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Home » Nigerian Cases » Supreme Court » Bank Of Industry Ltd. V. Obeya (2021) LLJR-SC

Bank Of Industry Ltd. V. Obeya (2021) LLJR-SC

Bank Of Industry Ltd. V. Obeya (2021)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

This is an appeal against the judgment of the Court of Appeal Abuja Division delivered 14th August 2020 Coram: Peter Olabisi Ige, Emmanuel Akomaye Agim, Yargatar Byenchi Nimpar (JJCA) which set aside the decision of the High Court of the Federal Capital Territory delivered 16th November, 2017 by Hon, Justice S. B. Belgore.

The Respondent as Plaintiff at trial is a legal practitioner while the Appellant is a development finance institution substantially owned by the Federal Government. The Respondent commenced this suit by a Writ of Summons under the Undefended List against the Appellant. His claims against the Appellant are as follows:

(a) The sum of N55,245,625.00 (Fifty-Five Million, Two Hundred and Forty-Five Thousand, Six Hundred and Twenty-Five Naira only) representing half of the sum in the invoice dated 10th March, 2016 being balance of professional fees due to Plaintiff under Part 1 of the Schedule to the Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991 made pursuant to the Legal Practitioners Act, CAP L 11 LFN 2004 for services rendered by virtue of the instructions contained in the letter of instruction dated April 5th, 2011.

(b) 10% interest on the said sum of N55,245,625.00 (Fifty-Five Million, Two Hundred and Forty-Five Thousand, Six Hundred and Twenty-Five Naira only) from 21st April, 2016 till the day of judgment in accordance with the Legal Practitioners Act; and

(c) 10 % interest on the said sum N55,245,625.00 (Fifty-Five Million, Two Hundred and Forty-Five Thousand, Six Hundred and Twenty-Five Naira only) together with interest as in (b) above from the date of judgment till the sum is liquidated.

In response, the Appellant filed a Memorandum of Conditional Appearance and a Notice of Preliminary Objection on the grounds that the service of the Writ of Summons issued on the office of the Respondent at Abuja is not valid, the venue not being the registered office of the Appellant and that the trial Court had no jurisdiction to entertain the subject matter of the suit against the Appellant. The trial Court upheld the Preliminary Objection and struck out the case.

​The Respondent being dissatisfied with the decision filed an appeal to the Court below for the determination of the issues whether the service of the Writ of Summons issued on the office of the Respondent at Abuja was improper, whether the trial Court was bereft of jurisdiction to entertain an action for recovery of professional fees against the Appellant, the latter being an agency of the Federal Government, whether the Court of Appeal can grant the reliefs sought by the Respondent as no notice of intention to defend was filed by the Appellant. The Court below allowed the appeal and set aside the decision of the trial Court. It granted the claim of the Respondent except the pre judgment interest.

The Appellant herein is dissatisfied with the judgment of the Court below and has appealed to this Court vide a Notice of Appeal containing four (4) grounds filed on 15th September, 2020.

The Appellant’s counsel in its brief settled by Aliyu Saiki Esq., formulated two issues for determination as follows:

a. Whether the Honourable lower Court was right in setting aside the decision of the High Court of the Federal Capital Territory, Abuja which declined jurisdiction to entertain the suit on the grounds that the originating Court process was served by the Respondent on the Appellant at its branch office in Abuja instead of its Headquarters in Lagos and the fact that the Appellant being an agency of the Federal Government of Nigeria, the Federal High Court ought to assume jurisdiction in circumstance of the case.

b. Whether it was proper for the Honourable lower Court to exercise original jurisdiction in favour of the Respondent in respect of his claim which the Honourable lower Court did not heat the basis of lack of jurisdiction.

The Respondent in his brief also formulated three issues for determination which are essentially similar to those submitted by the Appellant even though grouped and couched differently. I will adopt the Appellant’s issues to determine the appeal.

ISSUE ONE

a. Whether the Honourable Lower Court was right in setting aside the decision of the High Court of the Federal Capital Territory, Abuja which declined jurisdiction to entertain the suit on the grounds that the originating Court process was served by the Respondent on the Appellant at its branch office in Abuja instead of its Headquarters in Lagos and the fact that the Appellant being an agency of the Federal Government of Nigeria, the Federal High Court ought to assume jurisdiction in circumstance of the case.

