Ila Enterprises Ltd & Anor V. Umar Ali & Co. (Nig) Ltd (2022)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
The present appeal is against the judgment of the Court of Appeal, Kaduna Judicial Division delivered on April 19th, 2013. By the said decision, the Court below dismissed the Appellant’s appeal (CA/K/379/2004) for lacking in merits.
BACKGROUND FACTS
The suit was commenced by the Respondent vide a writ of summons under the defendant List Procedure on June 28th, 2004. By the suit in question, the Respondent claimed against the Appellants jointly and severally the following reliefs:
- The sum of N11,408,431.00k (Eleven Million Four Hundred and Eight Thousand Four Hundred and Thirty-One Naira) being the balance of the purchase price of cotton lint supplied to the Defendants by the Plaintiff by virtue of an oral contract agreement entered into by the parties sometime in early 2001.
- 21% interest thereon from 30th October 2001 till judgment and thereafter 10% interest until liquidation of the said sum.
- Costs of this action.
The Appellants vehemently denied the claim and filed a Notice of Intention to defend the action. The Appellants equally challenged the competence of the action on the ground that some of the originating processes were not endorsed by the commissioner for Oaths in regard to the affidavits.
The trial Court discountenanced the Appellants’ objection and the Notice of Intention to Defend the action. Accordingly, the trial Court proceeded to enter judgment in the Respondent’s favour as per the claim thereof.
Dissatisfied with the said judgment, the Appellants appealed to the Court below, which dutifully heard the appeal and delivered judgment to the conclusive effect:
In the instant appeal, the appellants having issued a cheque in favour of the respondent to be paid the sum of N11,408,431.00 by Union Bank which was eventually not honoured by the said bank, are deemed in law to have acknowledged being indebted to the Respondent to the tune of N11,408,431.00 and I so hold.
In conclusion therefore, this appeal is hereby dismissed for lack of merit.
On March 7th, when this appeal came up for hearing, the learned counsel addressed the Court and adopted the argument contained in their respective briefs. Thus, warranting this Court to reserve judgment in the appeal to today.
The Appellant’s brief of argument, settled by Dr. Nuradeen A. Ayagi Esq. on 30/12/2021, spans a total of 15 pages. At page 4 of that brief, a total of three Issues have been nominated for determination viz:
- Whether the originating processes on which the respondents’ action at the trial Court was based were not incompetent and incurably so for being unsigned and for having been issued by and signed for a non-legal practitioner and whether that did not affect the jurisdiction of the trial Court.
- Whether the omission by the lower Court to consider and make pronouncements on each and every issue formulated and argued by the appellants did not constitute denial of fair hearing capable of nullifying the decision reached.
- Whether the existence of a counterclaim, dispute as to the quantum of the outstanding amount and the particulars provided therefore are not sufficient to constitute triable issues and thereupon transfer the case to the general cause list.
The issue No. 1 is canvassed at pages 4-7 of the brief, to the effect that a cursory look at the writ of summons would reveal that it has no legal value as it had not been filed in Court; it carries no official stamp of the registry or an endorsement by the processing registrar of the Court. The implication of which is that it ought not to have been looked at by the trial Court. See CPC VS. OMBUGADU (2013) 7 SCNJ 775.
Further submitted, that the writ of summons (pages 1-2 of the Record) has not been signed by the issuing legal practitioner. Therefore, the unsigned process is as good as no process, because it’s the counsel’s signature that signifies the process was duly issued by a person in a position to so issue. See OKARIKA VS. SAMUEL (2013) 2 SCNJ 491 @ 498; OKAFOR VS. NWEKE (2007) 3 SCNJ 185; HAMZAT VS. SANNI (2015) 1 SCNJ 123; FBN VS. MAIWADA (2012) 5 SCNJ 1. BRAITHWAITE VS. SKYE BANK (2012) 12 SCNJ 106 @ 111.
The Court is urged to so hold.
