Alhaji Isa Bayero V. Mainasara & Sons Limited (2006)
LawGlobal-Hub Lead Judgment Report
ARIWOOLA, J.C.A.
This is an appeal against the judgment, though headed ruling, of Hon. Justice Garba Abudullahi of the Kano State High Court, delivered on 30th July, 1999 in an action instituted by the respondent.
The fact of the case briefly goes thus:
The respondent herein as the plaintiff sued the appellant herein as defendant and claimed as follows:
“……..the sum of N1,816,000.000(one million eight hundred and sixteen thousand naira only) being the sum due and owing from the defendant to the plaintiff arising from posters, party agents ID. cards, receipt books, ballot sheet sample, letter headed and electoral receipt sheets printed and supplied by the plaintiff to the defendant”
The plaintiff had gone to the lower court with an application for leave to issue writ of summons and serve same on the defendant on the plaintiff’s claim under the “undefended list.” The application dated 13/05/99 was heard and leave was granted on 18/05/99 to enable the plaintiff issue writ of summons. The writ of summons dated 10th May, 1999 and already marked “undefended list” was issued by the Registrar of Kano State High Court on 13th day of May, 1999.
Sometime on 31/05/99 the defendant caused appearance to be entered on his behalf and on the same date a notice of intention to defend the action was filed, to which he attached an affidavit in support. The defendant also filed a notice of preliminary objection which was overruled by the court. Consequently, judgment was given in favour of the plaintiff. Being dissatisfied with the judgment, the defendant brought this appeal.
It is note worthy that the notice of appeal earlier filed in the registry of the lower court contained three grounds of appeal as follows:
Ground 1
“The lower court erred in law when it ruled that the case was not statute barred thereby over ruling the preliminary objection of the appellant.
Particulars of Error
(a) The case before the lower court per writ issued on the undefended list is for the sum of One Million Eight hundred and Sixteen thousand Naira (N1,816,000.000) being the sum of money for goods supplied by the respondent to the defunct United Nigeria Congress Party (U.N.C.P) for which the appellant in his capacity as Chairman of the Kano State Branch of the party undertook to see to its payment.
(b) It was shown that the party (U.N.C.P) was subsequently proscribed and by the provisions of section 5(1) & (6) (1) & (2) of Decree No. 15 of 1998 which provides for a Sole Administrator to take care of the assets and liabilities of the party.
(c) It was shown that the appellant acted and made the undertaking in Exhibit MA1 on behalf of the United Nigeria Congress Party.
(d) The preliminary objection that the case was statute barred as against the appellant was raised on the basis of the provisions of Decree No. 15 of 1998
(e) Notwithstanding the provisions of Decree No. 15 the court held the appellant liable for the goods supplied to the party on the basis of the undertaken (sic)
Ground 2
The lower court erred in law where it decided that the appellant’s notice of intention to defend and the accompanying affidavit discloses no defence on the merit.
Particulars of Error
(a) The respondent relied on exhibits MA2- MA9 and MA10 – MA11 to show it supplied the goods for which it is now asking to be paid.
(b) By paragraphs 3 (g), 3(h), 3(i), 3(j), 3(k), 3(l) and 3(m) of the affidavit accompanying the appellant’s notice of intention to defend the appellant emphatically denied acknowledging personally or otherwise the delivery notes exhibits MA10 – MA11 thus emphatically denying receiving any goods that was purportedly supplied by the respondent.
(c) Notwithstanding the conflict in the affidavit of parties at the lower court, the court refused to transfer the case to the general cause list to enable the case be proved on merits.
(d) It is trite law that once there is dispute in affidavit in a case on the undefended list same ought to be transferred to the general cause list.
Ground 3
The lower court erred in law when it held that the appellant is not an agent of a disclosed principal and as such liable to pay the judgment sum pursuant to his undertaken (sic) in exhibit MA1.
Particulars of Error
(a) Exhibit MA1 is an agreement in which the appellant in his capacity as the Chairman of the Defunct United Nigeria Congress Party Kano State Branch undertook to see to the payment for the goods to be supplied by the respondent.
(b) It is clear that the undertaking was made to give assurance of payment to the respondent on behalf of the defunct U.N.C.P and not to transfer liability to the appellant.
(c) Notwithstanding the clear expression and intention of the agreement the lower court held the appellant personally liable.
(d) It is trite law that an agent of a disclosed principal cannot be held liable for undertaken (sic) made on behalf of such principal.”
By order of court granted on 17/10/2001, to enable the appellant file and argue additional grounds of appeal, four other grounds of appeal were added to the earlier three grounds as follows:
Ground 4
“The learned trial Judge erred in law when he proceeded to enter judgment in this matter as an undefended list action when the condition precedent to the entertainment of a matter under the undefended list procedure has (sic) stipulated by the High Court Civil Procedure Rules of Kano State had not been complied with.
Particulars of Error
(a) Order 23 of the High Court Rules of Kano State provides that before a matter is placed on the undefended list leave of the court must be sought for and obtained.
(b) Order 5 of the High Court Rules of Kano State states that a writ of summons shall be issued by the Registrar or other officer of the court empowered to issue the writ of summons.
