Major Akpang Obi Odu & Anor V. Mrs. Tina Agbor-hemeson (2002)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J,C.A,

By their writ of summons dated 21/6/99, in Suit No. HJ/24UD/99, filed in the Registry of the Ogoja Division of the Cross River State High Court, the appellants on record as plaintiffs commenced an action, under the undefended list procedure against the respondent, claiming against her jointly and severally –

“The sum of N1,000,000 (One Million Naira) being money had and received for the supply of fresh fruits bunches of oil palm, a consideration that has wholly failed.

And interest thereon at the rate of 21% per annum till the date of judgment and thereafter, at the court rate of 10% per annum.”

The application to place the suit on the undefended list was supported by an affidavit of 12 paragraphs, deposed to by the 1st appellant exhibiting a photocopy of a cheque of N800,000 as exh. A and explaining the circumstances under which the respondent was paid, the cheque for N800,000 and another sum of N200,000 for the supply of fresh fruit bunches, which the latter failed to supply. Upon being served with the writ of summons and the said affidavit, the respondent through her counsel filed a “notice of intention to defend’ dated 9-7- 99 raising as part of the grounds of her defence the capacity of the 2nd appellant as a juristic person with an affidavit of 16 paragraphs denying liability for the claim. In reaction to the respondent’s affidavit, the 1st appellant swore to and filed a “further affidavit in reply to defendants’ affidavit” controverting the facts deposed to in the respondent’s affidavit and annexing the certificate of incorporation of the 2nd appellant as exh. A in proof of the juristic capacity of the 2nd appellant to sue.

On 7th December, 1999, when the matter came up for hearing, learned Counsel to the respondent drew attention of the court to the further affidavit of the appellant and urged the court to strike same out as it is not provided for under the Rules of Court, vide Order 23 of the Cross River State High Court (Civil Procedure) Rules. In a reserved ruling delivered on 5/4/2000, the learned trial Judge Ilok, J., in acceding to the request struck out the first appellant’s further affidavit. After comparing the 1st appellant’s affidavit in support of the application to place the suit in the undefended list and the respondent’s affidavit in support of the “notice of intention to defend”, he concluded thus:

“These depositions from both sides when looked at closely, clearly reveal that the main issues between the parties are contentious and will be better appreciated and determined at full hearing of this suit.

Accordingly, this suit is transferred from the undefended cause list to the ordinary cause list for hearing and determination and pleadings are hereby ordered…”

Dissatisfied by that ruling, the appellants lodged the instant appeal by a notice of appeal to which were subjoined the following five grounds of appeal:

Grounds of Appeal:

1. The learned trial Judge erred in law, when he held that the undefended list procedure does not admit of further affidavit and proceeded to strike out same.

Particulars of Error

(i) There is not (sic) part of Order 23 High Court (Civil Procedure) Rules of Cross River State expressly precluding any party from filing a further affidavit.

(ii) The plaintiff was entitled to file a further affidavit.

(iii) The rule of substantial justice applies in undefended list procedure.

2. The learned trial Judge erred in law, for entertaining and determining the application to strike out the further and better affidavit of the plaintiff when clearly he had no jurisdiction to do so.

Particulars

(i) The application to set aside the further and better affidavit ought to be by motion or summons. It was brought orally.

(ii) The plaintiff had no notice of the application before it was heard.

(iii) A condition precedent to the hearing of such an application was not satisfied.

3. The learned trial Judge erred in law and acted without jurisdiction when he transferred suit No. HJ/24UD/99 to the ordinary cause list for hearing.

Particulars of Error

(i) Before the order transferring suit No. HJ/24UD/99 to the ordinary cause list, leave to defend the suit was not granted the defendant.

(ii) The trial court did not decide the mandatory question of whether, the affidavit in support of the notice of intention to defend disclosed a defence on the merit.

(iii) There is no legal basis for the order transferring suit No. HJ/24UD/99 to the ordinary cause list for hearing.

4. The learned trial Judge erred in law, when he held that the main issue between the parties are contentious.

Particulars of error

(i) The admitted documentary evidence of payment for supply of fresh fruit bunches show that payment was made to the defendant in her name.

(ii) The said documentary evidence did not state that she is being paid on behalf of or as Managing Director of Gaddi Nigeria Ltd.

(iii) The defendant did not successfully raise any issue as to who was paid to supply the fresh fruit bunches.

