Chrisdon Industrial Co. Ltd. & Anor. V. African International Bank Limited (2002)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

By a suit filed under the undefended list cause on 2nd September, 1990 at the High Court of Onitsha Judicial Division in Anambra state of Nigeria, the respondent claimed against the appellants jointly and severally as follows:

1. the sum of N26,470,327.30 being principal sum plus interest as at 31st July, 1998 and
2. 25% interest per annum on the judgment debt from 1st August, 1998 until final liquidation of the entire debt.
3. Costs.

By the rules of court under which the suit was filed, the claim was supported by an affidavit of 7 paragraphs showing the circumstances of the claim and attaching a number of exhibits. The claim arose from overdraft/loan facilities granted by the respondent to the 1st appellant guaranteed by 2nd appellant.

On the 3rd December, 1998, the appellants filed a notice of intention to defend under Order 24 rule 9 of the High Court Rules of Anambra State, 1988. Accompanying the notice is an affidavit of 18 paragraphs to which was attached a number of exhibits. On 20th May, 1999 the matter came up for hearing at the High Court. The proceeding for hearing is as set out at page 43 of the record. Judgment was given for the plaintiff as claimed for N26,470,327.30 with 25% interest and N5000 costs in favour of the respondent. Dissatisfied with the said judgment, the appellants have appealed to this court. The parties have also filed their respective briefs.

In their brief, the appellants formulated 2 issues for determination as follows:-

“1. Was the lower court right to have proceeded with hearing the suit without considering the application for adjournment?

2. Did the appellants’ notice of intention to defend, raise a triable issue so as to entitle the appellants to be let in to defend?”

As can be seen from the brief, the first issue relates to the alleged failure of the lower court to consider an application for adjournment as contained in the counsel’s letter dated 19th May, 1999. Learned counsel for the appellants conceeds that it is within the discretion of the court to grant or refuse an application for adjournment but says the discretion must be exercised judicially and judiciously. In the instant case, counsel submits, the lower court wholly disregarded the application. Thus, the appellants were shut out from arguing their case. The case of Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22 at 47 was referred to and relied upon.

The second issue complains of the judgment of the lower court which says that the appellants’ notice of intention to defend does not show a “defence on the merit” it is argued that the decision is wrong in the light or face of material conflicts in the affidavits of the parties. Moreover, the lower court in no where in its judgment did it consider the defence which it found to lack merit. The court did not evaluate the affidavit evidence before its learned counsel therefore submits that there was no “hearing” as required by the rules of court – refers to Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462 at 472.

It is submitted that if the lower court had considered the affidavit of both parties, it would have been satisfied that the notice of intention to defend had made out a triable issue.

It is not in issue, the appellants argue that the appellants owe the respondent a certain sum of money the issue to be resolved by the court was how much the appellants owe the respondent. There was a serious doubt as to the sum of N13,019,400.22 which the respondent debited to appellants’ account as commissions, fees and other charges. The lower court overlooked the matter. Moreover, the appellants had instituted an action against the respondent challenging their indebtedness to the respondent. The appellants submit that having regard to all the circumstances of the case, it cannot be said that the appellants have not made out a triable issue.

It is further contended that the undefended list procedure does not allow the court to go into the merits of the case on affidavits. What the court had to decide was whether there was a triable issue to go before the court. – See UNN v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.l19) 19 at 31; Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744; Military Government of Nigeria v. Sani (1990) 4 NWLR (Pt.l47) 688 at 699;. Ezuma v. Nkwo Market Community Bank Ltd. CA/E/94/99 delivered on 27th April, 2000 (unreported); Co-operative & Commerce Bank (Nigeria) Ltd. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19.

The respondent also filed a brief of argument and therein formulated 3 issues for determination thus:

“(a) Did the failure of the trial court to grant an adjournment breach the rule of fair hearing as to cause a miscarriage of justice in the absence of any such application for an adjournment?

(b) Was the trial court wrong in entering judgment without much ado after seeing the various written admission (sic) of the respondents (sic) claim by the appellant in

(i) The exhibits attached to both the respondent (sic) affidavit and further and better affidavit?

(ii) Some paragraphs of their affidavit in support of notice of intention to defend?

