Ataguba & Company V. Gura Nigeria Limited. (2000)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A.

T

his is an appeal against the judgment of Kurada J of the Kaduna State High Court of Justice delivered on 20/7/98 in an action filed by the respondent which was the plaintiff against the appellant which was the defendant. The plaintiff claim which was filed under the undefended list procedure of the Kaduna High Court outlined by Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1988 against the defendant is for the sum of seven hundred and fifty thousand Naira (N750,000.00) with 21% interest from 11/5/95 and thereafter at 10% interest on the judgment sum until the judgment is liquidated.

On being served with the marked writ of summons accompanied by the affidavit in support of the plaintiff’s claim, and in accordance with the requirements of the rules, the defendant duly filed its own Notice of Intention to defend the action duly accompanied by the affidavit in support of the Notice. After hearing learned counsel on both sides on whether or not the affidavit of the defendant in support of its Notice of Intention to defend had disclosed a defence to the action on the merit, the learned trial Judge after scrutinizing the evidence in the paragraphs of the affidavit in support of the plaintiff’s claim against the averments contained in the defendant’s affidavit in support of its Notice of Intention to defend, came to the conclusion that no defence to the action on the merit had been disclosed in the defendant’s affidavit and accordingly entered judgment for the plaintiff as follows at pages 34 – 35 of the record:-
“For the foregoing, I am of the view that the defendant has not, by (sic) his affidavit disclosed a defence on the merit to this action to warrant its transfer to the general Cause list. I therefore refuse to transfer the case to the general cause list and the suit shall be heard as undefended and I shall accordingly enter judgment for the plaintiff without calling upon (sic) him to formally prove his case through witnesses. I hereby enter judgment for the plaintiff against the defendant in the sum of seven hundred and fifty thousand Naira (N750,000.00) only being a refund of money paid for a DAF Truck with Registration No. KD 144 SR.

There is no averment in the plaintiff’s affidavit in support of the writ of summons that interest was intended to be paid on the amount and the transaction, in my view, is not one that normally or by its nature, interest is (sic) expect or paid. The claim for interest therefore has no basis. It is accordingly refused and is hereby dismissed.”

Not satisfied with this judgment, the defendant now appellant has appealed to this Court against it upon 3 grounds of appeal contained in the Notice of appeal dated 28/7/98. In the appellant’s brief of argument deemed filed and served upon extension of time granted by this Court on 22/6/99, two issues for the determination of the appeal were formulated from the 3 grounds of appeal. The issues are:
“1. Whether the entire proceedings before Hon. Kurada J. were not rendered a nullity by the fact that the purported defendant was not a juristic or legal person?
2. Whether the appellant’s notice of intention to defend and affidavit in support disclosed sufficient facts and materials constituting a defence on the merits such that the learned trial Judge upon due consideration ought to have transferred the matter to the general cause list or at the worst joined Messrs Inland Bank Plc Nig who are the appellant’s disclosed principals and whether in the circumstances of this case, the trial court could have properly entered judgment for the respondent,”

In the brief of argument filed by the respondent on 30/7/99 on the other hand, the following two issues were identified for the determination of the appeal.
“1. Whether the defendant (an unincorporated body using business name) as non-juristic person is capable of being sued in its name as in this case.
2. Whether the appellant’s notice of intention to defend dated 6th day of June, 1999 and the supporting affidavit disclosed a defence on the merit to warrant the suit being transferred to general cause list.”

The above issues as contained in the respective briefs of argument of the appellant and the respondent though differently worded are in my opinion, virtually the same. I shall therefore proceed to resolve the two issues in the appellant’s brief of argument in the determination of this appeal.