(iv) The defendant admitted receiving N800,000.00 for supply of 200 tons of fresh fruit bunches to the plaintiffs.

(v) There is nothing to show that the plaintiffs were supplied and so received the fresh fruit bunches, the defendant admitted she was paid for.

(vi) The defendant did not successfully raise an issue as to whether she has supplied the said fresh fruit bunches.

5. The learned trial Judge erred in law when he failed, to enter judgment for the plaintiff in the sum of N800,000.00.

Particulars of error

(i) The defendant admitted receiving the sum of N800,000.00 to supply fresh fruit bunches to the plaintiffs.

(ii) There is nothing to show that she has supplied the fresh fruit bunches to the plaintiffs.

(iii) The learned trial Judge did not find that her affidavit in support of the notice of intention to defend disclosed a defence on the merit.”

Parties by their respective counsel filed and exchanged briefs of argument which they adopted and relied upon for the determination of the appeal. Arising from the five grounds of appeal, the appellants identified the following three issues for determination:

“1. Whether the learned trial Judge had the jurisdiction to entertain the application to strike out the plaintiff’s further affidavit and if so, whether striking out of the said further affidavit was proper and in accordance with the law.

2. Whether the learned trial Judge acted properly and in accordance with the rules of court in transferring suit No. HJ/24UD/99 to the general cause list.
3. Whether the failure and or refusal of the learned trial Judge to enter judgment for the plaintiffs/appellants in the sum of N800,000.00 on the ground that “the issues in the affidavit are contentious is proper in law.”

The respondent formulated a lone issue for determination viz:

“Whether the lower court was right in granting unconditional leave to the defendant to defend?”

By a notice of preliminary objection, dated 1st day of May, 2001, learned Counsel to the respondent raised a preliminary objection to the healing of the appeal on the following grounds:

“1. The decision appealed against gave unconditional leave to the respondent to defend the action brought under the undefended list procedure.

2. By virtue of section 241(2)(a) of the Constitution of the Federal Republic of Nigeria, 1999, the appellant has no right of appeal.
3. The appeal is irredeemably and hopelessly incompetent by reason of its unconstitutionality.”

Expatiating on the preliminary objection, learned Counsel to the respondent in his brief of argument stated that the gist of the ruling appealed against was to give an unconditional leave to the defendant to defend the action of the plaintiff by transferring same to the general cause list and ordering pleadings. He submitted that the appellants have no right to appeal against the ruling giving the respondent unconditional leave to defend as that right had been expressly taken away by section 241 (2)(a) of the Constitution of the Federal Republic of Nigeria, 1999. He contended that the section is in pari materia with section 220(2)(a) of the 1979 Constitution which has been judicially interpreted referring to the Court of Appeal decisions in Asomugha v. Mandillas (1985) 3 NWLR (Pt. 128) 325, interpreting the section as conferring a right of appeal. He also referred to the contrary decisions of the Court of Appeal in Camptel International SPA v. Dexsou Ltd. (1996) 7 NWLR (Pt. 459) 170; U.TB. (Nig.) Ltd. v. Tura Travels Tours Ltd. (1998) 1 NWLR (Pt. 532) 174 at 177, and lastly the Supreme Court decision in NBN Ltd. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 150, overruling the decision in Nishizawa Ltd. v. Jethwani (supra). It was therefore, urged that the appeal be struck out.

Learned Counsel to the appellants filed a reply brief to address the respondent’s preliminary objection. In so doing, he contended apparently oblivious of the appellants’ notice of preliminary objection, dated 1st day of May, 2001, filed on 4th May, 2001, that the preliminary objection is incompetent in law by reason of the failure of the respondent to file same in consequence of which this court, lacks the jurisdiction to entertain the objection. Citing Order 3 rule 15 of the Court of Appeal Rules, Cap. 62, Vol. 4, Laws of the Federation of Nigeria, 1990, learned Counsel urged that the preliminary objection be struck out. In the alternative and on the merit of the preliminary objection, it was contended that the appellants’ appeal is not against the grant of an unconditional leave to defend an action as advanced by the respondent. The appellant’s grounds of appeal and issues culled from them were alluded to. It was conceded that an order of unconditional leave to defend an action, when properly made cannot by virtue of section 241(2)(a) of the 1999 Constitution be made the subject of an appeal from the High Court to the Court of Appeal, but it was forcefully argued that no such order was made in the instant case and could not be imputed or read into the ruling of the court below. Learned Counsel finally submitted that the preliminary objection though beautifully argued and well researched is an academic exercise as all the authorities cited and relied upon by the appellants have no relevance or bearing to the appeal relying on the case of NNPP v. Anwuta (2000) 13 NWLR (Pt.684) 363, (2000) FWLR (Pt. 26) 1768 at 1781-1782.

