System Metal Industries Ltd. V. James Ehizo (2002)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
A writ of summons on the undefended list, was taken out by the plaintiff, who is now the respondent, against the appellant in the High Court of Bauchi State. The particulars of claim are as follows:-
“The plaintiff (sic) claim against the defendant is for the sum of eighty-eight thousand eight hundred and
fifty-seven naira only (N88,857.00), being the unpaid commission of 5% on the net amount of order, amounting to one million seven hundred and seventy seven thousand, one hundred and sixty-two naira only (N1,777,162.00) introduced customers by the plaintiff to the defendant.”
These customers has (sic) since perfected their order and payments made, but the defendant has refused, neglected and failed to pay the plaintiff the agreed 5% commission sums, which is N88,857.00 inspite of demands by the plaintiff.
Whereof the plain (sic) from the defendant this sum of N88,857 .00 with interest at the rate of 25% per
annum from August, 1993 until judgment and thereafter 10% per annum until satisfaction.”
The writ was supported by an affidavit. On 31/1/95, the defendant filed a motion on notice for the following orders:-
(1) An order allowing the defendant to file the notice of intention to defend out of time.
(2) Deeming the attached notice of intention to defend as duly filed and served.
On 7/2/95, a motion containing similar prayers was filed. On 7/2/95, when the matter came up Abubakar, Esq., who held the brief of C. C. Irorakpor for the plaintiff, announced to the court that they had agreed on an adjournment to 11/4/95, to wit – Mr. Ishie of counsel for the defendant confirmed, and added that the adjournment was to enable them argue the issue of jurisdiction. The court then adjourned the case to 11/4/95 to enable the issue of jurisdiction be raised.
When the matter came up on the said 11/4/95 the following transpired:-
“Ishie, E. O. – I intend to move my motion dated 27/1/95 filed on 31/1/95 with receipt No. 453448 and with the leave of the court, I will withdraw my motion dated 27/1/95 of 3 different receipts.
Courts:- Motion dated 27/1/95, with 3 different receipts Nos. 453558, 453598 and 486407 struck off.”
Rather than raise the issue of jurisdiction, which she had in an earlier date expressed she would raise, learned Counsel for the defendant, proceeded to move her motion on notice. In fact, on page 18 of the printed record of proceedings could be seen the following:
“Ishie on: I wish to move a motion on notice dated 27/1/95.”
In short, she abandoned the objection on jurisdiction. Learned Counsel on both sides addressed the court on the motion papers and the learned trial Judge after the submissions found the notice to defend incompetent, and entered judgment for the plaintiff as per the writ of summons. On the same 11/4/94, learned Counsel for the defendant filed a motion on notice for the following orders:-
(1) An order setting aside the judgment entered against the defendant in the undefended list on the 11/4/95 on grounds of a defective notice of intention to defend.
(2) An order allowing the defendant to raise the objection as to jurisdiction, which was meant to have been taken on the 11/4/95.
(3) An order allowing the defendants to amend the affidavit by re-swearing to it and curing the defect in title of the said affidavit, in support of the notice of intention to defend and to reply on the merit to the submission, made by the plaintiff’s counsel in support of his application for judgment in the undefended list.
On 17/5/95, the defendant filed a motion for an order amending the above motion, to wit, the prayers for amendment were granted, and a motion containing the following prayers was eventually moved.
The prayers are:-
(1) An order setting aside the judgment entered against the defendant in the undefended list on the 11/4/95, on the following grounds:-
(a) That the said judgment is a nullity being a judgment given on a date, when the defendant was to be heard on its preliminary objection as to jurisdiction.
(b) The judgment is one entered in error, the error being the wrongful striking out of the motion dated 27/1/95 and filed on 31/1/95, which had a defective title to the affidavit in support of the notice of intention to defend.
An order allowing the defendant to raise the objection and the jurisdiction which was meant to have been taken on the 11/4195.
OR IN THE ALTERNATIVE
(3) An order relisting the motion dated 27th day of January, 1995 and filed on the 7/2/95, which was struck out on the 11/4/95, and striking out the motion dated 27/1/95, but filed on 31/1/95 and giving a ruling on the merit in respect to the plaintiff’s application for judgment in the undefended list as made on the 11/4/95.
OR IN THE ALTERNATIVE
(c) An order allowing the defendant to amend the affidavit titled counter-affidavit by re-swearing to it and curing the defect in title of the said affidavit, in support of the notice of intention to defend by deleting the word counter and to reply on the merit to the submission made by the plaintiff’s counsel in support of this application for judgment in the undefended list.