The first is whether the appellant not being a juristic or legal person could have been sued as a defendant at the lower court. This issue according to the appellant had raised fundamental question of legal personality and by necessary implication, the jurisdiction of the lower court. It was argued that the appellant being a firm of legal practitioners as disclosed in the affidavit in support of its notice of intention to defend, is not a juristic person and therefore lacked the legal personality to defend the action at the lower court. That in the absence of a defendant with the necessary required legal personality to defend the action, the lower court had no jurisdiction to entertain the respondent’s case and for the same reason the entire proceeding, before the lower court was a nullity. Several cases cited and relied upon by the appellant in the appellant’s brief include FAWEHINMI V N.B.A (NO.2) (1989) 2 NWLR (PT.105) 550 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT4); 855. Although the appellant had conceded in its brief that this issue on jurisdiction was not raised and argued at the lower court, there being sufficient facts ex facie on the record establishing want of jurisdiction,’ on the authority of OLOBA V AKEREJA (1988) 3 NWLR (PT.84) 508 AT 520, the learned trial Judge ought to have raised the issue suo motu. Learned counsel to the appellant therefore urged this Court to allow the appeal on this issue and strike out the respondent’s suit.

For the respondent however it was argued that the appellant being a firm of legal practitioners, a non-juristic person is capable of being sued in its business name having regard to the decision of this Court in the case of FABIO INDUSTRIES LTD V UNITED DISTILLERS PLC and PETER BIDOKWU & CO (1999) 5 NWLR (PT.602) 314. That for the same reason and on the authority of the same case the lower court had jurisdiction to entertain the respondent’s suit.

There is no doubt at all that a person who should commence an action in court or against whom an action is commenced in court must be a person known to the law, namely, a legal person. Therefore if it is successfully shown that a party to an action is not a legal person, the party should be struck out of the suit. FAWEHINMI V N.B.A. (NO.2) (1989) 2 NWLR (PT.105) 558 AT 640 – 641. In the present appeal, has it really been successfully shown that the appellant which was sued as a defendant in the court below in the name of ATAGUBA & COMPANY is not a legal person capable of being sued in that name? The capacity in which the appellant was sued in the undefended suit filed by the respondent at the court below is clearly stated in paragraph 3(b) of the affidavit in support of the respondent’s claim and paragraph 1 of the appellant’s affidavit in support of the notice of intention to defend the action. The averment in paragraph 3(b) of the affidavit in support reads:-
“3(b) The defendant is a firm of legal practitioners situate along Ali Akilu Road Kaduna.”
while paragraph 1 of the affidavit in support of notice of intention to defend states:-
“1. That I am Principal Partner in the firm of ATAGUBA and Company, Legal Practitioners of 27 Ali Akilu Road, Kaduna and that by my position aforesaid I know the facts of this suit well.”

What had been established by these two paragraphs of the respective affidavits of the parties to the suit at the court below is that “Ataguba and Company” which was sued as the defendant in the suit is a Firm of Legal Practitioners with E.E. Ataguba as a Principal Partner. Therefore ‘Ataguba and Company’ being a Firm of Legal Practitioners either being operated by E.E. Ataguba alone in that name or being operated as a partnership firm in that name with two or more legal practitioners having Ataguba as the Principal Partner, that Firm of Legal Practitioners may be sued in the name of the Firm. This is so by virtue of the provisions of the Law under Order 11 Rules 9 and 26 of the Kaduna State High Court (Civil Procedure) Rules 1987. Rule 9 of Order 11 reads:-
“9. Any two or more persons claiming or alleging to be liable as partners may sue or be sued in the name of the Firm in which they were partners when the cause of action arose: and any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such Firm, to be furnished in such manner, and verified on oath or otherwise, as the court may direct.”
Rule 26 of Order 11 of the Rules on the other hand, provides:-
“26. Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name: and so far as the nature of the case will permit, all provisions relating to proceedings against firms shall apply.”
In other words if the firm of Legal Practitioners of Ataguba and Company has two or more legal practitioners operating the firm in partnership, that firm has the capacity to sue and be sued in the name of Ataguba and Company. However if the firm is being operated by Ataguba alone in that name and style other than his own name, although the firm may not have the capacity to sue in that name, the firm can all the same be sued in that name.

