Hycin Sun Hydraulic Machinery (Nig.) Ltd. V. Ringim Galadanci (Nig.) Ltd. (2001)
LawGlobal-Hub Lead Judgment Report
VICTOR AIMEPOMO OYELEYE OMAGE J.C.A.
The issues formulated for determination in this appeal are averred by the appellant to have been made from eight original grounds of appeal contained in the notice of appeal filed on 17th day November, 1998, and the four additional grounds of appeal, which with the leave of court the appellant filed on 26/7/99.
The issues are as follows:
(1) Whether the learned trial judge did raise and determine crucial issues not borne out by the evidence on which the parties did not raise or have opportunity to address him on.
(2) Whether the affidavit in support of the appellants notice of intention to defend did not raise a good defence or triable issues.
(3) Whether the trial court had jurisdiction to hear the case on the undefended list.
The three issues are formulated from the thirteen grounds of appeal filed by the appellant against the ground of appeal filed. The respondent filed a notice of preliminary objection and proceeded to argue the grounds in his respondents brief of argument. Notice of the preliminary objection was filed under order 3, rule 15 of the court of appeal rules. In the respondents brief filed by leave of court, and deemed filed on 5th October, 2000, the respondent took objection to ground 13 of the additional ground of appeal, and submitted that the said ground which raised the issue of jurisdiction of the court below on the subject matter was not canvassed by the parties at the lower court.
He said the issue was not determined at the lower court, therefore the court of appeal cannot determine the issue because it does not flow from the decision of the lower court. Respondent submitted that any complaint raised in the ground of appeal which does not derive from the issues canvassed by the parties and the same pronounced upon, by the lower court amounts to raising a fresh point on appeal without the leave of court. Ground 13 of the appeal. Respondent submitted. should be discountenanced and struck out. Secondly the Respondent submitted that the said appellants ground 13, is incompetent as it is in breach of order 3 rule 2 of the court of appeals rules, in that the allegation contained therein is vague and general in terms. He urged the court to strike it out.
On the third objection, the Respondent submitted that grounds 2-12 of the grounds of appeal are incompetent as they offend the provisions of order 3, rule 2 (2) of the Court of Appeal rules. Respondent submitted that the allegations of error in each of the grounds 2-12, do not show a quotation of the record where the alleged error is contained. Respondent referred to AMOJAINI VS. EGUEGU (1996) NWLR pt.242. and urged the court to strike out grounds 2-12 of the grounds of appeal.
On the 4th ground of objection the respondent observed that the questions were not formulated by the appellant to cover grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12.
In particular the Respondent submitted that the issues were not formulated on ground 11 and 12, and where these occur the grounds are deemed to be abandoned. Respondent urged the court to hold those grounds abandoned and strike out same.
It is therefore the submission of the Respondent that the appellant has abandoned grounds 1, 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the grounds of appeal consequently respondent declared that he cannot formulate any issue on the abandoned ground of appeal. The respondent formulated issues on grounds 3 and 4 only of the grounds of appeal, which combined Respondent recorded as follows:-
“Whether having regard to the entire circumstances of the affidavit evidence and numerous documents annexed thereto as exhibits, the learned trial judge was justified to have entered judgment in favour of the Respondent.”
In the appellant reply brief, the appellant submitted that ground 13, in the notice of appeal raised an issue of jurisdiction, and it was filed without a previous leave of the court because the ground of jurisdiction may be raised at any stage of the proceedings even on appeal.
The appellant cited MAKINDE vs. OJEYINKA (1997)4 NWLR (Pt.497) 80. Appellant said the learned trial judge lacked jurisdiction to hear the case on the undefended list since the plaintiff did not first seek and obtain the order of the court to place and hear the same on the undefended list. Appellant submitted that a ground of appeal need not supply particulars if the words are properly couched and the ground criticize the judgement and it is self explanatory. Ground 13 is therefore in his submission valid and competent.
