3PLR – JIDE TAIWO & CO V. DANBARE TRAVELS AGENCY LIMITED
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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JIDE TAIWO & CO
V.
DANBARE TRAVELS AGENCY LIMITED
COURT OF APPEAL KADUNA JUDICIAL DIVISION
10TH JANUARY 2001
CA/K/8/99
3PLR/2001/181 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
RABIU DANLAMI MUHAMMAD
VICTOR AIMEPOMO OYELEYE, OMAGA
JOSEPH JEREMIAH UMOREN.
REPRESENTATION
A.L. Yusuf Esq. – for the appellants.
Abdullahi Idris Umar Esq. – for the respondent.
MAIN ISSUES
PRACTICE AND PROCEDURE – ACTION – Suits against unincorporated business enterprises in their business names – whether proper – purport of Order 11 Rules 9 and 26 of Kano State High Court (Civil Procedure) rules 1988 considered.
ESTATE AGENCY – commission on a sale which has been set aside – whether an estate agent can retain same.
PRACTICE AND PROCEDURE – Affidavit – whether document can be tendered by referring to it in an affidavit.
MAIN JUDGMENT
JOSEPH JEREMIAH UMOREN, JCA: This appeal arose out of the judgment of Wada Umar Rano J. of Kano High Court, in suit No. K/123/98 dated 15/10/98. Judgment was entered in favour of the plaintiff against the 1st defendant for the sum of N250,000.00.
The facts that gave rise to this appeal are summarized and set out below as disclosed by the parties affidavits.
The suit was commenced in the High Court and was duly placed on the undefended list. The defendants offered to the plaintiff, property at No. 7. Katsina Road, Kano for sale which the plaintiff accepted. The defendants were valuers and Estate Agents. The property for sale was mortgaged to Gamji Bank Plc. who marketed it through the defendants. Soon after taking possession of the property by the purchaser, the sale was challenged and set aside by the Kano State High Court No. 2. Before the sale was set aside the defendants in that court, now appellant in this court asked for and received what may be described as their fee/commission the sum of N250,000.00. After nullification of the sale, Gamji Bank Plc returned the purchase price to the plaintiff. The defendants did not however refund to the plaintiff the sum of N250,000.00 paid to them in respect of the sale of the house which was nullified by the court. The plaintiff consequently filed this action in the court below to recover the said sum of N250,00.00 from the defendants. The defendants did not deny receiving the N250,000.00. But claimed to have collected same for service rendered to the plaintiff.
All relevant documents were filed and served. The writ of summons together with a supporting affidavit, duly placed on the undefended list together with exhibits A,B,B1, C and D. The defendants filed a joint notice of intention to defend together with an affidavit and Exhibits attached thereto – Exhibits OA2.
Counsel chose to file written addresses/arguments. On 15/10/98 the trial court entered judgment for the plaintiff for the N250,000.00 claimed against the 1st defendant. The name of the 2nd defendant was struck out for being wrongly sued.
Being dissatisfied with the decision of the lower court, the defendant appealed to this court against the whole decision on seven grounds. They are enumerated hereunder with their particulars.
GROUND 1
The learned trial judge erred in Law when the held that the first defendant was properly sued in its firm name by the combined effects of order 11 rules 9 & 26 of the High Court Civil Procedure Rules 1988 of Kano State and the case of Gani Fawehinmi v. N.B.A. (No.2) (1982) 2 NWLR (Pt. 105) page 558 at 645 and that the 1st Defendant personally acted in collecting the N250,000.00 from the plaintiff.
PARTICULARS OF ERROR
(a) That order 11 rules 9 and 26 of the High Court Civil Procedure Rules 1988 of Kano State is not applicable to entitle the plaintiff to sue the 1st defendant Jide Taiwo & Co. in that name as there is no evidence before the trial court indicating the person or persons who are carrying on business in the name of Jide Taiwo & Co. nor is there any evidence showing that any person or persons claimed or alleged to be liable as partners.
(b) There is no evidence before the court that some particular persons are carrying on business as partners in Jide Taiwo & Co. or that Jide Taiwo & Co is a partnership firm.
(c) That the case of Gani Fawehinmi v. NBA (No.2) (1982) 2 NWLR (Pt. 105) page 598 at 645 is not relevant to this suit to entitle the 1st defendant to be sued in this suit in the name of Jide Taiwo & Co.
(d) That the plaintiff ought to have indicated in it’s affidavit in support of the Writ of Summons the name of the person carrying on business in the name Jide Taiwo & Co. and state that such person was carrying on business in the name and style of Jide Taiwo & Co.
