Emsilv Nigeria Limited & Anor. V. Mr. Sylvanus Emunemu (2006)
LawGlobal-Hub Lead Judgment Report
ZAINAB ADAMU BULKACHUWA, J.C.A.
By a writ of summons dated and filed on the 22/3/2004 the Respondent as the Plaintiff before the trial court claimed against the Appellants/Defendants jointly and severally the sum of N180,000.00 (One hundred and eighty thousand Naira) only being the sum due and owed to the plaintiff which sum the Defendants had refused to pay in spite of repeated demands.
By a motion ex-parte which was moved and heard by the trial court on the 7/4/2004 the court granted leave that the suit be entered in the undefended list.
Upon being served with the writ and the order placing the suit on the undefended list, the defendants by a motion dated and filed on the 21/5/2004 prayed for an order of the court extending the time within which the defendants may file their notice of intention to defend and a deeming order on the annexed notice of intention to defend.
The court heard the said motion on the 2/6/2004 and granted the relief sought and adjourned the matter to 16/7/2004 for hearing.
On the said date the lower court took argument from counsels to the parties and entered judgment for the Respondent on the amount claimed.
The defendants being dissatisfied have now appealed to this court vide Notice of Appeal filed on the 23/9/2004 containing four grounds of appeal.
The parties duly filed and exchanged briefs of argument as required by the rules of this court which said briefs were adopted and relied upon by the respective learned counsels at the hearing of this appeal.
The Appellant in their brief of argument identified the following issues;
“1. Whether the learned trial judge was right when he held “That the 1st Defendant is bound by the name it called itself” without the necessity for a legal proof to establish that it is a legal personality recognized by law.
- Whether from the learned trial judge’s admission and the state of the affidavit evidence – that exhibits A and B came from the 1st Appellant duly signed on its behalf by the 2nd Appellant it was right in law to still hold the 2nd Appellant liable jointly and severally for the sum of N180,000.00
- Whether from the affidavit evidence, the Respondent has established that the sum of N180,000.00 being claimed is the sum outstanding as indicated on Exhibit ‘A’.
- Whether the Respondent has established any valid contract with the Appellants to warrant the payment of N180,000.00 to him in view of the strong denials of Exhibit ‘A’ and ‘B”.
The Respondent raised the following issues;
“1. Whether there was evidence before the lower court to show or establish that the 1st defendant is not a juristic person.
- Whether the trial court was right to have held that exhibits ‘A’ and ‘B’ emanated from the Appellants.”
The Respondent also raised a preliminary objection to the appeal based on the following grounds;
“1. That the grounds of appeal do not arise out of the decision of the lower court appealed against.
- The question of agency of the 2nd Appellant and the validity or otherwise of the contract of employment of the Respondent was never an issue before lower court.”
It is the argument of counsel for the Respondent on the preliminary objection that the grounds of appeal do not arise out of the decision of the lower court, that the issue of the agency of the 2nd Appellant and the question of the contract of employment of the Respondent was never raised and that before the Appellants can raise them before this court they must first seek and obtain the leave of this court to so raise them.
For the determination of this argument it is material to critically examine the grounds of appeal which are produced hereunder.
“3. GROUNDS OF APPEAL:-
The learned trial judge erred in law when he held thus: –
“The 1st Defendant has been transacting business in that name. It put itself out in that name. 2nd Defendant also put 1st Defendant out in that name. Can they summersault now and say the 1st Defendant is no longer incorporated …I reject it. I hold that the first Defendant is bound by the name it called itself. ”
PARTICULARS OF ERROR
(a) Whatever name a person calls itself, the law is that its legal existence can only be established only by the production of its certificate of incorporation.
(b) It is the certificate of incorporation that clothes and confers on an entity the capacity to sue and be sued.
(c) The Respondent failed to produce the certificate of incorporation of the 1st Defendant and this is very fatal to their case.
(d) That the learned trial judge proceeded to enter judgment in favour of the Respondent without satisfying Himself in accordance with the law and decisions of the Supreme Court of the existence of the 1st Appellant.
GROUND TWO
The learned and most respectful trial judge erred when he held that:-
“Exhibits A & B came from the Defendant duly signed by the 2nd Defendant and other on behalf of the 1st Defendant” and proceeded to enter judgment against the Appellants jointly and severally far the sum of N180,000.00.
PARTICULARS OF ERROR
(a) The trial court admitted that the 2nd Appellant only acted in the position of an agent or servant.
(b) That the learned trial judge’s own record indicate the 1st Appellant as the disclosed principal.
(c) That the 2nd Appellant cannot be held personally liable far whatever act done for the disclosed principal.
(d) That the judgment of N180, 000. 00 entered against the 2nd Appellant is wrong, perverse, unfounded in law and ought not to be.
GROUND THREE
That the learned and very respected trial judge erred in law when he held thus:-
“It is argued that because “outstanding” was put in exhibit B it is final payment. That is a misinterpretation of words and documents.