As is evident from the response of the appellant’s counsel to the respondent’s preliminary objection, the points raised are two dimensional. Firstly, it is contended that the appellants’ preliminary objection is itself incompetent in that it did not conform with the provisions of Order 3 rule 15 of the Court of Appeal Rule. The rule provides:

“15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection…”

In the recent case of Agbaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 at p. 25, the Supreme Court per Ogwuegbu, JSC, observed in relation to the rule, thus:

“The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise. Where the objection was argued in the respondent’s brief as in this, case and the brief was served on the appellant, who had opportunity to react to it even when they amended their grounds of appeal and brief of argument and they did not do so. I think it will be stretching Order 3 rule 15 too far to insist on the filing of notice in this particular case…”

In the instant case, it has been noted that contrary to the appellants’ complaint, the respondent filed a notice of preliminary objection.

The passage of Agbaka’s case quoted above, decided that even when such a notice is not filed, but the objection is argued in the respondent’s brief served on the appellant and thus, giving him an opportunity to react to it, failure to file a separate notice of the preliminary objection is of no consequence. This is in consonance with the decision of the Supreme Court per Bello. JSC (as he then was) in the case of Salawi Ajide v. Kadiri Kelani (1985) 3 NWLR (Pt.12) 258, (1985) 11 Supreme Court 124 at pp. 136-137, where in interpreting Order 2 rule 9 of the Supreme Court Rules, 1985, in pari materia. with Order 3 rule 15, Court of Appeal Rules, he made the following observation:

“However, I agree with the second limb of the submission of Chief Williams that he has complied with the requirement of the rule. His brief set out the notice and the ground of the respondent preliminary objection to the hearing of the second ground of appeal in meticulous detail. The brief was filed with the Registrar on 14th June, 1984, and was served on the appellant.

Mr. Ajayi filed his reply to the preliminary objection on 5th July, 1984. The appeal came up for hearing on 25th September, 1985. It follows that the appellant had notice of the preliminary objection within the period permitted by the rule.”

In the instant appeal, the respondent’s brief incorporating the preliminary objection and argument thereon was filed on 28/5/2001. The appellants’ reply brief in response to the objection was filed on 20/9/2001, and the appeal was taken on 23/4/2002 a period of far more than the prescribed three clear days. On the strength of the authorities referred to above, that is, Agbaka’s case supra and the case of Salawi Ajide supra, I am bound to hold that the appellants’ contention on the incompetency of the respondents preliminary objection lacks substance.

The second dimension of the appellants’ argument relates to the right of appeal against the ruling of the court below. Undoubtedly, that is an issue of great constitutional importance. This is because the right of appeal is created by statute or the Constitution and a court is without jurisdiction to hear any appeal unless it is provided statutorily. See Ugwu v. Attorney-General of East Central State (1975) 6 SC 13: Adigun & Ors. v. Attorney-General of Oyo State & Ors. (No.2) (1987) 2 NWLR (Pt. 56) 197; Ajomale v. Yaduat (No.1) (1991) 5 NWLR (Pt. 191) 257 and Odofin & Ors. v. Agu & Ors. (1992) 3 NWLR (Pt. 229) 350.

It is trite law that a judgment given without jurisdiction is a complete nullity however, well conducted. See Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt. 5) 17; Onyema & Ors. v. Oputa & Ors. (1987) 3 NWLR (Pt. 60) 259: Ojokolobo & Ors. v. Alamu & Ors. (1987) 3 NWLR (Pt. 61) 377; Moses v. Ogunlabi (1975) 4 SC 81 and Petrojessicea Enterprises Ltd. & Ors. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675. In the last of these cases, Belgore, JSC at p. 693 of the report observed as follows:

“Jurisdiction is the very basis on which any tribunal tries a case: it is the lifeline of all trials. A trial without jurisdiction is a nullity…”

In the case in hand, learned Counsel to the appellants conceded that an unconditional leave to defend an action is not appealable by virtue of section 241 (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria. His contention however, is that in the ruling of the court below, no such order was made and that the order transferring the suit to the general cause list is not tantamount to such an order granting to the respondent an unconditional leave to defend the suit.