(e) That the trial court ought to have struck out the name of the 1st defendant and the entire suit instead of holding that the defendant was properly sued.
(f) That the trial court after finding that the defendant acted personally in collecting the N250,000.00 and not as agent of Gamji Bank of Nigeria Plc, the trial court consequently contradicted itself when it later held that defendant acted for and on behalf of Gamji Bank of Nigeria Plc and ought to collect its commission from it and not from the plaintiff.
(g) That Jide Taiwo & Co. is not a juristic person.
GROUND 2
The learned trial judge erred in law when he held that the depositions in paragraphs 5 and 6 of the affidavit in support of the writ of summons the sale transaction between the plaintiff and Gamji Bank in respect of No. 7 Katsina Road, Kano has been nullified by Kano High Court No. 2 is deemed established on the ground that the said paragraphs was not controverted when there was nothing to controvert in the said paragraphs 5 and 6 of the said affidavit in the circumstances of this case.
PARTICULARS OF ERROR
(a) That paragraphs 5 and 6 of the affidavit supporting the plaintiff’s writ of summon which merely stated that the sale of the No. 7 Katsina Road, Kano was challenged in the High Court No. 2 are not sufficient nor admissible to establish that the sale of the said house was challenged in the High Court and that the High Court gave judgment/ruling setting aside the sale and therefore need to be controverted in law.
(b) That paragraphs 5 and 6 of the affidavit supporting the writ of summons did not state the suit numbers and particulars of the suit in which the sale allegedly set aside.
(c) That the only admissible evidence to prove that the sale was challenged and set aside by the High Court is the original or certified true copy of the proceeding or judgment if any of the court setting-aside the sale which the plaintiff did not attach to its affidavit in support of the writ of summons.
(d) That the Trial Judge ought to have discountenanced paragraphs 5 and 6 of the Affidavit in Support of the Writ of Summons and hold that it was not proved that the sale of the house was challenged and set-aside in any court.
GROUND 3
The learned trial judged erred in law when he found that the defendant was not entitled to commission from the plaintiff on the ground that the sale of the house was subsequently set-aside by the High Court when this finding is not supported by evidence.
PARTICULARS OF ERROR
(a) That the plaintiff merely deposed in paragraphs 5 and 6 of the affidavit
in support of its writ on the Undefended List that the sale of the house was challenged at the High Court No. 2 and that the court set-aside the sale without exhibiting the original or certified true copy of the court process or judgment of the purported High Court No. 2 that set-aside the sale.
(b) That the judgment or proceeding of a High Court being public document can only be proved by producing the original or certified true copy thereof.
(c) That there is no admissible evidence before the court to show that the sale of the house was challenged and set aside by the High Court No. 2.
(d) That there was no evidence before the trial court that the 1st defendant was a party to the purported suit, if any, in which the sale of the house was challenged and set aside nor was the 1st defendant a party to the suit.
(e) That the purported judgment of the High Court, if any, is not binding on the 1st defendant as it was not a party to nor aware of the existence of the suit in which it was given, to deprive it to the N250,000.00. Agency Fees paid to it by the plaintiff.
GROUND 4
The learned trial judge erred in law when he made the finding that paragraph 8 of the affidavit in support of the writ summon is to the effect that upon the setting aside of the sale Gamji Bank Plc refunded the purchase price to the plaintiff was not controverted by the defendant when such finding is not supported by evidence and thereby occasioned a miscarriage of justice as the court relied on the finding in holding that the 1st defendant is not entitle to the N250,000.00 paid to it.
PARTICULARS OF ERROR
(a) That the transaction for the sale of the house was made in writing as it involved organized limited liability company and firm whose transaction are always made in writing.
(b) That the deposition in paragraph 8 of the affidavit in support that consequent upon the setting aside of the sale Gamji Bank of Nigeria Plc refunded the purchases price to the plaintiff is no sufficient evidence to prove that Gamji Bank of Nigeria Plc did refund the purchase price as the plaintiff did not annex any document to its affidavit showing that Gamji Bank refunded the purchase price to necessitate the paragraph 8 of the affidavit in support to be controverted.
(c) That there is no admissible evidence before the trial court to prove that the sale of the house was set aside to necessitate the refund of the purchase price, as alleged, by the Gamji Bank Nigeria Plc.
(d) That the trial judge ought to have discountenanced the said paragraph 8 of the plaintiff’s affidavit supporting the writ of summons instead of replying on it to hold that the 1st defendant is not entitled to commission of N250,000.00.
