Informatics Company & Telematics Ltd. V. Alhaji Abdullahi Olaribigbe Nurudeen (2002)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Kwara State High Court of Justice in suit No. KWS/20/2001 delivered by Hon. Justice A.S. Adebara of the Ilorin Division of that court on 6th July, 2001 in which the court entered judgment in favour of the respondent in an action under the Undefended List Procedure.
The facts of the case are that sometime in August, 1999 the respondent was offered and he accepted to buy the appellant’s interest in a landed property situate at 6 Catchment Road, Dorin at the price of N2.5 million, which sum he paid in two instalments and was issued with exhibits B and C. He later paid a further sum of N82,500.00 after which he was given a copy of the resolution of the appellant to sell the said property and a letter also from the appellant to the former owners that the appellant had transferred its interests in the property to the respondent as evidenced in exhibits D and E.
That the Managing Director of the appellant informed the respondent that he would be put in possession before the end of December, 1999 which promise was never fulfilled resulting in his being issued with exhibits F and G being cheques for refund of the money paid for the property which cheques were eventually returned unpaid.
So on 2/2/2001, the respondent through counsel filed an ex parte motion for an Order that “the writ of summons and the supporting affidavit filed, herein may be entered for hearing in the undefended list and the writ of summons be marked accordingly”. On the same day i.e. 2/2/01, the respondent paid the sum of N1,029.00 for a writ of summons etc as can be found endorsed at page 14 of the record.
On the 1st day of March, 2001 the learned trial Judge granted the ex parte application filed on 2/2/01 in the following terms:
“It is hereby ordered that the writ of summons in this suit should be placed under the ‘Undefended List’ and same shall be so marked accordingly.”
and adjourned the case to 19th April, 2001 for hearing – see page 12 of the record. As can be gathered from the affidavit at page 16 of the record filed on 2/5/01 in support of a notice of preliminary objection the appellant was as at that date not served with the writ of summons in the action but was rather served with a copy of the Order entering the suit under the undefended list and a hearing notice which fixed the case for hearing on 31/5/01. However, on 15/5/01 the appellant was served with the writ of summons dated 14/5/2001 along with the affidavit filed on 2/2/01. On the 21/5/01, the appellant filed an unconditional memorandum of appearance, affidavit disclosing a defence as well as a proposed statement of defence which was attached to the affidavit of defence as exhibit B.
On the 31/5/01, the respondent’s counsel moved the court for judgment and the appellant’s counsel replied on 6/6/01 as a result of which the learned trial Judge delivered his ruling on 6/7/01 in which he entered judgment for the respondent. The appellant is dissatisfied with that ruling and therefore appealed to this court on thirteen (13) grounds of appeal out of which learned counsel for the appellant I. J. Nnah, Esq. has formulated 3 issues for determination in the appellant’s brief of argument deemed filed on 15/4/02 and which he adopted and relied upon on argument on 29/10/02. The issues are as follows:
“1. Whether the respondent case was properly constituted on 31st May, 2001 when respondent’s counsel argued his motion?. (Grounds 1-5 and 10)
- Whether the respondent’s claim being based on frustration of contract was one that could be properly brought under the Undefended List Procedure?. (Grounds 7 and 8)
- Whether the lower court was right in holding that the appellant had not disclosed sufficient defence to warrant transferring the suit to the general cause list. (Grounds 6 and 9, 11 – 13)”.
On the other hand, learned counsel for the respondent, AKIN AKINTOYE JNR in the respondent’s brief of argument filed on 10/5/02 and adopted in argument on 29/10/02 formulated two issues for determination viz:
“1. Whether the respondent’s case was properly constituted under the undefended list procedure?.
- Whether the lower court was right in holding that the appellant had not disclosed sufficient defence to warrant transferring the suit to the general cause list?.”
It is my view that the issues formulated by learned counsel for the respondent be preferred to those of the counsel for the appellant particularly as the 2nd issue formulated by the appellant can be properly subsumed in the respondent’s issue No.2 and the appellant issue No.3 where it really belongs.
In arguing issue No.1, learned counsel for the appellant submitted that since the writ of summons served on the appellant is dated 14/5/01 while the order entering the suit under the undefended list was made on 1/3/01, the lower court had no jurisdiction when it made the order of 1/3/01 since at that date there was not writ of summons in existence to confer that jurisdiction on the court. That the defect is so fundamental that it cannot be waived or cured by the unconditional appearance entered by the appellant to the writ dated 14/5/01.
