3PLR – AFRICAN INTERNATIONAL BANK LIMITED V. PACKOPLAST NIGERIA LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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AFRICAN INTERNATIONAL BANK LIMITED

V.

PACKOPLAST NIGERIA LIMITED

COURT OF APPEAL

KADUNA JUDICIAL DIVISION

12TH APRIL, 2001

CA/K/170/2000

3PLR/2001/28  (CA)

 

OTHER CITATIONS

30 WRN 141

 

BEFORE THEIR LORDSHIPS

ISA AYO SALAMI, JCA

MAHMUD MOHAMMED, JCA

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

 

REPRESENTATION

K.T. Turaki Esq., for appellant.

D.D. Onietan Esq., for respondent.

 

BETWEEN

AFRICAN INTERNATIONAL BANK LIMITED

PACKOPLAST NIGERIA LIMITED

MAIN ISSUES

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment given under undefended list – consent of defendant thereto – when cannot and should not be presumed.

PRACTICE AND PROCEDURE – JUDGMENT – Obiter dictum of Supreme Court – whether binding on Court of Appeal.

PRACTICE AND PROCEDURE – JURISDICTION – Jurisdictional issue involving procedural irregularities – whether can be raised for the first time on appeal.

PRACTICE AND PROCEDURE – Judgment obtained by fraud – remedy

 

MAIN JUDGMENT

ISA AYO SALAMI, JCA (Delivering the leading judgment):

 

The plaintiff as per its writ of summons taken out on 9th December 1999 claimed against the defendant a

“refund of the total sum of N109, 879,839,49 expended on the acquisition of the said property”.

The action was duly brought under undefended list after seeking leave of the learned trial Judge to do so under the provisions of order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988.

The synopsis of events leading to this action will be succinctly stated. One M.A. Bello represented to the chairman of plaintiff that he was duly appointed receiver by the defendant, as an unpaid mortgagee, over the assets of one United Agro Ventures Limited lying and situate at KM14, Hadejia Road Kano. The plaintiff’s offer to buy the property of the said United Agro Ventures Limited was accepted. By an agreement entered into on 2nd April 1998 between the plaintiff and the defendant, the defendant sold the assets of the said company to the plaintiff for a consideration of N60, 000,000,00. The plaintiff expended additional N49, 879,839,46 with a view of reactivating the factory. But as at the time of the sale, a petition for the winding up of United Agro Ventures limited had been presented in the Federal High Court, Lagos in suit No. FHC/L/CP/562/97 by Messers First City Merchant Bank Limited, a fact which was within the knowledge of the receiver as well as the defendant, at the time of sale but was never disclosed to the plaintiff.

Messers First City Merchant Bank Limited upon discovering that the property of United Agro Ventures Limited had been disposed off by the defendant during the pendency of the petition for winding up the said company filed an originating summons at the Federal High Court Lagos in suit No FHC/L/CS/513/99 challenging the validity of the sale. The court issued injunction restraining all the parties particularly the plaintiff herein from entering or using the property it acquired at km 14 Hadejia Road Kano pending the determination of the originating summons.

The plaintiff was naturally disturbed and sought explanation from the defendant for the sudden turn of events and was assured that remedial measure would be taken to set aside the injunction. When the promise turned out to be incapable of fulfillment the plaintiff demanded the refund of all the sum of money spent in order to acquire the property. The defendant implored the plaintiff to abide by the outcome of the legal proceeding in suit No. FHC/L/CS/513/99 and a petition the defendant had caused to be addressed to the Central Bank of Nigeria. The plaintiff, no longer having abiding faith in the defendant, instituted the action culminating in this appeal.

The plaintiff sought and was granted leave of the trial court ex-parte to place the suit on the undefended list on 7th December 1988 pursuant to order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules, 1988. The application was supported by an affidavit and the proposed writ of summons.

The suit was, thereafter, duly filed and a copy thereof including the writ of summons, the affidavit in support and such other documents attached therewith were served on the defendant. The matter was fixed for hearing on 23rd day December, 1999 when the defendant was neither present nor represented by counsel. The record before the learned trial Judge showed that the defendant had been served with the writ of summons and that it had notice of the hearing date and also had not taken steps prescribed by the provisions of order 23 rule 3 of the rules, a copy of which was exhibited to the affidavit in support of the writ of summons. The defendant failed or neglected or refused to file notice of its intention to defend supported by affidavit disclosing defence on the merit. The learned trial Judge after hearing learned counsel for the plaintiff entered judgment in favour of the plaintiff pursuance of order 23 rules 4 of the Kano State High Court (Civil Procedure) Rules, 1988.

The defendant was unhappy with the decision of the learned trial Judge. Being dissatisfied appealed to this court on 5 grounds of appeal. In compliance with the provision of order 6 of the Court of Appeal Rules Cap 62 of the Federation of Nigeria, 1990 briefs of argument were filed and exchanged.

At the hearing of the appeal, learned counsel for the defendant (hereinafter referred to as appellant) adopted and relied on the appellant’s briefs. Learned counsel for plaintiff herein after referred to as respondent also adopted and placed reliance on the respondent’s brief.

In each brief of argument, issues calling for determination were identified. The issues framed on behalf of the appellant are two and read as follows: –

“1.     Whether the jurisdiction of the trial High Court had been competently invoked regard being had to the incorporation of a claim for special damages as being constituted in a writ on the undefended list in pursuance of which the respondent obtained judgment on the undefended list.

2. Whether the elements of fraud, misrepresentation and latent concealment of facts in consequence of which the learned trial Judge was misled to place and enter judgment in favour of the respondent on the undefended list does not render the judgment of the Kano State High Court a nullity and liable to be set aside.”