GROUND 5
The learned trial Judge erred in law when he made the finding that the affidavit evidence before the court did not show that the defendant was acting as agent of the plaintiff and that if the defendant is entitled to any commission same was to be paid by Gamji Bank Plc for and on whose behalf the defendant acted and as such the defendant is not entitled to commission from the plaintiff when the said findings are contradictory and not supported by the evidence before the court.
PARTICULARS OF ERROR
(a) That the defendant’s affidavit in support of the notice of intention to defend especially paragraphs 7, 15, 16, 19 and 20 thereof show that the 1st defendant was paid the N250,000.00 as agency fees on the basis of the agreement between the plaintiff and the 1st defendant to pay 10% of the consideration for the sale of the house for the service rendered.
(b) That the plaintiff in the written address said that it paid the N250,000.00 to the 1st defendant under mistake but the plaintiff did not state in its affidavit in support that it paid the N250,000.00 under mistake.
(c) The burden is on the plaintiff to prove its ascertion that the defendant is not entitled to the N250,000.00 paid to the 1st instance and not for the 1st defendant to prove that it was entitled to the N250,000.00 which burden the plaintiff has not discharged.
(d) The learned trial Judge having earlier in its judgment found that the 1st defendant contracted personally with the plaintiff in collecting the N250,000.00 agency fees ought not to have made a contradicting finding subsequently by finding that if the defendant was entitled to any commission same was to be paid by Gamji Bank Plc for and on whose behalf it acted to deny the applicant it’s right to the N250,000.00 agency fees,
(e) That the trial court cannot rely on any of its contradictory findings to deprive the defendant its right to the N250,000.00 agency fees.
GROUND 6
The learned trial Judge erred in law when he held that the affidavit accompanying the notice of intention to defend did not disclose any defence on the merit to entitle the defendant to defend this suit and he entered judgment against the 1st defendant on the Undefended List in the sum of N250,000.00 plus cost of N1,000.00 when the defendants affidavit disclosed triable issues/dispute and defence on the merit and thereby occasioned a miscarriage of justices.
PARTICULARS OF ERROR
(a) The affidavits filed by both the plaintiff and the defendant show that there is dispute between them as to basis on which the defendant is entitled to the N250,000.00 agency fees, because while the plaintiff in paragraph 11 of its affidavit in support said that the defendant did not render any service to it because it acted (agent) for Gamji Bank of Nigeria Plc the 1st defendant on the other hand contended in its affidavit supporting the notice of intention to defend especially paragraphs 7, 15, 16, 19, and 20 thereof that it was entitled to and was paid the sum of N250,000.00 agency fees by the plaintiff on the basis of the agreement between the plaintiff and the defendant to pay the defendant 10% of the purchase price N250,000.00 of the sale of the house which is the usually agency fees payable to it.
(b) That the plaintiff did not controvert the deposition in the defendant’s affidavit supporting the notice of intention to defend that there was agreement between it and the 1st defendant to pay 10% of the purchase price to the defendant as agency fee.
(c) The plaintiff did not give any reason in its affidavit for paying the N250,000.00 to the defendant but merely submitted in its written address that it paid the N250.000.00 under mistake and counsel submission is not evidence.
(d) Contrary to paragraph 11 of the plaintiff’s affidavit in support of the writ of summons, paragraphs 9 to 20 of the defendant’s affidavit in support of the notice of intention to defend show that the defendant rendered services to the plaintiff to entitled it to the agency fees of N250.000.00.
(e) The combined effect of the conflicts in paragraphs 7, 9, 10 and 11 of the plaintiff’s affidavit in support of the writ of summons and paragraphs 9 to 20 of the defendant’s affidavit in support of the notice of intention to defend show that there is dispute between the parties as to whether the N250,000.00 agency fees paid by the plaintiff to the defendant for services rendered by the defendant is recoverable by the plaintiff in the circumstances of this suit.
(f) The defendant did not prove that the sale of the house was set aside by the High Court nor prove that the defendant was a party to or aware of the suit in which the sale was purportedly set aside for the alleged judgment to be binding on it to deprive the defendant of the N250,000.00 agency fees.
(g) That the triable disputes/issues disclosed in the affidavits of the plaintiff and the defendant can only be resolved by oral evidence and the trial court ought to have transferred the suit to the Ordinary/General Cause List for determination on its merit.
(h) That the trial court was not suppose to determine the merit of the defendant’s defence as disclosed in its affidavit supporting its notice of intention to defend at that state (under the Undefended List) but to determine whether triable issues exist between the parties.
