Bassey Effiong Nya V. Adoka Bakery Milling Company Limited & Anor (2003)
LawGlobal-Hub Lead Judgment Report
ALOMA MARIAM MUKHTAR, J.C.A.
In the court below, the Plaintiff, now the 1st Respondent took out a writ on the undefended list as follows:
Particulars Of Claim
(1) The plaintiff is a Limited Liability Company with head office at 28/30/Bukuru Bye Pass, Jos.
(2) The 1st defendant is a Medical Practitioner based at Barakin Ladi, Plateau State.
(3) The 2nd Defendant is a friend and business partner of the 1st Defendant and is Dutch National based at Barakin Ladi, Plateau State.
(4) On or about the 11th day of October, 1993, the Plaintiff paid the Defendants the sum of N250,000.00 (Two hundred and fifty thousand Naira) for the supply of spare parts for its machineries or the equivalent in foreign Exchange (Dutch guilder) to enable the Plaintiff buy the said spare parts.
(5) That the Defendants have not supplied the spare parts or the foreign Exchange and have failed, refused/neglected to refund the said sum despite repeated demands for same by the Plaintiff.
Whereupon the Plaintiff claims against the Defendants jointly and severally as follows:
(a) The sum of N250,000.00 (Two hundred and fifty thousand Naira) being money advanced to the Defendants for the supply of the spare parts or foreign Exchange.
(b) Interest at the rate of 21% per annum with effect from 11/10/93 until judgment and thereafter 10% until final payment.
(c) Cost of this action.
The Plaintiff Company’s Manager Pius Ejiga made the following depositions in the supporting affidavit of the particulars of claim.
(5) That on or about the 11th day of October, 1993, the Defendants came to the head office of the Plaintiff situated at 28/30 Bukuru Bye-Pass, Jos, in company of Mr. S.F.A. BABATUNDE an ex-staff of the Plaintiff
(6) That both Defendants introduced themselves to us as business partners.
(7) That at the time they came, the Plaintiff was in dare need of spare parts for it’s Machineries, but it had no Foreign Exchange to buy the said parts.
(8) That Mr. S. F. A. BABATUNDE, informed him that Defendants would assist the Plaintiff to source for Foreign Exchange to buy the said spare parts.
(9) That after we finished the negotiations and the amount of Foreign Exchange agreed upon, the Defendants, pleaded with us to let them have the naira equivalent to enable them complete a project in Barakin Ladi, Plateau State.
(10) After the deliberations, we agreed and subsequently gave the Defendants the sum of N250,000.00 with the promise that it’s equivalent in Foreign exchange would be delivered to the Plaintiff within 14 days or that the much needed spare parts supplied.
(11) That before the money was handed over to them, Major General G. O.Ejiga (Rtd) who is Chief Executive, Chairman, of Adoka Bakery and Milling Company Limited and who was also present during the transaction stated that he does not know Mr. Valk but that the money will only be given to the duo in the name DR. EFFIONG BASSEY NYA the 1st Defendant.
(12) That based on this, two Union Bank Cheques were issued to the Defendants in the name of DR. EFFIONG BASSEY NYA both Cheques are dated 11th October, 1993 and are for the sum of N100,000.00 and N150,000.00 and are numbered 935 and 936 respectively.
(13) That the said cheques were subsequently cashed by the said DR. EFFIONG BASSEY NY A (1st Defendant).
Copies of the said cheques are hereby attached and marked EXHIBITS A AND B respectively.
(14) That up till this moment, the Defendants are yet to supply the spare parts promised or refund the sum advanced to them.
(15) That DR. EFFIONG BASSEY NYA and MR. J. B. VALK introduced themselves to us as partners in a company known as WAMPAC (WEST AFRICAN MEAT PACKING CO. LIMITED a company based in Barakin Ladi, in Barakin Ladi Local Government Area of Plateau State.
(16) That when he discovered that the supply was not forth coming, and time was running out, the Plaintiff through its Managing Director/Chief Executive demanded for a refund of the amount already advanced.
(17) That based on this demand, the Defendants using the letter-headed paper of the Company (WAMPAC), replied, the letter is dated 19th July, 1994. A copy of the said letter is herewith attached and marked EXHIBIT C.
(18)That subsequently, we got another letter from the Defendants dated the 8th of September, 1994.
A copy of the said letter is herewith attached and marked EXHIBIT D.
(19) That when he discovered we were being taken for a ride by the Defendants, the Managing Director of Adoka Bakery and Milling Company, Major General Ejiga (Rtd.) wrote a letter dated 10th October, 1994 giving the Defendants seven days to refund the money
(20) That the Defendants have refused/neglected to refund the said sum despite repeated demands and entreaties.