The respondent also framed two issues for determination, which are set out hereunder as follows: –

“(i)     Whether the lower court had jurisdiction to determine the plaintiff’s claim on the undefended list.

(ii)     Whether the lower court was deceived any way into giving judgment in favour of the plaintiff.”

Before dealing with the issue or issues arising for determination in the appeal itself I intend to look into the objections in the respondent’s brief of argument.
Learned counsel for respondent contended that appellant has in its fourth ground of appeal and its second issue for determination sought to raise the issue of fraud. Learned counsel argued that where a judgment is a final judgment on the merit but the person against whom it is obtained complains that it was obtained by fraud the proper step to take to assail the judgment is to file a separate action to set aside the judgment and not by motion. Learned counsel referred to a few cases.

There is substance in the submission of the learned counsel for respondent. There are plethora of decided cases both of this court and the Supreme Court in support of his submission. In the case of Olufunmise v. Falana (1990) 3 NWLR (Pt. 136) 1, 10, Obaseki, JSC stated thus: –

“A judgment, which has been obtained by fraud either on the court or of one of the parties, can be impeached by means of an action which can be brought without leave and is analogous to the former chancery suit to set aside a decree obtained by fraud.”

And in Anatogu v Iweka (1995) 8 NWLR (Pt.415) 547 the Supreme Court relying on its former decision in Olufunmise v Falana (supra) said that the proper manner of assailing a judgment alleged to have been obtained by fraud is a fresh action per Ogwuegbu JSC at 590 of the record: –

“The claim is a new and independent action. Action of this nature do not invite the High Court to rehear the case upon the old material, fresh facts are brought forward and the action is regarded as new………………….”

This principle I agree with the learned counsel for respondent, is as applicable to a judgment obtained in any action under undefended list as is to any other judgment of the High Court. A party cannot seek rehearing of his case on appeal if his ground for rehearing is that the judgment was obtained by fraud be the judgment obtained under undefended or general case list. His remedy lies in bringing a fresh action raising the allegation of fraud. He may appeal if the issue or issues to be contested on appeal are that judgment was wrongly entered in favour of the respondent when he filed a notice of intention to defend with the affidavit in support of the notice “disclosing a defence on the merit” or that the plaintiff’s claim is not made out in affidavit in support of the writ or challenging the competence of the suit. I am strengthened in this view by the decision of the Supreme Court per Nnaemka-Agu JSC in the case of U.T.C. v. Pamotei (1989) 3 SCNJ 79, 124 where it stated in respect of a judgment in an action brought under undefended list thus: –

“Such a judgment is one on the merits which can be set aside only on appeal or by another action say in the case of fraud.”

(Italics supplied)

And this court in the case of Alhaji Abubakar Dan Azumi v Pan African Bank Ltd (1996) 8 NWLR (Pt. 467) 462, 477 stated per Mahmud Mohammed JCA thus: –

“I am of the firm view that any judgment entered under rule 4 of order 23 of the Rules after hearing the case as an undefended suit, the judgment entered thereby is not a judgment in default but a judgment on merits which cannot be set aside on an application by motion. Such a judgment can only be set aside filing a fresh action challenging it on grounds such as fraud…………………………………..”

See also Adegoke motors Ltd v. Dr.Adesanya AND Another (1989) 3 NWLR (Pt. 109) 250,266 and Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 where the Supreme Court held that appeal is rehearing or continuation of the original suit, rather than beginning of a fresh action, hence parties are confined to their case as pleaded in the court below and the matter is determined on the old material placed before the trial court. In this connection, Supreme Court, in the case of Anatogu v Iweka (supra) laid down the procedure to be followed when a party claims that a judgment had been obtained against him by fraud. At pages 573 and 574 of the report Uwais, JSC (as he then was) stated the practice and procedure as follows:-

“I think the dicta James, L. J., in Flower v Lloyd (No. 1) (1877) 6 Ch D 297 at p. 301 describes succinctly the course to be followed in a review case when he said of a review for fraud:

‘ I agree with what has been said by the master of the rolls that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the courts of law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say, ‘you obtained the judgment by fraud, and I will have a rehearing of the whole case’ until that fraud is established, The thing must be tried as a distinct and positive issue; ‘you’ the defendant or ‘you’ the plaintiff obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my counsel, you committed some fraud or kind, and I ask to have the judgment set aside, on the ground of fraud.’ That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried.’

From all the foregoing the learned trial Judge was right in his ruling that no proper foundation had been laid to enable him admit the document sought to be put in evidence. However, he was wrong in holding that his refusal to admit the documents was based on the nature of the case being a review case. Also for the reason aforementioned, the Court of Appeal was wrong to have held that the documents were admissible at the stage they were tendered.”

A party complaining that a judgment obtained was tainted with fraud cannot proceed on appeal since all appeals by virtue of order 3 rule 2 (1) of the Court of Appeal Rules, Cap 62 of the Laws of the Federation of Nigeria, 1990 are required to be heard by way of rehearing. Such a party can only seek for the judgment to be set aside by bringing another action and putting the question of fraud directly in issue and leading evidence in support thereof. It must be the only issue in contention in that suit. In the present proceedings, there is no suit not to talk of statement of claim which has to be examined for particulars of fraud. In the circumstance, ground 4 is not competent for giving rise to issue 2 which raised question of fraud on appeal, it is never done. Both ground 4 and issue 2 arising therefrom are consequently struck out.