Learned Appellant’s counsel argued that the mode of service that will be proper in a case of service on a company must be at the registered office of the company by giving the writ to any Director, Company secretary or other principal officer at the registered office of the company or by leaving the process at its registered office and it is ineffective if it is done at a branch office of the company. Counsel submitted that the Respondent served the originating process on the Appellant at the branch office in Abuja instead of effecting proper service of the originating process on the Appellant at the Registered Corporate office and Headquarters at No. 23, Marina, Lagos State where the office of the Managing Director, management team and other principal officers of the Appellant is located and that the service of the originating process by the Respondent on the Appellant at the branch office in Abuja contravenes the provision of Section 78 of Company and Allied Matters Act 2004, Order 11, Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 ​and the judicial authorities on mode of effecting originating Court processes on a corporate body like the Appellant. Counsel cited Emperion West Africa Ltd v. Aflon Ltd & Anor (2014) LPELR-22975 (CA); Korum Limited v. International Trust Bank Plc (2010) LPELR-4408(CA); Okafor v. Igbo (1991) 8 NWLR (Pt. 210) Pg. 476 at 484 Madukolu v, Nkemdilim (1962) 2 ALL NLR, PG 581 at 589.

Counsel submitted that it was wrong of the Court below to depart from its previous decision in Korum Ltd v. l. T. B Plc (supra). Counsel argued that the bulk of the correspondence between the parties showed that the Appellant’s address for communication was at its head office at No. 23, Marina, Lagos and NOT the Abuja Office.

​Counsel further argued that the Court below was not right in setting aside the decision of the High Court of the Federal Capital Territory, Abuja which had declined to entertain the suit on the basis that it had no subject matter jurisdiction. Counsel submitted that the Court below was wrong to hold that the claim of the Respondent is in respect of a simple contract is within the jurisdiction of the FCT High Court. Counsel argued that by the provision of Section 251 of the 1999 Constitution of the Federal Republic of Nigeria, the Respondent ought not to have initiated the suit, the subject of this appeal at the lower Court against the Appellant under the undefended list procedure knowing fully well that the Appellant who will bear the consequence of the action is an institution owned and controlled by the Federal Government of Nigeria and only a Federal High Court can competently assume jurisdiction in matters relating to it in the performance of its statutory functions. Counsel cited Central Bank of Nigeria v. Auto Import Export (2013) 2 NWLR (Pt. 1737) Pg. 80 at 133-134 Paras G-H; Oloruntoba-oju v. Dopamu (2008) LPELR- 2595 (SC); NEPA v. Edegbero (2002) NWLR (Pt 798) Pg. 79 and Olutola v. Unilorin (2004) 18 NWLR (Pt. 905) Pg. 416. Counsel insisted that the issue of jurisdiction is fundamental and can be raised by the parties or by the Court suo motu at any time during the proceedings even for the first time at the appellate Court. Any decision reached without jurisdiction is a nullity. Counsel cited Onwubuya & Ors v. Ikegbunam (2019) LPELR-49373 (SC); Skenconsult Nig. Ltd v. Ukey (1981) 1 SC Pg. 6; AG Anambra State & Ors v. Okeke & Ors (2002) LPELR- 604 (SC); Okonji v. Njokanma (1989) NWLR (Pt. 114) Pg. 166

​In reply, the learned Respondent’s counsel argued that a community reading of Section 78 of the Companies and Allied Matters Act (CAMA), and Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 shows that Section 78 of Companies and Allied Matters Act envisages two types of documents one being a Court process and any other type of document. The Act also provides that where the document to be served is a Court process, service is governed by the Rules of Court while if it is any other document, it may be sent to the head office or registered office. Counsel cited NBC Plc. v. Ubani (2013) LPELR-21902 (SC). Counsel submitted that the corporate headquarters of the Appellant by Order 11 Rule 8 is in Abuja, FCT and as stated in Exhibits A, B, C and D attached to the Respondent’s affidavit in support of the writ.

