Aubergine Collections Ltd. & Anor. V. Habib Nigeria Bank Ltd. (2001)
LawGlobal-Hub Lead Judgment Report
MUSDAPHER, J.C.A.
The respondent herein by a writ of summons filed against the appellants as the defendants in the High Court of the Federal Capital Territory Abuja claimed as follows:
“(a) The sum of N1,845,073.40 (One Million Eight Hundred and Forty Five Thousand and Seventy Three naira, forty kobo) being the total outstanding debt owed the plaintiff by the defendants on an overdraft facility of N1,250,000.00 granted them with accruing interest and agreed bank fees.
(b) 10% interest per annum on the judgment debts from the date of judgment until final liquidation.
(c) Cost of the action.”
On an application by the plaintiff the matter was placed on the undefended list. The writ of summons was served on the defendants on the 9th of February, 2000 and was returnable on the 17th of February.
The defendants were out of time in filing the notice of intention to defend as specified under the provisions of Order 23 rule 3 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules Cap. 511, LFN 1990. The defendants on the 15th day of February, 2000, filed before the trial court a motion on notice praying for extension of time and attached to the motion was notice of intention to defend the action. It is claimed that in the affidavit in support of the motion the defendants disclosed and explained the reasons for the inability to file the notice of intention to defend the action within the stipulated period provided in the aforesaid Civil Procedure Rules on the 17th day of February, 2000, the plaintiff’s counsel was not in court and the defendant’s counsel, with the leave of the trial court moved the aforesaid motion for extension of time to file the notice of intention to defend the action. The trial court refused the application and proceeded to hear the action on the undefended list in the absence of the plaintiff’s counsel and entered judgment in favour of the respondent against the defendant. It is against the decision refusing to extend time to file notice of intention to defend the action that the defendants have now appealed to this court.
The notice of appeal contains two grounds of appeal which read as follows:-
“1. Error in Law.
The learned trial Judge erred in law when he refused to countenance the defendant’s application for extension of time on the ground that there was no provision for such a relief under Order 23 of the High Court Civil Procedure Rules and by so determining suo motu, the learned trial Judge had occasioned a miscarriage of justice arising from inadvertence to the provisions of Order 22 rules 1 and 2 of the High Court Rules.
Particulars of Error.
(a) Order 21 rules 1 and 2 permits the High Court to extend time in any situation in which a party is out of time for doing any of the acts permitted under the rules of court.
(b) Refusal to attend the application, which was properly before the court and to which there was no notice of preliminary objection or counter-affidavit was a breach of the defendant’s right of fair hearing guaranteed under S. 36(1) of the 1999 Constitution.
(c) The learned trial Judge ought to have granted the application as prayed moreso as the plaintiff’s counsel was not in court to oppose the application and by interfering with the application created a situation whereby the defendants were prejudiced ought to have been granted before a consideration of the case on the undefended list could be embarked upon.
- Error in law
The learned trial Judge erred in law when he entered judgment in favour of the plaintiff in the sum of N1,845,073.40 on the ground that there was no notice of intention to defend before him and by so holding created the situation whereby the defendant were denied their right to defend the suit before judgment will be given one way or the other.
Particulars of Error.
(a) The said judgment is void on account of the wrong interpretation given to Order 22 rules 1 and 2 of the High Court rules.
(b) But for the error committed by the learned trial Judge in refusing to grant extension of time the case ought to have been transferred to the general cause list.
(c) Consequently, the judgment of the learned trial Judge ought to be set aside as there was clearly no reason for judgment to be entered against the defendants”.
The relief sought from this court is to set aside the ruling and the judgment of Bukar J. in this matter and remit the case back to the High Court of the Federal Capital Territory for adjudication before another Judge.
In compliance with the rules of this court, the defendants hereinafter referred to as the appellants have filed a brief of argument. The respondent did not file any brief and at the hearing of the appeal before this court, the learned counsel representing the respondent stated that he does not oppose the appeal. The non-opposition of the respondent to the appeal does not in any way relieve the appellants from convincing this court that the decision of the trial court is flawed. The court is duty bound to treat all issues for determination raised before it. See Labaran v. Okoye (1995) 4 NWLR (Pt.389) 303. The judicial role of an appellate court is to suprintend, review and correct any errors made by the trial court. It is to see whether the trial court applied the applicable law or adhered to the proper procedure in arriving at its decision. See Olanrewaju v. Governor of Oyo State (1992) 9 NWLR (Pt.265) 335 at 360.
Now, the appellants have identified, formulated and submitted to this court for determination the following issues:
“1. Whether the lower court has jurisdiction upon the application of a party to wit the appellants herein to extend time within which to file a notice of intention to defend.
