G. Cappa Plc V. Francis Nnaegbuna And Sons Ltd & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
The Appellant contracted the Respondents to supply it with white wood in 2002 which the Respondents complied at five installments worth N5,279,650.00 (Five Million, Two Hundred and Seventy-Nine Thousand, Six Hundred and Fifty Naira) which sum the appellant failed to pay to the Respondents. In 2004, the Respondents sought and obtained leave of the Kaduna State High Court to file an action against the Appellant under the undefended list.
On receipt of the Respondent’s writ, the Appellant filed Notice of intention to defend, wherein it filed an affidavit of six paragraphs and averred as follows in paragraphs 4 (a) – (d) thereof:-
(a) That the defendant is not indebted to the plaintiffs as alleged or at all.
(b) That the Defendant never gave the plaintiffs contracts as alleged because the only site the Defendant had was building contract with Ministry of Foreign Affairs and work had since 2002 stopped at the site.
(c) Consequent upon the above, the defendant’s workers have been on redundancy till date.
(d) That no job order was issued in favour of the Plaintiffs and as far as I know they did not execute any job order.”
In his judgment delivered on 6th July, 2004, the learned trial judge, H.A.L. Balogun J. held as follows on page 29 of the record of appeal:-
“I have perused the affidavit attached to the said notice and I fail to see any bona fide defence on the merit as required by law.
All the Defendants did was to make a mere denial. Nothing was said about the over whelming documentary evidence the plaintiffs provided to support their case.
In the circumstance, I am satisfied that the Defendants have (sic) no bona fide defence to the offer while the plaintiffs have proved their claims through abundant evidence.
Judgment is accordingly entered for the Plaintiffs as per their writ of summons.”
Dissatisfied with the stance of the learned trial judge, the Appellant appealed to this Court with a notice of appeal dated 6th July, 2004 containing two Grounds of Appeal that –
(1) The learned trial judge erred in law when he held that the Appellant’s Notice of intention to defend the suit does not disclose any defence on the merit.
(2) The learned trial judge erred in law when he did not grant the appellant’s Counsel a nearing before entering judgment in favour of the Respondents in a suit filed under the undefended list based only on the documents filed in court.
The appellant later filed one additional ground of appeal after obtaining the leave of this Court on 4th October,2005.
The new ground States:-
“The whole proceedings amount to a nullity as the Honourable Court had no jurisdiction to entertain same and this occasioned a miscarriage of justice.”
In the Appellant’s brief prepared by C.N. Nwapi, Esq, two issues are formulated for the determination of this appeal as follows 1. Whether the Honourable trial Court had the jurisdiction to entertain this suit?
- If the answer to the above is in the affirmative, whether the Notice of intention to defend the suit with the accompanying affidavit does not disclose a triable issue?
The Respondents through their Counsel, V.A.B. Ewuzie, Esq however submitted five issues herein reproduced –
- Whether the Honourable trial Court properly entered and heard the matter under the undefended list procedure pursuant to Order 22 of the Kaduna State High Courts (Civil Procedure) Rules, 1987.
- Whether the Appellant’s notice of intention to defend with the affidavit in support discloses defence on the merit that would have warranted the transfer or placing of the suit on the ordinary cause list for hearing on the merit.
- Whether by the affidavit evidence before it, the learned trial judge was right in hearing the matter under the undefended list and entered judgment in favour of the Respondents and against the Appellant.
- Whether the non endorsement of the writ of summons for service outside jurisdiction by the lower trial Court’s registrar shall be visited on the Respondent and consequently vitiate and nullify the entire proceedings.
- Whether the lower trial Court had jurisdiction to entertain the suit.
It has been stated over and over again that the grounds of appeal should not be less than the issues for determination. While the courts may tolerate equal number of grounds and issues, they cannot tolerate a situation where there are less grounds of appeal than issues formulated for determination of an appeal. See Agu Vs. Ikewibe (1991) 3 N.W.L.R. (Pt. 180) 385, Attorney General Bendel State Vs. Aideyan (1989) 4 N.W.L.R. (Pt. 118) 646. The issues formulated by the Respondent in this appeal are rather prolix and repetitive. Counsel should be reminded once again that it is improper to formulate five issues from three grounds of appeal as done by the Respondents in this case.