The 1st Defendant filed a notice of intention to defend together with an affidavit disclosing defence on the merit. Uloko C. J. (as he then was) of Plateau State upon considering the affidavit evidence entered judgment in favour of the Plaintiff against the Defendants as follows:
“The application is hereby granted as prayed. The judgment is hereby entered in for the Plaintiff against the Defendants jointly and severally in the sum of N250,000.00 with 10% interest from 11/10/93 until the judgment debt is liquidated.”
Aggrieved by the judgment the 1st Defendant appealed to this court on five grounds of appeal, from which the Appellant distilled four issues for determination, which read as follows:
(a) Whether the Plaintiffs action was competently instituted as to consider Jurisdiction on the trial court?
(b) Whether the Appellant’s notice of intention to defend and the supporting affidavit disclosed a defence on the merits to warrant the suit being
(c) Whether the learned trial judge was right in law in awarding interest 10% to the 1st Respondent from the 11/10/93 until the final liquidation of the entire judgment debt?
(d) Whether the facts disclosed a guarantee relationship between the Appellant and the 2nd Respondent.
The above issues are contained in the Appellant’s brief of argument which he exchanged with the Plaintiff/Respondent’s brief of argument to wit there was also an Appellant’s reply brief. In the Respondent’s brief of argument are three issues for determination, which read:
(1) Whether the claim by the Plaintiff on the undefended list was competent having regards to the procedure prescribed by Order 23, of the Plateau State High Court Civil Procedure Rules, 1987.
(2) Whether from the affidavit evidence before the learned Chief Judge, there was need to transfer the suit to the general cause list.
(3) Whether the learned trial Chief Judge was right in awarding interest as he did.
The Respondent’s issues are virtually in pari materia with the Appellant’s issues above.
There are two Respondents to this appeal, but only one of them i.e. the Plaintiff/1st Respondent field a Respondent’s brief of argument, whilst the 2nd Respondent failed or refused to file a Respondent’s brief of argument. The appeal was heard on the basis of the briefs of argument filed by the Appellant and 1st Respondent. I will commence the treatment of this appeal by dealing with issue (a) in the Appellant’s brief of argument. In canvassing argument under this issue learned counsel cited the case of Madukolu & Ors. v. Nkemdilim (1962) 1 NLR 592 which laid down circumstances in which a court will be competent to try a matter.
They are:
(a) It is properly constituted as regards numbers and qualifications of the Members of the bench, and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction and there is no Feature in the case which prevents the court from exercising its Jurisdiction; and
(c) The case comes before the court initiated by due process on law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Learned counsel has stated that it is an established principle of law that a court is only competent to exercise jurisdiction in a matter when conditions precedent to its assuming jurisdiction have been complied with, and that any defect in compliance renders the proceedings no matter how well conducted a nullity. Learned counsel has contended that the 1st Respondent’s claim before the lower court was initiated without fulfilling the condition precedent of Order 23, for once there is any defect, the court cannot exercise any jurisdiction.
Learned counsel for the 1st Respondent has replied that the applicable rules of court on this issue are Order 5 Rule 1 and Order 23 of the Rules of the High Court of Plateau State 1987. I will reproduce the said rules hereunder.
Order 5 R. 1 reads:
“A writ of summons shall be issued by a judge, or an officer of the court empowered to issue summonses on application. The application shall ordinarily be made in writing by the plaintiff’s Solicitor by completing form in the Appendix to these rules; but the judge or other officer as aforesaid where the applicant for a writ of summons is illiterate, or has no Solicitor, may dispense with a written application and application made and on that regard a writ of summons may be prepared, signed and issued.
Order 23 reads:
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 or any other claim 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 brief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto enter 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.
2. There shall be delivered by the plaintiff to the Registrar upon the issue to 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 delivers to the Registrar 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 the court may order pleadings, or proceed to hearing without further pleadings.
Learned counsel for the Appellant has submitted that the preliminaries i.e. conditions precedent to the marking and issuance of a writ of summons on the undefended list have not been met, for the court must first of all consider the application as appropriate based on the affidavit evidence before marking and issuing the writ as one aladu.
On the undefended list, hence the procedure under Order 5 of the supra Rules is unapplicable. Learned counsel for 1st Respondent has submitted that once a Plaintiff completes Form 1 pursuant to the provisions of Order 5, that constitutes an application in itself and if that is accompanied with the requisite affidavit, the requirements of Order 23 supra are satisfied. I do not subscribe to this latter submission, for the provision of Order 5 refers to initiation of cases that there are not to be initiated vide under the undefended list. Order 23 supra is categorical and specific on the procedure to be adopted where the claim is for the recovery of a debt or liquidated money, as was in the instant case.