- Whether on the face of the defendant/appellant’s motion on notice dated 15th February, 2000 to which the proposed notice of intention to defend was annexed, the trial Judge was right in refusing the appellants’ application for extension of time and proceeded to enter judgment against the appellants thereby denying them the right to defend the suit.”
I will deal with the issues together.
To appreciate the argument of counsel, it shall be necessary to set out what had transpired in court. The appellants were served with the writ of summons marked “undefended” under the provisions of Order 23 of the Civil Procedure Rules, applicable in the High Court of the Federal Capital Territory, Abuja. The appellants were unable to file a notice of intention to defend the action within 5 days of the hearing of the action and had therefore filed a motion on notice praying for extension of time within which to file the notice. The motion was supported with an affidavit explaining the delay and also disclosing a defence on the merits. The motion was moved and the respondent did not file a counter-affidavit and was indeed absent and not represented at the hearing of the application for the extension of time aforesaid.
The learned trial Judge in his ruling on the application said: ”
“What is the defendants” act after service of the writ of summons and the affidavit? They filed a motion on notice seeking for leave to extend time within which to file their notice of intention to defend. It does not require much effort to see that the act of the defendants is unknown to the rules of this court and certainly it is not covered by Order 23 rule 3(1) or Order 8 nor by Order 22 as these two orders are even irrelevant to this case. Order 22 may come in if there is any contest as to the number of days the defendant is entitled for filing their notice of intention to defend. Order 23 rule 3(1), states that they should do that in not less than five days before the day fixed for hearing… Kayode Eso, JSC said it all on matters placed under the undefended list in the case of Ben Thomas Hotels Ltd v. Sabi Furniture Co. Ltd. (1989) 5 NWLR (Pt.123) 523; (1989) 12 SCNJ, 171. His Lordship has this to say:
‘When a case entered on the undefended list comes to court on the return date, the court has one and only one duty, namely to see whether the defendant has filed a notice of intention to defend and an affidavit. If no such notice and affidavit has been filed within five days before the return date, the court has no choice in the matter but to proceed.’
Wherefore the trial Judge held in the instant case, that the appellants have not filed the notice within the five days and such he had no option other than to proceed with the hearing and judgment. In other words, the learned trial Judge held that there was no procedure for extending the time within which to file the notice of intention to defend and that even if the affidavit in support of motion for extension of time to file the notice to defend the action explains the delay and discloses a defence on the merits, he had no option other than to proceed with the hearing of the matter on the undefended list.
Now the learned counsel for the appellants submits that Order 22 of the rules of court applicable to the proceedings grants the court the power to extend time within which a litigant is required to take any procedural step. He further argued the provisions of Order 23 rule 3(1), time may be extended after due explanation of delay. It is again submitted that once a defendant has filed an affidavit disclosing a defence on the merits, he should be allowed to defend the action. Learned counsel referred to Bello v. Farmers Supply Co. Ltd (1994) 5 NWLR (Pt. 342) 127; Bulet International (Nig) Ltd v. Alhaji Yahoza Adamu (1997) 3 NWLR (Pt. 493) 348; UTC Nigeria Ltd v. Pamotei (1989) 2 NWLR (Pt.103) 244; Collins v. Vestry of Paddington (1880) 5 QBD 368, 380-381. It is submitted that on the basis of the authorities cited, that a court of law has the jurisdiction under the undefended list procedure to extend time within which a notice to defend the action could be filed, consequently the refusal of the trial Judge, in the instant case, to consider favourably the application to extend time had defeated the ends of justice and thereby resulted in an injudicious use of his discretionary power.
The fundamental issue that will have to be decided under this issue is whether the learned trial Judge was right in failing to consider the application brought before him to extend time to file the notice of intention to defend the action and the failure to examine all the documents especially the affidavit before proceeding to hear the matter on the undefended list and enter judgment in favour of the respondent. The rules of court relating to actions on the undefended list have been made rather technical so to guarantee that justice is done to a defendant whose liberty to defend the action has been somehow restricted. See Olubusola Stores v. Standard Bank Ltd (1975) 4 SC 51. It has been stated that the rules have provided for adequate protection in favour of a defendant and if a defendant allowed judgment to be entered against him, he must have acted deliberately by doing nothing. Even if he takes an improper step, such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him a chance to take a proper step to enable the court to consider the notice of intention to defend. See John-Holt & Co. (Liverpool) Ltd. v. Fajemirokun, U.T.C. (Nig.) Ltd v. Pamotie supra. Thus, even when a defendant neglects to deliver the notice of intention to defend and an affidavit as required by the rules within the time prescribed before judgment is delivered, he may on filing an affidavit disclosing a defence on the merit and on satisfactorily explaining the delay and the neglect be allowed to defend the action. It must be stressed that the rules under the undefended list procedure do not automatically relieve a plaintiff from establishing his case. The court must examine the evidence. I think it is wrong to assume that because a petition or a case is not defended, the trial Judge must shut his eyes to the fact that the evidence before him was not enough to sustain the plaintiff’s case. See Atilade v. Atilade (1968) 1 All NLR 27 at 29. See also UBA Plc v. Mode (Nig) Ltd (2001) 13 NWLR (Pt.730) 335.