N180,000.00 being claimed is also an outstanding amount as indicated in Exhibit A”
PARTICULARS OF ERROR
(a) Respondent’s own documents i.e. Exhibit B clearly show that the N30, 000. 00 was the only outstanding sum due to the Respondent.
(b) That the words and language of Exhibit B, even, if married with Exhibit A are not ambiguous but point to one simple interpretation of N30,000.00 outstanding, which has been paid.
(c) That the issue of proper interpretation of the documents would have been better settled in favour of the Appellants if the learned trial judge had transferred the matter to the general cause list and order for pleadings to be filed.
(d) That the interpretation given to Exhibit B by the learned trial judge, with respect, is not founded in law and on facts.
GROUND FOUR
That the learned trial judge erred in law when he failed, neglected and/or refused to consider whether the Respondent had any or valid contract with the Appellants to warrant the payment of N180,000.00 to him, in view of Appellant’s denial of Exhibits A & B.
PARTICULARS OF ERROR
(a) That the issue of Respondent’s employment is very germane to the case to determine whether there was any contract with the Appellants.
(b) That the Respondent failed to produce or Exhibit his employment letter issued by the Appellants.
(c) That these are matters best fit for full blown trial where Respondent will be cross examined to determine the credibility and genuiness of his claims.
(d) That the learned trial judge’s neglect and/or failure to consider this issue is very fatal to Respondent’s case, as the Respondent has failed to prove any link with Appellants.
(e) That the onus of proof is on the Respondent and it is until that burden has been discharged before it can shift to the Appellant – it was never discharged in this case.
(j) That Appellants had indicated their readiness to con (sic) the claim of the Respondent in a full trial by Exhibiting their proposed Statement of Defence which the learned trial judge failed to consider. ”
A critical look at the grounds will show that grounds 1 – 3 are complaining against a particular finding of the trial court. Ground 1 is complaining against the finding of the learned trial court on the legal status of the 1st Appellant.
Ground 2 complains against the finding of the lower court on the perceived agency relationship of the 2 Appellants.
Ground 3 complains against the interpretation given to Exhibit ‘B’ by the learned trial judge.
Ground 4 complains on the failure of the learned trial judge to consider whether there was a valid contract of employment between the parties.
As shown above the grounds are specific as to the finding of the trial court which were being complained against. They were issues that arose before the lower court on which the court made specific findings. The Appellant therefore does not need the leave of the court to appeal against those issues.
As I have said in Jibrin Vs. NEPA 2004 2 NWLR (Part 856) 210 at 225.
“Generally in filing a ground of appeal, an Appellant is giving notice to the other party of the part of the decision he is complaining against and in doing so he must give sufficient information of the complaint and the issue that will arise before the appellate court hence the grounds and its particulars. See Aderounmu & Oluwo 2000 2 SCNJ 480 particularly at 191 where Ayoola JSC said;
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant and, consequently, of the issues that are likely to arise on the appeal. Any grounds of appeal that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.”
All the grounds are based on the finding of the lower court. The submission of the Respondent that the Appellant needs the leave of this court to so raise them is baseless and it is hereby overruled. In the circumstances the preliminary objection raised is hereby overruled and dismissed.
I have examined the issues raised by the parties, I am of the view that the relevant issue which will first determine the way the appeal will go is;
“Whether based on the affidavit evidence before the lower court the Respondent was entitled to judgment on the undefended list.”
I will accordingly examine the said issue first and then go into the issues raised by the parties if the need arises.
Order 23 Rules 1 – 5 of the High Court (Civil Procedure) Rules Rv 1988 of Bendel State applicable to Delta State provides;
“(1) Whenever application is made to the court for the issue of a writ of summon 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 mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
2…
- (i) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five 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.
- 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”.
The above procedure which is termed ‘the undefended list procedure’ is aimed at obtaining summary judgment without the necessity of a full trial. A claim under this procedure is mostly for a debt or liquidated sum which had been previously agreed upon by the parties and can be precisely determined without the need of calling any evidence and the supposition that the defendant has no defence to the action.
See Eastern Plastics Limited Vs Synco W. A Limited 1999 1 NWLR (Part 587) 456.
Where an application is made to a court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand, such application must be supported by an affidavit setting the averment on which the claim is based and such relevant annextures to the claim as well as stating that in the applicants’ view, the defendant has no defence to the claim, the court if satisfied that there are good grounds for believing that there is no defence to the claim enter the suit for hearing on ‘the undefended list’ and mark the writ of summons accordingly.
The defendant being served with the writ of summons so endorsed may file in the registry of the court a notice that he intends to defend the suit with an affidavit disclosing a defence on the merit, by setting out the details and particulars of the defence. The court may upon hearing the parties and examining the affidavits, and being satisfied that the Defendant had prima facie disclosed a defence on the merit transfer the matter to the general cause list for trial on the merit.