(c) Order 5 of the High Court Rules of Kano State also states that the writ of summons is issued when it is signed by the registrar or other officer of the court duly authorized to sign the writ.
(d) The writ of summons which was marked “undefended list in this matter was issued on 13th May, 1999 which was the date the registrar signed the writ of summons.
(e) The leave to place this matter under the undefended list was granted on 17th May, 1999.
(f) It is obvious that it was after the writ of summons had been so marked undefended list that the leave was granted.
(g) The condition precedent to confer jurisdiction on the court in a matter under the undefended list had not been complied with.
Ground 5
“The learned trial judge erred in law and misdirected himself when he held that:
“On the whole sum, I am of the view that the defendant is liable to pay the plaintiff the sum of N1,816,000.000(one million eight hundred and sixteen thousand naira) for goods supplied to the defunct United Nigeria Congress Party on account of personal undertaking to settle the bills.”
and this has occasioned a miscarriage of justice.
Particulars
(i) The appellant as the Chairman of the United Nigeria Congress Party, requested the respondent to print and deliver certain materials as may be determined by the secretary of the party.
(ii) The appellant also requested the Managing Director of the respondent’s to debit their (party’s) account accordingly
(iii) The appellant as State Chairman of the United Nigeria Congress Party (U.N.C.P) acting as its agent undertook to ensure that the respondent was paid for the services promptly.
Ground 6
“The learned trial Judge erred in law by entertaining and determining this suit in favour of the respondent when the suit did not disclose a reasonable cause of action, and this has occasioned a miscarriage of justice.
Particulars
(i) In the endorsement on the writ of summons, the respondent claimed the sum of N1,816,000.00 (one million eight hundred sixteen thousand naira) as the sum due and owing from the appellant for the various materials printed and supplied by the respondent to the appellant.
(ii) The Appellant was not sued as a surety or guarantor of the debt.
(iii) The claim against the appellant is in the nature of recovery of debt and not for the performance of an undertaking or guarantee.
(iv) The trial court after finding that money and materials were delivered to the appellant went on to enter judgment against the appellant purportedly on the basis of the appellant personal undertaking given on behalf of the United Nigeria Congress Party to settle same.
Ground 7
The judgment of the lower court is against the weight of the evidence.”
The appellant formulated the following issues for determination –
- “Whether the appellant acted as agent of a disclosed principal and as such is not liable for the debt of the principal.
- Whether the lower court had the requisite jurisdiction to entertain this suit on the “undefended list” when a pre-condition for it to assume such jurisdiction had not been satisfied.
- Whether there was a personal undertaking on the part of the appellant to pay the debt owed the respondent by the United Nigeria Congress Party so as to be held personally liable for the debts.
- Whether the respondent’s claim should not have been struck out for failing to disclose a reasonable cause of action in debt or indemnity”.
First and foremost, the appellant having admitted that no issues are formulated based on grounds one and two of the above grounds of appeal, in law, those grounds of appeal are deemed abandoned. Accordingly, they are hereby struck out. See; Tukur v. Government of Taraba State (1997) 6 NWLR (pt.510) 549, 569; Newswatch Comm. Ltd. v. Atta (2000) 2 NWLR (pt.646) 592,601, Bendel Feed and Flour Mill Ltd v. Nigeria Intercontinental Merchant Bank Ltd. (2000)5 NWLR (pt.655)29.
The respondent on receipt of the appellant’s brief filed its own brief. In its brief it raised certain preliminary issues on the amended notice of appeal filed by the appellant. Counsel to the respondent contended that the appellant was granted many reliefs by the lower court on 17th October, 2001 including an order deeming the amended notice of appeal as properly filed and served, appropriate filing fees having been paid. He contended further that by Order 3 Rules 2 and 5 of this Court’s Rules, 1981 (as amended) notice of appeal is to be filed at the court below. He submitted that the amended notice of appeal in this case was not filed at the court below or filed at all. He submitted further that the appellant having failed to file the amended notice of appeal at the lower court or at all, there is no valid amended notice of appeal before the court. He urged the court to determine this appeal based on the notice of appeal filed at the lower court containing three grounds of appeal.
On this, the appellant replied and submitted that it is misleading for the respondent to argue as he did above, in that once an appellant has sought and obtained the leave of this court to amend its grounds of appeal or to file additional grounds of appeal, and had paid the necessary fees, and has complied with the terms and conditions imposed by the court, the appellant can argue the appeal on the basis of these additional or amended grounds of appeal. He gave three reasons why it was not necessary to file the amended notice of appeal at the lower court and cited some decided cases to support his argument.
On notice and grounds of appeal, Order 3 rules 2(1) and 5 of Court of Appeal Rules, 2002 provides thus:
“3(2) (1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the notice of appeal “) to be filed in the Registry of the court below which shall set forth the grounds of appeal, stating whether the whole or part only of the decision of the court below is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal which shall be accompanied by sufficient number of copies for service on all such parties; and it shall also have endorsed on it an address for service
…….
…….