The issue No. 2 is argued at pages 7-12 of the brief. In a nutshell, it is submitted that the Court below was under a duty not only to consider all issues as formulated by the Appellants but also to make a definite pronouncement on them, either way. See FAMBO VS. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY (2005) 5 SCNJ 213 @ 216.
It is argued, that the exception to the rule, i.e. where an issue is subsumed in another issue, does not arise because all the in the 5 issues raised were diverse, cogent and independent. See YUSUF VS. ADEGOKE (2007) 4 SCNJ 77 @ 81-82; TONBI VS. OPAWOYE (2000) 1 SCNJ; et al.
The Court is urged to so hold.
The issue No. 3 is canvassed at pages 10-12 of the brief, to the effect that having raised a counterclaim and challenged the figures being flouted by the Respondent, the case ought to have been transferred to the General Cause list. All these were raised in the Appellant’s Affidavit in support of the Notice of Intention to Defend (pages 20-22 of the Record), giving full particulars. Therefore, the Respondent had to file an additional affidavit means there existed substantial conflict in the parties’ affidavits which calls for oral evidence attainable only at trial. See OKOTIE VS. OLUGHOR (1995) 5 SCNJ 217 @ 230 et al.
The Court is urged to so hold.
On the whole, the Court is urged upon to allow the appeal.
Contrariwise, the Respondent’s Amended brief, settled by M. Bulama Esq. on 23/02/2022, spans a total of 16 pages. At page 4 of the brief, the Respondent deems it expedient to adopt the Appellants’ three issues for determination of the appeal.
The issue No. 1 is canvassed at pages 4-7 of the brief. In the main, it’s submitted, that none of the grounds of the Notice of Appeal (pages 49-51 and 57-58 of the Record of Appeal) touched on incompetent or defective Notice of Appeal. As such, the Appellant’s remark regarding the issue is allegedly uncalled for.
Regarding the issues of the originating writ of summons filed by the Respondent (Plaintiff), it is submitted that the action was filed in 2004 under Order 1 Rule 1 of the High Court (Civil Procedure) Rules, 1988 of Kano State.
Further submitted, that a critical examination of Form one used by the Respondent in initiating the claim before the trial Court, would show that the Respondent duly complied with all the requirements of the Rules of Court. The case of AROYEWUN VS. ADEBANJI (1976) 10 NSCC 646 @ 648, was cited and replied upon in support.
It was argued, that in commencing the suit under the said Kano State High Court Rules 1988, there was no provision where a counsel or plaintiff was to sign the process. See OJUKWU VS. YAR’ADUA (2009) ALL FWLR (pt. 482) 1065 @ 1117 paragraphs A-B, et al.
The Court is urged to so hold and resolve issue No. 1 in favour of the Respondent.
On issue No.2, it is submitted in the main, that a careful reading of the five issues framed by the Appellants would reveal that they were a complaint against an appraisal and evaluation of evidence and nothing more than that. The Court below rightly came to the conclusion that the Appellants’ five issues could be condensed into a single issue which covers all aspects of the grievance of the Appellants. See OPUIYO VS. OMONIWARI (2007) 6 SCNJ 131 @ 138; AIB LTD VS. IDS LTD (2012) 17 NWLR (pt. 1328) 1 @ 31 paragraphs B-G; et al.
The Court is urged to so hold, and resolve issue No. 2 in favour of the Respondent.
Regarding issue No. 3, it is submitted that the burden of repayment or payment of the sum contained in Exhibit FY2 is squarely on the Appellants. See OKOLI VS. MORECAB FINANCE (NIG) LTD (2007) ALL FWLR (pt. 369) 1164 @ 1190-1191 paragraphs H-A.
It was argued that the Reply Affidavit complained about did not raise any issue to change the coloration of the claim to make the defence of the Appellants (Defendants) as triable, on what is triable issue. See BABINGTON-ASHAYE VS. E.M.A. GEN.ENT (NIG) LTD (2012) ALL FWLR 256 @ 290-291 paragraphs H-A; ANUNOBI VS. OBIWELOZO (2003)12 NWLR (pt. 835) 617 @ 635 paragraphs B-D.