Learned counsel concedes that a party wishing to complain of an irregularity should do so before taken any step in the proceedings but submitted that there was nothing irregular on the face of the writ served on the appellant to which it entered its unconditional appearance and that such unconditional appearance cannot retroactively confer jurisdiction on the lower court prior to the life of this action. That it was an error in law for the lower court to hold that the difference in dates is a mere irregularity since it goes to the competence of the action.
Learned counsel further submitted that there is no provision for “filing” a writ under the rules of the lower court. That by Order 5 the registrar issues a writ upon application by a plaintiff who completes a prescribed form. That the duty of the Registrar is merely ministerial and not judicial. That the distinction drawn by the lower court between the date when the writ was filed and that on which it was issued is academic and not relevant in law to the issue as to whether the court had jurisdiction to hear the respondent’s case under the undefended list.
Learned counsel further submitted that the court erred in relying on the decision of the Court of Appeal in Oseyomon v. Ojo (1993) 6 NWLR (Pt. 299) 344 particularly the opinion of Ogundare, JCA (as he then was) in coming to the conclusion that a writ comes to life when it is paid for and not when it is issued whereas the proper position of the law is as stated by that court in Atline v. Afribank Plc (2000) 15 NWLR (Pt. 689) 181 at 197. Learned counsel then cited and relied on the following cases Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 2 All NLR 581; Odofin v. Agu (1992) 3 NWLR (Pt. 229) 350; Zahkan Int. v. Ofoma (2000) 11 NWLR (Pt.679) 609; Tambco Leather Works Ltd. v. Abbey (1998) 12 NWLR (Pt. 579) 548 and Menakaya v. Menakaya (2001) 16 NWLR (Pt.738) 203, (2001) 8 MJSC 50. He then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondent submitted that the argument of his learned friend on issue No.1 is misconceived on the ground that the writ of summons in the case filed and paid for on 2/2/01 contrary to the assertion that it comes to life on 14/5/01. When it was issued after the court’s order of 1/3/01 in compliance with Order 23 rule 1 of the Kwara State High Court (Civil Procedure) Rules (hereinafter referred to as the High Court Rules).
That the application for a writ referred to in Order 23 is the same as that contained in Order 5 rule 1(2) which comes alive when it is filed at the court’s registry upon payment of the prescribed fees consequent upon Order 54 rule 1. Learned counsel then referred to Order 54 rule 2, the 6th schedule thereto which provided that a writ etc shall not be issued until paid for and submitted that this was complied with on 2/2/01. That being the case the distinction by the lower court between the date when the writ was filed and the date it was issued cannot be said to be academic and irrelevant as contended by learned counsel for the appellant. Counsel then referred the court to Oseyomon v. Ojo (1993) 6 NWLR (Pt. 299) 344 at 360.
That the writ was issued after the court had satisfied itself with the respondent’s application along with the affidavit in compliance with Order 23 rule 1. That it would have been contrary to the rules if the writ was first issued before the order of 1/3/01 was made.
That the writ was issued on 14/5/01 and served on 15/5/01 for hearing on 31/5/01. That the appellant filed an unconditional appearance and as such is deemed to have waived any right to object to any irregularity. Learned counsel then urged the court to resolve the issue in favour of the respondent.
I have gone through the record of proceedings including the ruling of the learned trial Judge which gave rise to this appeal and the briefs of argument filed in respect of the contending positions of both parties. I must observe that both counsel have discharged their duties to this court creditably.
To begin with, the following facts are not in dispute between the parties, to wit:
“(a) On 2/2/01, the learned counsel for the respondent presented an application for the issue of a writ of summons against the appellant to the registrar as required by the rules of court and duly paid for same.
(b) Along with that application he filed an ex parte motion for an order entering the suit under the undefended list, together with an affidavit.
(c) That the ex parte application filed on 2/2/01 was granted by the trial court on 1/3/01 and the matter adjourned for hearing.
(d) That the writ of summons in the case was not issued by the registrar until 14/5/01 when it was duly signed.
(e) That the writ so issued on 14/5/01 was duly served on the appellant on 15/5/01 along with the order of the court made on 1/3/01 and the accompanied affidavit for the application to enter the suit under the undefended list”.
Now Order 23 rule of the High Court (Civil Procedure) Rules, 1989 under which the suit was entered for hearing provides as follows:
“23(1). Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or 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.” Emphasis supplied by me.
It is very clear from the provisions of Order 23(1) reproduced supra that the procedure for entering a suit for hearing under the undefended list starts with a presentation of an application by the plaintiff to the court for the issue of a writ of summons. That application must be supported by an affidavit setting forth the grounds on which the claim is based. Then if the court is satisfied that there are good grounds for believing that there is no defence to the action enter the suit for hearing under the undefended list etc, etc.