The learned counsel for respondent further contended that the grounds of appeal filed when examined critically along with their respective particulars are against the order of 7th December 1988 granting the respondent leave to place the suit on the undefended list. Learned counsel further contended that much of the complaints of the appellant relate to the interlocutory order of the Kano State High Court made on 7th December,1999, the inescapable conclusion is that the first four grounds of appeal of the appellant which are inseparably riddled with complaints against the said interlocutory decision are incompetent for the reasons set out hereunder: –

“(i)     Being interlocutory in nature, any appeal against the decision must be filed within 14 day of the decision. The appellant’s appeal was filed on the 7th day of February 2000, two full months (60 days) after the interlocutory decision of 9th December 1999 was made.

(ii)     No application for extension of time was made by the appellant to appeal from the said interlocutory decision.

(iii)    Being interlocutory and on mixed law and fact no leave was sought to appeal against the said decision,”

Let me promptly make it clear that appeal to the Court of Appeal from the decision of a High Court sitting at first instance on grounds of law is of right while appeal against the decision of a High Court in interlocutory matters on ground of fact at first instance require the leave of either the High Court or this court. The appellant, therefore, requires the leave of the trial court to appeal on ground of facts in an interlocutory matter within 14 day of the ruling and where he failed to so appeal within the time prescribed it requires to seek (i) extension of time to seek leave to appeal, (ii) leave to appeal, and (iii) extension of time to appeal. But is the appellant’s grouse against the interlocutory decision of the learned trial Judge delivered on 7th December, 1999? I do not think so. The crux of the appellant’s complaint which is apparent from its grounds of appeal particularly ground 1 is the award of N49,879,839.49 in addition to the sum of N60,000,000.00 contained in the contract of sale dated 2nd April,1998. Its contention is that the respondent having failed to establish the sum N49,879,539.49 as a debt owed the respondent it fails to be classified as a special damage which must be specially pleaded and strictly proved. The said sum of money does not qualify for a consideration under undefended list. If the learned trial Judge had carefully considered the material placed before him, he would have found that the sale agreement contains a consideration of N60,000,000,00, which appellant paid to the respondent and wanted refund for a consideration which has failed. There is no any other liquidated sum demand contained in paragraph 3. d. of the affidavit in support of the writ of summons which reads:-

“That plaintiff paid an additional sum of N49, 879,839.49 (forty nine million eight hundred and seventy nine thousand eight hundred naira forty nine kobo) in order to reactivate the factory.”

I think the word paid should read spent but the deponent deliberately used paid for a purpose, which was achieved. The deponent was clever but clearly not candid. The undiscerning learned trial Judge swallowed it hook, line and sinker.

 

The respondent could not have paid the said sum to the appellant who are bankers and not technologists or engineers. The respondent did not say it paid this huge sum of money to the appellant to reactivate the factory. The respondent has the burden of so proving. A discerning mind, who appreciates that this sum of money is not a peanut would have been put on inquiry as to whom it was paid and whether African International Bank Limited could have been paid the expenses of reactivating the factory. And if so why was the agreement portentously so silent over it. He could have called for further affidavit to expatiate on it. Failing which he would have refused leave for the matter to be placed on the undefended list notwithstanding appellant’s failure to depose to affidavit showing the defence on the merit because the respondent failed to discharge the burden place on it to show that the money was debt or liquidated money demand. The other option open to the learned trial Judge having granted leave to place the matter on the undefended list was to refuse the claim for failure to prove that the total sum of N109,879,839,49, was a debt or liquidated money demand or grant the claim for N60,000,000.00 which is clear proved to be a debt or liquidated money demand if necessary foundation is laid.

If it eluded the trial Judge at the stage of granting leave to place the matter on the undefended list that the sum of N109,879,839.49 was not wholly a debt or liquidated money demand he has no excuse for not appreciating that the affidavit did not show who owed the respondent the sum of N49,879,839.49 and to whom it paid the said sum of money. If on the evidence before the learned trial Judge the plaintiff failed to show that appellant owed it N49,879,839.49 why did he proceed to make the award to it gratuitously. Since the learned trial Judge was still competent and capable to refuse the claim after he had granted leave for the matter to be placed on the undefended list on the ground that the plaintiff failed to make out his case, in the present circumstance, the appellant could attack the judgment, on the basis that what does not qualify for a claim under the undefended list had been tacked under and treated as such.
This is an attack on the award granted and not the procedure. Appellant says the award was not debt or liquidated money demand and could not have been awarded to the respondent through the procedure he came to court. If he appealed against the decision of 7th February 1999 the appellants would be caught in the web of the case of Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 187 which frowns upon raising issue of jurisdiction for the first time upon appeal when it involves procedural irregularities.

The appellant herein agrees with the procedure for undefended list but contests whether the respondent satisfied the court that its claim was such that can be awarded under that procedure. The appellant is not questioning the regularity or otherwise of the procedure followed to place the matter before the court. Rather whether the respondent placed sufficient material before the court to justify its clinching the trophy. This case is distinguishable from the case of Saude v. Abdullahi (supra). It raises the issue of jurisdiction of the trial court to award the claim when it is not a debt and liquidated sum demand. It can, therefore be raised at any stage even on appeal. Issue for determination must have their roots in the decision against which the appeal is brought.

An issue challenging the jurisdiction of the trial court, in spite of this, can be raised at any stage of the proceedings even at the Supreme Court. The matter complained of touches upon the jurisdiction of the trial court and the appellant is therefore perfectly in order to raise it in this court. See Ogoyi v. Umagba (1995) 9 NWLR (Pt. 419) 283 and Durwode v. The State (2000) 12 SCNJ 1, 8; (2000) 15 NWLR (Pt. 691) 467.

