Nigerian Breweries Plc. V. Philiph Ajah (1997)

LawGlobal-Hub Lead Judgment Report

IGE, J.C.A 

This is an appeal against the judgment of the Kaduna High Court in Suit No. KDH/KAD/325/94. In the court below, the respondent as the plaintiff filed a writ of summons on the undefended list claiming against the defendant/appellant as follows:-

“The plaintiffs claim against the defendant is for the sum of N1,158,239.50 being the cost of loading and offloading of empties and the price of empties – cartons of empty bottles of Guilder, Star, Maltina and Legend worked out in and with the defendant’s Memo Ref. No. 4/9/469 dated 28th October, 1993. These cartons of empty bottles were personally returned by the plaintiff to the defendant on 24th August, 1993, 17th November, 1993, 24th November, 1993, and 15th December, 1993.

The plaintiff has on several occasions demanded for payment for these empty cartons (empties) returned but the defendant has refused, failed and or neglected to pay.

Interest at the rate of 30% from the date of delivery monthly until judgment and thereafter at the rate of 10% monthly until the whole judgment sum is fully liquidated. Dated this 27th day of May, 1994.”

The plaintiff along with his application for a writ of summons filed 2 affidavits in support. The first affidavit dated 31st May, 1994 contained 6 paragraphs while the further affidavit contained 8 paragraphs and was dated 16th day of June, 1994.

A litigation clerk in the firm of the defendant’s solicitors made an affidavit of 7 paragraphs, dated 14th July, 1994. He deposed to the fact that he had the authority of the defendant and that of his employers to swear to the affidavit which is also headed “Affidavit in Support”. On the return date the plaintiff was absent from court and counsel for plaintiff asked for another date for mention. The court then adjourned the case for 13/7/94. On 13/7/94 the plaintiff and his counsel were present in court but the defendant was absent.

Plaintiffs counsel then asked the Court to enter Judgment in his favour for the outstanding balance of N49,939.71k with interest on the main sum of N1,158.240.30 at 30% from 17th March 1993 up to 8th June, 1994. He also asked for interest on the balance i.e. N49,939.71 at the rate of 30% from 8th June 1994 to date and thereafter at 10% until the entire judgment is liquidated. The learned trial Judge then proceeded to give judgment as follows:-

“This action was brought on the undefended list by the plaintiff who claimed N1,158,249.30 against the defendant. Before the matter was first mentioned, the defendant paid over 1 Million Naira leaving a balance of N49,939.71.

The defendant has not filed any Notice of Intention to defend the suit. I therefore enter judgment against him for the balance of N49,939.71 in favour of the plaintiff. The plaintiff is awarded interest at the rate of 21% on the said judgment sum of balance of N49,939.71 from June, 1994 to date and thereafter at 10% until the entire judgment sum is liquidated. I am not persuaded to grant interest on the over 1 Million Naira only paid to the plaintiff. Plaintiff is awarded N752.00 costs.”

After the judgment, the defendant/appellant brought a motion before the learned trial Judge wherein he sought for an order to set aside the judgment on the ground that it is a nullity. On 28/7/94 the learned trial Judge delivered his ruling wherein he dismissed the application with costs. The learned trial Judge refused to set aside his judgment delivered on 13/7/94.

The appellant is dissatisfied with both the judgment delivered on 13/7/94 and the Ruling delivered on 28/7/94 refusing to set aside the judgment, hence he has appealed to this court.

The respondent has also cross-appealed against part of the judgment of the learned trial Judge Abiriyi J, wherein he refused to award interest on over N1,158,242.52 paid to the plaintiff/respondent after the institution of the suit. He has also quarreled with the learned trial Judge’s decision for reducing the rate of interest claimed by him on the judgment/debt.

The appellant in this case has filed 3 grounds of appeal and formulated 3 issues for determination. The following are the grounds of appeal along with their particulars.

Ground 1

”The judgment which was entered in this matter on 15/7/94 is erroneous in law in that it was entered on a date which was fixed for mention as the court lacked jurisdiction to conduct hearing of the suit on the undefended list on that day and consequently the judgment is a nullity.

Particulars

(a) The suit was adjourned to 15/7/94 for mention.

(b) The time limit for the defendant under Order 22 of Kaduna State (Civil Procedure) Rules to file its Notice of Intention to defend is assessed with reference to date for hearing and not date for mention and so on 15/7/94 there is no basis for ascertaining that the defendant was out of time in filing his notice of intention to defend and so there was no basis for ascertaining that the defendant had failed to file its defence as required by the Rules.

Ground 2

The trial Judge erred in law in not setting aside the judgment which was entered in this matter following the application made to him to do so.

Particulars

(a) A date for mention is not the same as a date for hearing.

(b) On a date for mention a Judge is not entitled to enter judgment on the undefended list.

(c) The judgment was a nullity by dint of the afore-mentioned circumstances.

Ground 3

The judgment is erroneous in law in that it ordered that 21% interest be paid by the defendant to the plaintiff on the sum of N49,939.71

Particulars

(a) There was no agreement between the parties that interest shall be payable and no such allegation was made in the affidavit in support of the writ of summons.”