- An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below. ”
There is no doubt that a notice of appeal is by the rule required to be filed at the registry of the lower court from where the appeal emanates. Failure to do so certainly render such notice of appeal and all it contains incompetent, to say the least. In other words, an appellant desirous of being heard by the appeal court must have filed a notice of appeal in the High Court that decided the case against which the appeal is being brought. For that purpose the appellant is required to incorporate in the said notice of appeal, grounds of appeal which are in conformity with the Rules of Court. See; Madam Asiawu Adepeju Korede v. Prince Adedapo Adedokun & 1 Or. (2001)7 NSCQR 327 at 334.
In the instant case, the appellant filed the original notice of appeal at the lower court which decided the case.
But the appellant later sought and obtained leave of this court to amend his notice of appeal by adding four additional grounds of appeal. In fact, on 17th October, 2001 the appellant was, inter alia, granted the following:
“……..leave to amend his Notice of Appeal herewith attached and marked Exhibit ‘A’ by filing and arguing four additional grounds of appeal in terms and in the manner shown in the schedule attached to the affidavit in support of this motion and marked exhibit ‘B’ deeming the amended notice of appeal attached to this motion paper and as marked exhibit C as properly filed and served, appropriate filing fees having been paid.
An Order extending the time within which the appellant/applicant may file his brief of argument in this appeal to 31/10/2001. ”
From the record of this court, the amended notice of appeal which was deemed to have been properly filed and served contains all the additional four grounds of appeal. The record also shows that the appellant’s brief of argument was duly filed on 26/10/2001. It is therefore a misconception, and misleading, to say the least, for the respondent to say that the appellant ought to have filed the amended notice of appeal before the lower court. There is no such requirement in the rules of this court. In other words, the leave to amend and file an amended process was granted by this court and the filing of the amended process must be in this court but no longer at the lower court. If the appellant had not sought and obtained leave of this court to deem the amended notice of appeal as properly filed and served as he did, but merely obtained leave to amend and he failed to file the amended notice of appeal; the effect of that neglect to file his amended notice of appeal would have been that those grounds of appeal cannot be argued. Indeed, the appellant’s brief would have become incompetent for containing grounds of appeal which were not incorporated in an amended Notice of Appeal as ordered by the court. See; Ogbeiche v. Onochie (No.2) (1988)1 NWLR (pt.70) 370 at 482, Korede v. Adedokun & 1 Or. (supra). In the circumstance I hold that the amended notice of appeal in this case was filed as required by the rules and as ordered by this court.
The respondent also attacks ground 5 of the amended notice of appeal. He contended that the said ground alleges error in law and misdirection at the same time, and is therefore incompetent. Similarly, learned counsel to the respondent submitted that ground 5 of the notice of appeal offends the provisions of Order 3 rules 2 and 4 of the Court of Appeal Rules, as it did not specify the particulars of the misdirection and error clearly, therefore, it is vague. He urged the court to strike out both the ground and Issue No.3 formulated there from.
Ordinarily, on the formulation of issues for determination by the appeal court, the Supreme Court has frowned at the practice of proliferation of issues for determination. In Labiyi v. Anretiola, (1992) 8 NWLR (pt. 258) 139 at 159 it was held.
“The principles governing the formulation of issues for determination is that a number of grounds could where appropriate be formulated into a single congruous issue and it is patently undesirable to split the issue in a ground of appeal.” See also; Adelaja vs. Sonoiki (1992) 2 NWLR (pt 131) 148.
Generally, the purpose of issues for determination by the court is no more than to enable the parties narrow down the issues in the grounds of appeal filed by them in the interest of accuracy, clarity and brevity. And to ensure fairness to the other side.
On whether or not in law, a ground of appeal alleging misdirection in law and on facts is incongruous, defective and incompetent, the issue has recently been finally resolved and put to rest by the apex court in Aderounmu & Anor. v. Olowu (2000) 4 NWLR (Pt.652) 2253, (2000) 2 SCNJ 180. In that case the court decided that;
“a ground of appeal alleging error in law and misdirection in fact is not thereby incompetent if it otherwise complies with the rules of court requiring that a ground of appeal be not vague or general in terms (save what is generally known as the omnibus ground and discloses a reasonable ground of appeal such that the respondent is given sufficient notice of the precise nature of the appellant’s complaint.”
As the respondent has not seriously alleged that the said ground 5 of appeal is vague or general in terms, or that it does not disclose a reasonable ground of appeal, I hold that the ground is not incompetent merely because it is alleging error in law and misdirection in fact at the same time.
The second preliminary issue raised by the respondent in its brief of argument is on grounds 6 and 7 of the amended notice of appeal from which appellant formulated issue No.4 and raised fresh point of law, that is, whether the respondents claims disclosed a reasonable cause of action. Learned counsel to the respondent submitted that the issue of the respondent’s claim disclosing reasonable cause or not was not raised and or determined by the court below and no leave of the court below or this court was sought and obtained to raise and argue the issue.