The only outstanding issue on the respondents notice of intention to raise a preliminary objection goes to the nature of the judgment obtained. The respondent contends it is a consent judgment of the trial court, even though it was delivered on the undefended list for the simple reason that neither the defendant nor his counsel was represented in court the day the judgment was delivered. He relied on the cases of Leventis Motors Limited v. G.C.S. Mbonu (1962) NMLR 19, 20 and Abdulkarim v. Incar Nig. Ltd.(1992) 7 NWLR (Pt. 251) 1, 16 per Nnaemeka-Agu JSC. The former case is a mere persuasive decision of the High Court of Northern Nigeria per Reed, J. It is a mere persuasive decision which is not binding on this court. The latter is obiter dictum of the Supreme Court which is also not binding. This court is not bound to follow obiter dictum of the Supreme Court. In spite of this, I have carefully studied the dictum of the learned justice of the Supreme Court and cannot find where he opined that a judgment or decree on the day defendant was not in court or failed to file his notice of intention to defend is tantamount to default judgment which cannot be appealed against without the leave of this court or the trial Judge. It is settled by a long line of authorities that judgment given pursuance of the provision of order 23 rules 1 – 4 of the Kano State High Court (Civil Procedure) Rule is one on the merit and cannot be set aside except on appeal. See U.T.C. v. Pamotei (supra) Dan Azumi v. Pan African Bank Limited (supra). There is therefore no substance in this head of objection which equally fails and is struck out.

Having considered all the objections raised by the respondent the total effect is that the second issue formulated by both parties in their formulation of issues is incompetent and is struck out. In spite of all the onslaught mounted against issue 1,it survives and I propose to proceed to entertain same.

Learned counsel for appellant, in this connection, contended that by the provision of order 23 of the Kano State High Court (Civil Procedure) Rules 1988, a writ of summons, in respect of a claim, can only be issued on the undefended list and marked accordingly upon compliance with three concurrent conditions. Learned counsel then read order 23 rule 1 in appellant’s brief of argument. Learned counsel then went on to argue that only claim for debt or liquidated money demand falls within the ambit of order 23 the fact that respondent claim in the writ is not for a debt incontestable. So also is it for a claim for a liquidated sum demand. Learned counsel conceded that there was agreement for N60,000,000. The learned counsel submitted that there are no affidavit evidence in support of the writ of summons on the undefended list in proof of how further sum of N49,879,839.49 was incurred. Learned counsel submitted that for a claim to be adjudged “liquidated demand” it must be (1) susceptible of being made certain by mathematical calculations, and (2) the facts upon which the calculation is based must be in possession or knowledge of the both parties and indispensably the party to be charged. Learned counsel contended that a claim is not for a liquidated sum demand if the facts upon which it is based are exclusively within the knowledge of one of the parties and not shown to be within the knowledge of the party to be charged. Learned counsel cited the cases of Himma v. Aliyu (1994) 6 SCNJ and Egbunike v. ACB (1995) 2 SCNJ 58.

Order 23 rule1, read in the appellant’s brief of argument, enacts as follows: –

“1.     Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or a liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, enter the suit for hearing in what shall be called the undefended list, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”

(Italics supplied)

The three elements or conditions which must co-exist before a writ of summons in respect of a claim can only be issued on the undefended list and marked accordingly are-

“(a)    A claim to recover a debt or liquidated money demand;

(b)     An affidavit setting forth the grounds upon which the claim is based; and

(c)     An averment stating that in the deponent’s belief the defendant has no defence to the action.”

The question next to be considered and answered is whether the respondent’s writ of summons on the undefended list has been duly constituted to satisfy the three conditions identified above. I agree that the respondent’s claim of N109, 879, 839,49 stated in the writ of the summons is certainly uncontestably not a debt owed the respondent by the appellant. The question now is whether the sum of money qualifies as liquidated money demand? I refer to the definition of liquidated money demand in Blacks Law Dictionary 6th Edition for an answer. At page 930 thereof a liquidated money demand is defined as follows: –

“A claim, which can be determined with exactness from parties agreement…… Amount claimed is a liquidated demand” if it is susceptible of being made certain in amount by mathematical calculations from facts which are or ought to be in possession or knowledge of a party to be charged.”

The contract of sale attached to respondent’s application for a writ of summons on the undefended list to be issued is for a consideration of N60, 000,000.00 There is no further averment in the affidavit accompanying the writ of summons in proof of how further sum of N49, 879,839.49 was incurred. The respondent merely averred that it paid this further sum “in order to reactivate the factory”. The respondent, however, woefully failed to establish to whom the payment was made and expenses incurred in respect of each items of repairs it undertook at the factory and how appellant was liable. To bring it within the definition of liquidated sum demand or debt the excess amount ought to be brought within the knowledge of the appellant and the correct amount should be capable of determination by arithmetical accuracy. All these are missing from the affidavit in support of the writ of summons except the terse assertion of the deponent in paragraph 3.d. thereof, which I quote, once again for ease of reference, hereunder. The deponent, Mohammed Shuaibu deposed at page 56 thus: –

” That the plaintiff paid an additional sum of N49,879,839.49 (forty nine million eight hundred and seventy nine thousand, eight hundred and thirty nine naira forty nine kobo) in order to reactivate the factory.”

As it was observed earlier in this judgment there is no record of the beneficiary of this payment nor of the disbursement of this huge sum of money. There is nothing in the contract of sale suggestive that such sum of money would be paid to the appellant. It is settled that before respondent could be entitled to judgment he has to show evidence that the appellant was liable and how he came to be liable, but there is no scintila of evidence pointing at appellant. Could it be a claim for the expenditure incurred for the reactivation of the factory, which it believed the appellant must be held responsible for his failure to pull through the contract of sale of the factory? I am not given to speculation and would not proceed any further. But before I keep my mouth shut I would observe that it qualifies as special damages, which must be specially pleaded and strictly proved.

