Ikoli Ventures Limited & Ors. V. Shell Petroleum Development Company Of Nigeria Limited (2008)
LawGlobal-Hub Lead Judgment Report
GARBA, J.C.A.
This appeal is from a ruling delivered by the Federal High Court sitting at Port Harcourt on the 19th of November, 2003 in suit No. FHC/PH/141/98. The ruling was in a motion filed by the respondent as defendant for enlargement of time within which to file the statement of defence in that case. In paragraph 2 (a) (b) & (c) of the motion at pages 18-19 at the bottom of the record of appeal, it was averred as follows: –
“2. (a) “That on the 15th of December, 1998, this honourable court ordered the plaintiff to file its statement of claim within 30 days from the said date, and the defendant to file its statement of defence within 45 days from the date of such service.
(b) That the time within which the plaintiff were to have filed their statement of claim expired on the 16th of January 1999.
(c) That rather than comply with the order of court, the plaintiffs filed their statement of claim on the 17th of August 1999, about 7 months after the expiration of the time ordered by the court and without an application for extension of time within which to file same.”
No counter affidavit was filed for or by the appellants to challenge the above depositions and on the 19th of November, 2003 when the motion was orally moved in court by learned counsel for the respondent, one T. Musa, Esq. appeared for the appellants. He did not oppose the motion but merely asked for N8,000.00 costs. In its ruling, the Federal High Court (hereinafter lower court) after finding that the above averments of the respondent were not controverted by the appellants, ruled, inter alia thus: –
“Since there is no application by the plaintiff for the leave in respect of the statement of claim filed, I hold there is none before the court and the plaintiff should regularize his pleadings. In effect the present application is premature and not due for consideration.”
The appellants felt aggrieved by the above ruling and so filed a notice of appeal containing two (2) grounds against same. It is expedient to set out the grounds in details. They are: –
i. The Learned trial Judge lacked jurisdiction to hold that there was no proper statement of claim before the court.
Particulars of error
a. There was no application before the court challenging the validity of the statement of claim.
b. The Learned trial Judge did not hear the plaintiffs before holding that the statement of claim was improper.
ii. The learned trial Judge erred in law in holding that the statement of claim was vitiated by the mere fact that as the affidavit evidence of the defendant showed the plaintiffs’ statement of claim was filed out of time, a decision which ran contrary to the judgment of the Supreme Court in United Bank For Africa Ltd v. Nwora (1978) 2 LRN 14 at 153; (1978) 11-12 SC 1.
Particulars of error
a. The statement of claim if filed out of time was merely voidable and was at all times valid until it was set aside.
b. The defendant had waived its tight to have the statement of claim set aside, having filed a motion for extension of time after becoming aware that the statement of claim had been filed out of time.”
In the appellants’ brief of argument filed on 29th April, 2004, at page 1, learned counsel for the appellants formulated the following issues from the grounds of appeal:
i. “Whether or not the learned trial Judge was right to have held that there was no statement of claim before the court, merely because the respondent had, without more, alleged that the statement of claim had been filed out of time.
ii. Whether or not the respondent is having taken fresh steps to file and argue its motion for extension of time to file its defence out of time, has not waived its right to defeat the said statement of claim, even if the same had been filed out of time by the appellants.”
For the respondent, at page 2 of the respondent’s brief filed on the 8th of June 2004, issues as follows were raised by the leaned counsel.
i. “Whether the learned trial Judge had the jurisdiction to hold that there was no statement of claim before the court, even in the absence of an application by the defendant/respondent to set aside the statement of claim filed.
ii. Whether the trial court was right in acting upon the uncontroverted affidavit evidence before it, in holding that there was no statement of claim before the court.”
The above named briefs of argument were respectively adopted by learned counsel at the hearing of the appeal on the 5th of November, 2007 and we were urged to uphold their different positions by each of them.
Now even a casual perusal of the grounds of appeal contained on the notice of appeal alongside the issues formulated by the learned counsel for the appellant would indicate that the issue two does not inure or come from the ground of appeal from which it was said to have been distilled. Though learned counsel had stated in the brief that the issue arises from ground two, it is apparent that it does not derive from that ground.
The complaint in the ground is that the lower court erred in holding that the statement of claim was vitiated by the affidavit evidence of the respondent that it was filed out of time. The issue on the other hand is questioning the right of the respondent to challenge the statement of claim after it had taken a step in the case after becoming aware that the appellant’s statement of claim was filed out of time. Without any difficulty whatsoever, it is clear that the issue was not distilled from the ground because the two are not related. I have no hesitation therefore to hold and I do, that for that reason, the appellant’s issue two is not a competent one. Bendex Eng v. Efficient Petroleum (2001) 8 NWLR (pt.715) 333, NDIC v. S.B.N. (2003) 1 NWLR (Pt.801) 311, Arowolo v. Akapo (2003) 8 NWLR (Pt.823) 451.