See Franchal Nigeria Limited Vs. N.A.B. Limited 1995 8 NWLR (Part 412) 176.
Where the court finds that the defendant had not disclosed prima facie a defence on the merit to the plaintiffs’ claim, the court may enter judgment for the plaintiff without the need to call on the plaintiff to adduce evidence.
See Tahir Vs. J. Udeagbala Holdings Ltd. 2004 2 NWLR (Part 857) 438.
In the present appeal the Respondent has deposed to the following in his affidavit in support of the writ of summons;
“1. That I was a staff of the plaintiff’s company in this suit.
- That the facts deposed to herein are within my personal knowledge.
- That on the 07/07/2002, I received a letter from the plaintiff’s company to the effect that the company can no longer pay me, but that my salaries for 2002/2003 will be paid. Attached as Exhibit ‘A’ is a copy of the letter.
- That base on the aforesaid letter, I was paid N30, 000. 00 on the 18th day of September, 2003. Attached also as Exhibit ‘B’ is a copy of the payment slip.
- That before the above payment was made and uptil date, the plaintiff has made several demands but in spite of this repeated demand, the Defendant has failed, neglected and refuse(sic) to pay the balance sum of N180,000.00 (One Hundred and Eighty Thousand Naira).
- That the plaintiff also cause (sic) his solicitor, Barrister O.S.O. Adjako of IKHIDE EHIGHELUA & co. to write to Defendants; company and give them the notice of intention to sue, attached, as Exhibit ‘C’ is a copy of the letter to the Defendant.
- That I was informed by Barrister O.S.O. Adjako, AND I verily believe him that the plaintiff has complied with the condition for filing this suit.
- That I know as a fact that demand in this case is a liquidated money demand.
- That I verily believe that the Defendants have no defence whatsoever to this claim.”
In the affidavit in support of the Defendants/ Appellants’ Notice of Intention to Defend the following facts were averred to by one Patrick Ovie a litigation clerk in the chambers of the Appellants’ counsel.
- “(1) That I am informed by the 2nd Defendant and I verily believe him as follows;
(a) That the 1st Defendant is not a juristic person or person known to law.
(b) That the 2nd Defendant was not a privy to or party to the alleged contract that gave rise to Exhibits A and B attached to the Plaintiff’s affidavit in support.
(c) That Exhibits A and B did not emanate from the said company and 2nd Defendant, as there was no time they wrote and/or made such documents.
(d) That the Plaintiff is not owed the sum of N180, 000.00 or any amount at all by the alleged company or the 2nd Defendant.
(e) That the Plaintiff had no valid contract of employment with the alleged company and the 2nd Defendant.
(f) That the claim of the Plaintiff is not fit for trial under the undefended list but should be sent to the general cause list for full trial.
(g) That the alleged company and 2nd Defendant intend to raise preliminary objection on point of law on the juristic status of the 1st Defendant and has accordingly attached a proposed statement of defence, herewith marked as Exhibit ED 1.
(h) That Exhibit C attached to Plaintiff’s supporting affidavit was never recalled by the alleged company and/or the 2nd Defendant.
(i) That the Defendants have good defence in law and on facts to the plaintiffs manufactured claim.”
By the affidavit evidence shown above, the defendants had joined the following issues with the plaintiff;
“(1) That the plaintiff was never employed by the defendants.
(2) That the documents relied upon by the plaintiff never emanated from the defendants.
(3) That the plaintiff is not owed the sum claimed or any amount at all.”
In an affidavit evidence in support of a notice of intention to defend all that the Defendant needs show is a triable issue, that is disputable issue of facts, on comparing that evidence against that disclosed in the affidavit evidence, where triable issue is shown prima facie, must transfer the matter to the general cause list for the determination of the triable issues raised.
See Santory Co. Ltd. Vs. Elabed 1998 12 NWLR (Part 579) 544. Jipreze Vs. Okonkwo 1987 3 NWLR (Part 67) 737.
As I had pointed out earlier, the Defendant/Appellant had raised triable issues in his affidavit evidence in support of his notice of intention to defend. The lower court should have, based on such affidavit evidence transferred the matter to the general cause list for the trial of the issues so raised rather than enter judgment for the Plaintiff/Respondent.
Having decided as above and in view of the consequential orders I shall make, it will be an exercise in futility to go into the issues raised in the appeal by the parties for it will amount to deciding the substantive matter on the appeal.
In the circumstance, I invoke our powers under Section 16 of the Court of Appeal Act and find that the Defendants/Appellants have by their affidavit in support of the notice of intention to defend disclosed a prima facie defence. I hereby remove the case from the undefended list and transfer same to the general cause list for trial on the merits.
The matter is accordingly transmitted to the High Court of Delta State for assignment by the Hon. Chief Judge to another judge other than Akporido J. Costs of N5,000.00 to the Appellants.
Other Citations: (2006)LCN/2130(CA)