See also  Mrs. Olu Solanke V. G. Somefun & Anor. (1974) LLJR-SC

​On the 2nd leg of this issue, the learned Respondent’s counsel submitted that jurisdiction is fundamental to adjudication and the jurisdiction of the Federal High Court on simple contracts and land has been settled. Counsel also argued that the writ of summons and its supporting affidavit indicate a claim for recovery of professional fees which is a cause based on simple contract and in which case the High Court of the Federal Capital Territory can assume jurisdiction since it is the nature of a claim that determines the Court vested with jurisdiction to determine same. Counsel cited Statoil (Nig) Ltd. v. Inducon (Nig) Ltd. (2021) 7 NWLR (Pt. 1774) 1 at Page 51 Paras E-H 74, Paras A-E; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) Pg. 517; Orthopaedic Hospitals Management Board v. Garba (2002) 14 NWLR Pt. 788 Pg 538 at 563; Onuorah v. Kaduna Refinery and Petrochemical Company (2005) 6 NWLR (Pt. 921) Pg. 391; Oil & Gas Export Free Zone Authority v. Dr. T.C Osanakpo (2009) 6 NWLR (Pt. 1168) Pg. 224 at 227.

Counsel submitted that Section 251 (1)(a)-(r) does not include issues of simple contract as a subject over which the Federal High Court can assume jurisdiction. Counsel submitted that recent authorities like Oil & Gas v. Dr. Osanakpo (supra); Rahman Bros v. NPA, Statoil Nig Ltd v. Inducon Nigeria Ltd. (2021) (supra) are indicative of the current position of the law on this issue.

Counsel argued that nowhere in all the documents listed by the Appellant at Page 9 of its brief was any other place described as “Corporate Office and Headquarters” as stated in the Preliminary Objection as shown at page 44 of the record of appeal. The only location so described and as seen at Pages 26, 27, 29 and 35 of the record is the Corporate Headquarters in Abuja, FCT within the jurisdiction of the trial Court.

Counsel urged the Court to consider the peculiar circumstances of this case to affirm the judgment of the Court below. Counsel cited Oteri Holdings Ltd. v. Oluwa (2021) 4 NWLR Pt.1766 Pg. 334 at 376.

OPINION

This issue is twin fold but based on the challenge to the jurisdiction of the trial Court and the Court below.

​The first challenge is one of lack of proper service of the originating process on the Appellant and the second challenge relates to the lack of jurisdiction of the trial Court to try the subject matter of the litigation. It stands to reason that if the trial Court is bereft of jurisdiction, the appellate Court also would be tainted with the same virus. See Odom & Ors v. PDP & Ors. (2015) LPELR-24351 (SC).

It is trite law that service of Originating processes on a Defendant is a fundamental step in litigation. A breach of its compliance robs the Court of jurisdiction to hear the case. See Nigeria Deposit Insurance Corporation v. CBN (2002) 7 NWLR Pt. 766 Pg. 273; Salisu & Anor v. Mobolaji & Ors (2016) 15 NWLR Pt. 1535 Pg. 242, (2016)7 S. C Pg. 1; AG Federation v. AG Lagos State (2017) 8 NWLR Pt. 1566 Pg. 20, (2017) 1 S.C. (Pt. II) Pg. 88.

Section 78 of the Companies and Allied Matters Act provides as follows.

A Court process shall be served on a company in the manner provided by the Rules of Court and any other document may be served on a company by leaving it at or sending it by post to the registered office or head office of the company.

​Thus, Section 78 of Companies and Allied Matters Act has transferred the question of service of Court processes from the provisions of the Companies and Allied Matters Act to the applicable Rules of Court. Now, the applicable Rules of Court in this case as instituted at the High Court of the Federal Capital Territory is Order 11 Rule 8 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004. The rule provides as follows:

When a suit is against a corporate body authorized to sue and be sued in its name or in the name of an officer or trustee, document may be served, subject to the enactment establishing that corporation or company or under which it is registered, as the case may be, by giving the writ or document to any director, secretary, or other principal officer, or by leaving it at the corporate office.

The Appellant argued and insisted that the address on the writ is an address of the branch office in Abuja and not its headquarters in Lagos. The rule set out above is very clear. What the rule provides for is the “corporate office” and not “registered headquarters” as argued by the Appellant. Since the rules of the Court specifically mentions “Corporate Office “the question here is whether Bank of Industry House, Plot 256, Zone AO, off Herbert Macaulay Way, Behind Unity Bank Towers, Central Business District, Abuja as evidenced in the writ on page 3 of the record of appeal is the corporate office of the Appellant. The Appellant’s complaint is that the service was not effected at its “Registered Corporate Office and Headquarters.” The Appellant’s acknowledgment stamp on the Respondent’s letters exhibited on Pg. 26, 27, 29 and 35 of the record served on the Appellant holds out the Appellant as having its “corporate headquarters” in Abuja.