In addition, looking closely at ground two itself alongside the decision appealed against, it appears to me that the ground is not based on the ruling of the lower court. I have earlier on set out the concluding portion of that ruling in which that court directed the appellants to regularise their pleadings, that is, the statement of claim.
By that directive that court had acknowledged the existence and validity of the appellants’ statement of claim but held that there was none before it because it was not regularly filed in compliance with its earlier order and in accordance with its Rules of procedure and practice. The lower court did not hold that the statement of claim was ‘vitiated’ since it did not remove it from the record of the case by striking out or dismissing it but rather considered it inchoate or dormant until it was regularized and brought to effect by that court through enlargement of time and order deeming same as duly filed.
This position was brought out clearly by the record of proceedings of the 19th November, 2003 immediately after delivery of the ruling.
They are page 25 of the printed record of appeal before us and as follows:
“Musa – May we come back on the 8th of February, 2004.
Court: Adjourned to the 18th of February, 2004.”
The above record shows that in order for the appellants’ counsel to carry out or comply with the directive to regularize the statement of claim, his request for an adjournment was graciously and generously granted by that court without objection from the learned counsel for the respondent.
If indeed the ruling was that the appellants’ statement of claim was vitiated, there would not have been the need for the order to regularize same since a vitiated process cannot be regularized. A vitiated process of a court is a faulty and/or defective process, which cannot be amended or regularized. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267, Nsirim v. Nsirim (1990) 3 NWLR (Pt.138), 285, NNB v. Denclag (2005) 4 NWLR (Pt.916) 549 at 574. Accordingly, it was not part of the decision appealed against that the appellants’ statement of claim was vitiated because it was filed out of time. Consequently, the ground two on the appellants’ notice of appeal did not arise from that ruling and is for that reason, Incompetent.
See Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 5371 IKE v. Enang (1999) 5 NWLR (Pt.602) 261, Biocon Agrochemicals v. Kudu Holdings (2000) 12 SC (Pt.1) 139; (2000) 15 NWLR (Pt.691) 493 KANO ile Printers v. Gloede & Hoff (2005) 5 SC (Pt.11) 140 at 144; (2005) 13 NWLR (Pt.943) 680.
In the result, both the appellants ground two and the issues distilled therefrom are incompetent and would be discountenanced in the determination of this appeal. Just for the record, the submissions of learned counsel on the incompetent issue two as a matter of course go the same way as the issue since something cannot be put on nothing and be expected to stand. See Ahmed v. Trade Bank Plc (1997) 10 NWLR (Pt.524) 290, Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159.
We are now left with the appellants’ issue one, which in substance is in pari materia with the respondent’s issue two (ii). I prefer the formulation by the respondent’s learned counsel because it is concise and apt for the purposes of the appeal. The formulation by the learned counsel for the appellants makes the issue to appear in conflict with the ground from which it was said to have been distilled. The respondent’s issue would determine the real and crucial complaint of the appellant in the appeal. I intend to consider the submissions of counsel on the identified issues above as contained in their respective briefs.
Appellants’ Issue One:
It was submitted for the appellant that the lower court was wrong to have treated the statement of claim as non existent for there was no record to show that appellants were ordered to file same within thirty (30) days, even if it was filed out of time. It was also submitted that there was no application to set aside the statement of claim and that the lower court’s only business was to grant or refuse the motion at pages 17-22 and 24 of the record of appeal, for enlargement of time. That to treat the statement of claim as if it was void ab initio in the absence of an application to set it aside was an infringement of the appellants’ right to fair hearing and the lower court would seem to have granted the respondent a substantive relief it did not ask for.
In addition, it was argued that even if there was evidence that the statement of claim was filed out of time, it remained valid until the respondent moved the lower court to set it aside and it was a gross error to ignore it before then. The case of U.S.A. Ltd. v.Nwora (1978) 2 LRN 149 at 153; (1978) 11-12 SC 1 was relied on in urging us to hold that the decision of lower court was unjustified.
Respondents Issue two
For the respondent, it was submitted that the law is that where a counter affidavit was not filed, all depositions in an affidavit are deemed to have been admitted on the authority of Ajomale v. Yaduat (No.2) (1991) 5 NWLR (191) 266. That the affidavit in support of the respondent’s motion before the lower court show clearly that on 15th December, 1998, the appellants were ordered to file their statement of claim within 30 days from that date but the said statement of claim was filed about 7 months after the expiration of the time ordered by that court. It was also submitted that these unchallenged facts need no further proof since they are deemed admitted by the appellants and the lower court was entitled and ought to have accepted and acted on them.