But even then the facts upon which the calculation is based must be known to the party to be charged, the appellant in the instant case. Even where the facts upon which calculation is based are known to the party to be charged, it is incumbent on the respondent to set forth the ground upon which the claim is based in an affidavit. The respondent’s writ as well as the affidavit in support failed to show ground upon which it made a claim N109,879,839.49 particularly the sum of N49,879,839.49 thereof. It therefore failed to conform with the provisions of order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988 in respect of N49,879,839.49. There is basis or ground for the claim of N60,000,000.00. This is founded upon paragraph 3.c. of the affidavit in support of the writ of summon which reads as follows:-

“(C). That by a “contract of sale agreement” dated 2nd April, 1998 made between plaintiff and defendant, the defendant agreed to sell and the plaintiff agreed to buy the property of United AgroVentures Limited lying and situate at km 14, Hadejia Road, Kano and covered by certificates of occupancy Nos LKN/CON/IND/RC82/17 and LKN/CON/IND/RC.82/740 inclusive of all the fixtures, fittings as contained in the 1st and 2nd schedulres of the said agreement for the sum of N60 million (sixty million naira). The said sum of was paid by the plaintiff and received by the defendant. A photocopy of the said

 

“contract of sale agreement” is herewith attached and marked exhibits M.Sl.”

(Italics supplied)

There is clearly a ground for a claim of N60,000,000 in the affidavit accompanying the writ of summons. It is a clear case of money had and received. There is no ground or evidence before the trial court showing how the sum of N60,000,000 catapulted or escalated to N109,879,839.49. In the absence of such vital evidence or fact the learned trial Judge ought, on the return date, to have rejected the claim for the simple reason that there is no evidence setting forth the ground for the claim contained in the writ of summons especially how the respondent arrived at the additional sum of N49,879,839.49. Neither is it established that the money was paid to a third party nor to the appellant. It is equally not shown that those fact are within appellant’s knowledge. See Himma Merchants Limited v Alhaji Inuwa Aliyu (1994)6SCNJ 87,93 – 94; (1994) 5NWLR (pt. 347) 667, 677. On the return date the court has a duty to consider the notice of intention to defend as well as the two affidavits brought respectively in support of the writ of summons and the notice of intention to defend. But where there is no notice of intention to defend the court still has a duty to examine whether the plaintiff has made out his claim in the accompanying affidavit. It is not enough to give judgment to the plaintiff on the platter of gold simply because the defendant has defaulted in filing its notice of intention to defend. It is in anticipation of the failure to consider the claim by the trial Judge that goaded the respondent to make an unsubstantiated claim. It will tantamount to injustice to permit the plaintiff to run away with a judgment in which he grossly failed to produce evidence in proof of his claim mainly because the appellant, the defendant at the trial court, neglected to file its notice of intention to defend as well as affidavit disclosing defence on the merit.
The respondent, in the circumstance failed to establish its claim for N109,879,839.49 endorsed on the writ of summons it took out and the same should be set aside.

The next question is whether it is entitled to judgment in respect of a smaller sum of money namely N60,000,000.00 the ground for which was set out in the affidavit in support of the writ of summons. The appellant admits the same. The claim is for a liquidated sum allegedly owed by the defendant, and the defendant admits owing part of it. There should be no difficulty in the court entering judgment for the sum admitted leaving the balance to be tried on the general cause list on the oral or written application of the learned counsel for plaintiff.

See PAS (Nigeria) Ltd. v. New Nigeria Salt Company Limited (1990) 6 NWLR (pt. 159) 764, 772; Moshashe General Merchant Ltd. v. Nigerian Steel Products Limited (1987) 2 NWLR (pt. 55) 110 at 120. See also order 30 rule 3 of the Kano State High Court (Civil Procedure) Rules, 1988 which provides as follows: –

“3.     Where admission of fact are made by a party either by his pleading or otherwise, any other party may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the court may give such judgment, or make such order on the application as it thinks just. An application for an order under this rule may be made by motion or summons.”

But the learned counsel for appellant forcefully contended that the respondent is not entitled to judgment in respect of N60,000,000.00 which is duly deposed to in the affidavit accompanying the suit and the contract of sale exhibited to the affidavit in support of the writ because a claim, under undefended list, cannot be bifurcated. It is either the whole claim is qualified to be heard under the undefended list or the whole suit where it suffered some defects, such as in the instant appeal where part of the claim does not qualify as a debt nor liquidated money demand, preventing it from being heard on the undefended list should be transferred to the general cause list. His contention is supported by Mohammed v Allied Bank of Nigeria Plc (1996) 7 M.A.C. 205. At page 213 of the same report, Mahmud Mohammed JCA said:-

“…………. There is no room for separation of relief being claimed by a plaintiff in an undefended suit. It is either the whole suit is heard as an undefended suit under the rule, or the whole suit where it has some features barring it from being heard, as an undefended suit should be transferred to the general cause list for hearing after the exchange of pleadings. This is because the undefended list procedure as can be seen is a truncated form of the ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried to necessitate such a hearing Agwumeme v. Eze (1990) 3 NWLR (Pt. 137) 242.”

In the case cited, the learned trial Judge correctly found that the respondent’s claim for an order of court to allow it to dispose of the appellant’s property in its possession could not be heard on undefended list because it does not qualify as a debt or liquidated money demand.