Be that as it may, the two issues formulated by the Appellant are cogent and comprehensive enough to determine this appeal. Accordingly, I shall determine this appeal based on the Appellant’s two issues.
It was the submission of the learned Counsel for the appellant on the first issue that the court below lacked the jurisdiction to entertain this suit because the contract was not to be performed in Kaduna State and that the defendant does not reside within the jurisdiction of the Kaduna State High Court. Moreover, that the defendant/Appellant does not carry on business in Kaduna. That before the lower Court could have jurisdiction, all the requirement of Order 10 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules 1987 must be met.
Secondly, Learned Counsel submitted that whereas the exhibits – A1, A2, B2, C1, C2, D2, D3, E1, E2 and F refer to Francis Nnaegbuuna and Sons, the 1st Respondent in this case is Francis Nnaegbuna and Sons Ltd. Again that in view of the presence of the 2nd Respondent, being the Chief executive of the 1st Respondent, it vitiates the power of the Lower Court to entertain this suit. He cited the case of N.F.C.A. Vs. Laloko (2003) F.W.L.R. 482 and urged us to hold that the court below lacked the jurisdiction because proper parties were not before the Court.
Finally, that the writ was not marked to show that it was meant for service outside the forum state in conformity with section 97 of Sheriff and Civil Process Act.
In his reply, the learned Counsel for the Respondents submitted that the trial Court had jurisdiction to have entertained the suit since the Defendant’s address is in Kaduna as contained in the Appellant’s local purchase orders Exhibits A1, B1, C1, D2, E2 of the writ of summons under the undefended list. That the said Exhibits are LPOs of the Appellant with address therein as “P.O. Box 105 Kaduna.”
That by Order 10 Rules 3 and 4 of the High Court (Civil Procedure) Rules Kaduna State, this suit was rightly commenced in Kaduna where the defendant resides and carries on business and where the contract was entered into. On section 97 of the Sheriff and Civil Process Act, he submitted that it is the duty of the Registrar of the trial Court to endorse the writ and his failure to do so would not be visited on the litigant relying on the case of Broad Bank Nigeria Ltd Vs. Alhaji S. Olayiwola and Sons Ltd (2005) All F.W.L.R. (Pt. 251) 236. Also, that the Appellant having taken steps in the suit by filing notice of intention to defend with affidavit in support, without complaining about the non compliance, he has waived his right to complain thereafter, citing the cases of Odua Investment Vs. Talabi (1999) 7 S.C.N.J. 600 and Uchendu Vs. Oginni (1999) 4 S.C.N.J. 64. He urged this Court to resolve this issue against the appellant.
The Jurisdiction of a Court is the basis or the foundation and life wire of access to Court in adjudication under the Nigerian civil process. The concept of jurisdiction has been judicially defined by the Supreme Court in Shell Petroleum Development Company Nigeria Ltd Vs. Isaiah (2001) 5 S.C. (Pt. 11) 1 per Mohammed JSC, “as a very fundamental “Commodity” in the judicial process. It is the fulcrum, centrepin, or the main pillar upon which the validity or any decision of any Court stands and around which other issues rotate. It cannot be assumed or implied, it cannot also be conferred by consent or acquiescence of parties.” Wherever the issue is raised, the Court should expeditiously determine same because where a Court determines a cause or matter which it has no jurisdiction, that effort and the decision thereof becomes a nullity. See Madukolu Vs. Nkemdilim (1962) 2 S.C.N.L.R. 341, Enemuo Vs. Duru (2004) 9 N.W.L.R. (Pt. 877) 75.
The jurisdiction of a Court is usually determined by the plaintiff’s claim brought for adjudication. Where a claim is brought under the undefended list as in the instant case, it is the affidavit and exhibits in support of the claim that the Court will consider in determining whether it has jurisdiction or not. See A.S.T.C. Vs. Quorum Consortium Ltd (2004) 1 N.W.L.R. (Pt. 855) 601.