In a situation not too dissimilar, in the case of N.B.N. Ltd. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt.465) 150, the Supreme Court was called upon to consider the dismissal by the Court of Appeal, an appeal to it against the dismissal by the High Court of an application for summary judgment and the unconditional leave granted to defend pursuant to Order 10 rules 1-3 of the High Court (Civil Procedure) Rules similar to the undefended list procedure under Order 23 of the High Court (Civil Procedure) Rules of Cross River State. Counsel to the respondents in that case had contended relying on section 220(2)(a) of the 1979 Constitution that a decision of any High Court granting unconditional leave to defend an action is not appealable.

In reply, learned Counsel to the appellant submitted that his appeal to the Court of Appeal does not complain against the unconditional leave to defend granted to the defendant, but the dismissal of the application for summary judgment by the learned trial Judge. In reaction to that submission, Uwais, JSC (as he then was) in His Lordship’s concurring judgment p. 168 of the report, observed thus:

“The submission by Chief Oriade that the appeal in the court below was against the dismissal of the application by the plaintiff for summary judgment and not against the grant of unconditional leave to defend the action is ingenious but not convincing. The dismissal of the application for summary judgment was consequential to the grant of the unconditional leave to defend the action. It is not, therefore, possible to pursue one without the other. To allow an appeal against the dismissal of the application, the grant of the unconditional order will have to be set aside and that can only come about where there is an appeal against the latter.”

In the concurring judgment, Ogundare, JSC, at pp. 174-175 had this to say:

“Chief Oriade has argued that the plaintiff’s appeal, in the instant case, to the Court of Appeal was against the dismissal of the application for summary judgment and not against the grant of unconditional leave to defend the action. I see no merit in this submission. Plaintiff’s application for summary judgment was brought under Order 10 of the High Court of Lagos (Civil Procedure) Rules 1″976. Rule 1 (a) therefore provides:………..

The Judge before whom an application for summary judgment is made under this rule, may, in his discretion (which discretion must be exercised judicially and judiciously) either empower the plaintiff to enter such judgment as may be just or may grant conditional or unconditional leave to the defendant to defend the action An appeal against the Judge’s refusal to empower the plaintiff to enter summary judgment when he has granted the defendant unconditional leave to defend the action is an appeal against the grant of the unconditional leave to defend. The refusal is not independent of the order of unconditional leave.”

In the present appeal, the procedure under the undefended list under which the appellants’ suit was commenced is regulated by Order 23 of the High Court (Civil Procedure) Rules of Cross River State. Rule 3 thereof provides:

3(1) if the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the court may give his leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.”

In my view, the grant of leave to defend under the first limb of the rule is inseparable from the transfer of the suit to the ordinary cause list under the second limb such that the grant of one inexorably implies the grant of the other. The transfer of the case to the ordinary cause list is a consequence of the grant of unconditional leave to defend and an appeal against the former can only lie if there is right of appeal against the latter. I am therefore of the humble view that, although the court below did not expressly give the respondent unconditional leave to defend the action that leave is implicit in the order transferring the suit to the ordinary cause list and ordering pleadings thereon.

Both counsel have, quite rightly in my view, stated the law correctly when they submitted that a decision of the High Court granting an unconditional leave to defend an action is not appealable by virtue of section 241(2)(a) of the 1999 Constitution.

The sub-section provides:

“241(1)An appeal shall lie from decisions of the High Court to the Court of Appeal as of right in the following cases:

(a) ……………………

(b) …………………….

(c) …………………….

(d) …………………….

(e) ……………………

(f) ……………………

(2) Nothing in this section shall confer any right of appeal…………..

(a) from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action:

(b) ………………….

(c) ………………..