The Court is urged to so hold.
On the whole, the Court is urged to dismiss the appeal as lacking in merits.
Apparently, the Appellants’ three issues are not at large; they are predicated upon the Amended Notice of Appeal filed on 30/6/2021. Thus, I have deemed it expedient to determine the appeal on the basis of the three issues in question, anon.
ISSUE NO. 1
The first issue, as copiously alluded to above, raises the question of whether or not the originating processes (the writ of summons) on which the Respondent’s action was based at the trial Court were not incurably incompetent for being unsigned and issued by and signed for a non-legal practitioner, thereby affecting the jurisdiction of the trial Court.
I have had a cause to herein above outline the submissions of the respective learned counsel on the issue. Instructively, the originating process (the writ of summons) in question could be found at pages 1-2 of the Record of Appeal.
It ought to be pointed out at this stage and point in time, that as at the time (25/6/2004) the said writ of summons was filed by the Respondent (plaintiff) the extant law of procedure and practice was no other than the Kano State High Court (Civil procedure) Edict, 1988. Under Order 1 Rule 1 of the 1988 Edict (supra), it’s provided:
“Subject to the provisions of any Act, civil proceedings may be begun by writ, originating summons, originating motion or petition as hereinafter provided.”
The 1988 Edict (Rules) equally provided (in the Appendix) forms as format to be used in filing such processes. A critical, albeit dispassionate, appraisal of the writ of summons (FORM 2) would undoubtedly reveal that the names of the parties (plaintiff and Defendant), the claim, the plaintiff’s counsel were the fundamental requirements contained therein.
Most ironically, however, no provision was made requiring either the plaintiff or the counsel thereof to endorse the writ of summons. Rather, it was the Registrar of the trial Court that was vested with the responsibility to sign and effect service of the processes, thereby commanding the Defendant to appear before the Court within 8 days after service of the writ thereupon.
It is undoubtedly obvious, on the face of the Record, that the writ of summons against which the Appellants based the objection thereof is clearly in conformity with the format (pattern) as prescribed in the Kano State High Court (Civil Procedure) Edict (Rules) 1988 (supra).
Indeed, the law is well settled, that where (as in the instant case), the rules of Court specifically and unequivocally provide for a procedure, counsel has no option other than to adhere to the dictates of the rules. See AROYEWUN VS. ADEBANJI (1976) 10 NSCC 646 per Idigbe, JSC @ 648; Ojukwu vs. YAR’ADUA (2009) ALL FWLR (pt. 482) 1065 per Niki Tobi, JSC @ 1 1 1 7 paragraphs A-B.
In the case of OJUKWU VS. YAR’ADUA (2009) ALL FWLR (pt. 482) 1065, this Court was reported to have aptly reiterated the trite fundamental doctrine:
Where the rules specifically provide for a procedure, innovations of counsel outside the specific will go to no avail.
They rather destroy the case of the party. This is because the Courts expect counsel to follow the procedure provided for in the rule.
Per Niki Tobi, JSC @ 1117 paragraphs A-B.
It should be reiterated that every Court or Tribunal has — an onerous duty to imbibe the culture of upholding the spirit of a ‘guardian angel’ in preserving its own records vis-a-vis the practice and procedure thereof. This is absolutely so, because the rules of practice and procedure of one Court are specifically for that Court alone, thus would not as a matter of general rule, be applicable to another Court, unless it is so expressly provided by its own rules. See CLEMENT VS. IWUANYANWU (1989) 3 NWLR (pt. 107) 39 @ 51 paragraphs E-F.
The circumstances of this case demand that the Court takes judicial notice of the fact that the Kano State High Court (Civil Procedure) Rules, 1988, pursuant to which the present action was instituted at the trial Court, had preceded the Uniform High Court Rules, 2004. Prior to the introduction, of the uniform High Civil Procedure Rules in question, the various State High Courts in the country were governed by the different High Court Rules thereof.