(c) Did the trial court occasion a miscarriage of justice by the mere use of the words “The notice of intention does not show defence on the merit?”

Arguing his 1st issue, learned counsel for respondent submits that there was no application for adjournment before the court on 20th May, 1999 being the date the case came up for hearing in the lower court. Counsel goes on to argue that even if there was any such application, it was within the discretion of the court to grant or refuse it. Such exercise of discretion cannot be faulted unless it was improperly exercised or exercised without regard to the conditions necessary for the exercise of such discretion.

On the 2nd issue, it is argued that admissions of the respondent’s claim in the affidavit of the appellant are sufficient to support entering judgment for the respondent. The respondent relies on paragraph 8(b) of the appellants’ affidavit and exhibit 1 at page 6 of the record. The effect of such admissions counsel submits, is judgment for respondent – refers to and relies on Omoregbe v. Lawani (1980) 3 – 4 S.C 108 at 117; Boshalli v. Allied Com. Exporters Ltd. (1961) ANLR 917. It is further submitted that since the respondent’s further and better affidavit was not challenged, it is deemed to be admitted. Counsel relies on Globe Fishing Co. Ltd. v. Coker (1990) 7 NWLR (Pt.162) 265, (1990) 11 SCNJ 56 and submits that in the circumstance, no further evaluation of evidence is necessary.

Arguing the 3rd issue, it is submitted that the mere use of the words that the “notice of intention does not show defence on the merits”, does not occasion a miscarriage of justice. Learned counsel contends that so long as the judgment is correct as in this case, the words used are immaterial. The respondent raises a preliminary objection to the effect that there is no appeal properly before this court in that the notice of appeal filed by the appellants is incurrably defective and contrary to law not being in accordance with Civil Form 3 as prescribed by Order 3(2) of the Court of Appeal Rules as the said notice was signed by counsel instead of the appellants themselves. He refers to Addis Ababa v. D.S. Adeyemi (1976) 12 S.C. 51 at 59; Olumide v. Ajetunmobi FCA1K/6/80 of 15/7/80 reported as D.A.C. page 16 at paragraph 7.28. Counsel submits that an incompetent notice must be struck out – refers to Mohammed v. Olawunmi (1990) 2 NWLR (Pt.133) 458, (1990) 4 SCNJ 23.

At the hearing of the appeal, both counsel addressed the court. Learned counsel for the appellants refers to the record of proceedings which contains the application for adjournment. On the judgment of the lower court, counsel submits that there must be a hearing before the judgment is entered. He refers to CCB (Nigeria) PLC v. Samed (2000) 4 NWLR (Pt.651) 19. The lower court ought to have considered the affidavit before arriving at its judgment. Counsel for the respondent maintained that there was no letter for adjournment.

This appeal, once again, brings to the fore the problems which arise from the way and manner the lower courts rush proceedings in an undefended list cause. The procedure is designed to cut short the hearing of a suit in the High Court in appropriate cases. The way and manner however, some of the lower courts deal with cases in the undefended list would seem to negate the purpose which the procedure is designed to achieve. Thus, in a suit filed in 1998 (over 3 years ago) it is still being contended in this courts whether the lower court did or did not do what it ought to do under the rules governing the suit.

Let me start with the preliminary objections. They were formerly two but one of them was withdrawn leaving only one. The substance of the objection for consideration is that the notice of appeal was signed by counsel instead of the party as provided for by Civil Form 3 of the Court of Appeal Rules. This is an interesting objection which calls for proper judicial consideration.

For ease of reference, I shall set out the Civil Form 3 hereunder in so far as it concerns a notice of appeal.

NOTICE OF APPEAL (Order 3, Rule 2)

TAKE NOTICE that the plaintiff/defendant being dissatisfied with the decision/that part of the decision more particularly stated in paragraph 2 of the … court contained in the judgment/order of dated the day of 19 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relief set out in paragraph 4.

And the appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. Part of decision of the lower court complained of.
3. Grounds of Appeal

(1), (2). (3) etc., 4. Relief sought from the Federal Court of Appeal, 5. Persons directly affected by the appeal:

Name, Address, (1), (2), (3), etc.

DATED this………….. day of ………….. 19 ………………………….. Appellant whose address for service is….