(i) That the trial court ought to have transferred the suit to the General Cause List or even dismissed the plaintiff’s claim instead of entering judgment against the 1st defendant.
GROUND 7
The decision of the trial court is against the weight of the evidence. Briefs of arguments were field and exchanged. The appellant distilled four issues from the grounds of appeal as follows:-
“1. Whether the learned trial Judge rightly held that the 1st defendant a non juristic person was properly sued in its firm name by the combined effects of order 11 rules 9 and 26 of the Kano State High Court Civil Procedure Rules 1988 and the case of Gani Fawehinmi v. N.B.A. (No.2) (1982) 2 NWLR (Pt. 105) Pg. 558 at 645 when there was no evidence before the court in support of such finding.
- Whether the learned trial judge was right when he deemed the mere depositions in paragraphs 5 and 6 of the affidavit in support of the writ of summons on the Undefended List that the sale transaction between the plaintiff and Gamji Bank in respect of No. 7 Katsina Road, Kano has been nullified by Kano High Court No. 2 as established on the ground that the said paragraphs were not controverted when the said paragraphs contained inadmissible evidence.
- Whether in view of the affidavit evidence before the trial court the learned trial judge was right in making the finding that the defendant is not entitled to the agency fee of N250,000.00 which was paid by the plaintiff.
- Whether from the affidavit evidence particularly the affidavit in support of the notice of intention to defend, there are no triable issues/dispute and defence on the merit disclose to warrant the suit to be transferred to the General Cause List for trial on the merit.
The respondent formulated three issues for determination as follows:-
ISSUES FOR DETERMINATION
We are of the humble opinion that the issues that arise for determination in this appeal are as follows:-
“1. Was the appellant properly sued or not
- What is the effect of the respondent’s failure to annex the record of proceeding of High Court No. 2?
- Was the learned trial judge right in entering judgment against the appellant on the Undefended List?”
The respondent related his issues to the appellant’s grounds as follow:-
Issue No. 1 arises from Ground 1
Issue No. 2 arises from grounds 2 & 3
Issue No. 3 arises from grounds 4, 5, 6 & 7.
On appellant issue No. 1, the appellant started off by arguing that paragraph 3 of the affidavit in support of the defendants notice of intention to defend is conclusive that the 1st respondent is not a jurisdic person. This is so even in the judgment of the lower court. He further argues that paragraph 3 of the defendant’s affidavit was never controverted and relies on Globe Fishing Industries Ltd. v. 4 Ors. v. Coker (1990) 11 SCNJ 65 at 78; Ajomale v. Yadnat (1991) 5 SCNJ 178. Consequently, he submitted that the suit against the 1st defendant was incompetent and ought to be struck out, the first defendant not being a jurisdic person. He cited Agbomagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. & Anor (1961) 1 All NLR 116; Ahmed v. Gusau L.G. & Ors. (1980) FNCR 491 at 497. He submits that since the name of the 2nd defendant was struck out in the lower court there being no 1st defendant, the suit should have been struck out. But the trial court instead took cover under 0.11 rr.9 and 26. 0.11, rr.9 and 26 state, inter alia as follows:-
“Any two or more person claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; any party to an action may in such case apply to the court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any firm, to be furnished in such manner, and verified on oath or otherwise, as the court may direct.”
Appellant further submitted that before 0.11, r.9 of the said Kano High Court Civil Procedure Rules (Civil Procedure Rules) could apply, there must be evidence before the lower court showing:-
- That there are two or more persons alleged by the plaintiff to be liable to the plaintiff as partners and
- That the two or more persons are partners in the firm name of Jide Taiwo & Co. The appellant submits that there is no evidence whatsoever before the lower court establishing any of the mandatory requirements stated above to make order 11 rule 9 of the High Court (Civil Procedure Rules) 1988 applicable to this suit.
Furthermore before the provision of order 11 rule 26 of the Civil Procedure Rules could apply, the following must be established:-
- That there is a person carrying on business within the jurisdiction of the lower court and that
- That person is carrying on business is a name/style different from his name.
He further submitted that there is no evidence before the court indicating, the name of the person who is carrying on business in the name of Jide Taiwo & Co. and that person’s name is different from the name of Jide Taiwo & Co. consequently, there is no evidence before the lower court to make the provisions of order 11, rules 9 and 26 of the Civil Procedure Rules of Kano State, 1988, applicable to this suit contrary to the finding of the lower court that the 1st defendant was properly sued. He urges this court to set aside the finding of the lower court and allow the appeal on this issue.