In the instant case, as postulated above, Order 1 Rules 1 and 2 of the Kano State High Court (Civil Procedure) Rules, 1988, are clear and unequivocal in regard to the provisions contained therein. There is no ambiguity at all, that by virtue of the provisions of Order 1 Rules 1 and 2 (supra), that Respondent’s originating process (the writ of summons et al), the Registrar of the trial was required to sign, issue and serve the writ of summons in the following terms:
You are hereby commanded that within Eight days after the service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Kano Judicial Division of the High Court of Kano State in an action at the suit of THE PLAINTIFF and TAKE NOTICE that in default of your so doing the plaintiff may proceed therein, and judgment may be given in your absence.
BY ORDER OF THE COURT.
REGISTRAR,
Thus, as aptly postulated by the Respondent, if there was any omission at all to comply with the rules, it was due to the nature and circumstances surrounding the form as provided under Order 1 Rules 1 and 2 of the Kano State High Court (Civil Procedure) Rules,1988 which was extant as at the time the suit was filed in 2004. Thus, the omission (though not conceded) would have amounted to a mere irregularity which ought not to be visited upon the Respondent (plaintiff). See NIPOL LTD VS. BIOKU INVESTMENT AND PROPERTIES LTD (1992) 3 NWLR (pt. 232) 727.
In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellants, in favour of the Respondent.
ISSUE NO. 2
The second issue, as copiously alluded to above, raises the question of whether the omission by the Court below to consider and make pronouncements on each and every issue formulated and argued by the Appellants, did not constitute a denial of fair hearing capable of nullifying the decision thereby reached.
THE Appellants’ five issues in question could be found at pages 65-66 of the Record of Appeal:
2.1 Whether the learned trial Judge was right when he held that part payment allegedly made by the appellant/defendants will not be a sufficient triable issue to transfer the case to the general cause list because the appellant failed to supply the dates of such payment in their affidavit.
2.2 Whether the learned trial Judge was right when he discountenanced the allegation of fraud raised by the appellants/defendants in their affidavit against the plaintiff/respondents.
2.3 Whether the learned trial Judge was right when he ignored the appellant/defendant counterclaim against the respondents/plaintiffs.
2.4 Whether the learned trial Judge was right when he entered judgment under the undefended list despite the fact that the respondents/plaintiffs have filed at the hearing, a “reply to affidavit in support of Notice of Intention to defend”, and whether that fact alone was not sufficient to transfer the case to the general cause list.
2.5 Whether the fact that the respondent/plaintiffs affidavit was unsworn is enough to invalidate the Writ even if the “one before the Court was sworn”.
The Court below, in its wisdom, appraised and contrasted the said five issues and came to the conclusion, viz:
The Appellants in their brief of argument formulated the following issues for determination…
The Respondent on the other hand equally relied and adopted the issue for determination formulated by the Appellants. I adopt issue 4 with some modification as the sole issues in the consideration of this appeal to wit:
Whether from the totality of the evidence that was adduced before the lower Court, the lower Court erred in law when it failed to transfer the matter to the General Cause List.
Thus, it was on the basis of the foregoing sole issue, that the Court below determined the appeal before it to the conclusive effect:
In the instant appeal, the appellants having issued a cheque in favour of the respondent to be paid the sum of N11,408,431.00 by Union Bank which was eventually not honoured by the said bank, are deemed in law to have acknowledged being indebted to the Respondent to the tune of N11,408,431.00 and I so hold.
Every issue raised or thrown up for determination of an appeal must be distilled from or predicated upon a ground of the notice of appeal. This is absolutely so, whether or not the issue is raised by the Appellant or Respondent. Indeed, the Respondent is not precluded from couching an issue in a manner suitable to his case, provided the issue relates to the ground of appeal. Thus, even the Court itself is not precluded from suo motu formulating an issue upon which it believes the case or appeal could best be determined. See MAGIT VS. UNIVERSITY OF AGRIC MAKURDI (2005) 9 NWLR (pt. 959) 211; MOMODU VS MOMOH (1991) 2 SC 1; BOB VS. AKPAN (2009) ALL FWLR (pt. 491) 894; TRANA LTD VS. UTB PLC (2009) 12 NWLR (PT. 1155) 313.
