Alhaji Sule Haruna Tahir & Anor. V. Bank of the North Limited (2006)
LawGlobal-Hub Lead Judgment Report
BABA ALKALI BA’ABA, J.C.A.
This is an appeal against the judgment of the Kano State High Court, holden at the Kano Judicial Division, delivered on 30/7/2001 in Suit No.K/324/2001 filed by the appellants who were the defendants at the trial Court. The respondent was the plaintiff before the trial court where it commenced an action against the appellants by an endorsed writ of summons dated 18/5/2001 brought under the undefended list procedure pursuant to Order 23 of the Kano State High Court (Civil Procedure) Rules, 1987. The respondent’s claim contained at page 2 of the printed record, reads:
“The plaintiff’s claim against the defendants jointly and severally is for the sum of N43,276,507.31 (Forty three Million Two Hundred and seventy-six Thousand, five Hundred and seven Naira Thirty-one Kobo) being the amount due and outstanding against the defendants as at 30th March, 2001 on the overdraft and Produce Loan credit facilities obtained and utilized by the defendants which has remained unpaid and outstanding till date inspite of repeated demands.
The plaintiff also claim 21% Bank interest rate on this amount from 30th March, 2001 until full liquidation of the debt.”
The respondent as the plaintiff filed a motion exparte dated 17/5/2001, praying the court for the following orders:-
“a. An order granting leave to issue mark and place this suit on the undefended list for hearing.
b. An order granting leave to serve the 1st defendant with the writ of summons and other Court processes by leaving same at the 2nd defendant’s address at 185 Club Road, Kano and same to be deemed good and effective service on the 1st defendant, and
c. For such further order or orders.”
The application was supported by a four paragraph affidavit. The trial court in its ruling delivered on 30/5/2001, contained at page 6 of the printed record, held:
“It appears that this application may be made and granted ex-parte. Leave is therefore granted to issue, mark and place this suit under undefended list.
The writ is to be marked and served accordingly. Leave is also granted to serve the 1st defendant with the Writ by leaving same at the 2nd defendant’s address at 185 Club Road Kano. Same shall be deemed good and effective service on the 1st defendant.”
The respondent as plaintiff filed a four paragraph affidavit in support of the suit brought under the undefended list procedure contained at pages 4 – 5 of the printed record. In my view, the most relevant paragraphs are paragraphs 2 and 3. The affidavit in support was deposed to by one Anselem Obaraeze, of No.37, Murtala Mohammed Way Kano a litigation officer in the firm of Kayode Olatunji & Co. Solicitors to the plaintiff. Paragraphs 2 and 3 of the affidavit are as follows:
“2. That by virtue of my position as aforesaid, I am fully conversant with the facts of this case.
- That I am informed by Mr. Steve Ameh the plaintiff Bank Secretary/Legal Adviser on Friday the 11th May 2001 at 5.30p.m. of the following facts which I verily believe to be true as follows:-
(a) That the 2nd defendant is a credit customer of the plaintiff at its Sabon -Gari Branch, Kano.
(b) That the 2nd defendant through the 1st defendant who is its alter-ego, the Chairman/Managing Director who applied for and was granted fully utilized both produce loan credit facility and overdraft credit facilities for their business at various times, renewed and increased at the defendants request. Attached herewith and marked exhibit A – A4 are relevant documents on the facilities.
(c) That to secure the two credit facilities, the 1st defendant as surety created Legal Mortgages over five of his properties in Kano. Attached herewith marked exhibit B5 are Legal Mortgages and other supporting documents.
(d) That the plaintiff has demanded from the defendants the repayment of this defendant indebtedness but the defendants have refused to repay same till date. Attached herewith marked exhibit C – C2 are copies of demand letters.
(e) That the defendants have never denied their indebtedness to the plaintiff but always requesting for time to pay same. Attached herewith as exhibit D – D2 are some of the defendants letter.
(f) That the defendants debt as at 30th March, 2001 was N43,276,507.31 (Forty three Million, Two Hundred and seventy-six Thousand, five Hundred and seven Naira Thirty-one Kobo) outstanding. Attached herewith and marked exhibit E is the copy of the Statement of Account.