The respondent on the other hand points out that it is clear from exhibit A at page 5 of the record, exhibit A-2 at page 18 of the record, exhibits B and B1 at pages 6 and 7 of the record that the appellant is a firm of estate agents and carries on business in its name and operates a bank account in that name. He argues further that the situation is taken care of by the combined effect order 11, rules 9 and 26 of the Civil Procedure Rule. He also relies on Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558 at 645; Fabno Ind. Ltd. v. United Distillers Plc. He urges the court to hold that the learned trial judge was right when he held that the appellant was properly sued.
It is pertinent to start with an observation. The appellant had argued in this issue that for order 11, rule 9 of the Civil Procedure Rule to apply there must be evidence:
- That there are two or more persons alleged by the plaintiff to be liable to the plaintiff as partners and
- That the two or more persons are partner in the firm name of Jide Taiwo & Co. Furthermore, for the provision of order 11, rule 29 to apply, it must be established:
- That there is a person carrying on business within the jurisdiction of the lower court, and,
- That the person is carrying on business in a name/style different from his name. These propositions are quite attractive, but the appellant supplied no authority for his interpretation of those rules. Therefore, I have my own reservation about the appellant’s own version of the meaning or requirements of the rules.
Order 11, rules 9 and 26 are reproduced elsewhere in this judgment. In my humble view, order 11, rule 9 of the Kano State High Court (Civil Procedure) Rules 1988 postulates that any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose and any party to an action may in such a case apply to the court for a statement of the names and address of persons who were, when the cause of action arose, partners in any such firm to be furnished in a manner, and verified on oath or otherwise as the court may direct. The provisions deal with how to sue two or more persons doing business as partners under a business name. That is not the end of the story. If it were so, the appellant would get off on this issue. But I repeat that it does not provide for an individual doing business under a business name. Order 11, rule 9 on its own does not suffice to allow or permit one person doing business under a business name.
Order 11, rule 26 of the same Civil Procedure Rules allows any persons carrying on business within jurisdiction under a name or style other than his own name to be sued in such name or style as if it were a firm’s name; and so far as the nature of the case will permit, all rules relating to proceedings against a firm shall apply.
By the combined effect of the provisions of order 11, rule 9 and 26 of the Civil Procedure Rules 1988, any unincorporated business enterprise whether of single or multiple ownership within the jurisdiction of the court may be sued as defendants in their business names. In the instant case, the learned trial judge was right when he held that the first defendant was properly sued in its firm name in this suit. See Fawehinmi v. N.B.A. (supra) with the utmost respect, this appeal fails on this issue.
The main plank of the appellant’s case on issue No. 2 revolves around proof by the plaintiff/appellant that the transaction with regard to the nullification of the sale of No. 7. Katsina Road, by a court order. This the appellant contends, cannot be proved merely because the averments of the appellants in paragraphs 5 and 6 of the affidavit in support of the suit on the undefended list were not controverted. Paragraphs 5 and 6 of the said affidavit are set below as follows:-
“5. That soon after take (sic) taking partial possession of the property, the owner of the property challenged the sale………. before the Kano State High Court No.2 on the ground that the Gamji Bank of Nigeria Plc who sold the property did not have the right to do so.”
- That on 14/4/97 the sale was set aside by the High Court No. 2.”
On account of this, the appellant argues, the learned trial judge held that the uncontroverted paragraphs of the affidavit in support of the plaintiff writ of summons, the deposition therein are deemed established that the sale of the House at No. 7 Katsina Road, Kano has been nullified by the High Court. Appellant’s submission is that mere deposition in the affidavit that the sale was set aside was not enough, he should have gone further to attach the judgment or certified true copy of it to his affidavit in order to prove that the sale was set aside; being a public document, pursuant to S. 109 (a) (iii); S. 97 (i) (e); S. 97 (2)(c) of the Evidence Act and the cases of Kelani v. Ajide (19970 Vol. 1 FNLR 125; Okeke v. A-G Anambra State (1992) 1 NWLR (Pt. 215) 60 at 80 para f.; Onono v. Maisango & Anor. (1979) Vol. 2 Four 91. He also canvasses that depositions in paragraphs 5 and 6 of the plaintiff/appellant’s affidavit are inadmissible and need not be controverted. Urges the court to allow this appeal on this issue and set aside the finding of the lower court.