Now in the instant case, the learned trial Judge held that once, the notice of intention to defend the action has not been filed within the time limited by the rules, the court has no power to extend time to allow a defendant to take a proper step to defend the action. Order 22 rule 3(1) reads:
“The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these provisions or by any judgment, order or direction to do any act in any proceedings. The court may extend any such period as is referred to paragraph (1) of the rules although the application for extension is not made until after the expiration of that period.”
But there is no doubt that by the provisions of Order 23 rules 3(1) if a defendant in an action marked undefended delivered to the registrar “five days before the date of 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 the action upon such terms as the court may deem just”. The procedure under the provisions of Order 23 is not intended to shut out a defence completely. See Santory Co. Ltd v. Elabed (1998) 12 NWLR (Pt. 579) 538.
Now, Order 23 rule 3 requires a defendant to deliver to the registrar five days before the date fixed for hearing a notice of his intention to defend together with an affidavit disclosing a defence on the merit, the question is whether the court can grant extension of time to file the notice of intention to defend. The matter is not without some problems. In the case of Edem v. Cannon Ball Ltd (1998) 6 NWLR (Pt. 553) 298 at 309, Salami J.C.A. opined:
“Order 23 of the Cross-River State High Court (Civil Procedure) Rules, 1987, does not provide for extension of time.”
The learned Justice held that the application for extension of time is superfluous, but the learned trial Judge correctly examined the affidavit filed to find out if there is a defence on the merit. But see Bello v. Famers Supply Co. Ltd (1994) 5 NWLR (Pt. 342) 127; Bulet Int. (Nig) Ltd v. Adamu (1997) 3 NWLR (Pt.497) 3 NWLR (Pt. 493) 348. It appears to me that though there may be no provision under. Order 23 to extend time to file the notice of intention to defend the action, the affidavit filed may be examined to find out whether the delay for non-compliance with the order has been explained and also whether a defence on the merits is disclosed. If the affidavit satisfied these two requirements, the defendant should be allowed to defend the action and the court should over look the motion paper or treat it as mere surplusage. Such a motion, being an exercise in superfluity should not be allowed to work hardship on the defence on the merits as revealed in the affidavit.
The learned trial Judge in the instant case followed the decision in Ben Thomas Hotels Ltd v. Sebi Furniture Ltd (1989) 5 NWLR (Pt.123) 523; (1989) 712 SCNJ 71 where Kayode Eso JSC seemed to have said in action on the undefended list where a defendant had neglected to file the notice to defend within the prescribed time, the only option open to the court is to proceed to hear the case on the undefended list.
It cannot be correct to say that the court has lost its discretionary power simply because the affidavit was filed outside the five days prescribed by the rules of court. In the case of UTC (Nig) Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 229. Nnameka-Agu, JSC opined that where a defendant intends to defend an action but has taken an improper or insufficient step, such as merely filing a notice not supported with an affidavit, he may be entitled to an adjournment to give him the opportunity to take the proper step to enable him defend the action. See also Azumi v. Pan-African Bank Ltd. (1996) 8 NWLR (Pt.467) 462; Ojikutu v. Odeh (1954) 14 WACA 640. See also John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (supra).
Now, under the provision of the rules of the court which generally provided for extension of time to take a procedural step. See Order 22 rule 3(1) reproduced above, until a judgment is entered, an extension of time may be allowed for rectifying a mistake or oversight. There is an unchallenged evidence in the affidavit that the appellant instructed counsel to defend the action within time and equally unchallenged is the evidence that counsel became ill at the material time and it was after the prescribed period had elapsed before counsel was able to take the step. The defendant has the right to have the matter determined on the merits by granting him an indulgence conditionally or otherwise. It will be unjust in my view, to hold that because of the sickness of counselor because of blunder on his part the defendant shall incur the penalty of not having the dispute between him and his adversary determined on the merits. See Collins v. Vestry of Paddington (supra). Applying the above principle, I am of the view that the learned trial Judge was in error to have ignored the contents of the affidavit which clearly explained the delay and had revealed a defence on the merits.
This appeal is accordingly allowed, the judgment of the court below is set aside and in its place, I order that the appellants be allowed to defend the action, that is, to say the suit No. FCT/HC/CV/726/99 be transferred to the general cause list for hearing on the merits before another Judge of the High Court of the Federal Capital Territory, Abuja. Since the appeal was not opposed I award no costs to the appellant.
Other Citations: (2001)LCN/1055(CA)
