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5 NWLR (Pt. 705) 129
JOSEPH JEREMIAH UMOREN
ISA AYO SALAMI
Appellant absent and not represented
R.I. Idakwoji for the respondent
PRACTICE AND PROCEDURE – Issues not raised before the trial Judge – need to obtain leave of court on appeal.
PRACTICE AND PROCEDURE – Undefended list procedure – leave to defend action – when it will be granted – what court will consider.
MAHMUD MOHAMMED, JCA ( delivering the leading judgment)
This is an appeal against the judgment of Kurada J. of the Kaduna State High Court of Justice sitting at Kaduna and delivered on 19/3/98. In the action filed under undefended list by the respondent who was the plaintiff, the claims were for:-
(a) The sum of N359,380.00 being money owed by the appellant to the respondent for the supply of tarpaulins which the appellant had failed to pay; and
(b) 21% interest per annum from 10/9/97 until judgment is delivered and thereafter 10% interest until judgment is finally liquidated.
As the action was filed under undefended list, the appellant as the defendant in accordance with the rules of the lower court, Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987, duly filed its notice of intention to defend the action together with an affidavit in support of that notice. The learned trial Judge after considering the affidavit in support of the action and the affidavit in support of the notice of intention to defend the action, in a considered ruling delivered on 19/3/98, came to the conclusion that the appellant’s affidavit in support of its notice of intention to defend the action did not contain any defence to the action on the merit to justify allowing the appellant to defend the action. Consequently, the learned trial Judge proceeded and entered judgment for the respondent in terms of his claim contained in the writ of summons. The appeal is therefore against that judgment.
The facts of the case may be briefly stated thus: The respondent was on 23/8/97 given an internal order form of the appellant for the supply of some quantities of tarpaulins without stating the prices at which the materials were to be supplied. The respondent trading under the name of ACAS (NIGERIA) ENTERPRISES, supplied the tarpaulins and delivered the same to the appellant accompanied by his sales invoice dated 10/9/97 stating the prices of the various items of the tarpaulins supplied. The appellant however responded by writing to the respondent on 30/9/97, a letter raising objection to the prices quoted on the respondent’s sale invoice and requested for the adjustment of the prices. The respondent thereupon briefed his counsel who responded on his behalf on 15/10/97 by giving the appellant two weeks to pay for the tarpaulins supplied at the prices quoted by the respondent in his invoice. It was when the appellant failed to meet the demand of the respondent that the present action was filed on his behalf by his counsel at the court below which at the end of the hearing of the undefended suit, entered judgment for the respondent in the sum claimed with interest.
The notice of appeal filed by the appellant to challenge this decision of the court below contained at pages 24-26 of the record of this appeal has the following two grounds of appeal –
It is from these two grounds of appeal that the appellant distilled 3 issues for the determination of the appeal in its brief of argument. The issues are:-
In the respondent’s brief of argument however, only 2 issues were formulated from the 2 grounds of appeal filed by the appellant. The issues are –
It is observed however, that having regard to the 2 grounds of appeal contained in the appellant’s notice of appeal filed to challenge the judgment of the court below, which grounds of appeal I have earlier quoted in this judgment, there is no ground of appeal at all challenging the decision of the court below that the signing and collecting the tarpaulins supplied by the respondent to the appellant constituted the acceptance of the price by the appellant. Therefore in the absence of a ground of appeal in the notice of appeal to support the appellant’s issue No. 3 and the respondent’s issue No. 2 in the respective briefs of argument filed by the parties in this appeal, the issues have no legs to stand upon. This is because the law is indeed well settled that where the issue formulated for the determination of an appeal is neither related to nor can be distilled from any of the grounds of appeal filed by the appellant, the issue is not arguable in support of the appeal and is afortiori incompetent and ought therefore to be struck out. It is in compliance with this requirement of the law that the Supreme Court struck out the only issue wrongly formulated to determine the appeal in the case of Omagbemi v. Guinness Nigeria Ltd. (1995) 2 NWLR (Pt. 377) 258 at 266 where Uwais JSC clearly stated –
&With or without the preliminary objection, which in any case has been withdrawn and struck out, a close look and careful scrutiny of the lone issue formulated vis-a-vis each of grounds 1, 3, 5, 6, 7, 8, 9 and 10 all of which are set out above, clearly indicates that the lone issue is neither related to any or distilled from each or all of these grounds. Where such is the case the issue is unarguable and is afortiori incompetent and ought therefore to be struck out. See Bennett Ifodiorah & 4 Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt. 74) 5 at page 16; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 733; National Bank of Nigeria Ltd. v. Nigerian External Telecommunication Limited (1986) 3 NWLR (Pt. 31) 667; and Omonuwa v. Oshodin (1985) 2 SC 1 at page 8; (1985) 2 NWLR (Pt. 10) 924”.