The respondent on the other hand contends that it was not fatal to his case that the judgment was not exhibited. He has reproduced paragraphs (paras) of the affidavit in support of the writ of summons. He argued that the appellant took a gamble by not controverting the respondent’s averments. He submits that the court was right in holding the uncontroverted evidence as established. The respondents further submitted that the crux of the respondent’s claim was that the consideration for which the appellant obtained payment had failed. He urges the court to hold that failure of the respondent to annex the judgment of the High Court that set aside the sale is not fatal because the appellant has not proved that it or the respondent was a party to the proceeding.
A counter affidavit is expected to counter or act or depose to contrary or opposing facts vis – a – vis the affidavit in support. Like a statement of defence in relation to a statement of claim, the main function of a counter affidavit is to be in opposition to the affidavit in support as far as the main issues in dispute are concerned. It is good law that a denial whether in pleading or in affidavit must not give room for any conjecture or speculation. A denying paragraph in an affidavit should specifically deny the particular paragraph or paragraphs in the affidavit in support. It is trite law that a deposition in an affidavit which is not denied must be deemed true by the court unless they are obviously false to the knowledge of the court: See Egbuna v. Egbuna (1989) 1 NWLR (Pt. 106) 773; Agbaje v. Ibru Seafish Ltd. (1972) 5 SC. 50; S.A.I.S. Ltd. v. Metalum (1991) 3 NWLR (Pt. 133) 35; National Bank v. Aue Brothers (1977) 6 SC. 97; Lijadu v. Lijadu (1991) NWLR (Pt. 169) 627. It is unfortunate that the appellant did not appreciate the fact that a document can be tendered by referring to it specifically in an affidavit. In Nwosu v. Imo State E.S.A. (supra) Agbaje JCA at 735 para B added:
“South Eastern Newspaper Corporation v. Anwana (1975) 9 – 11 SC. 55 is authority for the proposition that a document can properly be tendered by referring to it specifically in an affidavit.
This to my mind puts to rest the contention of the appellant that the setting aside was not proved a document that can be tendered. The facts that the High Court had set aside the said sale. If this, were not so, it was for him to controvert that paragraph of the respondent’s affidavit showing the truth of the matter. He might go further to tendered the judgment or certified true copy of it. He did not do that, he sleeps on his right and is now waking up at a very late hour. He cannot now controvert paragraphs 5 and 6 of the affidavit in support of the writ in the appellate court.
I am compelled to cough out a plethora of authorities in support of the decision of the trial on this issue with which I agree. Paragraphs of affidavit not denied are deemed admitted – Agbaje v. Ibru S.F. Ltd. (supra) where an affidavit is filed deposing to contain facts, and the other party does not file a counter- affidavit in return, the facts deposed to in the affidavit would be deemed unchallenged and undisputed: Alagbe v. Abimbola (1978) 2 S.C. 39. See also Co-operative Bank v. Yusufu (1989) 3 NWLR (Pt. 110) 483. Held: 1 Nwosu v. Iimo State E.S.A. (1990) 2 NWLR (Pt. 135) 688 at 701. Held: 29. Ex-parte Ejide (1990) 3 NWLR (Pt. 141) 758. Held: 1.
From what I have said above I respectfully hold that this appeal fails on this issue.
On issue No. 3 the contention of the appellant is that the trial judge wrongly held that the 1st defendant was not entitled to the commission; that is, the commission of N250,000.00 paid to the 1st defendant by the plaintiff on the ground that the sale had been nullified by a court. The very foundation on which the commission was paid was destroyed pursuant to the decision Odufunde v. Rosek (1962) 1 All NLR 98; Lutter v. Mandilas Karaberias (1958) 3 F.S.C. 98. The appellant’s submission is that he had proferred sufficient arguments while arguing appellant’s issue No. 2 that the plaintiff did not prove that the sale of the house upon which the commission was paid was set –aside by the High Court. The appellants adopts and relies upon all the arguments, submission and authorities relied upon in the argument on issue No. 2 in arguing this issue No. 3 to the effect that there is no admissible evidence before the lower court showing that the sale of the house was set aside by the High Court and consequently the allegation that the sale of the house was set aside has not been proved since the plaintiff did not exhibit the original copy of the High Court judgment or certified true copy thereof, which are the only admissible evidence in law to prove such allegation.
I have already answered above in issue No. 2, the points canvassed again in this issue. All arguments on this issue flow from this false assumption that the sale of the house was not set aside.