It will be noticed that the Form contains, among others, the grounds of appeal, Order 3 rule 2 prescribes what the notice of appeal should contain. Again, the rule of court states that the notice of appeal “shall set forth the grounds of appeal.” The grounds of appeal are invariably matters of law. Where a ground is of fact or of mixed law and fact, a special leave of the court shall be sought and obtained. A careful reading of Order 3 rule 2(1) (2) and (3) shows clearly that the duties to be performed in settling a notice of appeal as regards the grounds of appeal are beyond the competence of a lay man or a man not learned in the law. It must be realised that some of the litigants are not only lay men but also illiterates. When a person appends his signature to a document it means that he either prepared it or approves of it. The position with, an illiterate is more difficult as a jurat must also be affixed. It is clear from the provision of Order 3 rule 2 that the functions to be performed in settling a notice of appeal are functions to be performed by counsel if the party has one. Order 3 rule 2(5) is instructive. It provides:

“(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the grounds of appeal upon payment of the fees prescribed for such amendment and upon such terms as court may deem just.” (italics mine) I may ask, is the function prescribed in that rule performed by the party or counsel? The function is always performed by counsel even if the word “appellant” is used. In the same vain, the signing of a notice of appeal can be done by counsel” even if the word “appellant” appears in the Form. The Form cannot override the rule or the law. Justice cannot be sacrificed on the alter of form. The era of extreme technicality in our courts at the expense of justice is gone. What a party can do in a case, his counsel can do it unless the law or the rule of court specifically rules out the performance of the function by counselor where it is practically impossible for counsel to perform such a duty such as giving evidence in court. As Lord Collins M.R. stated in Coles and Ravenshea in re – “Although the rule of court stands as a guide to the court in conducting court business, the court must not hold it as a “mistress” but as a “handmaid.” I hold that the notice of appeal is properly before the court. The preliminary objection is accordingly overruled.

I now come to the substance of the appeal. I shall first deal with the issue of adjournment as appearing in both briefs. At page 42 of the record appears a letter of adjournment. The appellant contends that the letter was not brought to the notice of the court before judgment was entered nor was the letter given to the opposite counsel even if on the face of it, the letter says that it was copied to the opposite counsel. If the stand taken by counsel for the respondent is correct, it follows that there was no application for adjournment before the court at the time the judgment was entered. The court would therefore be right to do what it did, that is, proceeding with the case without considering any application for adjournment because there was none. If on the other hand there was a letter applying for an adjournment but the application was not considered before the court proceeded to judgment, the court would be wrong, very wrong, to do what it did. Unfortunately, the letter was not stamped and dated by the Registry as it ought to do. On the receipt of any letter by the Registry for the attention of the court, the Registry should immediately stamp and date the letter before passing it on to the court. In some courts, the Registry besides stamping and dating such a letter also records on the letter the time the letter was received in the Registry. This practice is important and should be adhered to by all Registries of courts throughout the country.

Now what do I hold in the circumstances of this case? Should I hold that the letter was before the lower court but it failed to refer to it or make use of it or that the attention of the court was not brought to it?

The onus is on the appellants to establish that their letter applying for an adjournment was before the court but the court failed to take cognisance of it. The discharge of such onus will require further evidence viva voce or affidavit. In view of the fact that this dispute or conflict is before this court, and never before the lower court, this court and indeed every other court should always bend backward to do justice by observing the principle of fair hearing. Subject to my decision on the other issues, this may be a case where the lower court will be ordered to hear both sides before arriving at its judgment.

I shall now consider the 2nd issue of the appellants and the 2nd and 3rd issues of the respondent together. They all point to the same issue and can conveniently be considered together. The question here is whether the lower court was right in entering judgment in the way and manner it did without evaluating the evidence as contained in the affidavits in support of the claim and in support of the notice of intention to defend and whether the lower court was right in holding that the notice of intention to defend “does not show defence on its merits.” This is the crux of this appeal. This is also where many trial courts falter by taking too simplistic a stance on proceedings on the undefended list. The undefended list procedure is designed to cut short the procedure in the High Court by eliminating, in appropriate cases, the technicalities of pleadings and all that go with them. It has however turned out to be a booby-trap that does no one any good. As Aniagolu JSC aptly put it in Ntukidem v. Oko (1986) 5 NWLR (Pt.45) 909:-

“A snappy short-cut decision, bereft of an examination of the merits of the case often settles nothing but rather exacerbates the conflicts.”