The question that needs to be answered now is what is meant by an application for the issue of a summons. By Order 5 rule (1) of the High Court Rules, “A writ of summons shall be issued by the Registrar, or other officer of the court empowered to issue summonses, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitor by completing form 1in the appendix to these rules…” Emphasis supplied by me.
It therefore follows that when Order 23(1) of the High Court Rules talks of “whenever an application is made to the court for the issue of a summons in respect of a claim to recover a debt …”, it simply means when the plaintiff’s solicitor completes in writing and presents Form 1 in the appendix to the rules to the court. It is very important to note that Order 23(1) does not say that the writ of summons must be issued or be in existence or alive before the application is presented. This is so because the application being talked of is the one for the issue of the writ of summons, and by Order 5 rule 15 of the High Court a writ of summons is issued when it is signed by either the Registrar or other officer of the court duly authorised to sign the writ.
From the above exposition of the law, it is my considered view that it is not correct as submitted by learned counsel for the appellant that as at 1/3/01 when the learned trial Judge made the order entering the suit under the undefended list there was not live writ of summons since as at that date more had been issued by the registrar who only signed one on 14/5/01 when the writ of summons in this action was dated.
Now we must not forget that you cannot bring an application before the court without first and foremost filing same by paying the necessary assessed filing fees. This is the only means by which a document can be legally brought before the court except of course it is an official document which usually does not attract filing fees.
So it is trite law that before a summons, warrant, writ of subpoena is issued all fees payable thereon as contained in the appropriate schedule of fees must have been paid by the party concerned – see the sixth schedule to Order 54 rule 2.
When you look at the writ of summons in this case at pages 13 and 14 of the record particularly at page 14 thereof it is clear that the sum of N1, 029.00 was paid for the writ of summons on 2/2/01.
It is thus clear that the respondent satisfied all that is required of him to have the matter entered for hearing under the undefended list.
I have already held that Order 23(1) of the High Court Rules does not require a writ of summons to have been issued by the appropriate authority before an application to have same entered for hearing under the undefended list is made.
It is therefore my view that the fact that the registrar issued the writ by signing same on 14/5/01 does not invalidate the Order of the court entering the suit under the undefended list on 1/3/01 which was based on a valid application for the issue of a writ of summons together with an accompanying affidavit deposing to relevant facts upon which the trial Judge exercised his discretion to enter the suit under the undefended list.
In any event, should it be held that the respondent be punished for the sins, of any, of the registrar who signed or issued a writ of summons on 14/5/01 after the respondent had paid for same on 2/2/01 and obtained an order of court entering same for hearing under the undefended list on 1/3/01? I don’t think so. Granted that the procedure adopted is wrong which I very much doubt, substantial justice demands that the issue be resolved against the appellant in view of the facts and since the respondent had substantially complied with the relevant rules of court. The appellant was duly served with the writ of summons, the order of court made on 1/3/01 together with the affidavit on the basis of which the matter was entered under the defended list and he did not enter a conditional appearance or appearance under protest. It is clear that the writ of summons is valid because it was validly issued so you cannot say that the court has no jurisdiction to hear the matter under the undefended list if your complaint concerns the way the matter was entered under that list. That complaint is primarily that of irregularity which can be waived and was infact waived in this case – if any existed – when the appellant entered an unconditional appearance and proceeded to take further steps in the proceedings by filing an affidavit of defence with a proposed statement of defence as found and held by the lower court.
Learned counsel for the appellant has submitted that there was nothing irregular on the face of the writ of summons hence he did not file a conditional appearance. This is a writ of summons that shows that it was paid for on 2/2/01 but signed on 14/5/01. It was served on 15/5/01, along with a copy of an order made on 1/3/01 placing the suit under the undefended list and the affidavit on the basis of which that order was made. I agree with him that there is nothing irregular on the face of the writ so he has no complaint known to law.
I am of the view that the trial court is right and accordingly issue No.1 is hereby resolved against the appellant.
Turning now to the issue as to whether the respondent’s claim is a proper one for the undefended list procedure and whether the appellant disclosed no defence to the action. Learned counsel submitted that the action being one arising from an alleged frustration of contract following the inability of the appellant to put the respondent in possession of the property it was not an action for liquidated money demand as envisaged by the Undefended List Procedure, because it is a contentious action. That a claim for the frustrated contract is not a liquidated money demand even where the contract sum ascertainable and fixed, because the fact of frustration must first be established before liability of a defendant can arise and the court has to determine the extent of the liability, which may be different from the liquidated sum involved in the frustrated contract. That the lower court erred in not considering this argument on the ground that it was not in the notice of intention to defend or in the proposed statement of defence, because it is not every answer to the case of the plaintiff that need be put in the notice of intention to defend or statement of defence.