Undoubtedly, the Court is cloaked with an unfettered power to suo motu reformulate an issue nominated by the parties for determination. Where for instance, the issues as formulated by the parties evidently border on proliferation or clumsiness, the Court may reformulate such an issue or issues in the best interest of accuracy, clarity and brevity. See UNITY BANK PLC VS. BOUARI (2008) 7 NWLR (pt. 1086) 371 @ 401 paragraphs E-F.
In the instant case, the Appellants have failed to provide any reasonable explanation on how the reformulation of the five issues in question by the Court below has adversely affected the right of hearing thereof, or led to a miscarriage of justice thereto.
In the circumstances, the second issue ought to be, and it is hereby resolved against the Appellants.
ISSUE NO. 3
The third issue raises the question of whether or not the existence of a counter claim dispute as to the quantum of the outstanding amount and the particulars provided therefore are not sufficient to constitute triable issues and thereupon transfer the case to the general cause list.
On 26/07/2004, when the matter came up for hearing of the application for judgment on the undefended list, the Respondent (plaintiff) was represented by M. Bulama, while the Appellants were duly represented by Ibrahim Sule Esq. Bulama moved his application, thereby urging the trial Court to enter judgment and interest as per the plaintiff’s claim.
Contrariwise, Sule submitted, inter alia, that:
The reply affidavit indicates that there is need to transfer the case to the General cause list. This means there is need to call for oral evidence. See. Yahaya V. Waje (2001) FRWLR page 804.
The difference between the figure are (sic) gave and the figure given by the plaintiffs calls for a trial. See Cryston V. AIB Limited (2002) 36 NRN 65.
I pray that our counter affidavit be considered. I pray that the matter be transferred to the General cause list.
Mr. Bulama, however, objected to Appellants’ counsel’s submission:
The defendants have not produced any material to case one made and our reply affidavit is a really a redundant one.
The trial Court deemed it expedient to adjourn the matter to 27/07/2004 for ruling. Eventually, on 30/07/2004, the trial Court delivered the ruling thereby entering judgment in favour of the Respondent against the Appellants, to the following effect.
JUDGMENT
The defendants having failed to raise any defense on the merits, the plaintiff is hereby given judgment against the defendant in the sum of N11,408,451.00 which amount should attract, interest at 10% from today till satisfaction of the judgment.
Having been seized of the appeal against the decision of the trial Court in question, the Court below delivered the vexed judgment on the said 19/4/2013. At page 105, lines 5-16 of the Record, the Court below remarked:
I have carefully examined paragraphs 16-23 of the Appellants’ affidavit and I have not seen in any of the said paragraphs wherein the Appellants stated the dates the said payments were made to the Respondent through its managing Director or to its authorized agents.
This Court is still kept within the realm of speculation as to the date the said payments were made by the Appellants to the Respondent, the question that must be asked at this juncture is why did the Appellants issued (sic) a cheque in favour of the Respondent dated 30/10/2001 to be paid the sum of N11,408,431.00 if the Appellants were not indebted to the Respondent to the tune of the said amount. See Exhibit FY2.
In my considered view, the foregoing finding of the Court below is cogent, unassailable and quite in league with the pleadings and evidence on record.