For the foregoing reasons, the suit of the respondent against the appellant in the name of Ataguba and Company as the defendant is quite competent and has no feature whatsoever depriving the lower court of jurisdiction to hear and determine the claim. See CARLEN (NIG) LTD V UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) 631 AT 656 where Ogundare JSC explained this state of the law:-
“There are bodies generally regarded as quasi or near corporations on whom statutes expressly or impliedly confer a right to sue or be sued though unincorporated. They are no legal personae strictu sensu but have a right to sue or be sued by a particular name. Examples of these are partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued, though not incorporated.”
See also THOMAS V LOCAL GOVERNMENT SERVICE BOARD (1965) 1 NMLR 310. The PROVOST ALVAN IKOKU COLLEGE OF EDUCATION V AMUNEKE (1991) 9 NWLR (PT.213) 49 and the English case of WILLIS & ANOR V ASSOCIATION OF UNIVERSITIES OF THE BRITISH COMMONWEALTH (1964) 2 ALL E.R. 39 AT 42. In the instant case therefore, the appellant, an incorporated body operating under the name of Ataguba and Company is capable of being sued in that name.

Next for determination is whether the appellant’s affidavit in support of its notice of intention to defend the action really disclosed a defence on the merit justifying the transfer of the matter to the general cause list for hearing. It was argued for the appellant that the affidavit in support of notice of intention to defend having disclosed that the appellant was the agent of Inland Bank in the transaction, that the DAF Truck is still lying at the premises of the Kaduna High Court awaiting the outcome of an action to determine its ownership which action had been adjourned sine die and that the appellant’s action against Inland Bank to recover the sum of N750,000.00 paid into its account by the appellant is still pending at the Kaduna High Court, defence on the merit had been disclosed in the affidavit to warrant transferring the suit of the respondent to the general cause list for hearing. The cases of TIWELL NIGERIA LTD V INLAND BANK NIGERIA LTD (1997) 3 NWLR (PT.494) 408 AT 419 and OKEKE V NICON HOTELS LTD (1999) 1 NWLR (PT.586) 216 AT 224 were cited in support of the appellant’s submission.

As for the respondent it was contended that having regard to the affidavit in support of the respondent’s claim, the appellant’s affidavit in support of the notice of intention to defend did not disclose any defence on the merit to the action to justify granting the appellant which was the defendant leave to defend the action particularly when decisions in the cases of JESCO (NIG) LTD V NASCO RICE & CEREAL PROCESSING CO. LTD (1998)11 NWLR (PT.575) 227 and TIWELL NIGERIA LTD V INLAND BANK (NIGERIA) PLC (1997) 3 NWLR (PT.494) 408 AT 419 are taken into consideration.

The resolution of this issue centred squarely on the application of the provisions of rules 3 and 4 of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 which provide as follows:-
“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary Cause List; and the court may order pleadings or proceed to hearing without further pleadings.

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

It is quite clear from the procedure outlined in the above rules 3 and 4 of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 that the procedure was not designed to exclude a defendant who can show in his affidavit in support of his notice of intention to defend the action that he has a defence on the merit. However, leave to defend the action filed under the undefended list may only be granted where the defendant’s affidavit raises substantial question of fact or law which ought to be tried, or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit as was outlined in UNIVERSITY OF NIGERIA V ORAZULIKE TRADING CO. (1989) 5 NWLR (PT.119) 19. Also under this procedure, for a defendant to be entitled to be granted leave to defend, his affidavit in support of his notice of intention to defend must not contain merely general statement that he has a good defence to the action. Such a general statement must be backed or supported by particulars which if proved would constitute a defence to the action. That is to say, the defendant in this respect must as far as possible deal specifically with the plaintiff’s claim and state clearly what the defence is and what facts and documents he relied on. See JOHN HOLT & CO (LIVERPOOL) LTD V FAJEMIROKUN (1961) ALL NLR 492.

In other words the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit in defence should also state whether the defence relates to the whole or part of the claim, and in the latter case it should specify that part of the claim.

A mere general statement or denial that the defendant is not indebted to the plaintiff is not enough to constitute such defence unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit. See TIWELL (NIG.) LTD V INLAND BANK NIG. LTD. (1997) 3 NWLR (PT.494) 408.
It is also the requirement of the law under the undefended list procedure that a defendant who has no real defence to the claim of the plaintiff against him should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by the delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. MACAULAY V NAL MERCHANT BANK LTD (1990) 4 NWLR (PT.114) 283.