Order 10 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules 1987 States:-
“All suits for specific performance or upon the breach of contract, shall be commenced and determined in the judicial Division in which such contract ought to have been performed or in which the defendant resides or carries on business.”
The above Court Rule means that the venue of a suit for specific performance or upon the breach of contract depends on three alternatives, namely:
(a) Where the contract ought to have been performed, or
(b) Where the defendant resides or
(c) Where the Defendant carries on business.
A plaintiff seeking to sue a defendant in a scenario such as in the instant case, is entitled to rely on any of these alternatives as the word “or” is disjunctive and not conjunctive. Each of the three alternatives listed above, is a question of fact to be garnered from the claim before the Court and in this case, the affidavit in support of the case. The learned Counsel has argued that the Appellant resides and carries on business in Abuja and that the contract was to be performed in Abuja. But, is there any evidence to that effect? In Exhibits A1, B1, C1, D2 and E2, all Local Purchase orders made by the Appellant to the Respondents which are attached to the affidavit in support of the writ by the Respondents, it is clearly shown that the address given by the Appellant is Kaduna. This means that it is either the Appellant resides in Kaduna or is carrying on business in Kaduna and the Respondents were entitled to sue the appellant in Kaduna in accordance with Order 10 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules 1987. See International Nigerbuild Construction Company Vs. Giwa (2003) 13 N.W.L.R. (Pt. 836) 69, Kraus Thompson Organisation Ltd Vs. University of Calabar (2004) 4 S.C. (Pt. 1) 65.
On the other hand, the Appellant, in its affidavit in support of Notice of intention to defend, it never said anything about where it resides or carries on business or where the contract was to have been performed. The Appellant states in paragraph 4 (a) – (d) of its affidavit as follows:-
“(a) That the defendant is not indebted to the plaintiffs as alleged or at all.
(b) That the Defendant never gave the plaintiffs contracts as alleged because the only site the Defendant had was building contract with Ministry of Foreign Affairs and Work had since 2002 stopped at the site.
(c) Consequent upon the above, the defendant’s workers have been on redundancy till date.
(d) That no job order was issued in favour of the plaintiffs and as far as I know they did not execute any job either.”
That is all. There is nothing in the affidavit to support the submission that the Appellant resides in or carries on business in Abuja. The Appellant also failed to react to exhibits A1, B1, C1, D2 and E2 attached to the Respondent’s affidavit which clearly show that the Appellant’s address on the LPG is in Kaduna. There is no document at all or any scintilla of evidence to show that the Appellant resides or carries on business in Abuja.
Therefore, the submission that the suit ought to have been filed lin Abuja is empty and lacks any substance whatsoever.
Learned Counsel for the appellant had submitted that the Lower Court had no jurisdiction to entertain this suit because proper parties were not before it. However, the Appellant admits that the 1st Respondent is a Limited Liability Company and the 2nd Respondent is a full fledge human being. But how the two Respondents are not proper parties is lacking in the submission of the Appellant. It has not been shown that they do not have a cause of action against the appellant. Moreover, the Appellant failed to make this an issue in his affidavit and it is difficult to know why they are not proper parties. As a general rule, a plaintiff commencing an action and the person to be made defendant to the action must be juristic persons or natural persons existing at the time the action was commenced, otherwise the action will be incompetent and the court will lack the jurisdiction to entertain the matter. See Okechukwu & Sons Vs. Ndah (1967) N.M.L.R. 368. This is not the case here.
Let me say that the fact that the invoice bears Francis I. Nnaegbuna and Sons while the delivery Notes bear Francis I. Nnaegbuna and Sons Ltd has not affected the character of this suit as it was never made an issue before the Court below and the Appellant has not shown that he was misled or that there is any miscarriage of justice in the circumstance. To allow this argument to suffice will amount to allowing technicality to be a blot upon the administration of justice and the Courts have since moved a long way from allowing themselves to be so used. See Adelusola Vs. Akinde (2004) All F.W.L.R. (Pt. 218) 776, Odua Investment Vs. Talabi (1999) 7 S.C.N.J. 600.