Learned counsel to the respondent further submitted that issue No.4 formulated by the appellant from grounds 6 and 7 of the amended notice of appeal is incompetent and should be struck out. In the same vain, counsel urged the court to strike out grounds 6 and 7 of the amended notice of appeal from which the issue was distilled as this court has no jurisdiction to determine an appeal which is not against a decision of the lower court. He cited, Adigun v. Governor, Osun State (1995) 3 NWLR (pt. 383) 513, Mokwe v. Williams (1997) 11 NWLR (pt. 528) 309 at 31, Okehi v. International Equitable Association (Industrial and Commercial) Limited (1997) 11 NWLR (pt. 529) 431 at 437.
In his reply brief on this issue, the appellant’s counsel submitted that the complaint contained in ground 6 of the amended notice of appeal is one that is adequately covered by ground 7 of the amended notice of appeal, which is the omnibus ground of appeal. However, assuming but without conceding that ground 6 is incompetent, issue No.4 is not incompetent since it encompasses arguments on ground 7 of the amended notice of appeal. He urged the court to consider issue No.4 and decide this appeal on the issue.
In spite of the appellant’s arguments on the preliminary issues raised by the respondent in its brief of argument, appellant submitted that the preliminary issues so raised by the respondent are incompetent and should be discountenanced. He contended that by virtue of Order 3 rule 15(1), Court of Appeal Rules, 1981 (as amended), a party raising an objection to the competence of any issue in an appeal should do so by way of filing a notice of preliminary objection and not by merely stating so in his brief of argument as was done by the respondent in the instant appeal. He cited, Aremo II v. Adekanye (2000) 2 NWLR (Pt. 644) 257.
Learned appellant’s counsel finally urged the court to discountenance the arguments in support of the preliminary issues raised by the respondent in its brief of argument and strike them out as they are completely incompetent and misconceived.
Grounds 6 and 7 of the amended notice of appeal being challenged read thus:
- “The learned trial Judge erred in law by entertaining this suit in favour of the respondent when the said suit did not disclose a reasonable cause of action, and this has occasioned a miscarriage of justice.
- The judgment of the lower court is against the evidence. ”
Then, Issue No.4 said to have been formulated there from reads:
“Whether the respondent’s claim should not have been struck out for failing to disclose a reasonable cause of action in debt or indemnity. ”
There is no doubt that the issue being raised in ground 6 in particular was not raised at the lower court. Indeed on the same day (25th May, 1999) when the appellant filed his notice of intention to defend the respondent’s action, he also filed a notice of preliminary objection on the ground that the claim was statute barred, and therefore was incompetent.
From the record, it is clear that the preliminary objection was taken along with the main case and the defendant’s objection was overruled. The plaintiff was granted its claim. In other words, the issue on whether the action disclosed reasonable cause of action or not was not raised and not canvassed before the lower court for the court to have ruled on it. The issue is now being raised on appeal by the appellant for the first time.
The issue of raising a new point in the Court of Appeal which was not raised in the court below is not new.
In an old case of Manual Misa v. Raikea Currie & Ors. (1876) AC 554 at 559 it was held that the Court of Appeal will not normally allow a party to raise for the first time a point which was not taken in the court below. But the court will allow a party to put forward a new argument on a matter which was or upon facts which were before the court below. See; Beecham Group Limited v. Essdee Food Products Nigeria Limited (1985) 3 NWLR (Pt. 11) 112, Fadiora & Anor. v. Gbadebo & Anor. (1978) 3 SC 219.
However; in Skenconsult Nigeria Limited v. Ukey (1981) 1 SC 6, the Supreme Court succinctly put the position thus:
“It is clear that this court will not allow a party on appeal to raise a question not raised in the lower court of trial or granted leave to a party to argue new grounds not canvassed in the lower courts except where the new points or new grounds involve substantial points of law, substantive or bellowed to prevent an obvious miscarriage of justice.”
The question now being raised by the appellant in its ground 6 is certainly a new issue which was not raised at the lower court when the appellant had the earliest opportunity to raise it. The ground therefore, not related to any part of the decision of the lower court being appealed against cannot be entertained at this level. As a result, the appellant cannot be allowed to formulate a new issue on an incompetent ground of appeal. See; Hussain Yusuf Hajaig & 1 Or. v. Dele Yusuf Hajaig & Ors. (2003) 23 WRN 111; (2004) 13 NWLR (Pt.890) 249, a decision of this court per Ba’aba, JCA. An issue for determination derives its support from the ground of appeal and cannot exist independent of the ground of appeal. When a ground of appeal ceases to exist, any issue formulated there from automatically collapses and follow suit. See; Fasoro & Ors. v. Beyioku & Ors. (1988) 2 NWLR (Pt.76) 263 Egbe v. Alhaji (1990) 1 NWLR (pt.128) 546 at 590.
In the instant case, Ground 6 of the amended notice of appeal not having been based on the decision of the lower court appealed against is, to say the least, incompetent and the issue formulated there from not having been raised or canvassed before the court below is grossly incompetent. An issue for determination which is based on an incompetent ground of appeal goes to no issue and should not be allowed by the Court of Appeal. It is the grounds of appeal that provide the required legal basis for an attack made on the decision of the trial court. It is the same grounds of appeal that give life and meaning to the issues raised in the appeal for determination. See; John Holt Ventures Limited v. Oputa (1996) 9 NWLR (Pt.470) 101 at 113, Ononiwu v. R.C.C. Limited (1995) 7 NWLR (Pt.406)214, First Bank of Nigeria Plc. v. Akparabong Community Bank Limited & 1 Or. (2006) 1 NWLR (Pt.962) 438 at 475.