The application was refused in its entirety. Thereafter, the defendant appealed to this court against the decision of the lower court dated 11/5/95, on eight grounds of appeal. In compliance with Order 6 rules (2) and (4) of the Court of Appeal Rules, as amended, learned counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. On 26/2/2002, the court granted the appellant leave to amend the brief of argument. A respondent’s brief of argument in response to the original appellant’s brief of argument had been filed on 12/5/2001, but because the order of amendment and deeming was not made until 26/2/2002, the respondent’s brief of argument had to be refiled on 27/3/2002 to accommodate whatever lapses that may have occurred. The appellant’s reply brief was filed on the same 27/3/2002 and in order to facilitate a quick hearing of the appeal, the appeal was taken on the same 27/3/2002, the appeal being an old one of 1998.
In the appellant’s amended brief of argument are six issues raised for determination, whilst four were raised in the respondent’s brief of argument. Before I state the issues, I think it is proper that I deal with the notice of preliminary objection raised by the respondent. At the hearing of the appeal, learned Counsel for the respondent failed to move the court on the preliminary objection as is required by law, in the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285, Obaseki, JSC in treating a situation such as we now have on our hands posited thus:-
“In my opinion, there is substantial merit in the contention of the respondent. Being a preliminary objection, the objection should have been by motion on notice before the hearing of the appeal so that arguments on it can be heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the hearing for the relief prayed for.
This preliminary objection not having been raised and argued at the oral hearing of Court of Appeal, cannot be condemned, as having erred in allowing the then appellant (now respondent) to argue his appeal. Be that as it may, the question may be asked if the objection would have been upheld?”
In the light of the above, it is my view that failure to move the preliminary objection at the hearing of the appeal must be viewed with all seriousness, as it affects the propriety or otherwise of dealing with the preliminary objection. In this case, I am inclined to discountenance the notice of preliminary objection contained in the respondent’s brief of argument. The objection deals with the competence of some of the grounds of appeal. Nonetheless, the court is not precluded from considering the competence or otherwise of the grounds of appeal, which in main, forms the purport of the complaints in the objection filed and striking them out where necessary. See Nsirim v. Nsirim (supra), R.S.C.E. v. Omubo (1992) 8 NWLR (Pt. 260) 456, and Obi v. Ozor (1991) 9 NWLR (Pt. 213) 94
I will thus, peruse the grounds of appeal and towards this end, reproduce those that I consider to be incompetent, and strike them out, before reproducing the competent grounds and deal with them accordingly.
Ground 3
The learned trial Judge erred in law, in healing this matter, when there was no proper service of the writ of summons on the defendant.
Ground 4
The learned trial Judge erred in assuming jurisdiction to hear and try the plaintiff’s case, when on the fact of the exhibits annexed to the affidavit in support of the writ in the undefended list and the composition in the said affidavit no aspect of the transaction the subject matter of the action took place in Bauchi, and when the defendant does not reside at Bauchi.
The complaints in these two grounds are issues coming up for the first time in this court, in as far as the present appeal is concerned.
Though, it borders on jurisdiction, leave should have been sought and obtained before raising it in this court for the first time. See Jov v. Dom (1999) 9 NWLR (Pt. 620) 538, Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1, and Fadiora v. Gbadebo (1978) 3 SC 219. In the circumstances the said grounds 3 and 4 above are incompetent, and are hereby struck out. Likewise, issues (2) and (3) in the appellant’s brief of argument are now non-issues and are hereby struck out. See Schmidt v. Umanah (1997) 1 NWLR (Pt. 479) 75 and Afribank (Nig.) Plc. v. Shanu (1997) 7 NWLR (Pt. 514) 601.
Ground 6
The learned trial Judge erred in entertaining this application in the undefended list as he did on the 11/4/95, when the plaintiff’s counsel had applied for the transfer of the matter from the undefended list to the general cause list on the 7th February, 1995 and also requested for pleadings to be ordered on the same 7/2/95, but pleadings were not so ordered on that day because the Judge ruled that it was necessary to hear parties on jurisdiction before ordering pleadings.
This ground of appeal is not a reflection of what happened in the lower court, as it is not contained in the record of proceedings.
There is nothing in the ruling appealed against that the matters raised were canvassed. In the circumstance, this ground is struck out. As a matter of fact, neither was an issue raised in respect of this ground of appeal, nor argument canvassed thereon. The ground can therefore, be just as well deemed to have been abandoned and I strike it. See Schmidt v. Umanah (supra), Afribank (Nig.) Plc. v. Shanu (supra), and Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524.
Ground 7
The learned trial Judge erred in disallowing the defendant’s counsel an amendment to the heading of the affidavit relating to the notice of intention to defend by not directing the defect on the said title to the affidavit to be corrected and resworn before a Commissioner for Oath and holding that it was too late to do so, when the law allows defects in proceedings to be amended at any stage before judgment and judgment had not been entered at the stage in which the application to rectify the error in respect to the affidavit in respect of notice of intention to defend was made.