Finally, on the issue that there was non compliance with section 97 of the Sheriff and Civil Process Act, I do agree with the submission of learned Counsel for the Respondents that it is the duty of the Registrar of the trial Court to endorse the writ and his failure to do his job would not be visited on the litigants who are the Respondents in the instant case. In fact the Supreme Court has stated in Broad Bank Nigeria Ltd Vs. Alhaii Olayiwola & Sons Ltd (2005) All F.W.L.R. (Pt. 251) 236 at 262 that –
“If the presumption of the law is that a writ should be of a certain nature or in a certain manner before it can be valid for service, it is the bounden duty of the Registrar to perform his duty of endorsing the process. The appellant in this case cannot be punished for the negligence or tardiness of the registrar in the performance of his duty.”
I agree completely. Moreover, the Appellant having taken steps in the suit by filing notice of intention to defend with an affidavit in support, without complaining against the non compliance with the provision of section 97 of the Sheriff and Civil Process Act, has waived his right to complain thereafter. See Uchendu Vs. Oginni (Supra) Odua Investment Vs. Talabi (Supra).
The sum total of all I have endeavoured to say on this issue is that the Lower Court was properly vested with jurisdiction to entertain and determine this case. I resolve this issue against the appellant accordingly.
On the 2nd issue i.e. whether the Notice if intention to defend the suit with the accompanying affidavit does not disclose a triable issue, the Learned Counsel for the Appellant submitted that the answer is in the affirmative. That the averment of the Appellant in paragraphs 4 (a) – (d) of the affidavit in support of notice of intention to defend disclose a defence on the merit and places a burden on the Respondents to explain certain matters particularly the exhibits attached to their affidavit in support of the writ. That the denial of the debt by the Appellant was emphatic and amounts to a disputation of the debt, which invariably raises a triable issue, citing the case of Air Via Ltd Vs. Oriental Airlines Ltd (2004) 8 N.W.L.R. (Pt. 878) 298. He urged us to resolve this issue in favour of the Appellant.
It was however the contention of the Learned Counsel for the Respondents that the Appellant failed to convince the Court below that it has a defence on the merit. That by virtue of Order 22, Rule 3 of the Kaduna State High Court (Civil Procedure) Rules 1987, what the trial Court is required to consider in determining whether or not the affidavit discloses a defence on the merit or a triable issue to the action is only the evidence contained in the affidavit filed by the defendant in support of notice of intention to defend the suit, citing the case of Heido Vs. Usman (2003) F.W.L.R. (Pt. 166) 640 in support. Learned Counsel then urged this Court to hold that the Lower Court was right in entering judgment for the Respondents as the affidavit of the appellant did not disclose any defence at all.
The undefended list proceedings is designed to enable parties obtain judgment within a short time and shorten the hearing of the suit where the claim is for a liquidated sum. Thus, all the technicalities associated with the filing of pleadings in a normal or formal hearing in the High Court are eliminated.
Under Order 22 of the High Court (Civil Procedure) Rules of Kaduna State 1987, the procedure is that wherever 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 and such 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 is called the “Undefended List” and mark the writ of summons accordingly, and enter therein a date for hearing suitable to the circumstance of the particular case.
And, under Order 22 Rule 3 thereof, to succeed in getting a matter under the undefended list transferred to the general cause list for full flown trial necessitating the settlement of pleadings and calling witnesses, the affidavit in support of notice of intention to defend must disclose a defence on the merit.
Let me emphasise that the defendant in such situation has to satisfy the Court that there is a triable issue or a defence on the merit or that there is a dispute between the parties. The undefended list procedure is to enable a plaintiff to obtain summary judgment without going into a lengthy trial if he can prove his claim clearly and also if the defendant is not able to set up a bona fide defence or raise an issue against the claim which ought to lead to the case being tried on its merit. See Federal Military Governor Vs. Sani (1990)4 N.W.L.R. (Pt. 147) 688, UTC Vs. Pamotei (1989) 2 N.W.L.R. (Pt.103) 244.