I state again that the sale of the house was the very foundation upon which the plaintiff built his commission. Once the sale has been set aside, all other things put on it fail. When a judgment is a nullity, it does not exist. You cannot put something on nothing and expect it to stand. It will collapse. See Macfoy v. U.A.C. Ltd. (1961) 3 WLR 1401; (1961) 3 All ER 1169; (1962) A.C. 152. It is my humble view that with the setting aside of the judgment, everything goes with it and the parties are back to the status quo. To return the appellant to the position ante litem, the N250,000.00 must be return to the plaintiff. I will refuse to be drawn into repetition of issue already raised and answered in issue No. 2. This appeal will fail on this issue as well.
On issue No. 4 the appellant contends that two triable issues were raised before the court of trial; viz:
(a) Whether or not the first defendant is entitled to the N250,000.00 commission/agency fees paid to it by the plaintiff.
(b) Whether or not the sale of the house No. 7 Katsina road, Kano was set aside by the High Court; so as to compel the court to transfer the suit to the general cause list.
On (a) above, I am of the view that it is scarce to ascertain agency relationship between the appellant and the respondent. The N250,000.00 paid by the respondent was for service rendered on a consideration that has totally failed when the High Court set aside the sale over which the sum of N250,000.00 was paid to the appellant. I am unable to appreciate facts from which agency relationships between the appellant and respondent could be inferred. What can one say the respondent got by the N250,000.00 he paid to the appellant after the sale of the house was set aside. I still stand by what I had said above based on the decision of Lord Denning in Macoy v. UAC (supra).
On (b) above, I will not repeat myself, having held with respect that the sale was set aside by the High Court on proof of such setting aside. The appellant again contends that the facts disclosed in the defendants/appellant’s affidavit of intention to defend, show good defence on the merit and that a dispute exists between the parties. I am of the view that the words of 0.23 of the Civil Procedure Rules Kano State are clear and unambiguous.
Order 23 rule 3(1) and (2) state as follows:-
Order 23, rule 3(1) “If a party served with the writ of summons and an 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.
Rule 3(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed in the General Cause List and the court may order pleadings or proceed to hearing without further pleadings.”
To remove the action from the Undefended List to the General Cause List is not automatic except the court has given leave to defend to the defendant. To qualify for this leave, the notice of intention to defend must be filed along with an affidavit disclosing a defence on the merit. Despite this, the grant of the leave is still discretionary; and an appellant court is reluctant to interfere with the use of the discretion by the court of trial except the discretion was not made judiciously and judicially. There is nothing on record to show this discretion was wrongly exercised. In E.N.D.C. v. Durunna (1966/67) 10 E.N.L.R. 210 it was held that where the defendant gives notice of his intention to defend but his affidavit does not show reasonable grounds of defence, the case will be heard under Undefended List.
For the foregoing reasons and authorities I have no choice but to hold that this appeal fails on this issue as well. This appeal is unmeritorious and I hereby dismiss the same and affirmed the judgment of the lower court. I assessed costs as N2,000.00 in favour of the respondent.
RABIU DANLAMI MUHAMMAD, JCA.: I agree with the reasoning and conclusion of my learned brother Umoren JCA in the judgment he delivered. He has dealt with all the issues raised in the appeal. I too find no merit in the appeal and I dismiss it accordingly. I abide by the consequential orders made in the leading judgment including the orders as to costs.
VICTOR AIMEPOMO OYELEYE OMAGE, JCA.: The plaintiff in the court below now the respondent in this appeal sued the appellant the defendant in the suit in the court below for recovery of the sum of N250,000.00 it is common ground that the said sum was paid by the respondent to the appellant as fees because the appellant secured on behalf of Gamji Bank, a building property which the respondent bought from the said Bank. In another proceeding the High Court in Kano State set aside the sale of the said house by Gamji Bank to the respondent who now demanded from the appellant in return of the sum of N250,000.00 paid by the respondent to the appellant who negotiated the sale of the house. As said by the respondent in his brief, the negotiation for the purchase of the house has failed. When the appellant issued a writ of summons and sought under the undefended list, order 22, Kano State High Court Civil Procedure, rule for recovery of the said sum. In the affidavit in support of the application the respondent or plaintiff/applicant deposed in paragraph 5, as follows:-
“5. That soon after take (sic) “taking” partial possession of the property the owner of the property challenged the sale of the house before the Kano State High Court No. 2, on the ground that Gamji Bank of Nigeria Plc., who sold the property did not have the right to do so.
- That on 14/4/97 the sale was set aside by the High Court No. 2.”