This provision is ipssissima verba with section 220 sub-section (2)(a) of the 1979 Constitution. From judicial decisions on the subsection, there had been for some time a controversy as to its correct interpretation: See Asomugha v. Mandillas (1985) 3 NWLR (Pt. D 12) 352; Nishizawa Ltd. v. Jethwani (1995) 5 NWLR (Pt. 398) 668; Societe Generale Bank (Nig.) Lid. v. Panatrade Ltd. & Ors. (1994) 6 NWLR (Pt. 353) 720 at 734. That controversy was laid to rest by the Supreme Court in the case of N.B.N. Lid. v. Weide & Co. (Nig.) Ltd. (1996) 8 NWLR (Pt. 465) 150, where Uwais, CJN at p. 167 held:

“The wordings of section 220 sub-section (2)(a) of the 1979 Constitution are very clear. They simply mean that there is no right of appeal from a decision of any High Court to the Court of Appeal, where the former grants an unconditional leave to defend an action.” See also the case of U.T.B. (Nig.) Ltd. v. Tura Travels Tours Ltd. (1998) 1 NWLR (Pt. 532) 174 at 177. Since section 241 (2)(a) of the 1999 Constitution bars an appeal against the decision of the High Court granting a defendant an unconditional leave to defend an action, it is my judgment that the appellants’ appeal is incompetent, and by this, the respondent’s preliminary objection is sustained.

In the event I am mistaken, I will now advert to the merits of the appeal. The appellants’ counsel had formulated three issues for determination, while the respondent’s counsel identified a lone issue.

Counsel to the appellants has criticised the respondent’s solitary issue contending that it did not derive from the grounds of appeal. I do not entirely agree but I would re-formulate the issue for determination thus:

“Whether the court below was correct in its ruling by transferring the suit from the undefended cause list to the ordinary cause list for hearing and determination?”

In approaching this issue, I bear in mind certain guiding principles relating to the undefended list procedure. The purpose of the procedure is not designed to cloak shaky transactions or businesses but to ensure that the delay which is brought about by a full trial is obviated when, from the affidavit in support of the notice of intention to defend there are no triable issues. It is also to prevent sham defence from defeating the right of parties by delay thereby causing great loss to the plaintiff who is enforcing his right. In other words, the object is to enable the plaintiff whose claim is unarguable in law, and is supported by undisputed facts and in the circumstances, in which it would be inexpedient to allow the defendant to defend for mere purpose of delay in respect of the amount claimed: See Okambah v. Sule (1990) 7 NWLR (Pt. 160) 1 at 12; Nishizawa v. Jethwani (1984) 12 SC 234; Macualay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 306.Where a court proceeds under undefended list procedure it is desirable that it must call into play a measure of liberality, when considering the affidavit of the defendant in order to determine whether or not a defence on the merit is enclosed. If there are disputed issues of facts disclosed from a comparison of the plaintiff’s and defendant’s affidavit, then the court below must transfer the suit to the general cause list for determination on the merit: See Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737.

If a decision on whether or not, a defence on the merit is disclosed in the defendant’s affidavit turns on the consideration of intricate or difficult areas of law or aspects of law requiring full address by counsel, and a research by the court, it is proper that the defendant be allowed to contest the suit in a full trial; Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538, 546.

With the foregoing principles in mind, it is appropriate at this stage to compare the appellants’ affidavit in support of their application to place the suit on the undefended list and the respondent’s affidavit in support of her notice of intention to defend the action. The appellants’ affidavit reads thus:

“I, Major Akpang Obi Odu (Rtd), male, Christian, and a Nigerian of Ogoja, Cross River State of Nigeria, doth hereby, make oath and say that:

1. I am the 1st plaintiff herein. I have personal knowledge of the facts of this case. I depose to this affidavit with knowledge and consent of my co-plaintiff.
2. I am the Managing Director/Chief Executive Officer of the 2nd plaintiff, which mills and sells palm oil. She owns a large palm oil milling y at Odejie, Ogoja, for this purpose.
3. The 2nd plaintiff equally owns a large palm plantation at Odejie, which produces fresh fruit bunches to feed the mill. The supply of fresh fruits bunches from her plantation is not sufficient to enable the mill operate to capacity. To supplement the supply from the said plantation, we buy fresh fruit bunches from other persons.
4. The defendant approached me, at our corporate office at No. 1, Abakpa, Ogoja, about the month of February, 1996, and offered to supply us fresh fruit bunches.
5. Upon the promise by the defendant to be supplying us fresh bunches oil palm (FFB), we paid various sums of money therefore as shown hereunder.
6. On 19/4/97, we paid the defendant N800,000.00 (Eight Hundred Thousand Naira) for the supply of 230 tons of fresh fruit bunches of oil palm, vide Co-operative Development Bank Plc, Calabar Branch, cheque No. 52567, which has been received and cashed by the defendant.
7. On 26/4/97, we paid the defendant N200,000,00 (Two Hundred Thousand Naira) being for the supply of 60 tons of fresh fruit bunches in cash which was received by the defendant.
8. The defendant was to supply the said fresh fruit bunches upon receipt of payment. Uptill date, she has not supplied us even one fresh fruit bunch. All her repeated promises to deliver have remained unfulfilled.
9. The photocopy of the cashed cheque is exhibited herewith as exhibit A.
10. We mill and sell palm oil. We buy fresh fruit bunches, mill oil out of same and sell. We make a net profit of over N200,000.00 a month from an investment of N700,000.00 a month. We have suffered gross loss of earning by virtue of the activities of the defendant.
11. The defendant has no defence whatever to this action.
12. I depose to this affidavit in good faith, believing the same to be true and correct in accordance with the Oaths Act, 1990.”