(g) That the defendant does not have any defence to this suit.
(h) That attached herewith marked exhibit E is a copy of the Rules of Court.”
A notice of intention to defend dated and filed on 11/6/2001 was filed on behalf of the appellants who were the defendants at the trial Court. The Notice of intention to defend was supported by a six paragraph affidavit. The affidavit was deposed to by one Iyabole Adelakin of NO.9, Post Office Road, Kano, Secretary to the firm of Fadile & Co, one of the Solicitors to the defendants. The relevant paragraphs of the affidavit are hereby reproduced below as follows:
“2. I have the authority of the defendants to swear to this affidavit.
- That Alhaji Sule Haruna Tahir informed me and I verily believe him as follows:-
(a) That he never guaranteed and or suretied any sum in favour of the plaintiff herein.
(b) That he never executed any agreement whether of guarantees and suretiship or a indemnity in respect of any facility between the plaintiff and 2nd defendant.
(c) That he is just one of the directors and shareholders of the 2nd defendant and that he is never the alter ego of the company.
(d) That the plaintiff has included his name in this suit with the Sole aim of embarrassing him for reasons best known to the plaintiff.
(e) That the plaintiffs claim is false as the 2nd defendant is no longer indebted to the plaintiff.
(f) That the 2nd defendant recently commissioned a firm of consultants to audit its account with the plaintiff and the consultants have discovered that the plaintiff has been wrongfully and illegally charging the 2nd defendants account and that upon reconciliation the 2nd defendant account ought to be in credit.
(g) That in the recent past the plaintiff has not been sending any statement of account to the second defendant despite repeated demands.
(h) That the defendants have substantial defence to this suit.
(i) The defendants have never seen exhibit E until the process of the court were served on them.
(j) That it is not true that the defendants and or 1st defendants ever Mortgaged any property to the plaintiff.
- Mr. Kabir Fadile of counsel also informed me and I verily believe him that he has read this process that he has discovered that such not commence in accordance with due process.
- That it is in the interest of justice that this application be granted.”
The suit was heard on 13/6/2001. After the conclusion of the submissions of counsel to the parties in support and opposition of their respective case, the learned trial Judge adjourned the suit for judgment.
In a reserved and considered judgment contained at pages 15 – 16 of the printed record, the learned trial judge inter alia held:
“Secondly I have carefully gone through the affidavit evidence of the defendants couple with the submission of the learned counsel for the defendants and I am of the view that they are rendered Inconsequenticts (sic) by the contents of the two letters quoted above.
The learned counsel Mr. Kabiru Fadile also raised in legal technicality that the plaintiff had failed to attach a photocopy of Order 23 to the writ of summons served on the defendant as it rendered(sic) by Order 23 rule 1 of the Kano State High Court Civil Procedure Rules 1988. But it seems to me that these legal technicalities have been held not to be material in suits of this nature. In Gwonto and 4 others vs. The State (1983) 3 S.C. page 62 at 76 the Supreme Court said-
“Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice. I also wish to add that the present case before me is a civil suit and its proof is on preponderance of evidence or balance of probabilities. The submission of counsel are merely a last ditch effort to have this case transferred to the general cause list by this court in order to give the defendants breathing space in the payment of the debt. Exhibits A to A4 attached to the plaintiff’s affidavit in support also shows that the overdraft loan facility was taken by the defendants.
Lastly the letters of the defendant to the plaintiff quoted supra do not state that the debt has not matured and neither do they show that only one of the defendant is liable for the debt.”
In conclusion learned trial Judge further held,
“From all the foregoing I am of the opinion that this case should not be transferred to the general cause list as to do so would defeat the purpose of the provision of Order 23 rule 3(1) of the Kano High Court (Civil Procedure) rules 1988.
Paragraph 3(f) of the plaintiff’s affidavit in support dated 18th May 2001 states that the outstanding debt is N43,276,507.31.