Looking at the printed record of proceedings, especially page (1), I could see that right from the inception of the suit in the High Court of Justice of Plateau State, the writ was marked ‘undefended list’. Also on the writ is the claim which is for a liquidated sum. There is therefore a difference between the claim intiable under Order 5 and that to which Order 23 is applicable. Very clearly Order 23 is the applicable rule under which the claim in the instant case.
Right from the inception of the suit the words ‘undefended list’ were marked on the writ, and there is nothing in the record of proceedings to show that an application was made to the court for the entering of the suit for hearing on the undefended list, and for such entry and marking of the court as provided for under Order 23 supra.
Learned counsel for the Appellant is of the view that such an application should be by way of motion as provided for by Order 8 Rule 2(1) and (3) of the Civil Procedure Rules supra. As such leave is a mandatory condition precedent and ought to be sought and obtained before placing and issuance of a writ on the undefended list. The case of Nwakama v Iko Local Government of Cross River State (1996) 3 NWLR part 439 page 32 is cited by learned counsel is relevant and of assistance. On the other hand the case of Ramani Ventures Ltd. v. Kingsfoam and Chemical Industries Ltd. Appeal No.CA/J/64/95 cited by learned counsel for the 1st Respondent may be of assistance, but Nwakama’s case supra is to my mind more relevant. See also Fumudoh v. Aboro (1991) NWLR part 214 page 210 and Sande v. Abdullahi (1989) 4 NWLR Part 166 page 387.
The lapses in the procedure adopted constitute non-compliance, and such non-compliance is not such to be waived lightly aside as it is not a mere irregularity or mere technicality that could be over looked, for it is fundamental and goes to the root of the case. In fact it is not automatic that a suit should be entered on the undefended list. See Okeke v. Nicon Hotels Limited (1991) 1 NWLR part 586 page 216.
In this respect I resolve this issue in favour of the Appellant and allow ground (5) of the grounds of appeal to which it relates.
Issue (b) and (c) in the Appellant’s brief of argument were argued together. Learned counsel for the Appellant started his argument by attacking the learned judge’s finding that the Appellant’s affidavit did not disclose a defence on merit, and placed reliance on the case of N.A.B. Limited v. Felly Ikeme (Nig) Limited (1995) 4 NWLR part 387 page 100 from where he extensively quoted Okezie J.C.A. (as he then was) on the weight of the defence required to be disclosed in an affidavit of intention to defend, and learned counsel asked the question of whether the Appellant’s affidavit raised a triable issue.
There are in the affidavits various and glaring areas of disagreement as can be seen in paragraphs 7, 8, 9 and 10 of the affidavit in support and paragraphs 13 (a)(b) and (c) of the supporting affidavit of the notice of intention to defend. So also in other depositions in the two affidavits and the exhibits: Learned counsel for the 1st Respondent has expressed the view that it is imperative and a condition precedent that the notice of intention to defend must disclose a defence on the merit before a trial court may decide as it thinks just to remove same from the undefended list to the general cause list for hearing, and that it is not every fancy, flimsy or frivolous defence that at is considered by the court. He placed reliance on the cases of E.N.D.C. v. Diruna (1966-7) ENLR, Olubusola v Standard Bank of Nigeria Ltd. (1995) 4 S. C. 51, U.T.C. (Nig) Ltd. v. Pamotei (1989) 2 NWLR part 103 page 244, Merchant Bank Ltd. and First Bank (Nig) Ltd. v. Khaladu NWLR part 315 page 44.
I subscribe to this view, but then, all said and done, I think the most important aspect of this appeal has already been dealt with under issue (1) supra. By resolving the said issue in favour of the Appellant, the graveman of the appeal has been determined, as without a case that has been properly initiated, jurisdiction was lacking on an undefended list.
It is thus my view that the treatment and finding of issue (1) has adequately taken care of the appeal. To further treat issues (2) and (4) will be tantamount to over flogging the center of the appeal. I believe the same goes to issue (3) above. I am satisfied that the suit had not been commenced with the right procedure, and in the circumstances, the right thing to do is to transfer this suit to the general cause list for hearing by another judge, of the Plateau State High Court, so that it can be heard on the merit.
The end result is that the appeal succeeds. I make no order as to costs.
Other Citations: (2003)LCN/1436(CA)