That if the lower court was misled into placing the suit of the respondent in the undefended list because of exhibits “F” and “G” being cheques purportedly issued by the appellant, it ought have reversed that decision when the appellant in its proposed statement of defence denied that its Managing Director acted with its authority because it became clear that there was a controversy between the parties as to whether the respondent was entitled to the sum of money on the cheques.
Learned counsel then relied on Pwol v. Union Bank Plc (1999) 1 NWLR (Pt. 588) 631; CCB (Nig.) Plc v. Samed Invest. Co. Ltd. (2000) 4 NWLR (Pt. 651) 19; Ezuma v. Nkwo Market Community Bank Ltd. (2000) 10 NWLR (Pt. 676) 638.
Learned counsel submitted that the trial court erred in holding that the defence of the appellants an after thought since it failed to exhibit the contract between the parties because at that state of the proceedings what is required of the trial Judge is to see whether the affidavit or statement of defence discloses triable issues. That once such issues are raised the matter ought to be transferred to the general cause list. That the facts pleaded in the statement of defence were in conflict with the affidavit.
That the appellant pleaded that it was not part of the terms of the contract to let the respondent into possession of the premises at any given time. That since it is the case of the respondent that there was such a condition the court could not come to conclusion as to whether the contract was frustrated without hearing evidence.
That in view of the pleading of the appellant that exhibits “F” and “G” were issued by the Managing Director of the appellant without authority it was wrong for this trial court to have relied on those exhibits as constituting evidence of admission against interest particularly in view of the counter-claim. That the lower court failed to consider the effects in law if the facts pleaded were proved in fact which was his duty to do at that stage of the proceedings before coming to the conclusion that the appellant had not disclosed a defence on the merits. Counsel then cited and relied on FSB Int.Bank Ltd. v. Imano (2000) 11 NWLR (Pt. 679) 620; Ezuma v. Nkwo Market Comm. Bank Ltd. (supra); Fesco (Nig.) Ltd. v. NR & C.P. Co. Ltd. (1998) 11 NWLR (Pt. 573) 227; CCB (Nig.) Plc v. Samed Invest. Co. Ltd. (supra) and Georgewill v. Ekine (1998) 8 NWLR (Pt. 562) 454.
On his part, learned counsel for the respondent submitted that the case of the respondent is simply that the appellant held itself out to be willing to refund the respondent’s money – N2,582,500.00 when it was clear to both parties that the sale transaction could no longer materialise, hence the issuance of the cheques – exhibits F and G. That it was the refusal to effectively refund sum of money which had already exchanged hands that gave rise to the action and not the frustrating event or frustrated contract. That the contract the breach of which gave rise to the action is in the failure to refund the exact sum of N2,582,500.00. That exhibits F and G are indicative of the appellants’ willingness to make the refund as agreed.
That the defence of the appellant to the effect that the action is found on frustration of contract which cannot be a subject of undefended list procedure is erroneous because the action was not so founded. That the respondent did not claim damages based on frustration of contract.
That the arguments as to title and giving of possession are based on a misconception of the facts resulting in the action.
As an aside, learned counsel for the respondent stated that the appellant paid N500,000.00 during the pending of the action at the lower court referring to pages 36 – 37 of the record and added that while the appeal was pending a further sum of N1 million was paid by the appellant to the respondent on March, 2002.
He then urged the court to dismiss the appeal.
On the sub-issue as to whether the action is based on frustration of contract and therefore not comparable with undefended list procedure, it is important to take a look at the writ of summons in the action, the endorsement of which as at page 14 of the record.
It is claims for:
“(a) The sum of N2,582,500.00 being the total sum I paid to and received by the defendants for the purchase of the defendants real property (a bungalow with boys quarter) at No.6 Catchment road, G.R.A., Ilorin, Kwara State and processing of consent to assign and transfer of title of the said property to the plaintiff; which property the defendants failed to deliver possession, denied plaintiff occupation and refused to refund the plaintiff purchase price, thereby frustrating me.
(b) Interest on the sum of N2,582,500.00 at the rate of 10% per annum from the date of judgment until final liquidation thereof.”
From the above, it is very clear that the respondent never based his cause of action on frustration of contract as submitted by learned counsel for the appellant. The cause of action is simply for recovery of a debt of N2,582,500.00 which is in effect, money had and received for total failure of consideration. The fact that the action is not for frustration of contract is strengthened by the fact that the sum of N2,582,500.00 being claimed by the respondent is not by way of damages for frustration of contract. In short, the fact that the words “thereby frustrating me” is used in claim (a) supra does not mean that the action is based on frustration of contract.