I therefore enter judgment for the plaintiff against the defendants (jointly and severally in the sum of N43,276,507.31 per the provisions of Order 23 rule 4 of the Kano State High Court Civil Procedure) Rules 1988. The defendant should pay interest of 21% per annum on the judgment sum from 30th of March 2001 to the 30th of July 2001. And interest of 10% on the judgment sum from 31st July 2001 until the whole judgment sum is liquidated by the defendant.”
Dissatisfied with the judgment of the trial court, the appellants by their notice of appeal dated and filed on 6/8/2001. appealed to this court. The notice of appeal which can be found on pages 81 – 86 of the printed record containing four grounds of appeal, the said grounds of appeal without their particulars are hereby reproduced below as follows:
“(a) The lower court erred in law to have assumed jurisdiction when it lacked jurisdiction as the plaintiff/Respondent did not satisfy all conditions precedent for commencing proceedings under the undefended list procedure.
(b) The lower court erred in law when it gave judgment against the two defendants/Appellants jointly and severally without resolving the objection of the 1st Appellant on the issue of improper joinder.
(c) The lower court erred in law when it proceeded to enter judgment against the appellants without giving any consideration to the averments in the affidavit in support of the notice of intention to defend.
(d) Judgment is against the weight of evidence.”
Briefs of argument consisting of the appellant, respondent and a reply brief were filed and exchanged between the parties in accordance with the rules of practice and procedure of this Court.
The appellants distilled four issues for determination in this appeal as follows:-
“i. Issue NO.1
From ground NO.1 of the Notice of Appeal, the following issue can be deduced:
Whether the trial court was right in treating the failure of the plaintiff/respondent to attach a copy of the Order 23 to the Writ of Summons as provided by the Kano State High Court Civil Procedure Rules as a mere technicality which can be waived by the court.
ii. Issue NO.2
From ground NO.2 of the Notice of Appeal, the following issue can be deduced:
Whether the trial court was right to have heard motion for judgment under the undefended list first before hearing the motion challenging the jurisdiction of the court on the ground of non-compliance with due process and improper joinder of parties.
iii. Issue NO.3
From ground NO.3 of the Notice of Appeal, the following issue can be deduced:
Whether the trial court was right when it proceeded to enter judgment against the defendants/appellants under the undefended list procedure in view of the depositions in the defendants/appellants’ affidavit in support of the Notice of Intention to defend.
iv. Issue NO.4
From ground NO.3 of the Notice of Appeal, the following issue can be deduced:
Whether the learned trial Judge was right to have considered the merit or strength of the plaintiff/respondent’s case at the hearing of the defendants/appellants’ Notice of Intention to defend.”
The respondent on the other hand, filed a Notice of preliminary objection dated 19/1/2005 on 24/1/05 in accordance with Order 3 rule 15 of the Rules of this Court which was subsequently incorporated in the Respondent’s brief. The said Notice reads:
“TAKE NOTICE that the Respondent will at the hearing of the Appeal raise and challenge the competence of Ground NO.1, 2, 3, of the Appellants grounds of Appeal argued in their Brief of Argument as being incompetent as the grounds do not flow from the decision of the lower court (sic) appealed against and misleading.
FURTHERMORE the Respondents will be challenging Issues Nos. 1 – 4 framed by the Appellant at page 3 of the Brief of Argument as being incompetent not flowing from the grounds of Appeal and the decision of the lower court.
The grounds of the objection are:
(1) Ground of Appeal NO.1 does not relate to the decision of the lower court and is vague.
(2) Ground NO.2 does not arise from the decision of the lower court as this objection was abandoned by the Appellant at the lower court and not argued by Appellant’s Counsel.
(3) Ground NO.3 – This ground does not relate to the decision of the lower court as the lower court considered the Appellants Notice of Intention to defend and averments contained at page 11 lines 6 – 8 and page 15 lines 1 – 7 where the lower court ruled that the averments in the affidavit of the defendants notice of intention to defend are rendered inconsequential following the defendants written admission of indebtedness copied at pages 12 – 14 of the Record.