On the second issue of respondents ground of objection on the grounds in the notice of appeal. number 2-12, the appellant submitted that particulars in the form of narratives were supplied to each of the ground of appeal 2-8 and 10-12 as required under rule 2 of the court of Appeal rules. The appellant acknowledged the fact that he has abandoned grounds of appeal No.9 and 11 and applied to abandon the said ground as he acknowledged. That he has not formulated issues on the grounds of appeal on ground 9 and 11.
The appellant in his reply to the Respondent objection to the ground submitted that his grounds 1, 2, 4, 5, 8, 10 complain in all the issues that the learned trial judge suo motu raised and ruled on issues which was not in dispute between the parties and which did not arise at the hearing, and that it was on these grounds that he has formulated the issues. In considering the preliminary objection of the Respondent on ground 13 of the grounds of appeal. which the appellant said can be raised at any stage of the proceedings, it is instructive to quote here verbatim ground 13 of the appellant notice of appeal on which the issue was founded. Ground 13 is contained in the notice of additional ground of appeal filed with the leave of court on 26/7/99, it reads:
“The learned trial judge lacked jurisdiction to hear the case on the undefended list since the plaintiff did not first seek and obtain the leave of court to place and hear same on the undefended list.”
On the ground, the appellant has formulated the issue as follows in his brief.
“Whether the trial court had jurisdiction to hear the case on the undefended list.
I find nothing, vague in the issue formulated on the ground of appeal 13 which has stated clearly that the leave of court was not obtained as required under order 23 of the Civil Procedure Court of Kana State. If as glaring in the issue on which ground 13 is based that indeed the prior leave of court was not obtained before an undefended list procedure is commenced, the issue has raised the complaint of lack of jurisdiction of the trial court for non compliance with the rules of court. A complaint of lack of jurisdiction may be raised at any stage of proceedings, even in the apex court and no leave of court is required before an issue of jurisdiction may be raised. See: ALHAJI OLOYEDE ISHOLA vs. MEKUDE AJIBOYE (1994) 6 NWLR (Pt.352) per IGUH JSC. in par F.U. P.589.
I am of the view and I so rule that the said issue 3 in the appellant brief is well derived from ground 13 filed by the appellant. See: UGBUCHOLEK HADUEMERE & 2 ORS. vs. OLE OKAFOR & 4 ORS. (1996) 4 NWLR (Pt.445) at 644.
In the event. I overrule the objection of the Respondent on ground 13 of the notice of appeal, upon which issue 3 of the appellant’s issue for determination is founded. I hold and rule that issue 3 in the appellants brief is competent and properly before the court.
The Respondent alleged that grounds 1-12 of the appellants ground of appeal are incompetent grounds because each of the grounds filed by the appellant which allege error of the trial court does not contain the particulars of the error. The Respondent submits offends order 3 rule 2 (2) of court of Appeal rule 1981. Starting from ground one in the notice of appeal as contained on page 40 of the notice of appeal, in the printed record, the appellant has subscribed that “the decision of the court is against the weight of affidavit evidence adduced in the proceedings.”
Ground 2 the learned trial judge erroneously held that the parties did not arrive at a consensus ad idem on the supply of a new machine (as opposed to a second hand one) and the price of the said new machine. Ground 3 of the appellants notice of appeal continued on the facts before the trial court as supplied by affidavit evidence in grounds 3, 4, 3, 6, 4, 3, 8. In each of the ground the appellant supplied narratives which show intelligible appreciation of the fact in issue and attack the judgment of the court below. These constitute the facts and particulars of the ground of appeal 1, 2, 3, upon which issue one is formulated as to whether the court raised issue on which no evidence exists. All the grounds 1-3 over 4, in my view relate and are the foundation of issue one. What is required in order 3, rule 2 (2) is that the issue founded on the ground is intelligible and show dissatisfaction with the judgment by its attack. See: EGBE vs. ALHAJI (1990) 1 NWLR Pt. 546 at 590.
The narration supplied as particulars to show the alleged error in the ground of appeal, (where as in this case, a narration of the event, rather than the quotation of the event of the error) is sufficient to give the nature of the error. While the rule is clear as provided in the rules of order 3 rule 2 sub rule 2, that the passage in the judgment where the error is alleged should be quoted, I am of the view that the concern of the rule is the identification to the appellate court of the nature of the error of the court below. Where therefore as in the instant case precise words the trial court in the judgment cannot be quoted without an explanation, it is profitable to narrate as the particulars, the event which identifies the nature of the error.
