Brigadier-general Remawa (Rtd) V. Nacb Consultancy & Finance Company Limited & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

BA’ABA, J.C.A.

This is an appeal against the ruling of the Kaduna State High court holden at Kaduna Judicial Division in suit No. KDH/KAD/423/93 delivered on 15/5/98, filed on behalf of the 3rd defendant/applicant Brigadier General Remawa, now appellant, before this court.

By a writ of summons dated 22/9/93, the plaintiff, now 1st respondent, initially instituted an action against, Princess Rabi Ado Ibrahim, 1st defendant now 2nd respondent, in this appeal, claiming as per the writ of summons as follows:

“(a) The sum of N2,624,000.00 being the outstanding unrepaid balance as at 20/8/93, including interest thereon on a short term loan finance granted by the plaintiff to the defendant as defendant’s request.

(b) Monthly interest on the said sum of N2,624,000.00 calculated at the rate of 13.5% per month from the 20/8/95 untill the entire debt is liquidated.

Whereof the plaintiff’s claims against the defendant the sum of N2,624,000.00 plus monthly interest calculated at 13.5% per month payable from 20/9/93 till the entire debt is fully satisfied.”

The writ of summons was brought in accordance with Order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1987, the undefended list procedure, supported by a nineteen paragraph affidavit deposed to by one Mainasara I.K.P. Umar, Esq, a legal officer in the legal department of the plaintiff. The most relevant of the paragraphs are as follows:

“2. That by virtue of my position aforesaid I am conversant and familiar with the facts of this case.

3. That I have the authority of my employers to depose to this affidavit from facts within my personal knowledge.
4. That the plaintiff is a Registered Company, engaged in the business of Finance and Financial Consultancy Services with its Head office at 2 Dendo Road Kaduna.
5. That the defendant is a customer of the plaintiff who enjoys the services of the plaintiff and resides at No.1 Brig. Magoro Street Nasi Jaji – Kaduna.
6. That on the 23rd July 1992, the defendant applied for a short term credit facility of N1 million from the plaintiff, for the purpose of importing computer softwares from Germany. Copy of the application form is annexed and marked exhibit MU 1.
7. That by it’s letter of 24th July 1992, the plaintiff informed the defendant of the approval of his application referred to in paragraph 6 above, containing the terms and conditions attached to the short Term Credit facility and which the defendant accepted by endorsing the statement of acceptance, accepting the facility on those terms and conditions. Copies of the plaintiff’s letter of offer/approval and defendant’s statement of acceptance are annexed and marked exhibit MU II and III respectively.
8. That in addition to the acceptance of the loan offer, the defendant executed a loan agreement in favour of the plaintiff. Copy of the executed loan agreement and duly stamped is hereby annexed and marked exhibit MU IV.
9. That the plaintiff by it’s Trade Bank Plc. Kaduna Branch cheque No.156090 of 24/7/92 disbursed the sum of N1million to the defendant less the agreed charges. The said cheque is hereby annexed and marked exhibit MU IIIB.
10. That one of the conditions attached to the grant of the short term loan facility, and which was understood and agreed to by the parties to this suit was that, the facility shall be fully repaid inclusive of interest on the 21/9/92.
11. That it was also agreed that the facility shall attract monthly interest of 13.5% per month until same is fully repaid.
12. That the defendant defaulted in meeting her repayment obligation under the facility and by her of 30/9/92 requested for an extension of time of payment, to which the plaintiff reply to by it’s letter of 26/10/92. Copies of the letters dated 30/9/99 and 26/10/92 respectively are annexed and marked exhibits MU V and VI.
13. That the defendant further defaulted on the extended and the plaintiff’s by its letter 18/11/92, 10/12/92 and 25/5/93 called on the outstanding short term facility. Copies of the aforesaid letters are annexed and marked exhibits MU VII and IX respectively.
14. That the defendant by her of 10/6/93 handwritten submitted a repayment proposal of N200,000 monthly repayment of the facility and the plaintiff by its letter of 11/6/93 granted same. Copies of the letters are annexed and marked exhibits MU X and XI respectively.
15. That upon the further default of the defendant, the plaintiff instructed its solicitors Messrs Igunbor, Sule & Co. to recover the amount outstanding.
16. That the plaintiff solicitors thereafter wrote letter of demand dated 22/6/93 to the defendant. A copy of the letter if annexed and marked exhibit MU XII.
17. That as at 20/8/93 the defendant’s total indebtedness to the plaintiff stood at N2,624,000.00 only and she has refused, neglected to liquidate this indebtedness despite several demands and in breach of her letter of 10/6/93.
18. That I am informed by the plaintiff’s solicitor Charles Sule of counsel and I verily believe him that the defendant has no defence to this suit.”