In the instant case therefore, in the absence of any grounds of appeal to which issues No. 3 in the appellant’s brief of argument and Issue No. 2 in the respondent’s brief respectively can be related, the issues are incompetent and accordingly are hereby struck out.
Similarly, it is also apparent from the record of proceedings of the court below that issue No. 2 in the appellant’s brief of argument did not arise in the course of the proceedings of the trial court hearing the undefended suit of the respondent. Therefore the trial court did not have the opportunity to consider and decide on the issue in its judgment now on appeal in this court. This of course means that the issue is being raised by the appellant for the first time before this court. The law is however well settled that an appellant can not be allowed to raise a fresh or new point on appeal without the leave of the Appeal Court having been first sought and obtained to canvass the fresh point. See Okesuji v. Lawal (1991) 1 NWLR (Pt.170) 661; and Oshatoba & Ors. v. Olujitan & Ors. (2000) 5 NWLR (Pt. 655) 159 at 172 where Iguh JSC stated as follows:-
There can be no doubt that the question of jurisdiction, being radically fundamental can be raised at any stage of a proceeding and even for the first time in court of last resort, such as the Supreme Court. Management Enterprises Ltd. & Ors. v. Jonathan Otusanya (1987) 2 NWLR (Pt. 55) 179. Such an issue must, however, be properly raised before the court may rightly entertain the point. This is because an appellate court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the lower court”. (Italics supplied).
In the present case now on appeal, there is no dispute at all that the appellant as the defendant in the undefended suit in the court below did not raise the issue of whether the trial Judge was right to have heard the suit on the undefended list in the affidavit accompanying the notice of intention to defend the suit which was considered by the trial court before arriving at its decision. Thus, as the appellant had not sought and obtained the leave of this court before raising the fresh point now being raised in the appellant’s ground one of the grounds of appeal and issue No. 2 in the appellant’s brief of argument arising from that ground of appeal, both the ground of appeal and the issue arising from it are incompetent and are accordingly hereby struck out.
In the result, the only issue remaining to be determined in this appeal in both the appellant’s and the respondent’s briefs of argument is whether the affidavit in support of the appellant’s notice of intention to defend the suit had disclosed a defence on the merit to the respondent’s claims to justify allowing the appellant to defend the suit. In support of this issue, learned counsel to the appellant had argued that the appellant’s affidavit in support of its notice of intention to defend had disclosed the following defences –
That as no counter affidavit was filed by the respondent to counter these defences, the appellant should have been allowed to defend the action when several cases are taken into consideration, particularly the cases of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234 and AgroMillers Ltd. v. C.M.B. (1997) 10 NWLR (Pt. 525) 469 at 477.
For the respondent however, it was contended that the appellant’s affidavit in support of its notice of intention to defend did not disclose any good or triable defence to warrant granting the appellant leave to defend the action. Reliance was placed on a number of cases including the case of Okeke v. Nicon Hotels Ltd (1999) 1 NWLR (Pt. 586) 216at 222.
The law is indeed well settled that the undefended list procedure prescribed under Order 22 rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1987 like corresponding provision in the High Court (Civil Procedure) Rules of other states in Nigeria, is a truncated form of ordinary civil hearing designed to ensure quick dispensation of justice but not at the expense of fair hearing. Thus, where a defendant in response to the action against him filed under the rules had filed a notice of intention to defend the action duly supported by an affidavit disclosing a defence on the merit, such defendant ought to be given leave to defend the suit thereby resulting in transferring the suit to the general cause list for hearing. See Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 342; and Peat Marwick, Ani, Ogunde & Co. v. Okike (1995) 1 NWLR (Pt.369) 71. It is also settled that it is desirable for the court exercising its powers under the undefended list procedure to call into play a liberal approach when scrutinising the affidavit of the defendant in support of the notice of intention to defend, in order to determine whether or not a defence on the merit had been disclosed to justify granting the defendant leave to defend the action. See Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 and Santory Co. Ltd. v.Elabed (1987) 12 NWLR (Pt. 579) 538.