It is instructive to note that this ground may have emanated from the second ruling of the lower court in which an application with a prayer for the amendment of an affidavit was included, and definitely not from the first ruling of 11/4/95, against which this appeal was filed. This is evidenced by the first paragraph of the notice of appeal on page 65 of the printed record of proceedings. This ground, in my opinion is also not competent as it is not related to the appeal and should therefore be struck out. It is hereby struck out. See Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 533. In effect issue (5) to which the ground is married is also struck out. See the case of Schmidt v. Umanah e.t.c. above.
That leaves us with grounds (I), (2), (5) and (8) which to my mind are competent grounds. The grounds are:-
Ground 1
The learned trial Judge erred in hearing the matter in the undefended list and entering judgment when the
defendant had raised objection as to the jurisdiction and competence of the court to hear the matter and had applied that the matter be struck out.
Ground 2
The learned trial Judge erred in law in hearing the matter on the undefended list on the 11th April, 1995, and entering judgment for the plaintiff as per his claim in the undefended list when the matter was not fixed for hearing on the 11th April, 1995, but was fixed for the determination of the issue of jurisdiction of the court.
Ground 5
The learned trial Judge erred in entertaining the matter in the undefended list, when the plaintiff’s claim is not for liquidated money demand.
Ground 8
The trial Judge erred in not giving the defendant’s counsel a fair hearing in this matter and thereby occasioning miscarriage of justice.
The trial Judge erred in not giving the defendant’s counsel a fair hearing in this matter and thereby, occasioning miscarriage of justice.
On realising that the record of proceedings was attacked, I called for the original hand written record of proceedings to ascertain the efficacy of the attack. I went through the whole record, and discovered that the records of 7/2/95 and the beginning of 11/4/95, were missing from the file. In view of these discrepancies, a Registrar of this court went to Bauchi, where the case was heard with the original file and a letter to the Chief Registrar requesting a verification of the record, but he came back with neither a reply nor the missing proceedings. According to the Registrar they could not be found and he was informed that the learned trial Judge has since died. The fact that they could not be found in my view signifies that either what transpired on those days were not recorded or that they were conveniently removed from the record, and thus confirms the genuiness of the attack and allegation by learned counsel for the appellant. At any rate, the court invited counsel for both sides to address it on this anomaly, just to obviate the likely complaint on fair hearing. When they both appeared the following transpired:
“Court: In view of the allegations of non-recording of some of the submissions of learned Counsel for the appellant, and the non-recording of some of the proceedings, the court looked at the original hand written record of the lower court to ascertain the true position. After a careful perusal of the hand written record, the court could not find the proceedings of 7/2/95 and 11/4/95 complained of. It then sent a Registrar to the Bauchi State High Court with both the hand written and printed record, the complaint and for a possible trace of the missing records but they are nowhere to be found. That is why the court decided to write both counsel to address it on this situation.
Irorakpor: After reading through the original hand-written record of proceedings, I concede that the proceedings of 7/2/95 and 11/4/95 are not there. I however, take the record on pages 17 and 18 of the printed record as being correct. Since it was the duty of the appellant to prepare the record, they are responsible for what is contained in the printed record of proceedings. I concede that the record of proceedings have shortcomings, and will ask the court to make whatever order it deems fit.
Ishie: In the circumstance, I leave everything to the court to make whatever order it deems fit.”
I will resolve the shortcoming in favour of the appellant in the circumstance.
I think it proper to commence the treatment of this appeal with issues (a) and (b) in the appellant’s brief of argument, which read as follows:-
(a) Whether the judgment which was entered in this suit on the 11/4/95, was valid having been entered on a day when the matter was fixed for the defendant’s counsel to argue the objection to jurisdiction and not for hearing.
(b) Whether the defendant/appellant was given a fair hearing in this case.
In canvassing argument on this issue, learned Counsel for the appellant had argued that entering judgment on 11/4/95, when the suit was not fixed for hearing, but to enable the appellant’s counsel raise the issue of jurisdiction invalidates the judgment. She placed reliance on the cases of U.B.A. Kano v. Bauchi Meat Products Ltd. (1978) NMLR 42, (1978) 9,10 SC 51; Olubusola Stores v. Standard Bank (1975) 4 SC 51. Learned Counsel for the respondent has in his own brief of argument contended that the judgment was valid and proper, and referred to Order 23 rule 1 of the Bauchi State High Court (Civil Procedure) Rules, and the case of Ben Thomas Hotels v. Sebi Furnitures (1989) 5 NWLR (Pt. 123) 523, (1989) 12 SCNJ 171. I agree that the provision of Order 23 rule 1 is applicable, but in my view, the most relevant rules in respect of this argument are rules (3) and (4) which read:-
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 him 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.