(4) Issue 1 is contrary to Ground No.1 which complains of lack of jurisdiction of the lower court and the issue of waiver does not flow from the decision of the lower court.
(5) Issues NO. 2, 3 and 4 does not flow from grounds Nos. 3 and 4 while issues NO.3 and 4 are also incompetent being derived from one ground of Appeal NO.3. And this Honourable Court will be urged to strike out those grounds of Appeal and the issues framed arguments predicated thereon in the Appellant’s Brief.
(6) The Appellant has also improperly framed an alleged issue at page 15 of their Brief of Argument distinct from the issues set out at page 3 of the Brief of Argument and it is stated at page 15 of the Appellant’s Brief that this addendum/extra Issue NO.5 is predicated on Additional ground of Appeal.
The Respondent object to this fresh issue NO.5 as this practice is unknown to law and no leave of the court was sought nor obtained to file the purported additional ground of Appeal.”
At page 4 of the respondent’s brief issues for determination of both the preliminary objection and the appeal were formulated as follows:-
“(1) Whether or not the Appellants’ grounds of Appeal Nos. 1 – 3 argued in the Appellant’s Brief and the issues framed thereon including Issue NO.5 relating to additional ground of Appeal are competent – This relates to the notice of Preliminary Objection.
(2) Whether or not the Appellant can be heard to raise on Appeal the issue of non-attachment of Order 23 Rule 1 of Kano High Court Rules which was not raised in the Appellant motion and affidavit filed and argued at the lower court – (this relates to the Respondent Notice to affirm the decision of the lower court on other grounds).
In case the Respondent’s objection to the Issues framed by the Appellants is overruled which is not conceded the Respondent shall formulate the following issues for determination viz:
(3) Whether or not the Appellant had properly raised the issue of omission of the copy of the page of the Rules of Court in the writ of summons served on them at the lower Court and whether in the circumstances of this case such an Irregularity if it exists is fatal to the action which the Appellant has not waived.
(4) Whether or not the lower court did not give any consideration to the affidavit in support of Appellants Notice of Intention to defended and whether in view of the finding of the lower court of Appellants admitting their indebtedness to the Respondent which finding has not been appealed against coupled with no defence shown to the Respondent’s claim the lower court was right in entering judgment in favour of the Respondent.”
It is incumbent upon me to first deal with the preliminary objection raised by the respondent before embarking on the determination of the appeal depending on the outcome of the resolution of the preliminary objection.
Arguing the preliminary objection in the respondent’s brief dated 27/1/05 filed on 1/2/05, learned counsel for the respondent submitted that it is trite law that a ground of appeal must relate to the decision of the lower court appealed against, relying on OGOYI V. UMAGBA (1995) 9 NWLR (PT.419) 283, where it was held that issue for determination must be based on the decision of the court appealed against by an appellant. That the objection raised by the appellants’ counsel at the lower court is contained at page 8 lines 27 – 36 of the printed record where the appellants’ counsel submitted that the writ of summons served on them under the undefended list did not include a copy of Order 23 of the Rules of court and urged the court to transfer the case on that ground to the general cause list. Pointing out that the issue as argued by the appellants’ counsel is not an issue of lack of jurisdiction of the lower court as couched in ground NO.1 of the appellants’ notice of appeal. It is argued by the learned counsel for the respondent that certainly there is no decision of the lower court in relation to this purported issue. He explained that there is a distinction between lack of jurisdiction and irregularity in the process of court. Learned counsel for the respondent further explained that lack of jurisdiction terminates the suit as the court which lacks jurisdiction cannot transfer the same suit to the general cause list.
He adopts his submission on ground of appeal NO.1, in challenging the appellants’ ground of appeal NO.2. It is further submitted that throughout the whole argument of the appellants’ counsel at pages 8 – 10 of the printed record, the appellants’ counsel did not raise any objection relating to mis-joinder of any of the two appellants consequently the issue of non-joinder or mis-joinder does not form part of the decision of the lower court appealed against. That also ground 3, contained in the appellants’ notice of appeal does not arise in this appeal as the appellants’ complaint was that the lower court did not consider the averments in the appellants’ affidavit at all in support of the notice of intention to defend when in fact the learned trial Judge duly considered the said averments which he found to be worthless, referring to pages 15 lines 3 – 7 of the printed record in support of his argument. He argued that ground of appeal NO.3 is not a genuine and valid complaint against the decision of the lower court.