In my respectful opinion the present case is different in the sense that the claim is monetary which also comes under order 30 rule 3 of the Kano State High Court (Civil procedure) Rules, 1988. But, in the instant case, the defendant did not file a notice of intention to defend in addition to an affidavit disclosing a defence on the merit not to talk of it’s admitting part of the respondent’s claim. Neither the appellant nor it’s counsel was in court to make an admission which could form the basis for the court below to invoke the provision of order 30 rule 3 to enter judgment for the admitted sum. Appellant has, however, made submission in the appellant’s brief that it was not disputing the claim for N60,000,000.00 which it equally considers to come within the purview of the provision of order 23 of the Kano state High Court (Civil procedure) Rules, 1988. There is, however, no application before the court to so act. If there were an application brought under the provisions of order 30 rule 3 of the Rules it will be within the competence of a trial court or this court on appeal to give judgment in respect of the portion of the claim which qualifies for undefended list and adjourn the balance of the money claimed which falls out of the undefended list. The reason is that the relief sought in the instant writ of summons is one only. It is also for a sum of money unlike in Mohammed v Allied Bank of Nigeria Plc’s case where it is for more than one relief including a right of sale of property or in some other cases where there is in addition a claim for interest. It appeals to me that order 30 rule 3 applies to this case just as it applies to any other claim for a liquidated amount of money be it on the undefended or general cause list.
The respondent in his brief failed to answer to the arguments canvassed in appellants issue on canvassing issues arising from his preliminary objection, which he already dealt with in extenso in the brief. There is no substance in the argument in as much as he insisted that the appeal is solely directed against the order granting the respondent leave to bring its action under the undefended list. Appellant’s ground of appeal number 1 directly attacked the decision of the learned trial Judge awarding N107,879,839.49 to respondent on 23/12/99. The first ground of appeal in its own right sustains the issue. The ground is reproduced hereunder for avoidance doubt:-

“(1)   The learned trial Judge erred in law and arrived at a wrong conclusion by entering judgment on the undefended list in an action containing claims for both liquidated money demand and special damages.

Particulars

(a)     The respondent in this case filed an action against the appellant claiming for N60, 000,000 liquidated damages being the cost of purchase of factory premises as well as the sum of N59,000,000 (sic) being the amount allegedly expended on the renovation of the same when neither the particulars were stated nor specifically proved before the court.

(b)     The learned trial Judge granted the respondent leave to sue on the undefended list and proceeded to deliver judgment on same as such even though the whole claim is not one that is wholly for a liquidated money demand.”

If the learned counsel for respondent decided to ignore the ground of appeal set out above, indeed all the grounds of appeal and continued to argue that appeal is incompetent it is his own funeral. These grounds of appeal allows this court to entertain the appeal. It will be most unconscionable to close one’s eyes to these grounds and allow the respondent to run away with a claim he failed to substantiate purely on alter of technicalities. But for the manner the appellant couched the grounds of appeal I am mindful of allowing the appeal, setting aside the decision of the trial court and dismissing the respondent’s claim, but for grounds (ii) and (iii) which introduce element of nullity. Let it be known that we are not here to do cloistered justice. In the circumstance the appeal succeeds and it is allowed. The decision of the learned trial Judge is null and void and is set aside. The suit is remitted to the trial court for trial de novo on the general cause list by a Judge other than Wada Omar Rano, J. There shall be N3000.00 costs to the appellant.

MAHMUD MOHAMMED, JCA:I have read in advance the judgment of my learned brother Salami JCA which he has just delivered. I endorse entirely his reasoning and conclusion for allowing this appeal.

After dealing with the matters arising from the preliminary objection raised by the respondent, it is quite clear that the first issue for determination as distilled in the appellant’s and respondent’s briefs of argument respectively, survived the attack by the respondent to the appellant’s grounds of appeal. The crux of this issue is whether or not having regard to the claims of the respondent in its writ of summons placed under the undefended list of the lower court and the facts averred in the affidavit in support of the claim, the lower court should have heard the matter under undefended list procedure prescribed by the provisions of order 23 Rule 1 to 5 of the Kano State High Court (Civil procedure) Rules 1988. The claim of the respondent endorsed on the writ of summons at page 53 of the record of appeal is as follows: –

“By a ‘contract of sale agreement’ dated 2nd April1998, the defendant agreed to sell and assign the property situate and lying at KM 14 Hadejia Road, Kano and covered by certificate of occupancy Nos LKN/CON/IND/RC/82/17 and LKN/CON/RES/82/740, together with the machines affixed thereto, to the plaintiff free of any encumberances, for the sum of N60,000.00 (sixty million naira) which the plaintiff paid. The plaintiff paid an additional sum of N49,879,839.49 (forty nine million, eight hundred and seventy thousand, eight hundred and thirty nine naira, forty nine kobo) with a view to reactivating the factory. The plaintiff has since been restrained by the Federal High Court Lagos from taking possession or exercising acts of ownership over the said property.
Whereof of the plaintiff claims against the defendant as follows: –
Refund of the total sum of N109,879,839.49 expended on the acquisition of the said property. The cost of this action.”

The above claim arose out of a contract of sale between the appellant and the respondent for the sale of a property housing a factory and its machines for the sum of 60,000,000.00 and additional sum of 49,879,839.49 spent by the respondent in reactivating the factory. Having regard to the circumstances in which the claims arose, the respondent itself described the total amount being claimed in the writ to wit the sum of N109,879,839.49 as being:-

“The total sum expended on the acquisition of the said properly.”

