favour of the defendants/applicants. I think this is a very bad way of representing a client and borders on incompetence.
For what it is worth, one would mention the affidavit in support of the application for extention of time to file the notice of intention to defend. Several references have been made to 2nd and 3rd defendants who are not parties in this suit, having been struck out on 6th February, 1992. How incompetent and careless to still refer to them in this application before me today.
Further, paragraphs 4(o) and (p) depose to the fact that what the plaintiff deposed to in its affidavit is not correct and that the defendant have a “very good defence to this case”. This affidavit is not the affidavit in support of notice of intention to defend so it cannot by any stretch of the imagination be the one meant to disclose a “defence on the merit to the case. Even if it is remotely argued, then it would be sufficient to say that the paragraphs which are supposedly incorrect in the plaintiffs affidavit, have not been spelt out and the nature of the errors given, for this court to determine one way or the other. It is certainly not sufficient to give notice to the plaintiff for it to be able to answer by way of another further and better affidavit. Also, the Supreme Court has already stated that just to aver that a party has a good defence to the case” is not enough.
For all the above reasons, the application to transfer the matter to the general cause list for determination, completely lacks merit and is hereby dismissed. Since I had adjourned this matter to today for hearing, and since there is no defence on the merit, judgment is hereby entered for the plaintiff against the 2 defendants in this suit, to the sum of $422,190.08 or the equivalent value in naira of N6,586.165.20 with interest at 10% until judgment sum is totally liquidated.”
The appellants were not happy with the ruling and they appealed to this Court. The appellants filed jointly ten grounds of appeal.
Briefs of arguments were filed and exchanged. The learned counsel for appellants also in a joint brief identified five issues for determination arising from the 10 grounds of appeal.
The issues are as follows:-
“(1) Whether the learned trial Judge was right in law when he held that the appellants did not make out a defence on the merits and thereby refused to transfer this case to the general cause list because the appellants’ facts for Extention of time within which to file notice of intention to defend and the facts for the notice of intention to defend were contained in one affidavit.
(2) Whether the learned trial Judge properly directed himself when he entered judgment for the whole sum of N6,586,165.20 against the appellants and in view of the fact that the other two parties viz: Folkrose Limited and Ratten Limited had earlier been withdrawn from this suit by the respondent?
(3) Whether on the basis of the facts before him the learned trial Judge was right in law to adjudicate on this case and thereby treated the parties in this case as properly joined in one suit.
(4) Whether on the totality of the evidence before the lower court, the respondent proved its case and was entitled to judgment for the whole sum of N6,568.165.20 against the appellants jointly and severally?
(5) Whether the learned trial Judge rightly assumed jurisdiction over this case in view of the non-compliance with order 5 rule (1) and (8) of the Kaduna State High Court (Civil Procedure) Rules, 1987.”
For his part, the learned counsel for respondent identified four issues for determination. They read as follows:-
(i) Whether on the affidavit evidence before the learned trial Judge, he was right to have held that the appellant did not disclose a defence on the merit and thereby entitle him to refuse to transfer the suit to the ordinary cause list as he did.
(ii) Whether on the State of the affidavit evidence before the learned trial Judge and having regard to the fact that the original 2nd and 3rd defendants were withdrawn from the suit, the amount of N6.586,165.20 (Six million five hundred and eighty-six thousand, one hundred and sixty-five naira twenty kobo) or the Dollar equivalent of $422.190.80 (four hundred and twenty-two thousand, one hundred and ninety Dollars, eight cent) awarded to the respondent and against the appellants jointly is justified and if not, what amount is the respondent entitled to on the state of the affidavit evidence and against whom of the appellants.
(iii) Whether or not there was misjoinder of parties in the suit and if not what is its effect on the proceedings before the trial court.
(iv) Whether the proceedings before the trial court were in anyway vitiated by procedural irregularities regard be had of the form of the writ used, the fact that it was signed by the trial Judge and the fact that the appellants did not raise any objection either orally or by way of motion to the competence or the suit at the trial court on these grounds.”
In my view, the issues identified by the learned counsel for appellants are more germane to the determination of this appeal. I shall adopt them.
In his submission under issue number one, the learned counsel for appellant contended that the learned trial Judge was wrong in holding that the appellants did not make out a defence on the merit and consequently refused to transfer the suit to the general cause list for determination on the merits. Learned counsel maintained that the learned trial Judge was wrong to hold that the notice of intention to defend had no affidavit attached to it when in fact there was an affidavit attached to the joint motion for Extention of time to file notice of intention to defend as well as the notice of intention to defend. Learned counsel contended that. There is nothing in Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987, on which the learned trial Judge placed reliance, which precludes the using of a joint affidavit for the two motions placed before the trial court. Learned counsel for appellants went further to contend that the learned trial Judge himself after holding that there was no affidavit in support of the motion for notice of intention to defend, turned round to consider some paragraphs of the same joint affidavit to make another finding that the affidavit did not disclose a defence on the merit.