It is not the duty of the trial court while considering action under the undefended list procedure to determine at the stage of considering the defendant’s defence in his affidavit whether the defence will ultimately succeed. In other words, in determining whether the defendant has a good defence on the merit or whether he has disclosed such facts as may be deemed sufficient to allow him to defend the suit, it is not necessary for the trial court to consider whether or not the defence has been proved. What is required at that stage is simply to look at the facts deposed in the affidavit and see if they can prima facie afford a defence to the action. A complete defence need not be shown at that stage. It is sufficient if the defence set up shows that there is a triable issue or that for other reasons there ought to be a trial. See NISHZAWA LTD V JETHWANI (1984) 1 SC 234 and F.M.G. V. SANI (1990) 4 NWLR (PT.147) 688.

In the present case, the gist of the case of the plaintiff against the defendant as contained in the affidavit in support of the claim is that on 11/5/95 the plaintiff paid the sum of N750,000.00 to the defendant for the purchase of a DAF Truck No. KD 144 SR. The defendant issued a receipt dated 11/5/95 in its name acknowledging the receipt of the sum of N750,000.00 being payment for the DAF Truck. Two weeks after the delivery of DAF Truck to the plaintiff, the same was seized and returned to the High Court on the orders of the Chief Judge. When after 3 years the defendant could not refund to the plaintiff the sum of N750,000.00 paid for the DAF Truck, the plaintiff instituted this action at the court below to recover the amount.

In the affidavit in support of the defendant’s notice of intention to defend the action however, the defendant had averred that he was not indebted to the plaintiff in the sum of N750,000.00 or in any sum whatsoever. That the DAF Truck was sold to the plaintiff by the bailiff of the Kaduna State High Court and same was delivered to the plaintiff on 11/5/95. That the defendant as solicitors to Inland Bank Nigeria Plc only collected the proceeds of the sale and paid it to Inland Bank Nigeria Plc. That upon an interpleader summons, the sale of the DAF Truck was set aside by the High Court and that the same truck is still lying at the premises of the court. When the defendant’s request to the Inland Bank Nigeria Plc to return the proceeds of the sale for onward return to the plaintiff was refused, the defendant has instituted an action at the Kaduna State High Court for the refund of the amount and that the action has since been pending in that court.

The learned trial Judge in his judgment at page 34 of the record of appeal very carefully considered all the defences raised by the defendant in its affidavit against the facts deposed in support of the plaintiff’s claim and quite rightly, in my view came to the conclusion that the facts do not constitute a defence on the merit to the plaintiff’s claim for the refund of the sum of N750.000.00. I entirely agree with the learned trial Judge. This is because on the face of the receipt issued by the defendant now appellant to acknowledge receiving the sum of N750.000.00 from the plaintiff now respondent being payment for the DAF Truck Number KD 144 SR, there is nothing to show that Inland Bank Nigeria Plc was involved in the sale of the truck or that it was sold by the bailiff of the Kaduna State High Court as claimed by the appellant. The facts averred in the appellant’s affidavit in Support of its notice of intention to defend do not at all controvert the facts in support of the respondent’s claim that the sale transaction for the purchase of the DAF Truck in question was clearly between the appellant and the respondent. Since for the reasons stated by the appellant itself that the DAF Truck which was delivered to the respondent on 11/5/95 after the sale transaction was later recovered and returned to the premises of the Kaduna High Court on the orders of the State Chief Judge where it is still lying pending the outcome of an action to determine its ownership, the respondent is indeed entitled to the refund of its money paid directly to the appellant from the appellant which received the amount and not from any other person not connected with the sale.

There is no merit at all in this appeal which is hereby dismissed. The judgment of the lower court of 20/7/98 is hereby affirmed.

There shall be N3.000.00 costs to the respondent.

Other Citations: (2000)LCN/0788(CA)