It is further contended that issues 1 – 4 formulated by the appellants at page 3 of the appellants’ brief are incompetent in that they do not flow from the decision of the lower court appealed against.
Furthermore, it is contended by the learned counsel for the respondent that there cannot be two issues competently raised from a single ground of appeal as was the case in respect of grounds 3 and 4 of the appellants’ grounds of appeal, citing OLATUNDE V. ABIDOQUN (2001) 12 S.C. (PT.1) 23 at 126 in support of his submission. He elaborated in support of his objection that there could be more grounds of appeal on which an issue can be distilled but there cannot be more issues than the ground of appeal.
In conclusion, learned counsel for the respondent urged the court to uphold his objection and dismiss the appeal because the appellants’ grounds of appeal and issues framed in the appellants’ brief are incompetent.
In his response in the appellants’ reply brief dated and filed on 9/8/05 to the preliminary objection argued by the learned counsel for the respondent, learned counsel for the appellants, humbly submitted with respect that the respondent’s counsel has missed the point in paragraph 4.1 of the appellants’ brief. Pointing out that issue of jurisdiction being so fundamental can be raised at any time even for the first time at the appellate court. According to the learned counsel for the appellants by a motion on notice dated 11/6/2001, he raised the issue of jurisdiction and referred the court to page 32 of the printed record. It is contended that even though the learned trial Judge made an observation on the issue of jurisdiction, yet the learned trial Judge failed to consider the appellants’ motion raising the issue of jurisdiction and make pronouncement on same. Relying on the authority of INTERCITY BANK PLC V. ALI (2002) FWLR (PT.126) 838 at 849, learned counsel for appellants contended that the Court of Appeal can consider the issue of jurisdiction raised at the trial court.
He pointed out that ground NO.2 of the Notice of Preliminary Objection argued in paragraph 4.2 of the respondent’s brief was raised in the same motion on notice dated 11/6/2001, filed by the appellant contained at page 32 of the printed record where the 1st appellant prayed the lower court to have his name struck out but the lower court did not make any pronouncement on the said prayer in this motion which according to the learned counsel for appellants is contrary to fundamental rights to fair hearing. He further argued that a court of law must consider and pronounce on all applications properly brought before it, citing MONOKPO V. MOBIL PRODUCING NIG. UNLIMITED & ANOR. (2004) FWLR (PT.195) 575, in support of his submission.
It is the submission of the learned counsel for the appellants that where an issue is raised at the lower court but not considered, the same issue can be raised on appeal as a result ground NO.2 and the issues formulated therefrom are equally competent. That in answer to the respondent’s argument in paragraph 4.4 of its brief, the appellants’ counsel humbly further submitted that the filing of additional ground of appeal contained at pages 85 – 86 of the printed record is competent as same was filed within the prescribed period for filing an appeal under Section 25 of the Court of Appeal Act.
Furthermore, it is argued by the learned counsel for the appellants, that the decision appealed against is a final decision hence no leave of either the trial court or the Court of Appeal is required by virtue of Section 241(1)(a) of the 1999 Constitution.
In conclusion, learned counsel for the appellants referred the Court to the case of MAJOR I.Z. UMARU (RTD) & ANOR. V. ALHAJI ABUBAKAR ZIBIRI & 3 ORS. (2003) FWLR (Pt.175) 1920 at 1928 and urged the court to discountenance the argument in support of the preliminary objection and proceed to hear the appeal on its merit.