Now, let me start by correcting what is apparently from the record of appeal before us, a wrong submission by the learned counsel for the appellants that there was no record or evidence thereof, that the appellants in particular, were ordered by the lower court to file their statement of claim within thirty (30) days. By a motion filed on the 8th of June, 2004 and granted on the 10th of November, 2004 by this court, the record of proceedings of the lower court held on the 15th December, 1998, which was omitted in the earlier record of appeal transmitted by the registrar of that court on 14th April 2004, was made part of the record of appeal for the purposes of determination of this appeal. The record of proceedings of that date in the lower court ended thus: – (as contained on the last page of that record).
“COURT: Pleadings are hereby ordered in respect of this suit and sister suits FHC/PH/I27/98, 128/98, 141/98 and 144/98; 129/98 and 139/98.
Plaintiffs are granted 30 days from today to file and serve the statement of claim. The defendants are granted 45 days from the date of such service to file and serve the statement of defence. The return date is 6th April, 1999.”
These records speak for themselves and they have not been challenged before us by the appellants. Accordingly both the parties to this appeal and this court are bound to accept and act on them as a true and correct reflection or record of what transpired in the lower court.
See Sommer v. FH.A. (1992) 1 SCNJ73; (1992) 1 NWLR (Pt.219) 548 Orugbo v. Una (2002) FWLR (127) 1024; (2002) 16 NWLR (Pt.792) 175, Fubara v. Minimah (2003) 5 SCNJ 142; (2003) 11 NWLR (Pt. 831) 231. With the state of the above record, it is wrong to say, state or claim that there was no evidence before the lower court, that pleadings were ordered and that appellants as plaintiffs, were ordered to file their statement of claim in the case in question, within 30 days from the 15th December, 1998; the date of the order. Without prompting either by way of an application or invitation from any of the parties in the case, the lower court had the power, right and jurisdiction and was therefore entitled to look at and use the said record in the case. See Okeke v. Attorney-General, Anambra State (1997) 9 NWLR (Pt.519) 123, SSM Services v. Okon (2004) ALL FWLR (230) 1115 at 1131; (2004) 9 NWLR (Pt.879) 529, Texaco Panama Incorporated v. S.P.D.C.N. (2002) 2SCNJ 102; (2002) 5 NWLR (Pt.759) 209. In dealing with the respondent’s application for extension of time, even without the averments deposing to the facts that the appellants’ statement of claim was filed out of the period of time ordered by that court, the lower court was entitled to look at its records of the order on the filing of pleadings made on the 15th of December, 1998, it was that record that would show or reveal the time granted the respondent as defendant to file the statement of defence in respect of which it sought extension of time. It was only after taking into account the time limit within which the parties were ordered to file their respective pleadings that the lower court could judiciously and judicially exercise its discretion one way or another in respect of the respondent’s motion for extension of time to file its statement of defence. The averments in the respondent’s affidavit in support of that motion that the appellants’ statement of claim was filed out of the time ordered by that court made it imperative or mandatory for the reference to, use of and/or reliance on that record by the lower court. Consequently, the lower court was right in suo motu making reference to and relying on its previous records in the case in its consideration of the respondent’s motion for extension of time to file its statement of defence.
Diligence and the law enjoined that court to do so in the circumstances of the case. They and I are in total support of that procedure and practice adopted by that court.
The above apart, the law as rightly pointed out by learned counsel for the respondent is that a party who intends to dispute facts or averments deposed to or contained in an affidavit has the legal duty to swear to a counter affidavit to challenge and controvert such facts. If the party fails to do so, then the averments of facts made in an affidavit are taken to be correct and true and deemed to have been admitted by that party. See Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627, Globe Fishing v. Coker (1990) II SCNJ 56; (1990) 7 NWLR (Pt.162) 265, Ajewole v. Adetimo (1996) 2 NWLR (Pt.431) 391. The courts have a duty and it has been held that they are bound to accept and act on such unchallenged and uncontroverted averments without hesitation. See Glori Motors v. UBN (1998) 6 NWLR (Pt.554) 483 at 506-7, Osondu v.Akhigbe (1999) 11 NWLR (Pt.625) 1 at 11 N.A.B. Ltd. v. Abdullahi (2000) 6 NWLR (Pt.662) 549 at 556. In the circumstances it found itself therefore, the lower court had no other viable option in law than to accept and act on the averments of the respondent that the statement of claim of the appellants was filed outside the time ordered by that court. From the position of the law as stated and expounded above, an application to the lower court to use the unchallenged affidavit evidence before it as well as its own record of the case as the basis of its ruling was not necessary. In fact it was unnecessary since it was not envisaged and required by the law.