The substance of the appellants’ affidavit is that they paid to the respondent a cheque for N800,000 and a cash sum of N200,000.00 making a total of N1,000.000.00 for the supply of 230 tons and 60 tons of fresh fruit bunches for their palm oil mill industry and that the respondent having received the money neglected to deliver the goods despite repeated demands.

The respondent filed a notice of intention to defend on the following grounds:

“1. The 2nd plaintiff has no capacity to sue as it is not incorporated in accordance with the laws of the Federal Republic of Nigeria.

2. The defendant is not indebted to the plaintiffs.
3. The proper parties are not joined.
4. The court lacks jurisdiction to entertain the action.

In the respondents’ affidavit in support of that notice of intention to defend, she deposed as follows:

“I, Mrs. Tina Agbor-Benson, Christian, business executive, residing at 45 Mission Road, Ogoja, Nigerian, do make oath and state as follows:

1. I am the defendant herein and conversant with the facts of this case.
2. I was served with the undefended writ of summons and supporting affidavit on Friday 9th day of July, 1999.
3. Paragraphs 2-11 of the plaintiffs’ affidavit are false. The plaintiff had no personal dealing with the defendant, but rather transacted with Gaddi Nig. Ltd. a lessee and a disclosed agent of the Cross River State Government. This is evidenced by the endorsement by me on exh. A to the 1st plaintiff’s affidavit.
4. I am the Managing Director of Gaddi Nig. Ltd. and I acted in that capacity in the transaction in question. The cheque issued to me was in the aforesaid capacity.
5. The 2nd plaintiff had no transaction with either Gaddi Nig. Ltd., the Cross River State Government or with me. It is completely alien to the issue in question and has no interest whatsoever, in the claim before the court.
6. The 2nd plaintiff is not a company incorporated in accordance with the laws of the Federal Republic of Nigeria.
7. I deny ever receiving the sum of N200,000.00 in cash from the plaintiffs.
8. I received the sum of N800,000.00 from the 1st plaintiff on behalf of Gaddi Nig. Ltd. for the supply of 200 tons of fresh fruit bunches and not 230 tons.
9. I vehemently deny the averments in paragraph 8 of the 1st plaintiff’s affidavit. The 1st plaintiff collected the 200 tons fresh fruit bunches which he paid for.
10. The 1st plaintiff Mill Manager and one Pius Akhigbe, the younger brother of Okhai Akhigbe, the former Chief of Defence Staff, personally supervised the evacuation of the fresh fruit bunches from the Boki Oil Palm Estate.
11. I personally had to put pressure on the 1st plaintiff to evacuate his fresh fruit bunches, as he severally failed to keep to the agreed time table for collection of the same. He kept complaining of lack of vehicles or that his tank was full. He however evacuated all his stock.
12. The indolent and lackadaisical attitude of the 1st plaintiff to the evacuation of his fruits resulted in some of the fruits going bad which we had to replace at enormous cost.
13. The Cross River State Government took over the control of the Boki Oil Palm Estate with all the assets and liabilities from Gaddi Nig. Ltd. in 1997. Those who genuinely paid for fresh fruit bunches, but could not be supplied before the Government, took over the funding of its estates have long collected their consignment from government.
14. I am by no stretch of imagination owing the plaintiffs the sum claimed in the writ of summons or any other sum or at all.
15. I have a defence on the merit to the claim of the plaintiffs.
16. I swear to this affidavit in good faith, believing the same to be true and correct in accordance with the Oaths Act of 1990.”