The 1st respondent as plaintiff/applicant by a motion dated 6/2/96, filed on 8/2/96, in the trial court prayed for the following orders:

“1. Leave and order of court to join Ibrahim Muhammed, Brigadier General Remawa and Mohammed Buhari of A2 Kabala Costain, Kaduna 14 Galadimawa Road, Kaduna and 4 NEPA Close Kaduna, respectively as defendants in this suit.

2. Leave of court to amend the writ of summons.
3. Order of court to amend the writ of summons on the undefended list as follows: Whereof the plaintiff’s claims jointly and severally against defendants the sum of N2,624,000 plus monthly interest calculated at 13.5% per annum from the 20th September, 1993, till the entire debt is fully liquidated.
4. An order that all processes hereinbefore settled be served on the three defendant.”

The motion was supported by a three paragraph affidavit deposed to by one Joke Saliu of No. XX II Ibadan Street/Daura Road, Kaduna, a litigation secretary in the law company of plaintiff’s solicitors. The relevant paragraphs of the affidavit are as follows:

“2. That by virtue of my aforesaid position, I am conversant with the facts of this case and I have the authority of my employers and the plaintiff’s to depose to this affidavit.

3. That I am informed by Mainasara I.K.F. legal officer in the employment of the plaintiff, information which I verily believe to be true and correct as follows:

(a) That Ibrahim Muhammed, Brigadier M. Remawa and Mohammed Buhari, respectively guaranteed the facility granted to the first defendant Xerox copies of the Deed of Guarantee are shown to me, read by me and herewith annexed and marked as exhibits JS 1A-C respectively.

(b) That the delay in joining them as defendants was premised on the understanding existing between the plaintiff’s and the first defendant.

(c) That in view of recent development, it has become necessary that they be joined as defendants in this suit, and they shall not be so prejudiced in the interest of justice.

(d) That the first defendant has moved to an unknown address after the commencement of this suit.

(e) That in view of the necessity of joining them as defendants it has also become necessary that the writ of summons on the undefended list be amended as contained in the motion on notice.

(f) That they shall not be prejudiced if this application is granted.”

The application to amend the writ was granted on 21/6/96 by Hon. justice Adamu Mohammed of the Kaduna State High Court as contained at page 77 of the printed record.

An application dated 22/5/96 brought pursuant to Order 8 and 12 Rule 5 of the Kaduna State High Court (Civil Procedure) Rules, 1987 and the inherent jurisdiction of the court, was brought by the plaintiff/applicant now 1st respondent, praying for substituted service on the 2nd, 3rd and 4th defendants, Ibrahim Mohammed, Brigadier General Remawa and Mohammed Buhari, respectively by pasting the writ of summons and other ancillary process at the last known place of abode of each of the three defendant’s provided on the said motion. The motion was supported by a five paragraph affidavit.

The application was granted by the learned trial Judge, Hon. justice Adamu Mohammed on 21/6/96.

On 15/10/96, judgment was delivered by Abiriyi, J., against the 2nd respondent and the appellant, Ibrahim Mohammed and Brigadier General Remawa respectively. The learned trial Judge at pages 93 – 94 of the printed record, held,

“This action is brought under the undefended list, although the 2nd and the 3rd defendants have been served, they have not filed any notice of intention to defend. I agree that the second defendant and the third defendant are liable by virtue of exhibit JS 1c. Judgment is hereby entered in the sum of N2,624,000.00 in favour of the plaintiff against the defendants being a pending and un-repaid balance as at 10/8/93 with interest at the rate of 13% per month from 20/8/93 until judgment and thereafter at 10% until the entire judgment sum is liquidated. The claim against the first defendant is hereby transferred to the general cause list to be heard on the merit. Adjourned to 19/11/96 for mention.”

(Italics mine)

The appellant who was the 3rd defendant was unhappy with the judgment, as a result he filed a motion dated 22/11/96 praying for the following orders:

“1. An order of this Honourable Court setting aside the judgment delivered in the instant suit on 15th of October, 1996 which was obtained by fraud or deceit.