It is trite that grounds of appeal must relate to the decision of the court. Ground 6 not being so is hereby accordingly struck out.
Having held that ground 6 of the amended notice of appeal is incompetent and was struck out, it is not permissible to allow argument on an issue having bearing with an incompetent ground of appeal. Such an issue must also be struck out. An issue not related to a competent ground of appeal is equally incompetent no one can put something on nothing and expect it to stand, it must fall.
See; Madagwa v. State (1988) 5 NWLR (Pt.92) 60; Macfoy v. UAC (1961) 3 All NLR 1169; F.B.N Plc. v. A.C.B Ltd. & 1 Or. (supra)
In African Petroleum Limited v. Owodunni (1991) 8 NWLR (Pt. 210) 391 at 423, the Supreme Court said;
“It is well settled that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent and liable to being struck out.”
In the circumstance, the objection of the respondent on this issue is upheld. Accordingly, issue No.4 which was formulated on incompetent ground of appeal and is also incompetent is stuck out.
Ground 7 of the amended notice of appeal is an omnibus ground of appeal but is not able to sustain or give life to Issue No.4 as contended by the appellant’s counsel.
However, the learned counsel to the appellant had contended that the preliminary issues raised by the respondent’s counsel in its brief of argument are incompetent for the reason that Order 3 rule 15(1) Court of Appeal Rules was not complied with.
Rule 15(1) of Order 3 reads;
“A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
There is no doubt that the above requirement is mandatory on a respondent who is desirous of raising preliminary objection to the hearing of an appeal. Failure to comply with the requirement is surely fatal to whatever argument a respondent may put up in objection to hearing of an appeal. Rules of court are meant to be obeyed and followed. They are not in the books for fun or as window dressing. In Solanke v. Somefun (1974) 1 SC 141, Sowemimo, JSC (as he then was) opined thus:
“Rules of court are meant to be complied with ……. Rules of Court are made to be followed. They regulate matters in court and help the parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quick administration of justice. ”
See also; Iboddo & Ors. v. Enarofia & Ors. (1980) 5 -7 SC 42; Musa v. Hamza (1982) 5 SC 172, (1982) 3 NCLR 229, John & Anor. vs. Blakk (1988) 1 NWLR (Pt. 72) 648.
However, in the record of this court, it is clear that the respondent filed a notice of its intention to rely upon preliminary objection pursuant to Order 3 Rule 15 of the Court of Appeal Rules. The objection and the grounds were both clearly stated in the said notice which was dated 17th March, 2003 and filed on the same date. It is note worthy that this appeal was only taken sometime in November 2005. Therefore, the submission of the appellant’s counsel that the respondent failed to comply with the rules of court on the preliminary objection is misconceived and lacking in merit. Accordingly it is overruled.
But even where the respondent has not complied with the rules on these issues, the court has the competence and is entitled to take on the issues so motu and without either party raising it, though the parties are entitled to be heard. I will now take the issues for determination. The respondent in his brief of argument also formulated four issues for determination which issues are similar to the issues formulated by the appellant, I therefore intend to use the issues in the appellant’s brief.
I intend to take the issue No.2 first which is said to affect the competence of the action and should have robbed the court below of competence to hear the case in the first instance. The issue is; “Whether the lower court had the requisite jurisdiction to entertain this suit on the “undefended list” when a pre-condition for it to assume such jurisdiction had not been satisfied.”
The appellant had argued that the respondent as plaintiff in the lower court filed the suit on the undefended list pursuant to Order 23 of the High Court of Kano State (Civil Procedure) Rules, 1988. The writ of summons dated 10th May, 1999 and issued by the Registrar on the 13th day of May, 1999 is headed “Undefended List”. On the 14th day of May, 1999; the respondent filed an application for;
“An order for leave of this Honourable Court to issue writ of summons on the plaintiff’s claims under the “undefended list.”
The application was considered and granted by the lower court on 18th May, 1999; four days after the writ had been issued.
Order 23 Rules 1 of the High Court (Civil Procedure) Rules, 1988 of Kano State provides as follows:
“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and make the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
Learned appellant’s counsel submitted that it is not the duty of either the plaintiff or his solicitor to mark the writ of summons “undefended list”. It is equally not the duty of the Registrar of court to mark a writ of summons “undefended list.” It is the exclusive duty of the court to mark the writ of summons “undefended list” after a careful and thorough consideration of the affidavit in support of the application setting out the grounds upon which the claim is based and also upon being satisfied that there are good grounds for believing that there is no defence to the suit. This duty of the court must be performed before the writ of summons is issued. The said duty cannot be delegated or usurped by the plaintiff, its solicitor or even the Registrar of the court. In other words, the application for the writ of summons to issue on the undefended list must be by motion ex-parte, supported by affidavit. It is the duty of the Judge to consider the application and make an order that the writ of summons be so issued. Therefore, a summons issued as an undefended suit without prior order of the court that the suit be entered on the undefended list is, to say the least, a nullity. See; Cash Affairs Finance Limited v. Inland Bank (Nigeria) Plc. (2000) 5 NWLR (pt. 658) 568 at 587.