Similarly, it does not lie in the mouth of the learned counsel to say that the appellant’s right to fair hearing was denied or infringed on the ruling by the lower court. This is because as shown before now the appellants were served with the respondent’s affidavit in support of the motion for extension of time to file its statement of defence, but did not respond to it by filing a counter affidavit. In addition, on the 19th of November, 2003 when the motion was orally moved in court, the learned counsel who appeared for the appellants; one T. Musa did not oppose or object to the affidavit on point of law or the grant of the prayers contained therein.
On the face of these indisputable records, can learned counsel for appellants seriously contend that the appellants were not afforded the opportunity of a hearing and thereby denied a fair hearing in the motion before the lower court delivered its ruling? Such a contention would lack wisdom and perspicacity. It would be unserious and untenable and should be treated with ignominy to avoid wastage of verbiage. From the record of appeal set out above, the appellants were afforded every opportunity of a hearing in the motion before the lower court delivered its ruling; but they chose to ignore it or not to utilize it. They cannot now at this stage blame the hapless lower court for the fatal legal consequences of their chosen option not to avail themselves with opportunity afforded them. See R. C. C. Ltd. v. Okpegboro (2000) 2 NWLR (Pt.645) 367, S & D Const. Co. Ltd. v. Ayoku (2003) 5 NWLR (Pt.813) 278, Abana v. Obi (2005) 6 NWLR (Pt.920) 183.
In the result, my decision on the issue is that the lower court was very right in relying on the unchallenged affidavit evidence before it in arriving at the decision that there was no statement of claim filed in accordance and compliance with its order made on the 15th of December, 1998 as at the 19th of November, 2003, before it.
The issue is resolved against the appellants.
After a reading of the case of U.S.A. Ltd. v. Nwora (supra) cited by learned counsel for the appellants, I find the facts therein to be different from what happened in the appellants’ case. In that case it was held that the trial court could not close its eyes to or ignores the statement of defence filed out of time in its determination of the matter before it. In the appellants’ case the lower court did not even attempt to hear the case without the appellants’ statement of claim because it was not possible to do so, but rather took a necessary step by ordering the appellants to regularize the filing of their process in order to properly invoke the jurisdiction of that court over same.
The facts and circumstances of the two cases vary and so the case cited is not an apt authority for use in the present appeal.
Before concluding this judgment, I would like to observe that this appeal appears very curious to me. This is because the request for an adjournment by the learned counsel who appeared for the appellants in the case on the 19th of November, 2003 before the lower court was granted to enable the appellants statement of claim be regularized as directed by that court as shown earlier in this judgment. Instead of the appellants’ counsel to ensure that the necessary step/s was/were taken to do so before the 18th of February, 2004, when the case was adjourned at his instance, a notice of appeal was filed against the ruling declaring that the statement of claim was filed out of time by the appellants. It is about four (4) years since the case was adjourned for the appellants to have made a usually simple and non-contentious application to regularize their statement of claim to enable the case to proceed and make meaningful progress in the lower court. Diligence and prudence should have made the learned counsel take the steps to ensure the expeditious prosecution of his client’s case in the lower court by compliance with the gratuitous directive from that court to regularize the statement of claim. A lot of very precious and valuable time and source resources, both human and material, would have been saved by that fastidious and beneficial step that would have expedited the hearing and determination of the appellant’s case. Instead, the rather worthless, as it now turns out, tortuous and wasteful option/step was chosen by counsel for reasons best known to him but I believe, unknown to the appellants, who bear the entire burden of the brief of counsel in the case.
Perhaps, I should remind counsel that in addition to their unqualified duty to exercise due diligence and employ their best professional knowledge and skill in the handling of their clients cases, they as officers of the courts owe the duty to assist in the expeditious disposal of matter they appear in, without unnecessary delays. It is a basic constitutional right of a party to appeal against a decision of a court with which he is dissatisfied. However, the exercise of a right of an interlocutory appeal, which does not confer any real and sincere benefit to a party, is undesirable and inexpedient. Such an exercise contributes in no small measure in the distasteful congestion of cases in our courts that resulted in coining the phrase ‘justice delayed is justice denied’. That is the category to which this appeal squarely falls and belongs. The appellants now after four (4) years would have to go back to the lower court to regularize their statement of claim, by the outcome of this appeal, for their case to be revived from the slumber in which they dumped or put it. But even if the applicants were to succeed in this appeal, their case at the lower court would still have suffered a very unnecessary delay of about four (4) years, which does not serve any interest of theirs.
In the final result, I find no merit in this appeal and therefore dismiss same with N30, 000.00 costs awarded in favour of the respondent.
Other Citations: (2008)LCN/2634(CA)
