Zahkem International V. Ndu C. Ofoma (2000)
LawGlobal-Hub Lead Judgment Report
OBADINA, J.C.A.
Th
is is an appeal against the judgment of Abiriyi. J. sitting at the High Court, Kaduna State. The plaintiff, now the Respondent in the appeal, instituted an action against the defendant/appellant under the ‘Undefended List’ in the High Court, Kaduna State on the 19th of November, 1996 for the sum of (N189,800.00) one hundred and eighty-nine thousand, eight hundred naira, being the unpaid prices of items of goods supplied to the defendant/appellant by the plaintiff/respondent. Prior to the issuance of the ‘Undefended List’ summons on the defendant/appellant, the plaintiff/respondent filed a motion ex-parte praying for the following Orders:-
“(1) Leave to issue and serve the defendant respondent the ‘Undefended List’ summons outside the jurisdiction of this Honourable Court.
(2) An Order that the ‘Undefended List’ summons and all Court processes in the suit be served on the defendant/respondent by way of expedited mail service at the following address: Suleja, Niger
State and to deem same as proper service.
(3) Such further or other incidental orders as this Honourable Court may deem fit and just to make in the circumstances.”
The motion dated 19th November, 1996, was heard and all the prayers granted on the 12/2/97. – See pages 11 and 20 of the record of appeal.
Consequent upon the orders of 12/2/97 aforesaid, the writ of summons was issued under ‘Undefended List’, on the same day, the 12th of February, 1997. The defendant/appellant was served and it filed a notice of intention to defend, with an affidavit in support thereof. The plaintiff/respondent filed a further and better affidavit. The Appellant further filed a reply to the further and better affidavit filed by the Respondent.
The summons was moved under ‘Undefended List’. After hearing counsel on both sides, the court entered judgment for the plaintiff/respondent in terms of the writ against the defendant/appellant. Aggrieved by the said judgment, the appellant has appealed to this Court.
The Appellant filed three (3) grounds of appeal, from which it formulated two (2) issues for determination, namely:-
“(1) Was the suit competent to be treated under the Undefended List jurisdiction of the court?
(2) Even if the suit was competent under the Undefended List (not conceded) was learned trial Judge right to treat the suit under the Undefended List instead of transferring same to the general Cause List in view of the defence disclosed by the appellant in their Notice of intention to defend.”
On receipt of the appellant’s brief of argument, the Respondent filed a respondent’s brief wherein a notice of preliminary objection was given against ground 1 of the appeal. The notice reads:
“The Respondent hereby raises a preliminary objection to ground 1 as contained in the Appellant’s Notice of Appeal dated 15th day of May, 1997 and pursuant to which issue No.1 was predicated upon and canvassed in the appellant’s brief of argument, and on which notice of objection is hereof given to the Appellant”.
The grounds upon which the Respondent rely in raising this preliminary objection is firstly, that there was no leave of the Court of Appeal prior sought and obtained before grounds 1 and issue No. 1 formulated thereon was argued in that they were fresh points being canvassed for the first time at the Court of Appeal, this has removed from this court the jurisdiction to entertain the issue.
Secondly, there were no grounds of appeal raised on evaluation of evidence.
Thirdly, there was a fragrant breach of provisions of Orders Rules 2(1-4) of the Court of Appeals 1981 as amended.”
Arguing the first ground of the preliminary objection, the learned counsel for respondent in his brief submitted that the issue or point that the respondent did not seek and obtain prior leave of the lower court before the suit was entered under the Undefended List cannot be raised at the Court of Appeal, without leave of the court having been sought, and obtained, before it can be canvassed, since the point was never raised at the lower Court. He argued that there was no time during the hearing of the case at the lower Court where the appellant raised the issue or point that the Respondent did not obtain prior leave of the lower Court before the suit was entered under Undefended List and as such, no issue was joined by the parties in respect thereof. He submitted that before the Appellant can raise the issue for the first time on appeal, he must have sought and obtained the leave of the Court of Appeal. He referred to the cases of Okenwa v. Military Governor of Imo State (1996) 6 NWLR (Pt.455) 394 and Diamond Bank Nig. Ltd. v. GSM Agro Allied Industries Ltd. (1999) 8 NWLR (Pt.616) 558. He submitted that the issue raised in ground 1 of the Notice of Appeal and upon which issue No.1 was predicated is a fresh point for which no leave of the Court of Appeal has been obtained, and it is therefore incompetent. The Appellant filed appellant’s reply brief. In the reply brief, the Appellant submitted that the objection was misconceived, as ground one of the Notice of appeal and the issue No.1 formulated therefrom raised the issue of competence of the suit and the Court’s jurisdiction to entertain it on the Undefended List summons.