In the instant case, there is no doubt that the respondent as plaintiff filed an ex-parte application at the court below for leave to issue writ of summons under the undefended list, and this was duly supported, as required, by an affidavit. As shown earlier, the application dated 13th day of May, 1999 was considered by the court and granted on 18th day of May, 1999, as shown on page 24 of record.
Ordinarily, the writ of summons can be issued by the registrar of the court and mark same, as ordered by the court, as undefended suit any date from the date the order of court was made on 18th May, 1999, inclusive of the date itself. But from the record at page 1, the writ of summons in this case was issued and marked undefended on 13th day of May, 1999 ever before the court considered the application on 18th day of May, 1999 when the Judge made the order authorizing issuance of the writ of summons. This is apparently in breach of the provisions of the Rules.
It is non-compliance with Rules of Court, to say the least.
One may ask; when does a writ of summons become issued? Is it when the court orders it to issue or when the Registrar signs the writ of summons?
A writ of summons is issued upon its being signed by the Registrar or other officer of the court duly authorized to sign the Writ. However, any writ of summons, in particular under the peculiar Rule of court on “undefended list”, which is signed by the Registrar or any other officer of the court before the court’s order to do so, is in breach and violation of the Rules. In Alhaji Ibrahim A. Idris v. Navy Captain Edet A. Archibong (2001) 9 NWLR (pt.718) 447 at 457 and 459 this Court (Calabar Division) held that where leave is not first obtained, as required by the rules, before a writ is issued, the writ of summons is issued without due process of law and must accordingly be set aside.
On this issue, the respondent had contended that the date that the Registrar issued the writ of summons which preceded the order of court to do so was the fault of the Registry, due to the carelessness of the staff of the Registry.
Hence, he urged the court not to visit the fault of the Registry of the court on the litigant. He cited, Okolo vs. Union Bank of Nigeria Limited (1998) 2 NWLR (pt.539) 618 at 639.
Learned counsel further contended that the endorsement of 13th May, 1999 on the writ of summons earlier than the court’s order was a slip by the Registrar. And that, act of the Registrar being judicial or an official act in a manner substantially regular should be presumed regular, formal requisites for its validity, such as the Order made on 18th May, 1999 having been complied with. He referred to Section 150(1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990. He submitted that there is no evidence on the record to rebut the presumption.
Learned counsel further submitted that there was no appeal against the order of the court below made on 18th May, 1999 in favour of the respondent on the issuance of the writ of summons in the suit under undefended list. He urged the court to apply Order 2 rule 1(1) of the Kano State High Court (Civil Procedure) Rules and treat anything done or left undone by the plaintiff at the court below, in the beginning of this action and the proceedings as an irregularity which will not nullify the proceedings, or any document, judgment or order therein.
He further submitted that not having applied to set aside the said writ of summons within a reasonable time and having taken steps after becoming aware of the irregularity, the appellant has waived his right to complain.
He referred to Order 2 rule 2(1) Kano State High Court Rules, 1988.
There is no doubt that the “undefended list” procedure laid down in Order 23 of the High Court (Civil Procedure) Rules, 1988 of Kano State is a peculiar one.
It is a special procedure designed for quick dispensation of justice in a claim for liquidated damages, among others.
Yet, by the special nature of the rules, the requirements are expected to be strictly complied with by all parties and the court. See; Winlyn Limited & Ors. v. N.A.C.B Consultancy & Finance Company Limited (2000) 8 NWLR (pt. 670) 594.
In an action instituted pursuant to Order 23, High Court (Civil Procedure) Rules,1988 of Kano State, under “undefended list” procedure, it goes without saying that issuance of writ of summons pursuant to order of court and marking such writ as “undefended list” are conditions precedent under the rule. Failure to comply with the requirement renders the writ of summons together with the proceedings relating thereto null and void. Our courts are courts of law and equity and it is only right and proper that the rules provided for hearing of particular actions ought to be followed as laid down. See; Idris v. Archibong (supra), Nwakama v. Iko Local Government of Cross Rivers State & 2 Ors. (1996) 3 NWLR (pt. 439) 732 at 739.
To say that the registrar of the lower court was careless when he signed the writ of summons in this case was not only embarrassing but uncalled for, coming from a supposed learned gentleman, to say the least. One would expect counsel to know better and be more diligent in handling their brief. Counsel who should know that under the present rules of court, in particular Order 23 of High Court (Civil Procedure) Rules of Kano State, the writ of summons should not issue until the court so orders, after due consideration of an application to do so, would ensure that the writ is not signed before the court order is obtained. It is therefore simply not the fault of the Registrar but an avoidable omission on the part of counsel.
I must say that the non-compliance with the rule of court in the instant case is more than ordinary, and cannot be regarded as mere irregularity that is curable under Order 2 rule 1(1) High Court Rules. It is a fundament defect in the peculiar proceedings and the non-compliance is fatal to the competence of the action itself and competence of the lower court.