The Appellant used this stamp and held out itself to the Appellant and to the public at large that its office in Abuja is its Corporate Headquarters where its corporate activities are being carried out. The Appellant having admitted this fact in writing is estopped from denying the representation it already made to the Respondent. I agree with the Court below that where a representation intended to induce a course of conduct is made, an act or omission resulting from the representation will be to the disadvantage of the person who made such representation as a consequence of the act or omission. See Oyerogba & Anor v. Olaopa (1998) 13 NWLR Pt. 583 Pg. 509; Anaeze v. Anyaso (1993) 5 NWLR Pt.291 Pg. 1; Bank of the North Ltd. vs Yau (2001) 10 NWLR (Pt. 721) 408; (2001) LPELR-746 (SC) @ 37 B-E

The Appellant cannot be allowed to approbate and reprobate at the same time.

The other point tied to this issue is that the provision of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (As Altered) confers exclusive jurisdiction on the Federal High Court in matters affecting the Federal Government of Nigeria and its agencies. The law was exhaustively restated in CBN v. Aite Okojie (2015) 14 NWLR Pt. 1479.

The law is indeed well settled that, a claimant’s claim as contained in his statement of claim determines which Court will have jurisdiction to entertain the claim. See Adeyemi v. Opeyori (1976) Pt. 9-10 SC. Pg.31; Mustapha vs Gov. of Lagos State (1987) 2 NWLR (Pt. 58) Pg. 539; Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) Pg. 592; O.H.M.B. v. Garba (2002) 14 NWLR (Pt. 788) Pg. 538; Anyah v. Iyayi (1993) 7 NWLR Pt. 305 Pg. 290; Onuorah v. Okeke (2005) 10 NWLR Pt. 392 Pg.47.

​However, this Court by 2015 had moved from the position attributed to it by the learned trial Court that the Federal High Court has exclusive jurisdiction to determine any civil cause or matter where a party is an agency of the Federal Government, or is the Federal Government itself no matter the issues involved.

This Court has held repeatedly that the Federal High Court lacks jurisdiction over simple contract. See Integrated Timber & Plywood Products Ltd v Union Bank Nigeria (2006) 12 NWLR (pt. 995) 483; Eze v Federal Republic of Nigeria (1987) LPELR 1193 (SC) Pp 29 30 paragraphs G-F; Ikpekpe v. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR- 44471 (SC)

I agree with the Court below that the trial Court did not fully understand the ratio in the decision of this Court in CBN v. AITE OKOJIE (2015) LPELR- 24740 (SC) where my learned brother Rhodes-Vivour, JSC held that the Federal High Court would have exclusive jurisdiction if and only if the plaintiff’s action is one of the causes of action, contemplated by Section 251 (1) (a) to (s) of the Constitution.

My Lords, as far back as Ach. Mandara v. Attorney General of the Federation (1984) 4 SC Pg. 8 this Court held as follows per Mohammed Bello, JSC:

“In Bronik Motors Ltd. v. Wema Bank, S.C. 110/82 delivered on 10th June, 1983, we exhaustively considered the extent of the jurisdiction of the Federal High Court in civil causes and matters and determined the content of such jurisdiction. We rejected the contention that on account of the division of judicial powers of government between the Courts established for the Federation and the Courts established for the constituent States in the 1979 Constitution, the Federal High Court had unlimited jurisdiction to the exclusion of States Courts over all Federal causes and matters. We held that the jurisdiction of the Federal High Court in civil causes and matters was limited to the matters conferred by Sections 42, 230 and 237(1) of the Constitution and the Federal Revenue Court Act, 1973.”