This is what the appellant has done in ground 1-12 of his appeal, and I allow it as competent.
I hold and rule that the said grounds 1, 2, 3, 4, 5, 6, 7, 8, 10 and 12 are competent and that issues 1 and 2 in the appellants brief derive from the said grounds. The Appellant has conceeded that no issues are formulated on grounds 9 and 11. The two grounds are by law deemed abandoned. See: PHILIP OBIORA vs. PAUL OSELE (1998) 1 NWLR (Pt.97) at p.279.
In the expectation that the appellants grounds 1, 2, 5, 6, 7, 8, 9, 10 and 12 will be struck out because of the submissions of the Respondent, he did not formulate issues on the said grounds, and the respondent said the said grounds are deemed abandoned.
The Respondent therefore formulated issues on grounds of appeal 3 and 4 only. In the submission of the Respondent, the only issue for determination is:
“Whether having regard to the entire circumstances of the case, the affidavit evidence and numerous documents annexed thereto as exhibits the learned trial judge was justified to have entered judgment in favour of the Respondent.”
It is hereby relevant to reproduce the issues formulated by the appellant.
I quote the issues here in reverse order. I quote issue 3 first:
“Whether the trial court had jurisdiction to hear the case on the undefended list.
(2) “Whether the affidavit in support of the appellants notice of intention to defend did not raise a good defence.”
(3) Whether the learned trial judge did raise and determine issues not borne out by the evidence on which parties did not raise or have opportunity to address him on.”
On issue 3, the complaint of absence of jurisdiction is a fundamental issue. It is settled law that any decision made by a court which has no jurisdiction is a nullity. See: MADUKOLU VB. NKEMDILIM (1962)1 ALL NLR. 587 at 595. In EJIKE vs. IFEADI (1990)4 NWLR (Pt.142)89 CA. jurisdiction of a court is described as the power or authority of the court to adjudicate on a particular matter.
The Appellant has complained in issue three of the appellant’s brief that the court has no jurisdiction to adjudicate on the plaintiffs claim under the undefended list procedure by reason of the fact that the Respondent failed to seek and obtain the leave of court before the claim was placed under the undefended list procedure. To ascertain this I quote hereunder the relevant provisions of “order 23. the undefended list” of the Kano State Civil Procedure rule:
“Where an application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidate 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 deponents belief there is no defence thereto, the court shall if satisfied 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.”
- There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summon as aforesaid as many copies of the above mentioned affidavit as there are parties against whom relief is sought” etc. etc.”
In his issue for determination three, the appellant has submitted that the plaintiff on his own, without an order of court placed the writ on the undefended list, and that the court was in error of the law on order 23 of the rules to have heard the matter so solely placed, without regard to the rules, whereas the rules of the court should be obeyed. The court therefore has no jurisdiction to hear the claim. The Respondent is deemed to know the implication of the appellants complaint, and should have responded to the complaint by a denial or proof that the rule of order 23 Kano Civil Procedure rules was not breached. Respondent did not. What the respondent did was to raise a preliminary objection to the ground upon which the issue is based, in the hope that the issue will fail when the ground is struck out, as believed by the Respondent. The ground of appeal raises the issue of jurisdiction. As I have written earlier in this judgment, a complaint of lack of jurisdiction may be made at any stage of the proceedings. The ground of appeal raised for the first time in this appeal is valid and competent and the issue founded on the ground is properly before the court. I have seen nowhere in the Respondents brief where he has responded directly to the complaint of the Appellant. The printed record does not show that the leave of the court to place the plaintiff claim on undefended list as required by the rules was ever given. The rules of court must be complied with. Failure to comply will deny the party the facility of the court of law.
The failure to observe the rule clearly removes from the court below in Kana Court the jurisdiction of potence to hear the claim under the undefended list; for non compliance with the rules of court.