Generally, a court is competent when;
(i) “it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(ii) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction and
(iii) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are nullity, however well conducted and decided, the defect is extrinsic to the adjudication “.
See; Madukolu & Ors. v. Nkemdilim (1962) All NLR 589 at 590; Kalu Mark & 1 Or. v. Gabriel Eke (1997) 11 NWLR (Pt.527) 501, 17 NSCQR 60 at 89.
In my humble view, since it is clear from the record that the writ of summons in this case was issued and same was listed and marked as “undefended list” before the application to do so was considered by the trial judge and therefore was issued without an order of court, the case was then not initiated by due process of law. The condition precedent was thereby not fulfilled to enable the court to assume jurisdiction to entertain the suit in the first place.
Issuance of writ of summons under Order 23 of the Rules of High Court of Kano State, “undefended list” suit before the court make order for the issuance and marking same as such is like “putting the cart before the horse” which is unnatural. It cannot work. It is the horse that pulls the cart but not the other way round.
Further more, the court cannot by the order it made on the 18th day of May, 1999 validate the act of the registrar which was invalid. The registrar certainly had no competence to do what he did without court order so to do.
And even where neither party had seen or raised the issue of competence of court on the invalid writ of summons, the court itself, with respect, ought to have seen it and then put a stop to the proceedings. It is settled that a court is bound to put an end to the consideration of a matter at any stage of the proceeding when it becomes obvious that it is incompetent to entertain the action. See; A-G., Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575 at 618- 619.
In West Minister Bank Limited v. Edwards (1942) AC 529 at 533, Viscount Simon LC said,
“Moreover, the question was not in issue.
There are of course cases in which a court should itself take objection of its own, even though the point is not raised by any of the parties to it. ”
In the same case, Lord Wright, at page 536 had said:
” Now it is clear that a court is not entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so of its own initiative, even though the parties have consented to the irregularity.”
Mere acquiescence of parties does not give jurisdiction where a court basically does not have jurisdiction. The non – compliance with the rules here robbed the lower court of competence to entertain the suit as it did. This issue is therefore resolved in favour of the appellant.
Having come to conclusion that the trial court was lacking in competence in handling this suit as it did, assuming without holding that the case was properly tried by the trial court, the next issue for determination is.
“Whether the appellant acted as agent of a disclosed principal and as such is not liable for the debt of the principal.”
The facts and circumstances of this case as disclosed by the affidavit in support of the writ of summons by the “undefended list” procedure are that the appellant herein who was at the time material to this case, the Chairman of Kano State branch of the United Nigeria Congress Party, sometime in 1997 requested the respondent to print certain stationary materials for her party and he undertook that all the bills shall be paid promptly. The items and materials requested by the appellant were printed and delivered to the appellant’s party, the United Nigeria Congress Party (U.N.C.P). This is clearly shown on exhibits MA2- MA9 attached to the affidavit in support of the claim.
Subsequently, the respondent raised invoices containing the cost of the materials and items so delivered to the party.
These invoices were addressed to the party, United Nigeria Congress Party. These facts are contained in paragraph 3(c) of the respondent’s affidavit and Exhibits MA10 and MA11 therewith attached.
But when the invoices were not settled, the respondent sent a letter of demand to “Alhaji Bello Isa Bayero, Chariman, United Nigeria Congress Party (U.N.C.P.) Kano State” requesting that the cost of printing of posters and other forms for U.N.C.P Kano chapter be settled immediately. The respondent wrote yet a second letter of demand, this time around addressed to:
“The Chairman,
United Nigeria Congress Party,
Kano State Secretariat, 200 Road,
Kano”
demanding that the outstanding sum as contained in the invoices earlier delivered to him be settled without further delay.
In the affidavit in support of the intention to defend the respondent’s claim before the trial court, the appellant had categorically stated that the transaction with the respondent was not entered in his personal capacity but as Chairman of his Party, the United Nigeria Congress Party and on its behalf. The appellant further stated that none of the materials was ever delivered to him but to the party. And that at the time the Respondent allegedly delivered the said items he had ceased to be the chairman of the party. This fact was said to be known to the respondent who was also a member of the same party as the appellant.
On the above as clearly stated in the appellant’s affidavit, learned counsel submitted that the necessary inference is that the appellant did not give undertaking in his personal capacity to pay the debt of the party but that as the Chairman of the Party he would ensure that the party paid for the materials. He further submitted that the appellant acted only as agent of a disclosed principal; as a result he is not personally liable for the debts of the principal, who was well known to the respondent.
Learned appellant’s counsel submitted that an agent acting on behalf of a known and disclosed principal is not liable for his acts of agency. The principal but not the agent is to be sued for any act of an agent within the scope of agent’s authority. He cited; PWOL v. Union Bank Plc. (1999)1 NWLR (Pt 588) 631; Vassilev v. PAAS Industries Limited (2000) 12 NWLR (Pt.681) 347. On the issue of the capacity in which the appellant dealt with the respondent, whether as an agent of a disclosed principal or personally, the respondent contended that having contracted with his personal name, and having failed to indicate clearly that he was an agent, he contracted personally but not as agent and he should be bound and liable. The respondent’s counsel submitted that the undertaking made by the appellant on exhibit MA1 did not disclose the fact of agency. He urged the court to resolve the issue in favour of respondent and dismiss the appeal.