The intention of the procedure is not to shut out the defendant at all. Rather, it gives him the opportunity to show by his affidavit that it has a defence which ought to be considered by the trial court. It is therefore the duty of the trial judge to examine the averments of the defendant in his affidavit in support of notice of intention to defend in order to ascertain whether the defence set up therein is meritorious or not as there is no room for frivolities. At this stage, it is not for the trial judge to consider whether the defence has been proved. He is simply to look at the facts deposed in the defendant’s affidavit and see if these facts can, prima facie afford a defence to the claim. A complete and comprehensive defence need not be shown. It is enough that the defendant is able to show that there is a triable issue or question raised in the affidavit. And before judgment can be entered for the plaintiff, the trial judge must satisfy himself that all the facts contained in the defendant’s affidavit do not amount to a defence in law. See F.M.G. Vs. Sani (1990) 4 N.W.L.R. (Pt. 147) 688, Ebong Vs. Ikpe (2002) 17 N.W.L.R. (Pt. 797) 504.
In the instant case, the Respondents in their affidavit had carefully and quite meticulously chronicled the facts with documents (Exhibit A – F) which led to the claim before the court below. These documents (Exhibits) include Local Purchase Orders (Exhibits A1, B1, C1, D2 and E2) said to have been issued by the Appellant. In spite of the fact that these exhibits bear the letter head of the Appellant and dully signed by it, the Appellant neither admitted nor denied them or even make reference to any of them in its affidavit. In fact, the Appellant had nothing to say in respect of those very compelling documents.
It is trite that in an affidavit evidence a party is deemed to have admitted the facts contained therein if he fails to challenge or controvert same in a counter affidavit. Thus an uncontroverted affidavit evidence is to be admitted and believed by a court except there are other legal reasons to refuse same. See Buhari Vs. Obasanjo (2003) 17 N.W.L.R. (Pt. 850) 587, Akpabuyo L.G. Vs. Edim (2003) 1 N.W.L.R. (Pt. 800) 23, Akwa Vs. COP (2003) 4 N.W.L.R. (Pt. 811) 461.
The Learned trial judge observed in his judgment on page 28 of the record as follows:-
“I have perused the affidavit attached to the said notice and I fail to see any bona fide defence on the merit as required by law.
All the defendant did was to make a denial. Nothing was said about the overwhelming documentary evidence the plaintiffs provided to support their case.
In the circumstance, I am satisfied that the Defendant has no bona fide defence to offer while the plaintiffs have proved their claims through abundant evidence. ”
I agree entirely with the above reasoning and conclusion of the learned trial judge. The keeping of silence on the avalanche of Exhibits tendered by the Respondents is, in my opinion, a quiet admission of those facts by the Appellant. This court observed in Shemar Nigeria Ltd Vs. Mokt Industries Ltd (Unreported) in appeal No CA/K/374/2007 per Augie JCA delivered on 2nd July, 2007 at page 9 that:
“The law is clear that it is his affidavit that discharges the burden on the defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster the proceedings. He must show that there is a dispute between the parties. See ACB Ltd Vs. Gwagwada (1994) 4 S.C.N.J. (Pt. 11) 268.”
I think the drum beat in the above quoted case which I also took part is repeating itself here with the same rhythm and accompanying dance steps. A vague denial of the claim in the face of abundant evidence does not, in my opinion avail the Appellant. The Appellant had cited and relied on the case of Air Via Ltd Vs. Oriental Airlines Ltd (2004) 8 N.W.L.R. (Pt. 878) 298 to say that a mere denial would be sufficient reason to transfer the case to the general cause list. This is misconceived. A mere denial that is not backed up with concrete reasons vis-a-vis the evidence presented by the other party is not only vague but very inconceivable. I am very satisfied to say that the learned trial judge was quite right in entering judgment for the Respondents based on the avalanche of exhibits supporting their evidence and in view of the fact that the affidavit of the Appellant was bare and devoid of any facts which could have aided its case.
The summary of all I have been trying to say is that this appeal lacks merit and is therefore dismissed. The decision of the Lower Court in its judgment delivered on the 6th of July, 2004 is hereby affirmed. The Respondents are entitled to costs and I assess it at N30, 000.00.
Other Citations: (2009)LCN/3422(CA)