The law is well settled that an appellant cannot be allowed to jettison the point upon which it joined issues before the trial Court. Neither can a novel issue be raised on appeal, without leave of the court having been sought and obtained before it can be canvassed. See Diamond Bank Nig. Ltd. v. GSM Agro Allied Industries Ltd. (1999) 8 NWLR (Pt.616) 558 at 566; Okenwa v. Military Governor of Imo State (1996) 6 NWLR (Pt.455) 394.
However, the nature of the new issue or point being sought to be raised, though afresh, must be carefully examined and considered. Where the issue or point being raised at the Court of Appeal, though afresh, is as to the competence of the suit or as to the jurisdiction of the trial Court to entertain the suit, the leave of the court is compulsory. The issue of jurisdiction of the lower court to entertain the suit or the competence of the suit can be raised for the first time at the Court of Appeal. See Okesuji v. Lawal (1991) 2 SCNJ 1 at 8; (1991) 1 NWLR (Pt.170) 661, where the Supreme Court held inter-alia as follows:-
“Firstly, I wish to point out that the issue of non-service of the Writ of Summons on the 2nd defendant and the 5th defendant or that relevant indorsements were not made on the Writ was not raised either in the trial Court or in the Court of Appeal. There is however nothing precluding the appellant from raising in this court any question which touches on the jurisdiction of the trial court to entertain the action or that the proceedings are a nullity because of a fundamental defect.”
The issue as to whether the plaintiff/respondent obtained the leave of the trial court to place the suit on the Undefended List seems to me to be a fundamental issue. It touches on whether the suit was properly initiated in accordance with the law and whether the trial Court had jurisdiction to entertain the claim. Any defeat in the competence of a court renders the proceedings before it a nullity, a defect of competence being extrinsic to the adjudication:- See Madukolu & Others v. Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341; Oloriegbe v. Omotesho (1993) 1 SCNJ 30 at 54; (1993) 1 NWLR (Pt.270) 386.
Consequently, the issue raised in ground one of the Notice of Appeal is a fundamental issue that can be raised for the first time on appeal.
However, before the issue can be raised and canvassed upon, the leave of the Court of Appeal must be sought and obtained. In Deacon J.K. Oshatoba & Other v. Chief Johnson Olujitan & other (2000) 2-3 SCNJ 139 at 169; (2000) 5 NWLR (Pt.655) 159 at 168 – 69, paras. H – C, the Supreme Court, per Iguh, J.S.C has the following to say:-
“The crucial question for consideration under issue 1 is whether or not the appellants can now raise the issue of want of jurisdiction on the part of the trial Upper Area Court to entertain the respondent’s action as contended by the appellants.
Without doubt, where a case is heard and judgment is delivered by a court without jurisdiction, the proceeding’s will be a nullity. See Timitimi v. Chief Amabebe 14 WACA 374 at 377; Mustapha v. Governor of Lagos State (1987) 5 SCNJ 143; (1987) 2 NWLR (Pt. 58) 539; Tukur v. Government of Gongola State (1987) 4 NWLR (Pt. 117) 517. Equally true is the fact that the issue of jurisdiction may be raised at any stage of a proceeding up to the final determination of an appeal even by the highest court of the land. A trial Court and, indeed, an appellate Court may raise it suo motu at any stage of a proceeding, but must invite the parties to address it on the issue before it takes its decision there upon. See Osadebay v. Attorney General, Bendel State (1991) 1 NWLR (Pt 169) 525; P.E Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675; Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661.”