It is trite law that a ground of appeal must relate to the decision appealed against. See AKIBU V. ODUNTAN (2000) 13 NWLR (PT.685) 446 at 462. The ground of appeal and consequently issue formulated therefrom must arise from the judgment. In SARKI & ORS. V. KOTOYE (1992) 9 NWLR (PT.264) 156, the Supreme Court of Nigeria, per Karibi-Whyte JSC at page 345 held that it is well settled preposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision. See BABALOLA V. STATE (1989) 4 NWLR (PT.115) 264, 294, CHIEF G.O. OBATOYINBO V. E. TOBOLA OSHATOBA (1996) 5 NWLR (PT.450) 531, 549 and NNANNA V. ONYENALUCHI (2000) 5 NWLR (PT.689) 92.
It must be noted that the suit in this appeal was brought under order 23 of the Kano State High Court (Civil Procedure) Rules 1987, the undefended list procedure where affidavit evidence filed by the parties are relied upon in the determination of the dispute as oral evidence is not required under the said procedure. From a careful examination of the judgment/Ruling of the trial court at pages 11 – 16 of the printed record, it can not be disputed in my view that grounds of appeal numbers 1, 2 and 3 as well as the issues formulated therefrom do not relate or stern from the decision of the trial court as rightly contended by the learned counsel for the respondent. Applying the principle of law enunciated in the above authorities, I agree with the learned counsel for the respondent that grounds 1, 2 and 3 which did not arise from the decision of the trial court are incompetent and liable to be struck out. As issues can only be formulated from a competent ground of appeal, it follows that issues 1, 2 and 3 in this appeal formulated from the said three incompetent grounds of appeal are equally incompetent and must also be struck out.
An issue may encompass one, two or three grounds of appeal but it is incompetent, inelegant and improper to distill and formulate more issues than the grounds of appeal as all appellate courts detaste and frown on proliferation of issues to be more than the grounds of appeal. See OGUNBIYI V. ISHOLA (1996) 6 NWLR (PT.452) 12; PAYE V. CAJI (1996) 5 NWLR (PT.450) 589; ENIGBOKAN V. BARUNA (1998) 8 NWLR (PT.560) 96; WEMA BANK LTD. V. INT’L FISHING CO. LTD (1998) 6 NWLR (PT.555) 557 and G & C LINES V. OLALEYE (2000) 10 NWLR (PT.676) 613 at 625.
As issues 3 and 4 of this appeal were both formulated from ground of appeal No.3, as clearly stated by the learned counsel for the appellants at page 3 of the appellants’ brief reproduced herein, the said issues are without doubt incompetent and must be struck out.
While I agree with the learned counsel for the appellants that an appellant can file more than one notice of appeal within the time prescribed by section 25 of the Court of Appeal Act, Cap 75 Laws of the Federation of Nigeria, 1990, in the instant appeal, looking at the document containing ground of appeal NO.5, contained at pages 85 – 86 of the printed record, I disagree with the learned counsel for the appellants that what is contained at pages 85 – 86 is a notice of appeal.
Firstly, the said document was titled “ADDITIONAL GROUND OF APPEAL” and not NOTICE OF APPEAL.
Secondly, it does not appear to me that any filing fees was paid in respect of the said document as required. In respect of the notice of appeal contained at pages 81 – 84 of the printed record, the sum of =N=35.00 was paid as the filing fees supported by an official receipt No. C.R 000093840 dated the 6th day of August, 2001. Thirdly, assuming the document filed is an additional ground of appeal, there is nothing to show that the leave of the court was sought for and obtained before filing the said document as an additional ground of appeal hence the said ground can not be argued by virtue of the provisions of order 3 rule (5) of the Rules of this court which reads:
“The appellant shall not without the leave of the court urged or be heard in support of any ground of appeal not mentioned in the notice of appeal, but the court may in its discretion allow the appellant to amend the ground of appeal upon payment of the fees prescribed for making such amendment and upon such terms as the court may deem just.” (underline mine)
In view of what I have stated above, I agree with the submission of the learned counsel for the respondent that the said ground of appeal is incompetent in that it was neither filed as a notice of appeal with the prescribed filing fees for a notice of appeal paid nor filed as an additional ground of appeal having sought for and obtained the leave of this court upon payment of the fees prescribed for an application to amend the notice of appeal by filing an additional ground or grounds of appeal.