See also  Abu Isah The State (2008) LLJR-SC

This Court upheld its opinion in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR Pg. 296

In the recent past, this Court has crystallised its view on this issue and gone back to embrace previous views on this issue as expressed above, to the effect that the jurisdiction of the Federal High Court is basically limited to all federal causes and matters. The learned Appellant’s counsel cited among others, previous opinions of this Court set out in Oloruntoba Oju & Ors v. Dopemu & Ors (2008) 7 NWLR Pt. 1085 Pg. 1 (etc) where this Court held that the aim of paragraphs (q) (r) & (s) of Subsection 1 of Section 251 of the 1999 Constitution was to vest exclusive jurisdiction in the Federal High Court in matter which the Federal Government or any of its agencies was a party. The ratio then was that a State High Court would no longer have jurisdiction in such matters notwithstanding the nature of the claim in the action.

The current conventional wisdom is as stated in Oil & Gas Export Free Zone Authority v. Dr. T. C. Osanakpo (2019) 6 NWLR Pt. 1668, where this Court held at Pg. 227 of the NWLR as follows:

“Section 251 (1) of the 1999 Constitution (as amended) does not vest the Federal High Court with jurisdiction over an action based on simple contract or debt recovery even if the defendant to the action is an agency of the Federal Government. Put differently, it is the State High Court and not the Federal High Court that has the jurisdiction to hear and determine claims founded on simple contract irrespective of who the parties are. In this case, the subject matter of the suit is recovery of professional fees, a simple debt. So the trial Court and the Court of Appeal rightly held that Section 251 (1) of the 1999 Constitution (as amended) did not oust the jurisdiction of the trial Court.”

See also Rahman Bros v. NPA (2019) LPELR-46415 (SC) and the latest authority on this point; Statoil Nig. Ltd v. Inducon Nig, Ltd (2021) 7 NWLR Pt. 1774 Pg. 1 at Pg. 75-76.

The law is that it is not enough for the Respondent to be a Federal Government department or agency. The subject matter of the action must also fall within the jurisdiction of the Federal High Court. I resolve this issue in favour of the Respondent against the Appellant.

I hold that the trial Court was wrong to have upheld the Appellant’s Preliminary Objection and declined jurisdiction based on the service of the writ on the Appellant at the address it held out to be its corporate address to refuse to hear the claim which in fact is a simple contract and one the trial Court had jurisdiction to entertain. I resolve this issue against the Appellant.

ISSUE TWO

Whether it was proper for the Honourable Lower Court to exercise original jurisdiction in favour of the Respondent in respect of his claim which the Honourable Lower Court did not hear on the basis of lack of jurisdiction.

Learned Appellant’s counsel argued that there are conditions which must exist to enable the Appellate Court exercise its original jurisdiction. Counsel relied on the conditions as stated in Peter Obi v. Independent Commission and Others (2007) 11 NWLR (Pt. 1046) 560 at 639-640 Paras. H-B. The conditions include the fact that the trial Court or lower Court must have the legal power to adjudicate on the matter before the appellate Court can entertain it, the real issue raised in the claim at the lower Court or trial Court must be capable of being distilled from the grounds of appeal, all necessary materials must be available to the Court for consideration, need for expeditious disposal of the cases must be apparent on the face of the materials presented, lastly, the injustice or hardship that will follow if the case is remitted to the Court below.

​Counsel submitted that since the High Court of the Federal Capital Territory, Abuja could not exercise jurisdiction in the matter on the basis of improper service of the originating process, it was wrong for the Court below to have exercised original jurisdiction in the matter by granting all the claims of the Respondent which were never proved at the trial Court. Counsel cited Onwubuya &Ors v. Ikegbunam (2019) LPELR-49373 (SC), Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC Pg. 6; AG Anambra State & Ors Okeke & Ors (2002) LPELR-604 (SC) Okonji v. Njokanma (1989) NWLR (Pt. 114) at Pg. 166. Counsel urged the Court to remit the matter back to the High Court of the Federal Capital Territory, Abuja for hearing,

On this issue, learned Respondent’s counsel argued that the provision of Section 15 Court of Appeal Act empowers the Court of Appeal to make any order or directive the trial Court ought to have made but failed to do. Counsel cited Ekiti State v. Olubunmo (2017) 3 NINLR (Pt. 1551) Pg. 1 at 39 Paras B-C; Nwoye v. F.A.A.N. (2019) 5 NWLR (Pt. 1665)Pg. 193 at Pg. 213 Paras F-G.