In the event I agree with the submission of the appellant that the learned trial judge did not possess the jurisdiction to hear the plaintiff/Respondents claim on the undefended list procedure. This my view is sufficient ground to allow the appeal, and strike out the plaintiff claim in the court below.
In case the respondent should feel that the other issue of his would have been successful I hereby for the avoidance of doubt decide to rule on the other issues of Appellant and of the Respondent. I therefore choose to consider and rule on the other two issues formulated by the appellant. Incidentally the two issues of the appellant meet in substance the one issue formulated by the Respondent, who asked;
“Whether having regard to the entire circumstances of the case, the affidavit evidence and numerous documents annexed thereto as exhibits, the learned trial judge was justified to have entered judgment in favour of the Respondent.
The submission of the Respondent on the issue above is that the affidavit of intention to defend the suit does not show a defence on the merit. The appellant however formulated in issue 2. as follows:
“Whether the affidavit in support of the appellant notice of intention to defend did not raise a good defence or triable issue.”
To consider and determine the two opposing submissions of both counsel it is necessary to go into the substance of the affidavit of both parties before the court. It is also an opportunity to state the facts of the case. In the court below the Respondent was the plaintiff, who filed an affidavit of 5 paragraphs in which he deposed that he deposited with the defendant who is appellant, the sum of N2 million for a brand new extruding machine in the month of June, 1998 and the money, the deponent deposed was to assure the appellant of the Respondent’s seriousness. He deposed that there was no written or binding agreement to deliver the machine to the Respondent. When the plaintiff considered that there was an undue delay in delivering the machine, and the defendant refused to refund the said sum of N2 million he filed a suit purportedly under the undefended list procedure for the refund from the Respondent, then defendant or for the recovery of the said sum of N2 million. The appellant (defendant in the court below filed a notice of intention to defend the action supported by an affidavit. The action of the plaintiff in the court below was against first and second defendants. In his affidavit of intention to defend, the 2nd defendant, now appellant one Mr. Lee deposed that he is an official of the 1st defendant/appellant and cannot be made liable. That the machine ordered by the plaintiff/Respondent was shipped from Korea between 27/08/98, and 09/09/98 within the 90 days agreed between the parties and he deposed that defendants are not liable for undue delay. The plaintiff respondent said the defendant have delayed. The Defendants do not deny that they issued exhibit B1 and B2, but the Respondent/plaintiff say the document are proforma, and do not amount to an agreement between the parties to supply new extruding machine. Exhibit B1, is said to refer to a second hand machine, while B2 does not, the plaintiff deposed and referred to any machine, the plaintiff also deposed that the defendant had allowed the 90 days to supply to elapse, upon which reason, the plaintiff sought a refund from the defendant the sum of N2 million under the undefended list procedure which was filed in court on 26th October, 1998. From the above facts, the questions formulated in the appellants and respondents brief can be answered in this manner. The appellant has made the complaint that his affidavit shows a triable issues and an intention to defend, despite of which the court refused to place the plaintiffs suit on the general cause list for trial and determination. Whereas the plaintiff/respondent said the evidence in his affidavit is sufficient to determine the issue, and grant judgment to him as was done by the trial court.
The main determinant in the hearing and determination of a suit under the undefended list procedure is the exhibition in the affidavit of the Respondent a triable issue. If a triable issue is shown by the defendant, then the claim will be sent to the general cause list for hearing and determination. If there is no issue to be tried and the affidavit does not show any defence to the plaintiff’s claim for example because there is a certain debt owing by the defendant to the plaintiff, a claim to which the defendant has no defence, then the claim will be properly determined under the undefended list procedure. A triable issue has been described as one which imports an argument in which the defendant has a genuine contest to the plaintiff’s claim. Such matters are properly tried when placed on the general cause list, not determined on the undefended list procedure of order 23, Kano State Court Procedure rules. In the instant case, the defendant appellant does not deny the receipt of the sum of N2 million Naira from the plaintiff/Respondent. The plaintiff agreed with the defendant that the money was for either a deposit, or part payment for the purchase of a new extruding machine. (not an old one as ruled by the court below) See the writ of summons, it is for a claim for refund of money deposited for a brand new extruding machine page 3 of the printed record. The parties do not agree that the time of delivery of the machine of 90 days have elapsed, see the plaintiff and the defendant affidavits.