Counsel for the appellant has formulated the following 3 issues for determination.

1.”Whether the judgment which was entered in this suit was valid having regard to the fact that it was entered on a day on which the suit was fixed for mention and not for hearing.

2. Whether the trial Judge ought not to have set aside the judgment on account of the fact that it was invalid only.
3. Whether the order for the payment of 20% interest by the defendant to the plaintiff was valid in law having regard to the fact that there was no agreement between the parties for such to be payable shown in the affidavits in support of the writ of summons.”

In his brief of argument, the counsel for the respondent formulated only one issue for determination. The lone issue reads thus:-

“Whether the trial court was right in entering judgment in the undefended action on 15th day of July, 1994”

I propose to deal with this appeal by considering the issues as formulated by the appellant in view of the fact that his appeal is against two decisions of the learned trial Judge, one a judgment delivered on 13/7/94 and the other a Ruling, delivered on 28/7/94.

Now to Issue 1 which deals with the question of the validity of the judgment entered on a day which the court fixed for mention and not for hearing.

The appellant’s counsel has submitted that a court has no jurisdiction to enter judgment in a suit on a date on which the case is not fixed for hearing. To buttress this submission he has referred the Court to the cases of UBA Kana v. Bauchi Meat Products Ltd. (1978) NMLR 42; Olubusola Stores v. Standard Bank (1975) 4 SC 51. He further argued that in an undefended list case, the time limit for filing Notice of Intention to defend is assessed with reference to the date fixed for hearing and not the date fixed for mention.

In answer to this contention, the learned counsel for the respondent has submitted that since the appellant failed to file his notice of intention to defend within 5 days before the 13/7/94 (the date the case came up) from the date of service, the learned trial Judge was right in entering judgment in favour of the respondent. He cited the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt.123) 523 (1989) 12 SCNJ 171.

First of all let us examine the relevant procedural rules of court which govern cases under an undefended list. Order 22 Rules 3 and 4 of Kaduna State High Court (Civil Procedure) Rules for 1987 state as follows:-

“3(1) If the party served with the writ of summons and affidavits as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list, and the court may order pleadings or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

The law is very clear as to the time a defendant has to file his notice of intention to defend. The notice must be delivered in writing not less than 5 days before the date fixed for hearing.

I have looked carefully at the authorities cited by counsel for both parties. I shall deal first with the case of Ben Thomas Hotels v. Sebi Furniture (1989) 5 NWLR (Pt. 123) 523 (1989) 12 SCNJ 171 upon which counsel for the respondent relied heavily. That case was fought on the issue of whether the appellant was effectively served with the writ of summons and whether the court was right in holding that judgment was properly given against the appellant on the return day.

The Supreme Court in that case held that the appellant was effectively served with the writ of summons and the affidavit in support of the case. Eso JSC (as he then was) who delivered the lead judgment held that when a case entered on the “undefended list” comes to court on the return date, the court has one and only one duty, namely to see whether the defendant has filed a notice of intention to defend the affidavit. If no such notice and affidavit have been filed within five days before the return date, the court has no choice in the matter but to proceed to judgment.

This case would have applied to the present case if the appellant had been served within 5 days of the Return Date and had served no notice of intention to defend.

In the present case the appellant was not served within 5 days before the return date which was 8/7/94. On 8/7/94 the counsel for the respondent asked for a date for mention and the court adjourned the case to 13/7/94 for mention.

On 13/7/94, the appellant still did not file a notice of intention to defend and they and their counsel were not in court. The respondent then asked for judgment for outstanding balance of his claim with interest both on the main sum and the balance yet unpaid.

The court proceeded to give judgment against the appellant for the balance of N49,939.71 in favour of the plaintiff/respondent with interest at the rate of 21% and thereafter at 10% until the entire judgment sum is liquidated.

Could the learned trial Judge have been right to give judgment on a date which was fixed for mention and not for hearing? My answer is a positive no, in view of the provisions of Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules of 1987 which states that the appellant is expected to deliver 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 learned trial Judge in my view was wrong and has erred by delivering judgment on a date fixed for mention and not for hearing. The time limit allowed the defendant/appellant for filing his notice of intention to defend is assessed with reference to the date fixed for hearing and not for mention.

This brings me to another Supreme Court case – Uba Kano v. Bauchi Meat Products Co. Ltd. (1978) NMLR 42 also delivered by Eso JSC (as he then was). In that case, the respondents as plaintiffs brought an action in the High Court of Bauchi State against the defendant/appellant for debt owing to the respondent. The case was entered in the undefended list. The hearing notice issued was not served on the appellant hence the respondents obtained an order for substituted service. When the order was made and service effected, the case was set down for mention on a named date on the ground that no intention to defend had been filed in time.