Counsel submitted that the conditions stated by this Court in Obi v. INEC’s case have been satisfied by the Respondent since the Court below held that the trial Court had jurisdiction. Learned Respondent’s argued that Exhibits A-I which contained the material evidence for the undefended list were before the Court below. The writ was one placed on the undefended list as one that had no defence. The Respondent urged the Court to remember that the matter was instituted since 2016 and the Appellant never filed a counter-affidavit to challenge the Respondent’s claim.

OPINION

Section 15 of the Court of Appeal Act provides as follows:

The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re- heard by a Court of competent jurisdiction.

This Court considered the above provision in Ezeigwe v. Nwawulu & Ors. (2010) 2 SCNJ 112 at 145 and held as follows: “In interpreting the above provision, this Court has in the case of Obi v. I.N.E.C. (supra); Amaechi v. I.N.E.C. (2008) 5 NWLR Pt. 1080 Pt. 227; Inakoju v. Adeleke (2007) 4 NWLR Pt. 1025 Pt. 423 and Agbakoba v. INEC (2008) 18 NWLR Pt. 1119 Pg. 489 stated that for the provision to apply, the following conditions as quoted by the Appellant in its brief which I restate below must exist: “(a) That the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court entertained it; (b) That the real issue raised by the claim of the Appellant at the lower Court or trial Court must be capable of being distilled from the grounds of appeal; (c) That all necessary materials must be available to the Court for consideration (d) That the need for expeditious disposal of the case or suit to meet the needs of justice must be apparent on the face of the materials presented; and (e) That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest”.

The powers of the Court of Appeal to assume jurisdiction as derived from Section 15 of its Act is to enable the appellate Court make any order or give any directive the trial Court ought to have made but failed to do. See Govt. Ekiti State v. Olubunmo (supra). The purpose of Section 15 of the Court of Appeal Act is also to avoid duplicity of legal proceedings and ensure speedy delivery of justice.

See also  Electrical & Mechanical Construction Co. Ltd. v. Total Nig. Ltd. & Anor. (1972) LLJR-SC

​In this instant case, the matter is listed under the undefended list. Whenever an 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 the application is supported by an affidavit stating that in the deponent’s belief there is no defence to the plaintiff’s claim, the Court shall if satisfied that there are good grounds for believing that there is no defence to the claim, enter the suit for hearing in what shall be called the undefended list. By Order 21 Rule 3 of the Federal Capital Territory, Abuja High Court Civil Procedure Rules, 2004, if the party served with the writ of summons and affidavit 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. Hence, where leave to defend is given the action shall be removed from the Undefended List and placed on the Ordinary or General Cause List. Thereafter, the Court may order pleadings or proceed to hearing without further pleadings. Where any defendant neglects to deliver the notice of defence and affidavit prescribed 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. See Order 21 Rule 4 of the Federal Capital Territory; Abuja High Court Civil Procedure Rules, 2004.

​The Appellant failed to put up any defence before the trial Court but rather filed a preliminary objection to the suit neglecting its defence to the claim. This presumes that the Appellant had no defence. Therefore, when a matter is on the undefended list, there is no need to summon witnesses at all. It is basically decided on affidavit evidence. See Obaro v. Hassan (2013) 8 NWLR Pt. 1357 Pg. 425; Massken Nig. Ltd. & Ors v. Amaka & Anor (2017) 16 NWLR Pt. 1592 Pg. 438

That being the case, Exhibits attached to the affidavit at the trial Court were before the Court below as proof of the Respondent’s claim and there is no rebuttal of the proof either by a counter-affidavit or defence by the Appellant to challenge it. I agree with the Court below that they are deemed admitted. See Mato v. Hember & Ors (2018) 5 NWLR Pt. 1612 Pg. 258; Owuru & Anor v. Adigw & Anor (2018) 1 NWLR Pt. 1590 Pg. 1; Inakoju vs Adeleke (2007) 4 NWLR (Pt.1025) 427 @ 684-685 H-B; E-G; Ogoejeofo Vs. Ogoejeofo (2006) 3 NWLR (Pt.966) 205: Egbuna vs Egbuna (1989) 2 NWLR (Pt.106) 773

​My Lords, there is no doubt as held earlier that one of the conditions precedent for the Court below to exercise its power is that the trial Court must have jurisdiction to adjudicate on same. SeeAjomale v. Yaduat & Anor (1991) 5 SCNJ Pg. 177. That issue has been settled earlier on in this judgment. The issue raised by the claim at trial must be capable of being distilled from the grounds of appeal.