From the above depositions, the respondent’s case is that the N800.000.00 cheque she received, was not in her personal capacity, but in her capacity as the Managing Director of Gaddi Nig. Ltd., a disclosed agent of the Cross River State Government; that the money was received for the supply of 200 tons and not 230 tons of fresh fruit bunches; that the supply had been delivered to the appellants; that she did not receive the cash sum of N200,000; that the 2nd appellant is not an incorporated company.

From the respondents’ standpoint, it cannot be seriously suggested that a triable issue has not been raised as to whether in fact, she received the total sum of N1,000,000.00 or only N800.000.00, and if the latter, whether it was for 230 tons or 200 tons of fresh fruit bunches and whether the appellant had taken delivery of any quantity.

No doubt, it is to resolve these triable issue that informed the appellant to swear to a further affidavit reproduced hereunder:

“I, Major Akpang Obi Odu (Rtd), male, Christian, and a Nigerian of Ogoja, Cross River State of Nigeria, doth hereby make oath and say that:

1. I have been served with the defendant’s notice of intention to defend and accompanying affidavit.
2. Paragraphs 3, 4 and 5 of the defendant’s affidavit are denied. I and my co-plaintiff do not know any person or company by name Gaddi Nig. Ltd. We have never had any transaction with such a person or company all our existence. We do not know that the defendant is an official of any company. All we know is that she came to us and offered to supply fresh fruit bunches for our Palm Oil Mill. She never told us she was acting for anybody.
3. After we issued her the cheque for N800,000.00, she presented it for payment to the bank. At the bank, she endorsed thereon directing the bank to issue a draft for N625,000.00 to Cross River State Government. We are not privy to any transaction between she (sic) and Cross River State Government.
4. Paragraph 6 of the defendant’s affidavit is denied. The 2nd plaintiff is a limited liability company incorporated in Nigeria on the 8th September, 1989, with No. RC 136917. The certificate is exhibited herewith as exhibit FA1.
5. Paragraphs 7, 8, 9 and 10 of the defendant’s affidavit is denied. Neither I nor any of my staff received any fresh fruit bunches from the defendant. There is nobody in existence like Pius Akhigbe known to me. I have personally visited the defendant severally to demand for the goods we paid for or a refund of our monies to no avail.
6. We had no transaction with Cross River State Government, Gaddi Nig. Ltd. or anybody for that matter over supply of fresh fruit bunches. It is the defendant we paid money to supply the fruits upon her personal promise to do so. She has not done so. She is owing us.
7. I am the alter ego of the 2nd plaintiff. I operate her account with Co-operative Development Bank, Calabar, as sale signatory. All her palm milling and other business operations are solely, controlled and directed by me.
8. I depose to this further affidavit believing the same to be true and correct in accordance with the Oaths Act 1990.”

Admittedly, the rules under undefended list procedure do not expressly bar the use of further affidavit as submitted by learned Counsel to the appellant but with profound respect to counsel, it is not contemplated by the said procedure that triable issues raised by the defendant’s affidavit should be rebutted or controverted by a further affidavit by the plaintiff as was done in the instant case. All the trial court is enjoined to do if the defendants’ affidavit in support of the notice to defend discloses a defence is to transfer the suit to the general cause list for hearing and determination. There is no room for further affidavit by the defendant to controvert the plaintiff’s affidavit as such will lead to trial on affidavit, which will prolong the trial and thus, defeat the objective of the speedy trial which the undefended list procedure is intended to achieve. The court below was therefore, eminently justified in striking out the appellants’ further affidavit. A court of law has an inherent jurisdiction to strike out a process which is not properly before it. But what is material is not the striking out of the appellants’ further affidavit but whether the respondent’s affidavit in support of her notice of intention to defend disclosed triable issue or defence to the action. I am of the view that the court below was right, when it held that the depositions from both parties reveal that the main issues between them are contentious and on account of that transferred the suit to the ordinary cause list for determination.

Having regard to the conclusion, I had reached with respect to the respondent’s preliminary objection, that the appellants’ appeal is incompetent, it is hereby, struck out. The sum of N3,000 costs is awarded in favour of the respondent against the appellants.

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Other Citations: (2002)LCN/1225(CA)