It is the law that an issue can only be formulated from a competent ground of appeal. Having held that ground of appeal No.5 is incompetent, it follows that the issue formulated therefrom is equally incompetent.
Consequently, ground of appeal No.5 described as additional ground of appeal at pages 85 – 86 of the printed record as well as the issue formulated therefrom ought to be struck out.
In view of the aforesaid, I uphold the objection of the learned counsel for the respondent as all the grounds of appeal and the issues formulated therefrom are incompetent and should be struck out.
As an appeal from this court lies to the Supreme Court of Nigeria, the highest court of the land, I have to proceed to determine this appeal on its merit, assuming, I am wrong in my determination of the preliminary objection, even though, I believe that I am not wrong. In the determination of this appeal, I intend to frame an issue which I consider all encompassing and sufficient for the determination of this appeal having held that all the grounds as well as the issues including the submissions of counsel based on the said grounds are incompetent. The sole issue framed by me is as follows:-
“Whether or not having regard to the affidavit evidence the learned trial Judge was right in entering judgment in favour of the respondent?”
As to whether the trial court was right when it proceeded to enter judgment against the defendants/appellants under the undefended list procedure, it is contended by the learned counsel for the appellants that in view of the deposition in the defendants/appellants’ affidavit in support of the notice of intention to defend in an action commenced under the undefended list procedure where a defendant has set up the grounds of his defence in an affidavit which prima facie show a triable issue the court ought to have transferred the suit to the general cause list. He placed reliance on the provision of order 23 rule (3) of the Kano State High Court (Civil Procedure) Rules, 1988 quoting the said provisions at pages 9 – 10 of the appellant’s brief in support of his contention.
According to the learned counsel for the appellants, the appellants as defendants have in addition to filing their notice of intention to defend accompanied it by an affidavit which clearly set up a prima facie defence and referred the court to pages 29 – 31 of the printed record. It is further submitted by the learned counsel for the appellants that paragraphs 3(e) – (j) of the said affidavit has disclosed a prima facie issue, a triable issue necessitating the transfer of the suit to the general cause list. That the 2nd defendant/appellant by paragraph 3(f) of the affidavit contended that it recently commissioned a firm of consultants to audit its account with the respondent and the consultants have discovered that the respondent have been wrongly and illegally charging the 2nd defendant’s account which ought to be in credit. That this uncontradicted fact no doubt disclose a serious question of fact which ought to be tried, placing reliance on N.A.B LTD V. FELLEY KEME NIG LTD (1995) (PT.387) 100 and SANTORY LTD V. FLABED (1998) 12 NWLR (PT.579). Learned counsel for appellants argued that the learned trial Judge erred in law when he entered judgment against the appellants and urged the court to allow the appeal, set aside the judgment and order that the suit be heard on its merit.
In his response in the respondent’s brief, learned counsel for the respondent, commenced by stating that the respondent as plaintiff obtained the leave of the trial court for the suit to be placed under the undefended list procedure after filing its writ of summons supported by a four paragraph affidavit contained at pages 4 – 5 of the printed record. He explained that there is a distinction between a fundamental defect which robes the court of its jurisdiction and irregularity which does not vitiate proceedings. According to the learned counsel for the respondent, the argument of the appellants’ counsel that the lower court lacks jurisdiction and at the same time urging the lower court to exercise its power in continuing with the same suit by transferring the suit to the general cause list is absurd and a misconception. It is further submitted that the trial court considered the affidavit evidence of the appellants attached to their notice of intention to defend and found no defence on the merit was raised at all as the appellants have admitted both the existence of their debt to the respondent by their various letters copiously set out in the ruling of the lower court appealed against. He referred the court to page 12 – 15 of the printed record containing the defendants/appellants’ letters admitting the debt claimed in this suit without any qualification. He placed reliance on OSHODI V. EYIFUNMI (2000) 7 S.C. (PT.11) 142 at 166 – 167 where the Supreme Court of Nigeria held that where there is no appeal on a decision of a trial court whether on an issue of fact or law to the court such a finding or decision rightly or wrongly made must not be disturbed for the purpose of the appeal in question. See NWABUEZE V. OKOYE(1988) 4 NWLR (PT.91) 664.