​Ground 3 and particulars thereof of the Respondent’s appeal at the Court below is set out here:

The learned trial Judge erred in law when he failed to assume jurisdiction and enter judgment for the Appellant and thereby occasioned a miscarriage of justice.

PARTICULARS

  1. The suit being a matter placed on the undefended list the Respondent had an obligation to file a defence 5 days before the date fixed for hearing.
  2. The notice of preliminary objection was filed 2 days before the date fixed for hearing the matter.
  3. The Respondents did not file any Notice of Intention to defend as required by the Rules of the High Court of the Federal Capital Territory.
  4. The Respondent had impliedly admitted all the material facts deposed to by the Appellant
  5. The learned trial Judge ought not to have determined the issue of jurisdiction after it held that there was no proper service of the originating processes.

From the above ground of appeal and particulars, the issues raised by the Respondent’s Claim before the trial Court are very clear and lucid, and this condition was therefore satisfied.

The other condition is the availability of all necessary materials for the Court’s consideration. The claim in this matter is one that was brought under the undefended list and to be determined on Affidavit evidence alone. The Appellant elected not to file any Affidavit disclosing a defence on the merits within the time provided by the Rules. The Respondent supplied all the materials which persuaded the trial Court to place the matter on the undefended list in the first place. The letter of instruction and other correspondence, the acknowledged invoice and letters of demand for payment were all before the trial Court and formed part of the record of appeal at the Court below. These are Exhibits A-J.

The Appellant filed no counter-affidavit to dispute the facts averred by the Respondent. My Lords, the most important reason for activating Section 15 of the Court of Appeal Act is the need for expeditious disposal of the suit to meet the end of justice. There is no empowerment in the Court to proceed to determine a matter on its merits in all cases. Where the Court sets aside the order of the lower Court striking out a suit for want of competence, or jurisdiction, the appellate Court will not ordinarily proceed to determine a matter on the merit when no witness had given viva voce evidence, being cross-examined and the trial Court had given an opinion on the veracity and merit of the case. See AG Anambra & Ors v. Ephraim Okeke &Ors (2002) 5 SCNJ Pg. 318. The power may be utilized to correct errors of lower Courts in re-assessing or re-evaluation of evidence and in such process utilizing evidence on record that was not utilized by lower Court and rejecting inadmissible evidence utilized by lower Court. See Cappa and D’Alberto Ltd v. Deji Akintilo (2003) 4 S.C.N.J. Pg. 1

​However, in the circumstances of this case, all the materials the trial Court would have needed to determine the merits of the claim were before the Court below. The last condition is that this Court would consider the hardship or injustice that would follow if the case is remitted to the trial Court. There is no doubt that in cases of liquidated money demand, the more the matter drags on, the lower the value of the debt. This is not good for our economy. Issues of liquidated money demand should be settled expeditiously. The time allowed by the Rules for the Appellant to file a defence had passed, no useful purpose would be served by the lower Court’s remittance of the suit back to the trial Court. In Obi v. INEC’s case cited and relied on by the Appellant, this Court clearly stated these conditions and after it found that the trial Court had jurisdiction and the Court of Appeal erroneously failed to invoke the provisions of Section 15 of the Court of Appeal Act to determine the main issues before the Court, it invoked Section 22 of the Supreme Court Act and took full jurisdiction of the whole proceedings as if the proceeding was instituted in this Court as the Court of first instance. This Court then proceeded to determine the matter and make the necessary orders.

​Having held that the trial Court had jurisdiction and could have tried this suit, I agree with the Court below that in view of time lapse and the nature of the suit (undefended list) it will be unfair and a miscarriage of justice to return the file to the trial Court since Section 15 empowers the Court below to assume original jurisdiction in the circumstances of this case. I find no merit in this issue and it is resolved against the Appellant. In the circumstances, this appeal has no merit, it is hereby dismissed.

The judgment of the Court of Appeal in Appeal No. CA/A/1166/2019 delivered on 14th August 2020 is hereby affirmed. Appeal dismissed.

Costs of N500,000.00 to the Respondent against the Appellant.


SC.CV/669/2020

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LawGlobal Hub
LawGlobal Hub is your innovative global resource of law and more. We ensure easy accessibility to the laws of countries around the world, among others