That apart, when one looks at the proposed statement of defence, paragraph 1 thereof, the appellant admitted paragraphs 1 – 10 of the supporting affidavit which deposed to the fact that the respondent paid a total sum of N2,582,500.00 to the appellant for the purchase of its bungalow etc, at the address stated and to enable the appellant obtain consent to assign and transfer title. That out of the total sum aforesaid N2,500,000.00 is the purchase price which was paid in two instalments ofN2,000,000.00 and N500,000.00 respectively on 6/9/99 and 14/9/99 for which receipts exhibits Band C, were issued.
That the balance of the sum of N82, 500.00 was paid on 14/9/99 for processing of consent etc.
Now there is evidence that the respondent was never put in possession of the property as a result of which he demanded a refund of his money leading to the issue of exhibit F for the sum of N2,582,500.00 on 1/3/2000 to the respondent which was returned unpaid making it necessary for exhibit G to be issued on 31/5/2000 which also bounced. As found by the learned trial Judge exhibits F and G are appellant’s cheques and they bear its name and official stamps. It is clear that they were issued by way of refund of the agreed purchase price and the other incidentals. In view of the facts of this case, I find it very difficult to agree with the submission of learned counsel for the appellant that this is not a proper case for the Undefended List Procedure which primarily deals with recovery of debt or liquidated money demand.
The above stated facts are also relevant to the sub-issue as to whether the appellant did show that it has a defence on the merit to the action. Even though the appellant filed an affidavit of defence of 7 paragraphs, that affidavit does not contain any defence to the action as found by the lower court. However, the said affidavit had attached thereto exhibit B which is the proposed statement of defence in paragraph 12 of which the appellant pleaded that exhibits F and G were issued by one Jim Daniels, the Managing Director of the appellant based on friendly relationship with the respondent in anticipation that he could settle the respondent but the trial court made this revealing finding at pages 34 – 35 of the record.
“I have looked at both exhibits “F” and “G”. It bore the stamp of informatics Co. and Telematic Ltd. (the defendant). It contained nothing on it that it was issued on a friendly basis by Jim Daniels in anticipation that he would settle with the plaintiff. The mere fact that exhibit (sic) “F” and “G” were signed by the said Jim Daniels does not mean it was issued on friendly basis. There is nothing to support that. Rather, it can only mean that it is for the refund of the sum N2,582,500.00 paid by the plaintiff to the defendant. After all the defendant is an artificial person, it could only act through its human agents such as its principal officers of which I am satisfied Jim Daniels is one being the Managing Director of the defendant. In the circumstances, the view I hold is that exhibits “F” and “G” points (sic) to no other direction than that the purpose for which the plaintiff paid the sum of N2,582,500.00 to the defendant has been frustrated hence the willingness to pay back the said money on two occasions through exhibits “F” and “G”. The issuance of these cheques by the defendant in favour of the plaintiff is an admission against interest that the plaintiff demanded for the refund of the money she (sic) paid and the defendant was nothing to refund it…”
The learned trial Judge concluded thus at page 37:
“On the whole, I hold that the defendant have (sic) failed to disclose any defence on the merit to the plaintiff’s action. The alleged defence of the defendant in exhibit “B” attached to its affidavit is nothing but a shame …”
I am of the firm view that the learned trial Judge is very correct in so holding having regards to the facts of the case. To really confirm what has been stated above, the learned trial Judge entered judgment at page 37 of the record in the following terms, inter alia:
” … judgment is hereby entered for the plaintiff in the sum of N2,082,500.00 only having deducted the sum of N500,000.00 paid by the defendant to the plaintiff after the institution of this suit.” Emphasis supplied by me.
Now the appellant has not challenged this finding by the learned trial Judge. This means that what the learned trial Judge stated is correct. That being the case the question is why make a part refund of the money after the institution of the action when you say that you have a complete defence to the action on the merit? I hold the view that this is a clear case of admission of the claim of the respondent. In addition to the payment of N500,000.00, learned counsel for the respondent has stated in his brief of argument that the appellant has again paid an additional sum of N1,000,000.00 (One million Naira only) in March, 2000, during the pendency of the appeal.
I think it is better to leave the matter there!
In conclusion, I find no merit whatsoever in this appeal which is accordingly dismissed with N10, 000.00 cost to the respondent.
Other Citations: (2002)LCN/1317(CA)