2. And for such order or orders as the Honourable Court may deem fit to make in the given circumstances.”

The application was brought pursuant to orders 8 and 46 rule (1) of the High Court (Civil Procedure) Rules, 1987 and the inherent jurisdiction and sanctions of the Honourable Court, supported by a seven paragraph affidavit deposed to by one Elizabeth Usuwa, of No.58, Yoruba Road, Kaduna, a litigation secretary in the chambers of Messrs Murtala Yusuf & Co., Solicitors representing the 3rd defendant/applicant. Paragraphs 2, 3, 4(a) – (j), (s) and 6 of the affidavit in support are as follows:

“2. That by virtue of my aforesaid position I am conversant with the facts leading to this case.

3. That I have the consent of my employers and that of the applicant to depose to this affidavit as contained therein.
4. That I am informed in our aforedescribed Chambers by the applicant – Brig. M. Remawa and Murtala A. Yusuf of counsel handling the instant case whom I verily believed to be true and correct as follows:

(a) That sometime between the months of March and April, 1996 certain court processes were dropped at the gate of the applicant’s house at No.14 Galadimawa Road, Kaduna.

(b) That as at the time the said court processes were dropped at the gate of the applicant, he had traveled to Lagos and one of the sons to the applicant brought the said court processes to our Chambers on the instruction of the applicant. A copy of the hearing notice attached to the said court processes is annexed herewith and marked as exhibit A.

(c) That the moment the court processes were received our Chambers appeared under protest on behalf of the applicant on 28/5/96 on the ground that the applicant was not served personally.

(d) That on the said 28/5/96 the respondent then moved its motion for substituted service to be effected on the applicant, 2nd defendant and one Mohammed Buhari which was eventually granted. And thereafter the case was adjourned to 9/7/96 for hearing.

(e) That despite the fact that the respondent did not serve the applicant on or before 9th July, 1996

our Murtala A. Yusuf of counsel was in court on the said date but the Honourable Court did not sit as a result of the Kaduna Appeal session.

(f) That just of recent our Chambers discovered at the Registry of the Honourable Court that on the 15th October, 1996 this case came up for hearing and the Honourable Court was fraudulently and deceitfully informed that the applicant was served with the court processes at No. 4 NEPA CLOSE, Kaduna on 9th September, 1996. Copy of the affidavit of service shown to the Honourable Court is attached herewith and marked as exhibit B

(g) That the applicant lives at No.14 Galadimawa Road, Kaduna and not at No.4 NEPA Close, Kaduna.

(h) That up till now the applicant has not been properly served with the court processes in the instant suit.

(i) That the applicant intends to defend this suit if properly served.

(j) That neither the applicant nor his counsel was put on notice against 15th October, 1996. Hence none of them was present in court.

5. That I know as of a fact that interest of justice will be served better if this application is considered with a view to grant the same.
6. That the plaintiff/respondent will not be prejudiced if this application is granted.”

After several adjournments, the motion was eventually argued by the counsel to the parties and Makeri, J, (as he then was) before whom the application was argued delivered his ruling on 15/5/98 and held at page 100 of the printed record as follows:

”The procedure under the undefended list is simple and straight forward as could be seen in Order 22 rule 1 of the rules of this court. When the matter came up for hearing on 15/10/96, the Hon. Judge was satisfied that service has been effected on the defendant/applicant. In the exercise of its discretionary powers coupled with due compliance with the Rules of Court, i.e. order 22 rule 4, the Judge entered judgment in favour of the plaintiff. This, to my mind is a judgment on the merit which this court lacks the power to set aside as at the moment, judgment is enter and delivered. The court there and then becomes functus officio. Any party aggrieved with the judgment has only one option and that is to appeal to the Court of Appeal. I am satisfied that no deceit or fraud was involved in arriving at the decision on the part of the court. To this end, the court has come to the conclusion that based on the affidavit evidence before it, coupled with the submission of learned counsel for the pm1ies, the application lacks merit and should be dismissed. I uphold the submission of Sule Esq, the proper order for this court is one dismissing it for lack of merit. I accordingly dismiss the application. Application dismissed.” (Italics mine)

Dissatisfied with the ruling, the learned counsel for the 3rd defendant/applicant filed a notice of appeal dated the 18th day of May, 1998, filed on 2/9/98 containing five grounds of appeal to be found at pages 101 – 103 of the printed record.