In conclusion, learned counsel for the appellant, urged the court to dismiss the appeal.
Although, I have upheld the objection of the respondent on all the grounds and the issues including ground NO.1 which raised the issue of jurisdiction, I will still consider the issue of jurisdiction which is fundamental and can be raised even on appeal, under the sole issue formulated by me.
From the printed record, I agree with the submission of the learned counsel for the respondent that the mere omission to attach a document as provided by the rules cannot oust the jurist of the court. The proper procedure of raising a defence by a party to an action is by raising it in the pleadings or affidavit.
In my view, the procedure adopted by the learned trial Judge, in dealing with the suit under the undefended list procedure was quite proper. In any event, the appellants have not by their affidavit in support of their intention to defend raised any genuine issue challenging the jurisdiction of the trial court by their averments.
There is in fact no proper issue of jurisdiction raised to be determined, under the undefended list procedure upon which the matter was decided by the trial court.
The main grouse of the appellants in this appeal, is the refusal of the learned trial Judge to transfer the suit commenced under the undefended list procedure to the general cause list based on the appellants contention that they have by their averments contained in that affidavit filed in support of their notice of intention to defend disclosed a defence. In other words, they claim to have raised an issue, a triable issue requiring the transfer of the suit from the undefended list to the general cause list.
To secure the transfer of an action from the undefended to general cause list, appellant must disclose or raise in the affidavit accompanying notice of intention to defend a defence on the merit. Order 23 rule 3(1) of the Kano State High Court (civil Procedure) Rules, 1988 provides as follows:-
“3(1) if the defendant served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”
(underlining mine)
The governing words in the provisions set out are “a defence on the merit” which have been construed by the Supreme Court of Nigeria, per Uwais, JSC, (as he then was) in the case of THE FEDERAL MILITARY GOVERNMENT OF NIGERIA & OTHERS V. ABCHE MALAM SANI (1990) 4 NWLR (PT.147) 688, 699 where it was held as follows:-
“What is required is simply to look at the fact deposed to in the counter-affidavit or indeed the facts averred in the statement of defence, where applicable, and see if they can prima facie afford a defence to the action. In that regard a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial.”
It is clear from the passage just set out from the judgment of the Supreme Court of Nigeria, the affidavit accompanying the application by the defendants to defend must disclose a defence showing that there is a triable issue. In other words, the triable issue envisaged should not be at large but related to the defendants’ defence. Defence, in my respectful opinion, are facts which, if proved, would exonerate the defendant from the plaintiff’s claim. The affidavit is required to set up a defence against the plaintiff’s claim and not to rake up fresh suit or cause or causes of action against the plaintiff.
Having gone through the affidavit in support as well as the notice of intention to defend, I agree with the learned trial Judge that no defence has been disclosed, particularly having regard to Exhibits “A” at page 53, “C” at pages 65 – 66, reproduced at page 12 of the judgment and “D” at page 68 reproduced at page 14 of the printed record.
It is significant to observe that all the three Exhibits referred to in this judgment were signed by the 2nd defendant/appellant as the Chairman of the 2nd appellant who contended in the suit, that being a Director, he ought not to have been joined in the suit.
The appellants’ averments did not disclose any defence at all but mere denial which does not avail the appellants.
From the clear contents of Exhibits “A”, “C” and “D”, respectively, referred to in this judgment, the appellants are estopped from denying their indebtedness to the respondent.
If I were to decide this appeal on the merit, I would have dismissed this appeal for lack of merit.
In the final analysis, having regard to the aforesaid, the preliminary objection raised by the learned counsel for the respondent is hereby upheld. As there is no competent ground of appeal in this appeal, the appeal is hereby struck out.
No order on costs.
Other Citations: (2006)LCN/2058(CA)