His Lordship goes to say at page 170 of the report- (page 170, paras. E – F, NWLR)
“It is thus clear both from the above stated grounds of appeal and the issue raise therefrom that before the Court of Appeal, the Appellants did not raise or pursue the issue of jurisdiction of the trial Upper Area Court to entertain the Respondent’s action. That issue having not been pursued by the appellants before the Court of Appeal, it seems to me plain that court, unless being an issue of jurisdiction, it was prepared to raise suo motu, had no business whatsoever to deal with it:- See Florence Olusanya v. Olufumi Olusanya (1983) 3 SC 41 at 56-57; (1983) 1 SCNLR 134.”
The learned Law Lord goes further to say at page 172,
“There can no doubt that the question of jurisdiction, being radically, fundamental, can be raised at any stage of a proceeding and even for the first time in a court of last resort, such as the Supreme Court. Management Enterprises Ltd. & Others v. Jonathan Otusanya (1987) 2 NWLR (Pt. 55) 179. Such an issue must, however, be properly raised before the court may rightly entertain the point. This is because an appellate Court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon, by the court below:- See London Chartered Bank of Australia v. White (1987) 4 AC 413; Kabaka’s Government & Other v. Attorney-General of Uganda & Other (1965) 3 WLR 512 or (1966) AC 1.”
In the present case on appeal, there is no dispute that the Appellant did not raise in its notice of intention to defend the issue of the Respondent’s failure to comply with the provision of order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules, 1987. There can also be no doubt that the appellant did not seek and obtain the leave of the Court of Appeal before raising the issue in ground 1 of the Notice of Appeal.
In the circumstances, I am of the view that the issue raised, in ground 1 of the Notice of Appeal is not properly raised and argued before this Court. In that regard, the first ground of the objection succeeds. Accordingly, ground 1 of the notice of appeal and the issue and argument predicated on it are hereby struck out.
The second ground of the objection is that there is no ground of appeal raised touching on the evaluation or weight of evidence adduced at the trial which will enable the Court of Appeal see whether or not to interfere with the judgment. He referred to Order 3 Rule 2 (1-2) of the Rules of Court, 1981 as amended. The Respondent further submitted that the Appellant deliberately preached the provisions of Order 3 Rules 2 (1-4) of the Court of Appeal Rules, in that the exact paragraphs and pages where the error or misdirection occurred were not quoted, and consequently, the grounds of appeal are vague.
The Appellant did not raise an omnibus ground of appeal. The Appellant raised three (3) grounds of appeal with clear and unambiguous particulars. A careful reading of grounds Two and Three of the grounds of appeal and the particulars given thereunder clearly reveals that, the issues of evaluation and weight of the affidavit evidence before the trial court were adequately raised in the appeal.
In the circumstances, a sober consideration of the totality of the preliminary objection seems to show that the second arid third grounds of the objections are misconceived and should be dismissed. The second and third objection are, accordingly dismissed.
I will now go into the consideration of the issues in the appeal. As indicated, earlier, the appellant formulated two issues for determination, while the respondent also raised two issues. The two issues formulated by the respondent are as follows:
“(1) Whether by the provisions of Order 22 of the High Court Civil procedure Rules of Kaduna State leave of the court is a precondition before a suit can be entered in the ‘Undefended List’?
(2) Whether in the circumstances of this matter and having regard to the affidavit evidence together with the exhibits annexed thereto, the learned trial judge could be said to be right in entering judgment for the respondent in this case?”
A careful reading together of two issues formulated by the Appellant and the two issues raised by the Respondent seem to show that the issues are virtually identical and the same in substance. The first issue raised by the Appellant and the first issue formulated by the respondent arose from ground 1 of the appeal and are both challenging the propriety of the placing of the writ of summons on the ‘Undefended List’ and the adequacy of the involvement of the trial judge in the exercise of his discretion; while the second issue formulated by each of the parties relates to the adequacy of the defence disclosed by the affidavit in support of notice of intention to defend. I will therefore treat the first issue raised by each of the parties together. Since ground 1 of the appeal has been struck out on the basis of the reasons given earlier in this judgment, issue No.1 and the argument predicated on it are equally struck out. The second issue raised by the Appellant and that formulated by the respondent are also identical and the same in substance. It is whether in the circumstances of the case and having regard to the affidavit evidence before the learned trial judge, the learned trial Judge was right in entering judgment for the respondent as he did.
Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rule 1987, provides that “if a party served the writ of summons and affidavit as provided in Rules 1 and 2 hereof of delivers to the registrar not less than 5 days before the date fixed for hearing a notice of intention 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 fit.”