By exhibit MA1 attached to the respondent’s claim on page 5 of record headed “United Nigeria Congress Party” (U.N.C.P.), the appellant as chairman of the party Kano State branch placed order for certain items from the respondent through its Managing Director/Chief Executive, Alhaji Nasiru Abali Ismail. The letter (exhibit MA1) directed the Secretary to the party to discuss with the Managing Director/Chief Executive (MD/CE) of the respondent on the items to be ordered and the prices. At the bottom of the letter, the following undertaking actually featured;
“NB: 1, BELLO ISA BAYERO, Chairman U.N.C.P Kano State have directed AD’HAMA I MUKTAR, Kano State Secretary of the United Nigeria Congress Party (UN.C.P) to discuss the above issue with you and I equally agree to settle your Bills promptly.
The undertaking was no doubt signed by the appellant and witnessed by the said Secretary to the party. The various delivery notes attached as exhibits to the claim show that delivery of the items requested were made to the United Nigeria Congress Party at its office in Kano State, not to any known individual in particular. It is interesting to note that there was nothing to controvert the facts stated in the affidavit in support of intention to defend, to the effect that the respondent was aware, being also a member of the same party with the appellant, that the appellant placed the order for the materials for and on behalf of their party (U.N.C.P.). And that before the delivery was made to the party he had ceased to be the chairman. Perhaps that explains the reason why the demand letters were sent to chairman of the party but not to the appellant in his personal capacity. Exhibit MA12 dated 28th August 1997 written by the respondent’s printing manager was addressed to the appellant as Chairman of the party and a copy was sent to the Chairman of the respondent. Exhibit MA13 dated 28th May, 1998 written by the Chairman of the respondent himself was addressed, this time, not to the appellant but to who ever was the Chairman of the United Nigeria Congress Party, Kano.
I am therefore satisfied that the respondent was aware that the appellant was merely acting as agent for his disclosed principal, who was their party, U.N.C.P. The general law is that a contract entered by an agent acting in the scope of his authority for a disclosed principal is in law the contract of the principal and the principal but not the agent is the proper person to sue or be sued upon such contract.
In the instant case, as the chairman of the party when the contract was entered by the appellant, he was merely acting as agent of the principal. See: Ataguba & Co. v. Gura Nigeria Limited (2005) 8 NWLR (Pt.927) 429; 21 NSCQR, 720 at 739. Agency has been described as a fiduciary relationship created by express or implied contract or by law, in which one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or action.
An agent therefore is one who is authorized to act for or in place of another; a representative.
Generally speaking, anyone can be an agent who is in fact capable of performing the functions involved. The agent normally binds not himself but his principal by the contracts he makes. See; Black’s Law Dictionary, 8th Edition Pages 67 & 68
In Ogbonnaya N. Godwin v. The Christ Apostolic Church (1998) 14 NWLR (Pt. 584) 162 the Supreme Court held that the term “agent” includes any person who acts for another in the capacity of deputy, steward, rent collector or any other agent or trustees.
It is clear from the record that the appellant in his capacity as the Chairman of the party, the United Nigeria Congress Party in Kano State, was acting for the party as its agent. He can therefore not be held liable for the contracts he entered on behalf of his known principal, the United Nigeria Congress Party. I am satisfied that there was enough evidence before the lower court, from the affidavits and various exhibits, to convince the trial Judge that indeed the proper party to be sued was not before the court. To get to the root of this, the court should have transferred the suit to the general cause list and ordered pleadings to be filed. An agent acting on behalf of a disclosed and known principal, as in the instant case, is not liable for his acts of agency. Only the principal should be liable. See; Engineer Vassil Vassiley v. PAAS Industries Nigeria Limited & Ors. (2000) 12 NWLR (pt.681) 347 at 359; Leventis Technical Limited v. Petrojessical Entr. Ltd. (1992) 2 NWLR (Pt.224) 459
In the circumstance, issue No.1 is accordingly resolved in favour of the Appellant.
The next issue for determination as formulated by the parties is Issue No.3,
“whether there was a personal undertaking on the part of the Appellant to pay the debt owed the respondent by the United Nigeria Congress Party, so as to be personally liable for the debts”.
So much has been said above on the status of the appellant in regard to the contract. He was simply an agent of the disclosed principal, the United Nigeria Congress Party who should be held liable for the debts, if any, to the respondent. The undertaking given by the appellant was equally given in his capacity as the State Chairman, on behalf and for the party. It was therefore wrong, to say the least, to have held him personally liable for the indebtedness of his disclosed principal. This issue shall be and is hereby also resolved in favour of the appellant. In the final analysis, this appeal succeeds and is hereby allowed. Accordingly, the judgment of the lower court delivered on 30th July,1999 in Suit No: K/339/99 by Garba J. in its entirely is set aside and the suit is struck out.
There shall be costs of this appeal which I assess as N5000.00 in favour of the appellant but against the respondent.
Other Citations: (2006)LCN/1892(CA)