It is pertinent to observe that it is upon the expiration of the 90 days that the sum paid by the plaintiff/Respondent, whether as a deposit or as part payment will the sum become refundable. The parties are not agreed as to whether the sum paid by the plaintiff to the defendant was a part payment for the brand new extruding machine or as a deposit for the machine. The parties are not agreed on whether an agreement exists between themselves or whether the plaintiff or the defendant made an offer to treat. In my view there are more issues in the transaction on which the parties do not agree than the issues on which they agree. For a better determination of the facts in dispute between the plaintiff/Respondent and the defendant/appellant, it should in my respectful opinion have been better to send the matter to a general cause list. Since the two sets of affidavits are in deliberate opposition to each other. In answer first to the respondents tone issue viz: whether in the circumstances of the case, the learned trial judge was justified to have entered judgment in favour of the Respondent. I will answer that the facts contained in the affidavit of the Respondent, and the averments contained in the Appellants affidavit do not support the decision to try and conclude the case on the undefended list procedure. Instead the arguments and disagreement on the face of the affidavit of intention to defend show that the claim is better resolved at a trial where each side can ventilate his claim and defence. In the event. I rule that the appellant has shown in his affidavit a strong ground for defence, and the defendant should have been allowed to present the defence in a hearing in the general cause list. The issue is resolved in favour of the Appellant.
In issue one in the appellants brief, the appellant complained that the learned trial judge raised and determined issues not borne out by evidence, or one which the parties did not have opportunity to address him on. In a hearing under the undefended list procedure the right of the parties to address the court does not exist. Under the undefended list procedure, even where the court finds that he can resolve issues on the affidavit. Once the resolutions requires that he will take evidence. He must send the matter to the general cause list, as he cannot dispence with the evidence See: (1) ANGRO MILLERS LTD. vs. C.M.D. (1997) 1 NWLR Pt.525 at 77 par. E-11 (11) DANIEL vs. SONIADI NIG. LTD. (1997) 7 NWLR Pt.514, 673 CA.
In this case, the trial judge decided suo motu that the sum of N2 million from the plaintiff to the defendant was for a second hand extruding machine. No such evidence existed before the court because the parties have agreed on a new machine. The learned trial judge also concluded that the plaintiff did not accept the price quoted by the defendant for the brand new extruding machine. This is untrue.
Infact in the affidavit of the Defendant/Appellant he deposed that he accepted the price contained in the proforma which he handed over to the plaintiff/Respondent before the order for a brand new extruding machine was made. The conclusions recorded above were made in the judgment of the learned trial judge, and they are conclusions not derived from the evidence of the plaintiff and defendant. No opportunity was given by the court to the litigants before him to address the court on those issues. It is evident that the trial judge has formulated evidence on which he ruled and thereby made himself a party to the hearing, and a judge in his own cause. This is against the rule of natural justice.
It is trite that a court of law should limit itself to issues raised before him and not go into issues not canvassed by the parties. ALLIED BANK VS. AKUBEZE (1976) 6 NWLR Pt.509-374 SC. See also LADIPO VS. AFANI (1997) 8 NWLR Pt.517 356.
In the event, the judgment of the court below cannot be said to be free of perversion and the said judgment should be set aside. I hereby so order. The Respondent did not profer any response on the above issue. I accept the submission made by the appellant on issue one and resolve same against the respondent. I find merit in the appeal and hereby set aside the judgment of the court below. In my view the real issues in the claim of the respondent have not been determined. I direct that the claim be placed on the general cause list before another judge in the state. In any case the trial judge in the court below, has deprived himself of jurisdiction when he failed to order that the undefended claim filed be so placed because no such application was made by the Respondent. The issue of jurisdiction can be raised at any stage of the proceedings. It was properly raised in this appeal. See: IGBONGIDI vs. UHELO (1993) 9 SCNJ. 258 at 263.
The appeal is allowed. The judgment of the court below is set aside. There will be costs of N3,000.00 to the Appellant.
Other Citations: (2001)LCN/0965(CA)