Now, in the appeal under consideration there were before the lower court affidavits in support of the claim via an affidavit and further and better affidavit; there was an affidavit in support of the notice of intention to defend. To these affidavits was attached a number of exhibits. There were indeed over 16 exhibits attached to the several affidavits. All these affidavits and exhibits attached thereto were apparently considered in a two sentence judgment at page 43 of the record of appeal. Is that the intendment and spirit of the provisions of Order 24 rule 9 of the High Court Rules of Anambra State 1988? I think not. What was done in the court below looks like a rough and ready type of justice of the Roman era.

I have had cause to examine rather meticulously the undefended list procedure rule of Anambra State in the case of CCB (Nigeria) PLC v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt,651) 19. I have had a second look at that judgment. I have no reason to change the views I expressed in the said judgment. Judges of the lower court and lawyers who want a shortcut to justice may hold a different view. They are entitled to their views. That is the beauty of the law and of the legal profession. So long as Order 24 rule 9 of the High Court Rules of Anambra State 1988 stands as it is, so my views remain and so will the lower courts be bound unless and until the Supreme Court says otherwise.

As I pointed out in CCB. (Nig) Plc v. Samed Investment Co. Ltd. (supra) the problem with Order 24 rule 9 stems from the second part of sub-rule (4) which provides:

“… or where he delivered the notice and affidavit but the court is not satisfied therefrom that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such case, the suit shall be heard as an undefended suit and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court.” (italics mine).

The question is – how does the court become “not satisfied” that a bona fide issue for trial has been raised? Is it not by considering the affidavit evidence before it? The affidavit evidence shall be considered in the judgment to be delivered. Moreover, the rule does not say that as soon as a court is not satisfied that a bona fide issue for trial has been raised, the court shall enter judgment. No, it says that the suit shall be “heard” as an undefended suit. How is the suit heard as an undefended suit? The plaintiff is relieved from the burden of summoning “witnesses before the court to prove his case formally.”

Furthermore, one must not close one’s eye to the provision of sub-rule (5) of the said rule 9. It provides:

“Nothing herein shall preclude the court from making an order, should it so think fit, at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.”

This sub-rule shows that the court may at any stage opt for the trial of the suit in the ordinary way by transferring it to the general cause list. It has a restraining effect against rushing a suit to judgment as an undefended list cause. As my brother Olagunju JCA pointed out in the CCB. (Nig) Plc case (supra) at page 36.

“….the craze (to rush the suit) may not offer any real advantage to the litigants; on the contrary, it may be counter-productive.” (words in bracket mine).

There is another aspect of this appeal which is raised in the issues under consideration. Part of the two sentence judgment of the lower court says that the notice of intention to defend “does not show defence on the merit”. Must the notice of intention to defend show a defence on the merits of the case? The answer is No. All that a notice of intention to defend is required to do is to satisfy the court that there is a “triable issue”, or raise a bona fide issue for trial.” The affidavit accompanying the notice of intention to defend does not have to show “a defence on the merits.” By requiring the notice of intention to defend to show a defence on the merits the learned trial Judge has put the requirement of the said notice on a much higher pedestial than as prescribed by the rules. It is not a question of mere “misuse of words”, as is contended by learned counsel for respondent. There is nothing in the record to show that if the learned trial judge had adverted his mind to the correct phraseology that he would have come to the same judgment.

In the light of the above, this appeal must be allowed and the judgment of the lower court set aside. In the light of the first issue on adjournment, the proper order is to send the case back to the lower court for trial. The appeal is allowed. Judgment of the lower court is set aside. I order that this case be remitted to the lower court; that the case be entered on the general cause list and pleadings shall be ordered and filed. Minimum delay shall be observed in the filing of the pleadings and hearing of the case in view of the fact that the case has been unduly delayed. Each party to this appeal shall bear his/its own costs.

Other Citations: (2002)LCN/1107(CA)