The grounds of appeal without their particulars are as follows:

“Ground One

The learned trial Judge erred in law in failing to properly evaluate the unchallenged affidavit evidence of the appellant in respect of non-service of the court processes on him before judgment was entered against him on the undefended list thereby came to a wrong conclusion.

Ground Two

The learned trial Judge erred in law in dismissing the application being appealed against when he failed to act on the unchallenged affidavit evidence contained in paragraphs 4 (a) – (h) of the affidavit in support thereby occasioned a miscarriage of justice.

Ground Three

The learned trial Judge erred in law when he held that his court became functus officio having entered judgment on the undefended list on 15/10/96 to set aside the said judgment which has been established to have been obtained without serving the appellant.

Ground Four

The learned trial Judge misdirected himself when he held that he was satisfied that there was no deceit or fraud in respect of the service of the court processes on the appellant.

Ground Five

The ruling is altogether unwarranted unreliable and can not be supported having regard to the weight of evidence. ”

The appellant’s brief dated 12/1/99 was by order of this court made on 29/11/99, deemed properly filed and served. The respondents did not file any brief.

On 4/5/06, learned counsel for the appellant who was in court when the appeal came up for hearing adopted his brief of argument while all the respondents though duly served were absent and not represented. Also, no brief of argument was filed on behalf of any or all the respondents.

In the appellant’s brief the following issues were distilled for determination in this appeal:

“2.1 Whether in the light of the unchallenged and uncontradicted depositions in the affidavit in support of the application to set aside the judgment entered on 15/10/96, particularly paragraphs 4(a) – (h) and exhibits A and B, the lower court was rightly and correctly evaluated the said piece of evidence when it held.

“I am satisfied that no deceit or fraud was involved in arriving at the decision on the part of the court?

2.2. Whether the lower court had not denied the appellant his right to fair hearing when the said court refused to set aside the judgment entered against the appellant on the undefended list where there was no prior service of the court process such as writ of summons and the hearing notice?

2.3. Whether the lower court was justified in law in holding that once the court has entered judgment, the affected court there and then becomes functus officio and any aggrieved party could only go on appeal; even though such judgment was proved to have been obtained fraudulently?”

Having examined the three issues formulated by the appellant, I find it necessary to frame an issue which I consider all encompassing and sufficient for the determination of this appeal as this court is empowered so to do and the issue is as follows:

“Whether the learned trial Judge was right in refusing to set aside the judgment having regard to the affidavit evidence?’

I will therefore consider the submission of the learned counsel for the appellant on the three issues together. It is submitted by the learned counsel for appellant in the appellant’s brief dated 12/1/98 deemed filed on 29/11/99 by this court that in view of the unchallenged and uncontradicted affidavit evidence placed before the lower court in support of an application to set aside the judgment entered against the appellant on the undefended list on 15/10/96, the lower court with due respect erred in law when it held that it was satisfied that no deceit or fraud was involved in arriving at the decision on the part of the court. He contended that in the absence of any counter-affidavit to the affidavit in support of the application filed by the appellant to set aside the judgment, the lower court is bound to believe and act upon the said piece of evidence in deciding whether to allow the said judgment to stand or not. See Dangardi v. Jibril (1997) 4 NWLR (Pt.501) 590 at 601 paragraphs A – B; Bedding Holdings Ltd. v. N.E.C. (1992) 8 NWLR (Pt.260) 428 at 436 and Nwagboso v. Ejiogu (1997) 11 NWLR (Pt.527) 173 at 177. It is further argued by the learned counsel for the appellant that it is clear from the affidavit evidence that the appellant was not duly served at his last known place of abode with any court processes at No.14 Galadimawa Road, Kaduna. According to the learned counsel for the appellant, the lower court was in error by denying the appellant his right to fair hearing contrary to section 33 of 1979 Constitution of the Federal Republic of Nigeria, 1979 (as amended) when it refused to set aside its judgment dated 15/10/96 as there was no proof of service of any court process on the appellant.

It is also the submission of the learned counsel for the appellant that the learned trial Judge was in error in holding that the court having signed and or entered judgment has became there and then functus officio in respect thereof.

Learned counsel for the appellant contended that it is not in all cases that a trial court becomes functus officio in that the trial court has the power to re-open, re-examine or review its judgment upon an application made by an affected party and on proof that the said judgment was obtained by fraud or that it is a judgment obtained on the undefended list where there was no real hearing for reasons of the fact that defendant has not had the benefit of a fair hearing. In conclusion, he urged the court to allow the appeal and set aside the judgment of the trial court, for the suit to be heard on its merit.