In the instant case, the relevant facts in support of the respondent’s claims against the appellant are contained in paragraphs 4 to 18 of his affidavit in support where he averred:-
The relevant facts in the appellant’s affidavit in support of its notice of intention to defend the suit on the other hand are contained in paragraphs 3 to 8 of that affidavit as follows at page 15 of the record:
It is quite clear from the facts contained in the affidavits quoted above that at least paragraphs 5 and 6 of the appellant’s affidavit in support of its notice of intention to defend the suit had raised a defence showing that there was no agreement between the parties on the actual prices at which the respondent was to supply the items of tarpaulins the appellant asked him to supply. To me, that defence qualifies as a defence on the merit within the rules to justify allowing the appellant as the defendant, leave to defend the action by transferring the same to the general cause list for hearing and determination.
It is quite significant to note that having regard to the affidavit in support of the respondent’s claims together with all the documents exhibited thereto, particularly exhibit ‘A’ the Internal Order Form, exhibit ‘B’ the respondent’s sales invoice containing the prices at which he supplied the items of tarpaulin and the appellant’s letter to the respondent exhibit ‘C1’ raising objection to the prices at which the items ordered were supplied. It is quite clear without even resorting to the appellant’s affidavit in support of the notice of intention to defend the action, that the main dispute between the parties in the transaction was over the prices of the items. There is no doubt at all that unless that dispute is first resolved between the parties, it is not possible to ascertain the correct amount due to the respondent, thereby turning the sum of N359,380.00 being claimed by the respondent in the undefended suit into unliquidated claim, taking it out of the purview of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987. This is because the main dispute over the prices of the items supplied is not one that can be resolved under the undefended list proceedings of Order 22 of the rules of the trial court. The lower court was therefore in error in holding that the appellant’s affidavit did not disclose a defence on the merit to the action to justify granting it leave to defend the action.
In the result, this appeal succeeds and it is hereby allowed. The judgment of the trial court delivered on 19/3/98 in favour of the respondent is hereby set aside. In its place, an ORDER granting the appellant leave to defend the action against it by the respondent is hereby made. Therefore the respondent’s claims on the writ of summons dated 2/2/98 shall be and are hereby transferred to the general cause list of the trial court to be heard on pleadings by another Judge of that court. There shall be N3,000.00 costs to the appellant.
ISA AYO SALAMI, JCA: I agree with the conclusion arrived thereat in the well reasoned judgment of my learned brother, Mahmud Mohammed, JCA, which has just been delivered. I have nothing further to add. I adopt the reasoning contained therein and the conclusion arrived thereat to be mine.
I also agree with all the consequential orders, including the order as to costs proposed in the judgment of my learned brother, Mohammed, JCA..
JOSEPH JEREMIAH UMOREN, JCA: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mohammed J.C.A. I entirely agree with his reasoning and conclusion. I have nothing to add to a judgment so ably couched. I will also allow the appeal and abide by all consequential orders made by him including order as to costs.
Cases cited in the judgment
AgroMillers Ltd. v. C.M.B (1997) 10 NWLR (Pt. 525) 469.
Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 342.
Ifediora & Ors. v. Ume & Ors. (1988) 2 NWLR (Pt. 74) 5
Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737.
Macauly v. Nal. Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283.
Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR (Pt. 74) 5
National Bank of Nig. Ltd. v. Nigerian External Communication Ltd. (1986) 3 NWLR (Pt. 31) 667
Nishizawa Ltd. v. Jethwani (1984) 12 SC. 234.
Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718
Okeke v. Nicon Hotels Ltd (1999) 1 NWLR (Pt. 586) 21.
Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661.
Omagbemi v. Guinness Nigeria Ltd (1995) 2 NWLR (Pt. 377) 258.
Omonuwa v. Oshodin (1985) 2 NWLR (Pt. 10) 924
Oshatoba & Ors v. Olujitan & Ors (2000) 5 NWLR (Pt. 655) 159.
Peat Marwick, Ani, Ogunde & Co. v. Okike (1995) 1 NWLR (Pt. 369) 71.
Santory Co Ltd. v. Elabed (1987) 12 NWLR (Pt. 579) 538.
Rule of court referred to in the judgment
Kaduna State High Court (Civil Procedure) Rules 1987. Or 22 R 1 & 2