(4) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended list, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.
It is on record that, the learned Counsel for the defendant filed a notice of intention to defend supported by a claim on 31/1/95, and thinking that she is probably late, and treading the path of caution, on that same 31/1/95 filed a motion on notice for extension of time to file the notice of intention to defend. This motion was supported by an affidavit, which paragraph (b) states thus:-
(b)That the notice of intention to defend and affidavit in support are attached to the affidavit and marked exhibit ‘A’
These aforementioned documents were not exhibited, and I believe realising the omission, learned Counsel for the defendant again filed another motion (containing the same prayers as the ones sought in the motion filed on 31/1/95) on 7/2/95, this time, correcting the omission in the earlier motion by exhibiting the notice of intention to defend and the supporting affidavit to the notice of intention to defend, to the supporting affidavit to the motion, even though the documents were not marked. The confusion that subsequently followed emanated from the duplicity of the applications and notice of intention to defend. Learned Counsel for the defendant created the confusion, and further compounded the situation by withdrawing the latter motion, which to my mind was the correct application she should have moved, because it had all the documents required for the purpose of the exercise. In moving the motion she chose to move on 11/4/95, she made the following announcement to the court:
“Ishie, E. O.: I intend to move my motion dated 27/1/95 filed on 31/1/95, with receipt No. 453558 and with the leave of the court.”
Then the court in response ordered thus:-
“Motion dated 27/1/95 with different receipts Nos. 453558, 453598 and 486407 struck off.”
It follows that, even the motion that she moved on that day had already been struck out by the court, for it bore receipt No. 453558. Be that as it may, on the preceding date of 7/2/95, learned Counsel for the defendant, (as is reflected in the already reproduced portion of record of proceedings), expressed her intention to raise the issue of jurisdiction, and the learned trial Judge in acknowledging that specifically adjourned the case specifically for that purpose. There is nothing on record that show that the learned Counsel for the appellant raised the issue on the adjourned date, and her complaint now is that the learned trial Judge on the adjourned date refused to take the objection to jurisdiction, but suo motu raised the issue of endorsements of receipts on motion papers and when she sought an adjournment to regularise the issue, the learned Judge refused to grant the adjournment, but advised her to withdraw one of the motions. As a matter of fact according to learned Counsel for the appellant the case was adjourned to 11/4/95 at the instance of the plaintiff because he could not properly reply to arguments on jurisdiction. All these were not recorded. Learned Counsel for the respondent refuted the above allegations in his brief of argument, and in fact, described the attack on the record as wicked. I am afraid that the word ‘wicked’ should have been used the other way round, for indeed, the said proceedings are not in the original record of proceedings, and we have not succeeded in tracing them. Someone, somewhere, and somehow must have realised that the attack on the record was justifiable and made sure that the portions of the original record did not get to this court. Learned Counsel for the appellant has definitely satisfied this court that this court is not seized of all that transpired on 7/2/95 and 11/4/95. In the circumstances, the court not seeing the proceedings complained of, after even taking the trouble to secure them, is bound to accept the submissions of learned Counsel, for to disagree with her will occasion miscarriage of justice, since it has no material to fault the argument with. I have no doubt whatsoever in my mind that the respondent was not given the opportunity to be heard on the issue of jurisdiction, and was therefore denied the right of fair hearing. The case of Oseni v. Dawodu (1994) 4 NWLR (Pt. 339) 390, (1994) 4 SCNJ 191M relied upon by learned Counsel for the respondent is not apposite to the instant case.
The fact remains that with the materials before the court, e.g. notice of intention to defend and the issue of jurisdiction raised, or proposed to be raised, (it cannot be said that Rule 4 of Order 23 above has not been complied with, especially since the learned trial Judge has not refused leave to defend) the learned Judge should not have proceeded to enter judgment on the said 11/4/95, as though no steps had been taken by the appellant. In the light of these arguments, I resolve the above two issues in favour of the appellant, and so the grounds (1), (2) and (8) to which they are married succeed and they are hereby allowed. I don’t think I need bother to deal with the remaining surviving issue and ground of appeal, in view of the findings above, for whatever is decided thereon will not make any difference to the outcome of the appeal. The end result is that the appeal succeeds and it is hereby allowed. The judgment of the lower court is set aside, and I hereby, order that the case be transferred to the general cause list to be heard on the merit by another Judge. I award N5,000.00 costs in favour of the appellant against the respondent.
Other Citations: 2002)LCN/1193(CA)