In the affidavit in support of an intention to defend, filed by the appellant as defendant in the court below, dated 3rd June, 1998, the defendant made no reference to and in particular did not deny the averments made by the plaintiff/applicant, the respondent to the appeal in the affidavit. In the said affidavit the respondent specifically averred that the sale of the house for which fees were said to the appellant has been set aside by an order of court. In his brief of argument in this appeal the appellant has asked in his issue 2 as follows:-
“Whether the learned trial judge was right when he deemed the mere deposition in para, 5 and 6 of the affidavit in support of his writ of summons on the undefendant list that the sale transaction between the plaintiff and Gamji Bank in respect of No. 7 Katsina Road, Kano has been nullified by Kano High Court No. 2 as established on the ground that the said paragraphs contain inadmissible evidence.”
The distillation of issue 2 by the appellant shows no understanding of the procedure in an undefended list; as provided under the Kano State High Court Civil Procedure Rules Order 22. With a little effort at reading it, the issue and submission made above should not have been made. Clearly the appellant, as respondent to the application for judgment under the undefended list in the court below served the plaintiff’s Writ of Summons with the affidavit. The provisions of rule 3(1) of order 22 is as follows:-
“(1) If the party served with a writ of summons and affidavit as provided in rules (1) & (2) hereof delivers to the registrar not less than 5 days before the date fixed for hearing a notice in ruling 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 etc.
(2) Where leave to defend is granted 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.”
From the above, it seems clear to me, that the requirement of law which leads to a hearing under an undefended list procedure is the disclosure by the defendant of a defence on the merit. It is upon this disclosure that the court may exercise its discretion to place the claim on a general cause list in other words if a defendant under the said proceedings fails at the onset to disclose a defence on the merit, he will have no opportunity of giving a testimony as the case will not be placed on a general cause list for hearing. It is noteworthy that issue of or objection on inadmissible evidence which is raised in the appellant’s brief does not arise, since no document is tenderable at the stage of affidavit showing an intention to defend. In the court below the defendant/appellant failed to show an intention to defend on the merit in his affidavit. The court below was entitled to determine the claim of the plaintiff at that stage. I make this contribution to the lead judgment of my learned brother J.J. Umoren, JCA. with which I agree, I only highlight what in my view is common error of practitioner of law on the undefended list procedure.
On the issue of juristic personality of the appellant; the appellant himself raised the issue in his affidavit that it is not juristic. This prompted the applicant in the court below to show as found by the learned trial court that order 11, rules 9, and26 of the Kano State High Court, clothes any business going concern with ability to be cited in a court proceeding with a legal personality. I find no error in the application of the rules by the learned trial court and up hold the judgment of the court below.
I agree that the appeal should fail. It is hereby dismissed. I abide by the consequential order for costs in the lead judgment.
Cases cited in the judgment
Agbaje v. Ibru Seafoods Ltd. (1972) 5 SC. 50.
Agbomagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. & Anor (1961) 1 All NLR 116.
Ahmed v. Gusau L.G. & Ors. (1980) FNCR 491.
Ajomale v. Yadnat (1991) 5 SCNJ 178.
Alagbe v. Abimbola (1978) 2 S.C. 39.
Co-operative Bank v. Yusufu (1989) 3 NWLR (Pt. 110) 483.
E.N.D.C. v. Durunna (1966/67) 10 E.N.L.R. 210
Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773.
Ex-parte Ejide (1990) 8 NWLR (Pt. 141) 758.
Fabno Ind. Ltd. v. United Distillers Plc.
Fawehinmi v. N.B.A. (No. 2) (1989) 2 NWLR (Pt. 105) 558.
Globe Fishing Industries Ltd. & 4 Ors. v. Coker (1990) 11 SCNJ 65.
Kelani v. Ajide (1997) 1 FNLR 125.
Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627.
Lutter v. Mandilas & Karaberias (1958) 3 F.S.C. 98.
Macfoy v. U.A.C. Ltd. (1961) 3 WLR 1401; (1961) 3 All ER 1169; (1962) A.C. 152
National Bank v. Are Brothers (1977) 6 SC. 97.
Nwosu v. Imo State E.S.A. (1990) 2 NWLR (Pt. 135) 688.
Odufunade v. Rosek (1962) 1 All NLR 98.
Okeke v. A-G Anambra State (1992) 1 NWLR (Pt. 110) 417.
Onono v. Maisango & Anor. (1979) Vol. 2 Four 91.
S.A.I.S. Ltd. v. Metalum (1991) 3 NWLR (Pt. 133) 35.
South Eastern Newspaper Corporation v. Anwana (1975) 9 – 11 SC. 53.
Rule of court referred to in the judgment
Kano State High Court (Civil Procedure) Rules 1988 Order 11 Rules 9 and 26, Order 23 Rules 3(1) and (2).