The question to be asked is whether this amount being claimed described as amount expended on the acquisition of the property can answer the description of a debt or liquidated money, within the meaning of order 23 rule 1 of the Kano State High Court (Civil Procedure) Rules 1988. Oxford dictionary meaning of the word ‘expend’ is to use or spend resources in doing something. Applying this meaning to the claim of the respondent, it is quite plain that the total sum of N109,879,839.49 being claimed by the respondent in the undefended suit is the amount it used or spent in acquiring the property which to my mind requires to be specified and ascertained before it could become liquidated.

For the foregoing reasons therefore in addition to the reasons given in the leading judgments, I am also of the view that the respondent’s claim ought not to have been heard on the undefended list of the lower court. Consequently, I also allow the appeal, set aside the judgment of the lower court and remit the respondent’s action against the appellant to the lower court to be heard afresh on pleadings on the merit by another Judge.

There shall be N3000.00 cost to the appellant.

VICTOR AIMEPOMO OYELEYE OMAGE JCA: The respondent in this appeal filed an action against the appellant under the undefended list for the sum of N109,879,839.49. The said sum is recorded as being a refund of money expended on the acquisition of a property situate and lying at No.14 Hadejia Road, Kano. The respondent sought and received the leave of court to file the writ, which was marked undefended, under the undefended cause list procedure.
This is fact of the case, under a contract of sale made between the parties dated 2nd April, 1998. The appellant sold and assigned to the respondent a property situate and lying at Km.4 Hadejia Road Kano, inclusive of its fittings and fixtures. In consideration for the sale, the respondent paid to the appellant the sum of N60 million. The contract was executed, and the respondent took possession thereof. At the hearing of the claim, the contract of agreement was marked exhibit MS1. In another suit, filed by the other claimant the respondent was restrained on the said sold property following an injunctive order made in the other suit by the Federal High Court Lagos against the respondent. The respondent commenced the State High Court action on which this appeal is based, asking for a refund of the sum of N109,879,839.49 under the undefended list. The sum of N49,879,839.49 which the respondent in the writ placed on the undefended list was not explained at the hearing, and nothing is shown in affidavit in support of the motion for undefended suit in the absence of the defendant/appellant. The appellant submitted rightly in my view that a claim under the undefended list should by law be a liquidated demand, it should be for ascertainable debt. The sum of N60, million was the contract price, but the respondent claimed to have paid elsewhere, an additional sum of 49,879,839.49.

On 23rd December 1999, the learned trial Judge Wada Omar Rano J., awarded judgment in favour of the respondent. The appellant was not satisfied with judgment and he appealed on four grounds. It is on the said four grounds that two issues are formulated. The appellant seeks reliefs in the appeal as follows:
An order of the court to set aside the judgment of Kano High Court dated 23rd December 1999, and order for retrial of the matter, upon its transfer to the general cause list.

My learned brother Isa Ayo Salami JCA, has ably dealt with the issues in this appeal as set out in his lead judgment with which I agree, I merely wish in this contribution to comment further on issue one of the appeal. Issue one of the appellant reads thus:

“Whether the jurisdiction of the trial High Court had been competently invoked, regard being had to the incorporation of a claim for special damages as being constituted in a writ on the undefended list in pursuance of which the respondent obtained a judgment on the undefended list?”

Against the entire proceedings, on appeal the respondent issued a notice of preliminary objection. In the body of the respondent brief, he submitted that the entire appeal should be struck out. Respondent submitted that the appeal being against the ruling of the court made on 7th day of December, 1999 when the trial court placed the plaintiff/respondents claim on undefended list and not against an order of judgment of the court of 23/12/99, the appeal should be struck out. That as the defendant/appellant failed to appeal the order of the 17/12/99, which is appellable within 14 day, being an interlocutory order, the right to appeal has elapsed. Thirdly, that as the appellant has pleaded fraud in the proceeding what the appellant should do in order to apply to set aside the judgment is to institute a fresh action, not to proceed on appeal since an appeal is a continuation of the suit, and no fresh hearing of fraud can be as assimilated in the suit which commenced in the court below, in which an issue of fraud was not raised. Fourthly in any case, respondent said the judgment delivered on 23/12/99 is a consent judgment and cannot be entertained and set aside in a Court of Appeal under the provision of the Appeal Act, 1981 amended in 1994.
In my contribution to the lead judgment of I.A. Salami JCA, I wish to commence by taking on the last issue of the respondent’s preliminary objection. The objections at sight appeared to be formidable and could have caused the appeal to be struck out. It is right and necessary therefore that the preliminary objection of the respondent should be considered before a decision can be made to hear the appeal of the appellant. In the process I will consider issue on the appeal where appropriate. It is true that by the provision of section 15(1) of the Court of Appeal Act 1981, no appeal shall lie from any order made ex parte or by consent the parties etc.

In a judgment ordered under the undefended list as in the instant appeal which is deemed a consent judgment and whether the consent is assumed by law even if the decision was made in the absence of the defendant though the defendant was served: it is right to consider the basis of the presumption. However in Leventis Motors Ltd v. Mbonu (1962) NMLR 19, at page 20. The court held that even if the defendant did not appear and consent, since the case is on an undefended list, the undefended is presumed to have consented to the judgment delivered in his absence. The above decision has since been approved in subsequent decisions of the Supreme Court per Ademola CJN, as he then was, Bank of the North Ltd. v. Intra Bank S.A. (1969) 1 All NLR at 97. My learned brother Mahmood Mohammed JCA, followed the same line in Alhaji Abubakar Dan Azumi v. Pan African Bank Ltd.(1996) NWLR (Pt.467) at 420. There is therefore no reason to doubt that a judgment delivered under the undefended list is a final, and consent judgment. One issue needs however to be considered.