On the return date, the court entered judgment for the respondents in the case which had only been set down for mention, and not for hearing. The appellant contended that the judgment was not properly obtained. The Supreme Court on appeal to them held as follows, allowing the appeal-

“Where a case is only set down to be mentioned on a named date and the court wrongly treats the date as that fixed for hearing and proceeds to give judgment, that judgment is a nullity; and since in the present case the case was not only fixed for mention but also confused with another case set down for hearing, the judgment was wrongly entered, improperly obtained and a nullity, and therefore a new trial would be ordered.”

That case strongly supports the contention raised by the appellant in the present appeal and applying the same principles I do not hesitate to declare the judgment entered by the learned trial Judge in favour of the respondent on 13/7/94 in Suit NO.KDH/KAD/325/94 a nullity. I disagree with the submission of the respondent’s counsel that the cases of UBA v. Bauchi Meat Products Ltd. (supra) and Olubusola Stores v. Standard Bank (Supra) are not good law in view of the latter Supreme Court decisions in Ben Thomas v. Sebi Furniture (Supra). The same Supreme Court decided the three cases at different times, with different particulars, and different circumstances. If they had cause to change their decisions in the earlier cases before Ben Thomas’s case, they would have said so in the latter case and this court will then be guided as to the present position of the law. It seems to me that each case had been decided on its own merit by the Supreme Court and it will be wrong of counsel to say that one decision is good law and another is bad law. Interestingly and coincidentally, the same learned Justice of the Supreme Court Eso JSC (as he then was) delivered the lead judgments in two of the cases i.e UBA v. Bauchi Meat Products (supra) and Ben Thomas v. Sebi Furniture (Supra). It is my view that the respondent ‘s counsel was far from being correct in his submission of bad and good law.

The learned trial Judge in this case had the opportunity to rectify the error he had made on 13/7/94 when the appellant brought a motion before him on 28/7/94 asking for the judgment to be set aside. He did not seize the opportunity, rather he persisted in his error and held that the failure of the respondent’s counsel to ask for a date for hearing specifically was a mere technical error if any error at all. He said he was satisfied that the provisions of the rules have been complied with. If the learned trial Judge had read the Rules under Order 22 of the Kaduna High Court (Civil Procedure) Rules, 1987 correctly, he would have held otherwise both in his judgment of 13/7/94 and Ruling of 28/7/94. I wish to add that there is a great difference in meaning between the two phrases ‘for mention” and “for hearing”. In the new Edition of the 20th Century Dictionary – ‘Hearing’ has been defined as opportunity to be heard, audience, judicial investigation and listening to evidence and arguments. The word ‘Mention’ has also been defined as a brief notice, to notice briefly, to remark. In the light of these definitions, it is my humble view that when a case is for mention it is only noticed briefly without any ceremony. Whereas if a case is for hearing, the court is bound to give parties the opportunity to be heard through evidence and arguments. I am more reinforced in my view that the learned trial Judge committed a serious error by entering judgment for the plaintiff/respondent on 13/7/94 – on a day which he fixed for mention. The judgment is therefore a nullity.

Having held that the judgment delivered on 13/7/94 in Suit No. KDH/KAD/325/94 is a nullity, a fortiori, the ruling later delivered by the same learned trial Judge on 28/7/94 is also set aside.

I do not see the need to go into the third issue formulated by the appellant in this case, neither is there any necessity for the consideration of the cross appeal. They are both non sequitur in view of my earlier findings.

On a final analysis, this appeal succeeds, and is allowed. The judgment and Ruling of the court below including orders as to costs are hereby set aside. I hereby order a retrial of the case before another Judge of Kaduna State High Court. The appellant if so advised should be allowed to put in a defence.

I cannot end this appeal without a few comments on the Records of Proceedings of the lower court. From page 18 to page 28 of the Records, there is nothing to show the Court where the trial was held. The learned trial Judge simply signed his signature and entered the date of each sitting. There are many typographical errors in the Records as to the date judgment was entered. On page 19 the date judgment was delivered was referred to as 15/7/94 instead of 13/7/94. As a matter of fact Abiriyi J was recorded to have dismissed on 28/7/94, the application to set aside the judgment entered on 15/7/94 – see page 20 of Record:

Surely that could not be the judgment appealed against. The amount involved in the claim was wrongly quoted on page 1 of the Records but rectified on page 3. The Typist who typed the records decided to change the date of judgment to 15/7/94 even in the grounds of appeal. This is rather confusing. To say the least the records were badly prepared and they fell short of required standard.

However, what served the situation for the appellant in this case was that both the judgment and the Ruling appealed against were correctly signed and dated by the learned trial Judge Abiriyi J on 13/7/94 and 28/7/94 respectively. The briefs of the appellant and respondent were also clear as to the correct dates. It is the duty of the counsel on appeal to always scrutinize carefully the Records of proceedings of the lower court before they are transmitted to the appeal court, because not only are parties bound by the Records, but the appeal court can also only act on the papers before them. We cannot go outside the Records suo motu.

Appeal allowed with N2,000.00 costs in favour of the appellant. Costs in the High Court shall abide the retrial of the case before another Judge of Kaduna High Court.

Other Citations: (1997)LCN/0264(CA)