Instructively, the dispute between the respective parties leading to the instant appeal is regarding the failure of the trial Court to transfer the suit to the General Cause List for trial on the merits. Based on the sole issue for determination, the Court below extensively considered the averments contained in the Affidavits vis-a-vis the counter Affidavit and the various Exhibits attached thereto, and came to the conclusion (at pages 103-104 of the Record):
Appellant confirmed being indebted to the Respondent to the tune of N13,108,431.00k However, the said amount was reduced to N11,408,431.00k sequel to the surrender of DAF Truck worth N1,700,000.00k by the Appellants to the Respondent…
I have carefully and painstakingly gone through all the processes that were filed by the Appellants before the lower Court and I have not seen where the Appellants annexed any agreement that would have supported their contention that the outstanding against them had further been reduced to N8,030,000.00k as contemplated by the said annexure…
The foregoing findings et al represent the unanimous decision of the Court below comprising Aboki, JCA (as then was) Mbaba and Abiru, JJCA. Those findings, I must add, have covered all the complaints (grievances) of the Appellants raised in their five issues at the Court below. The findings of the Court below constitute what is judicially known as ‘concurrent findings’, thereby affirming the findings of the trial Court. It is trite, that for this Court to disturb those concurrent findings by the two Courts below, the Appellants ought to have shown that those findings were perverse, thereby occasioning a miscarriage of justice thereto. The case of AGBO VS. THE STATE (2006) 1 SCNJ 332 does not, in my considered view, seem to support the Appellants’ case. In the case of AGBO VS. THE STATE (supra), the findings of the Court at page 355 specifically relate to the power of a trial Court to peruse document in its file. Contrariwise, in the instant case, such documents and concurrent findings were appraised by both the Court of Appeal and the trial High Court. In the present case, the Appellants have woefully failed to show that the affidavit evidence and documents in question were misinterpreted or misconstrued by the two Courts below, thereby occasioning a miscarriage of justice thereto.
In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellants, and in favour of the Respondent.
Indeed, the law is well settled, beyond per adventure, that findings of Court that are borne out of credible evidence must not be disturbed by an appellate Court, unless such findings are shown to be perverse. See ENANG VS. ADU (1981) 11-12 SC 25; IGBI VS. THE STATE (2000) 3 NWLR (pt. 648) 169; IBIKUNLE VS. THE STATE (2007) LPELR-8068(SC) per Muktar, JSC @ 25 paragraphs C-E.
It is equally settled, that if a Court came to a decision which no reasonable Court of justice applying its mind to proper considerations and directions can come, then an appellate Court having jurisdiction to entertain an appeal from such a decision only on a point of law, would reverse such a decision. The reason being, that the position then is exactly the same as if the trial Court has come to a decision of fact which no evidence whatsoever supports, and the decision in question ought to be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980)1 per Idigbe, JSC @ 57 paragraphs A-E; BRACEGIRDLE VS. OXLEY (1947) 1 ALL ER 126 (a decision of the Court of five Justices), where in Lord Goddard, CJ remarkably observed:
It is of course, said that we are bound by the findings of facts set out in the case by the justices, and it is perfectly true that this Court does not sit as a general Court of Appeal against justices’ decisions in the same way as quarter sessions, for instance, sit as a Court of Appeal against the decisions of Courts of summary jurisdiction. In this Court, we only sit to review the justices’ decisions on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact, at which they arrive.
I have equally deemed it expedient to reiterate the trite fundamental doctrine, that primary facts are facts which are normally observed by the witnesses and proved by testimony; conclusions from those (primary) facts are inferences deduced by a process of reasoning therefrom. As once aptly postulated by Denning, J. (as then was):
The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal (trial judge) who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law… The Court will only interfere if the conclusion cannot reasonably be drawn from the primary facts and that is the case here. The conclusion drawn by these justices from the primary facts was not one that could reasonably be drawn from them.
See (1947) 1 ALL ERA 130 paragraphs D-F; KINGMAN VS. SEAGER (1938) 1 KB 397; DURNELL VS. SCOT (1939) 1 ALL ER 183, cited with approval by this Court in NAFIU RABIU VS. KANO STATE (supra), per Idigbe, JSC @ 57-59 paragraphs A-G.
Thus amply drawing an inspiration from the foregoing authorities, I am of the considered view, that the concurrent findings of the two Courts below and the resultant conclusion reached thereon, are neither unreasonable nor perverse, thus ought to be upheld by this Court. And I so hold.
Consequently, the judgment of the Court of Appeal delivered on 19/04/2013 in appeal No. CA/A/379/2004, is hereby affirmed.
The Respondent shall be entitled to N500,000.00 against the Appellants, jointly and severally.
Appeal dismissed
SC.560/2013