 

It is this, the provisions under the undefended list requires the sum to be recovered to be “a debt, or a liquidated demand? And such sum to be recovered should in the deponent’s belief be one in which there is no defence thereof. See order 23 rule (1) Kano State (Civil Procedure) Rules. Is it not appropriate in this circumstance for the defendant to enquire if the matter on which the court delivered judgment was properly before the court, that is to say, complied with order 23, rule 1. In my opinion the rules of court have prescribed the kind, and nature of claim, and demand which can be determined under the undefended list. It is a claim which is liquidated, which in the deponents belief does not admit of any denial by the defendant. A claim to which the defendant has no defence. If as in this case, the learned trial Judge decided to employ the relief of consent judgment to a situation in which the facts show that the defendant cannot be said to consent, is it just to say that the defendant has consented? When the condition precedent to the issue of hearing the case under undefended list has not been complied with? My respectful opinion is that the procedure in order 23 rule 1 of the (Civil Procedure) Rules which provides for undefended list also prescribes that the claim to be entertained by the court under that procedure must be a clear cut debt for which there is an incontestable proof against the defendant ex facie, a liquidated demand which the defendant must on exhibition have no defence to, and which he cannot deny or argue against on any substantial defence, where the claim is not liquidated the jurisdiction of the court does not exist if the court proceeds to deliver judgment thereon. A conclusion of consent to such a judgment cannot under our legal provision of fair hearing be said to accrue from a situation on a claim, which is contestable, ab initio. Before I reiterate the facts relevant to the issue of lack of consent to the judgment in the instant appeal owing to the error of law in adjudicating on the respondent’s case, I wish here to refer and answer to the respondents objection to the appeal on the ground that the appellant appeal is founded on an interlocutory order made on 17/12/99, and not the judgment of the court on 23/12/99. I do not decline to say that objection of the respondent is attractive ex facie when he submitted that the appellant has lost the right to appeal on the interlocutory order made by the court when the court placed the respondent’s claim on the undefended list. However the submission in my opinion fails to see the real issue. If the court stopped action after the order of 17/12/99, a cause of action would have been in vain. The real issue will surface when the question is asked upon which claim did the court rule and give judgment? The answer is in the subject of appeal. On 23/12/96 when the court below gave a judgment upon a claim that is not a liquidated demand. The claim is unliquidated because the sum of 109,879,839.41k upon which the judgment of court is given against the appellant is not covered by the affidavit in support of the respondent’s appellant.

 

It is not entirely a liquidated sum. The sum of 49,879,839.49 is not included in exhibits M1, annexed to the plaintiff’s claim, the contract of sale. The plaintiff had relief on the exhibit M1, M2, M3 to prove his claim. Exhibit M1 should have put the trial court on notice, to submit the matter for hearing in a general cause list. Now where the court below has entertained and determined a matter under the undefended cause list which claim is not a liquidated demand it is right to say that the jurisdiction of the court is not competently invoked because the court so acting has not complied with the law under which such judgment can be made. In my view consent to the judgment of defendant cannot and should not be presumed. The issue raised by the appellant that in the absence of a liquidated demand before the court in a claim under the undefended list, there is no jurisdiction appears to me to be properly invoked. It is established that where a complaint of jurisdiction of the court is founded the complaint may be raised at any stage, even in an appellate court.

In my view, the plaintiff/respondent claim was not properly determined under the undefended list and the court had no jurisdiction to so determine it. It is for this reason and more reasons contained in the lead judgment that I agree with the reasoning and conclusion of my learned brother I.A. Salami JCA, that the appeal be allowed. The claim should be remitted to any other court in Kano judicial division for hearing and determination under the general cause list.

Cases cited in the judgment

Abudlkarim v. Incar Nig Ltd (1992) 7 NWLR (Pt.251) 1.
Adegoke Motors Ltd v. Adesanya (1989) 3 NWLR (Pt. 109) 250.
Agwumeme v. Eze (1990) 3 NWLR (Pt. 137) 242.
Anatogu v. Iweka (1995) 8 NWLR (Pt. 415) 547.
Azumi v. Pan African Bank (1996) Ltd 8 NWLR (Pt. 467) 462.
Bank of the north Ltd v. Intra Bank S.A (1969)1 All NLR 97
Durwode v. The State (2000) 12 SCNJ 1;(2000) 15 NWLR (Pt.691) 467
Egbunike v. ACB (1995) 2 SCNJ 58
Flower v. Lloyd (No1) (1877) 6 Ch.D
Hinma v. Aliyu (1994) 6 SCNJ 87 (1994) 5 NWLR (pt.347) 667
Leventis Motors Ltd v. Mbonu (1962) NMLR 19.
Mosheshe Gen. Merchant Ltd v. Nig Steel Products Ltd (1987) 2 NWLR (pt.55) 110
Mohammed v. Allied Bank of Nig Plc (1996)7 MAC 205
Olufunmise v Falana (1990) 3 NWLR (Pt. 136) 1
Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172.
Ogoyi v Umagba (1995) 9 NWLR (pt. 419) 283
PAS (Nigeria) Ltd New Nig. Salt Company Limited (1990) 6 NWLR (pt. 159).764
Saude v.Abdullahi (1989 4 NWLR pt.116
UTC v. Pamotei (1989) 3 SCNJ 79.
Rules of Court referred to in the judgment
Kano State High Court (Civil procedure) Rule 1988: Order 23 rule 4, Order 30 rule 3
Statutes referred to in the judgment
Law of the Federation of Nigeria: Court of Appeal Rules Cap 62 LFN 1990 or3 rule 2 or 6
Court of Appeal Act 1981, s.15(1)