Learned counsel submitted again that the learned trial Judge favoured technicalities in closing his eyes to the defence of the appellants. In the circumstances the learned trial Judge did not exercise his discretion judicially and judiciously in the matter.
Learned counsel for appellant extravagantly went into wide area and citing authorities not quite relevant to the peculiar nature of this case, particularly the cases of U.T.C. (Nig) Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 where the Supreme Court held that even where a defendant to a suit on the undefended list files a statement of defence instead of a notice of intention to defend, the Court cannot ignore it. Learned counsel also referred to the case of Adjarho v. Aghogborwia & Ors (1975) 1 S.C. 17 in support of the proposition of law, that a statement of defence filed anytime before judgment must be considered by the court and will generally prevent the plaintiff from obtaining judgment.
Clearly, those authorities and others cited by the learned counsel for appellants are not relevant to the peculiar nature of this case. In this case no statement of defence has yet been filed. At best there were only few paragraphs in the affidavit filed in support of the motion for Extention of time to file notice to defend, which was granted by the learned trial Judge and also notice of intention to defend, which the learned trial Judge rejected.
For his part, the learned counsel for respondent submitted that the learned trial Judge was right in holding that the appellants did not disclose a defence on the merit to the action and was correct to refuse the transfer of the suit to the general cause list. Learned counsel referred to the provision of Order 22 rule 3 and 4 of the High Court (Civil Procedure) Rules 1987, Kaduna State. Learned counsel also agreed with the learned trial Judge in holding that no affidavit was annexed to the notice of intention to defend the suit. Learned counsel contended further that the learned trial Judge did not favour technicalities or shut his eyes to the defence of the appellants, and even if the learned trial Judge was to hold that there was no affidavit, the error did not engender any miscarriage of justice since he finally reached a decision that the affidavit did not disclose a defence to the writ. Learned counsel then submitted that the learned trial judge had exercised his discretion correctly.
Now Order 22 rules, 1, 2, 3(1) (2) 4, and 5 provide as follows:-
Rules 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 and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s 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 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 as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing 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 Court may order pleadings or proceed to hearing without further pleadings.
- 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 formally.
(5) Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”
The rules are clear guide as to what the court should do. They require no further clarification. To bring the provision of Rule 3(1) into play, for the benefit of a defendant, it is important that the affidavit in support of the application must disclose a defence on the merits. Once that has been done, other things will follow.
Now having regard to the peculiar circumstances of this case, have the appellants disclose any defence on the merit.
It is clear from the facts of this case that it is not correct to say that the appellants’ notice of intention to defend the suit was not supported with an affidavit. The learned trial Judge himself retracted from his earlier finding that there was no affidavit.
It is also clear from the ruling of the learned trial Judge that he considered only paragraphs 4(o) and (p) that is only two out of about sixteen averments, to come to the conclusion that no defence was disclosed on the merit. There is for example averment (n) which states that no payment was made to the defendants by the plaintiff. There is also the issue of non service of the writ of summons on three of the four defendants. Infact two of the defendants 2nd and 3rd defendants, the foreign based companies were withdrawn from the suit when the learned counsel for plaintiffs realised the hopelessness of his case against them. But in spite of this major step taken by the learned counsel for the plaintiffs/respondent in withdrawing the suit against the two defendants the writ of summons which made them parties jointly and severally with 1st appellant remained unamended. This issue was also raised in paragraph 4(1) of the affidavit.
On the whole, I am of the view that the leaned trial Judge did not give adequate considerations to all the relevant averments in the affidavit in support of the notice of intention to defend.
It is noteworthy to mention that even the learned counsel for respondent himself conceded that the judgment entered by the learned trial Judge in their favour for the total sum claimed in the writ of summons cannot be supported by him. He however contended that they could be entitled to a judgment of a such lesser amount.
In this circumstances, I cannot say that the learned trial Judge had exercised his discretion judicially and judiciously in refusing to transfer the suit in the ordinary cause list. The learned trail Judge was clearly wrong to have treated the matter the way he did and entered judgment against the appellants for the whole sums of money claimed in the three segments of the writ of summons.
It is my view that this appeal has merit and it deserves to succeed. It is allowed accordingly. The judgment of the lower court is hereby set aside. The case is remitted back to the Chief Judge of Kaduna State for assignment to another appropriate court for trial.
I only wish to mention that, having reached this decision and the substratum of the appeal having been disposed of, the other issues raised have now become mere academic in nature. I do not find it necessary to go into them.
The appellants are entitled to costs which I assess at N1000.00.
Other Citations: (1994)LCN/0210(CA)