The background facts leading to this appeal can be gathered right from the commencement of the action and the applications filed before the trial court. It is clear that the grouse of the appellant in this appeal, is the refusal of the trial court to set aside the judgment as prayed by the appellant in his application dated 22/11/96, filed on 25/11/96.

The procedure for bringing an action to set aside a judgment obtained by fraud is exceptional in nature and therefore subject to some rules designed to ensure that the procedure is not abused. Generally speaking, when a trial court has given judgment in a case on the merit, that court is functus officio in relation to the judgment once it is pronounced. It cannot ordinarily re-open the case for a fresh hearing. A party dissatisfied with the judgment can only bring proceedings on appeal against it. However, at common law and equity fraud is viewed seriously and no effort is spared to ensure that a transaction or proceedings tainted by fraud is dismantled. This explains the emergence of the procedure whereby, a person against whom judgment has been procured by fraud could come by an action or motion to set aside the judgment.

However, to get a judgment set aside on the ground of fraud, it is not sufficient to merely allege fraud without giving the particulars thereon and the fraud alleged must relate to matters which prima facie will be a reason for setting the judgment aside if they were established by proof and not to matters which are merely collateral.

The court requires a strong case to be established before it will set aside a judgment on the grounds of fraud. As a rule a judgment can only be set aside, if at all, against those who procured it by fraud. See Tor Tiv v. Wombo (1996) 9 NWLR (Pt.471) 161 at 173.

Since the appellant in this appeal has by his averments in his supporting affidavit alleged fraud and deceit, the burden of proof is on the appellant by virtue of the provisions of section 138 of the Evidence Act, Cap. 112, Laws of Federation of Nigeria, 1990, which reads:

“138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

It appears to me that the appellant merely alleged fraud and deceit and did not go further to prove it when the standard of proof by law is proof beyond reasonable doubt. I also consider paragraphs 4(a) (c) and (g) of the affidavit in support of the application as mere averments which ought to have been substantiated in order to be relied upon by the learned trial Judge in the determination of the application.

The averments in paragraph 4(c) of the affidavit relates to a court proceedings and by virtue of the provisions of section 132 of the Evidence Act, the proceedings of the court dated 28/5/96 ought to have been exhibited to the supporting affidavit.

Section 132 of the Evidence Act reads:

“132(1) When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”

It is an elementary principle of law that he who seeks the indulgence of the court must place the necessary materials before it to enable the court exercises its discretion in his favour. See Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C 145 at 153.

It is unfortunate that this suit commenced under the undefended list on 22/9/93 was not determined until 5/10/96, handled by three different Judges and now on appeal not on the judgment but on the refusal of the trial court to set aside the judgment.

It is trite that an appellate court will not interfere with an exercise of discretion by a lower court simply because faced with a similar application, it would have exercised the discretion differently. See University of Lagos v. Olaniyan (No.1) (1985) 1 NWLR (Pt.1) 156 at 163 and Worbi & 6 Ors. v. Asamanuah & Ors. (1955) 14 WACA 669 at 671. But it may do so in special circumstances such as when the discretion was exercised on wrong or insufficient materials or where no weight or insufficient weight was given relevant consideration or the tribunal acted under misconception of law or under misapprehension of fact and in all other cases where it is in the interest of justice to interfere. See Enekebe v. Enekebe & Ors. (1964) All N.L.R. 102, Demuren v. Asuni & Ors. (1967) 1 All NLR 94 and Mobil Oil Nig. Ltd v. Federal Board of Inland Revenue (1977) 3 SC. 53 at 141.

It should be noted that both Abiriyi, J. and Makeri, J, (as he then was) held that the appellant was served. Where the court has ordered for substituted service, the claims of the appellant as per paragraph 4(c) of the supporting affidavit that he was not personally served is untenable.

In my view no cogent reason has been given by the appellant to warrant the interference with the ruling of the learned trial Judge, as a result, I resolved the sole issue formulated by me against the appellant.

In the final analysis, I hold that there is no merit in this appeal and is hereby dismissed. The ruling of S.H. Makeri, J, (as he then was) delivered on 15/5/98 in suit No.KDH/KAD/423/93 is hereby affirmed.

No order on costs.

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Other Citations: (2006)LCN/2027(CA)