The Appellant as defendant at the trial Court filed a notice of to defend with affidavit. Arguing issue No.2 in his brief of argument the learned Counsel for the Appellant referred to the affidavit in support of the summons, the affidavit in support of notice of intention to defend filed by the Appellant and the further and better affidavit filed by the Respondent as well as the reply filed by the appellant and argued that the respondent did not show that the person who signed their invoices was one of the Appellant’s store keepers and that he had signed past invoices for which payment was made to the respondent. He submitted that, in view of averments in the affidavit in support of the notice of intention to defend, the suit ought to have been transferred to the general Cause List for trial. He said the issue as to who signed the respondent’s invoices which should have been resolved at the trial remained a mystery in the affidavit filed by the respondent. He submitted that the affidavit evidence was not properly evaluated by the trial Judge. He urged the court to allow the appeal.
In his own brief of argument, the learned Counsel for the Respondent also referred to the affidavit in support of the summons; the affidavit in support of notice of intention to defend; the further and better affidavit filed by the Respondent and the reply thereto filed by the appellant. He referred in particular to paragraph 4(a) and (b) of the Appellant’s affidavit filed on 13/3/97 as well as paragraph 4(c); (f), (g) and (h) of the said affidavit and submitted that the Appellant merely described a procedure for supply and procurement of goods in the Appellant’s company. He referred to where the Appellant raised issue of fraud in paragraph 4(c) and (f) of the affidavit and said that the Appellant did not give particulars of the fraud. He submitted that the totality of the affidavit evidence proffered by the Appellant did not disclose a defence, to the claim. He urged the court to dismiss the appeal.
It is a settled principle of law that for an action filed under ‘Undefended List’ to be transferred to the general Cause List, the defendant must present a defence to the action on the merit. It is not enough for the defendant merely to deny the claim or aver that some payments he made were not taken into account. He must set out the details and particulars of the defence. It must not be a half hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place: See Franchal (Nigeria) Ltd. & Other v. Nigeria Arab Bank Ltd. (1995) 8 NWLR (Pt 412) 176 at 188; Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.109) 250; Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; U.T.C. v Pamotei (1989) 2 NWLR (Pt.103) 244 and John Holt & Co. (Liver pool) Ltd. v. Fajemirokun (1961) 1 All NLR 492.
A party wishing to defend an action filed under Undefended List, by attempting to put a defence relating to fraud allegedly committed by the plaintiff, must state in clear terms the particulars of the fraud in his affidavit in support of an intention to defend. A mere vague allegation of fraud is useless. In all cases, sufficient facts and particulars must be given to show that there is a bona fide defence. See Diamond Bank Nig. Ltd. v. GSM Agro Allied Industries Ltd. (1999) 8 NWLR (Pt.616) 558 at 566; See also Nishizawa Ltd. v. Jethwani (1984)(supra) 260.
In the present case, on appeal, the appellant in paragraph 4 sub-paragraphs (c) and (f) of the affidavit dated 13/3/97, raised issues relating in effect, to fraud. The particulars of the fraud were not given. On the contrary, the appellant shows in paragraph 4(d) of the affidavit that someone in the appellant’s office who was not one of the store officers received the goods in question and signed the invoices on behalf of the appellant. The Appellant complained that in supplying the goods to the appellant, the Respondent did not follow the normal procedure.
In paragraphs 6 and 7 of the further and better affidavit in support of the summons, the respondent, deposed that he has in the past supplied some items/motor spare parts to the appellant contrary to the procedure deposed to by the appellant in support of his notice of intention to defend and he has been duly paid on each occasion by the appellant except the occasion giving rise to this suit.
A sober and closer look at the totality of the affidavit evidence proffered by the appellant before the learned trial Court seems to show very clearly that there is no defence to the action. I am therefore of the view that the learned trial Judge properly evaluated the evidence before him and judicially and judiciously exercised his discretion in the case. Consequently, I am unable to see any merit in the appeal.
The appeal therefore fails and is hereby dismissed. The Appellant shall pay the costs of the appeal assessed at (N5,000.00) five thousand naira to the Respondent.
Other Citations: (2000)LCN/0823(CA)