3PLR – PAUL OKOYE ANUNOBI V. KENNEDY OBIWELOZO

Published by Law Nigeria Admin at October 29, 2018

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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PAUL OKOYE ANUNOBI

KENNEDY OBIWELOZO

COURT OF APPEAL

(ENUGU DIVISION)

MONDAY, 7TH APRIL, 2003

3PLR/2003/31(CA)

OTHER CITATIONS

(2003)12 NWLR (Pt. 835) 617

BEFORE THEIR LORDSHIPS:

MAHMUD MOHAMMED. J.C.A. (Presided)

JOHN AFOLABI FABIYI. J .C.A.

CLARA BATA OGUNBIYI. J.C.A. (Read the Leading Judgment)

REPRESENTATION

Obi Akpudo, ESQ. – For the Appellant

Iguh, ESQ. – For the Respondent

MAIN ISSUES

PRACTICE AND PROCEDURE – COURT – High Court of a State – Number constituting same – Demarcation of into judicial divisions – Rationale for

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Interest – Pre-judgment interest – When can be claimed and awarded.

PRACTICE AND PROCEDURE – JURISDICTION – High Court of a State -Number constituting same – Demarcation of into judicial divisions – Rationale for

PRACTICE AND PROCEDURE – High Court of a State – Number constituting same – Demarcation of into judicial divisions – Rationale for

PRACTICE AND PROCEDURE – Interest – Pre-judgment interest – When can be claimed and awarded.

PRACTICE AND PROCEDURE– Order 24, rule 9(4) of the High Court of Anambra State (Civil Procedure) Rules, 1988 – Purport of

MAIN JUDGEMENT

OGUNBIYI, J.C.A. (Delivering the Leading Judgment):

This is an appeal against the judgment of Ononiba, C. J., sitting at the High Court Awka wherein he entered judgment in favour of the plaintiff! respondent for the sum of N205.000.00k (Two hundred and five thousand Naira) with interest at the rate of 25% per annum from 25 2/2000 to 1/4/2001 and at the rate of 5% simple interest on the judgment debt from 4/5/2001 until the judgment debt is liquidated.

The brief facts and genesis of this appeal are as follows: By a claim placed on the undefended list, the plaintiff (hereinafter called the plaintiff/respondent) claimed from and against the defendant (hereinafter called the defendant/appellant) as follows:

“(a) Two hundred and five thousand Naira (N205,000.00) being money paid by the plaintiff to the defendant for a consideration that failed.

(b) Interest at the rate of 25 percent per annum from 23/2/ 2000 to 1/4/2001.

(c) Interest at the rate of 20 percent per annum from 1/4/ 2001 till judgment and thereafter at the rate of 25 percent per annum until the debt is paid.”

The suit was filed on the 4th April, 2001 and fixed for hearing on the 10th April, 2001 (a period of six days from the date of filing). The defendant was served with the writ of summons (placed on the undefended list) on the 5th April, 2001. He filed his notice of intention to defend as prescribed by the rules of court. On the 10th April, 2001, the learned trial Judge took arguments from the learned counsel for both sides and reserved his ruling on the 3rd May, 2001, and hence this appeal.

On the 10th March, 2003, when the appeal was called up for hearing, the learned counsel Mr. Obi Akpudo adopted in total the appellant’s brief of argument dated 8th November, 2001 and urged the court to allow the appeal. In the same vein, the counsel Mr. J. I. Iguh, also adopted the respondent’s brief dated 7th October, 2002, and filed on the same day and further urged the court to dismiss the appeal and affirm the judgment of the lower court.

From the grounds of appeal filed by the defendant/appellant three issues were distilled for the determination of this appeal as follows:

(1) In view of the affidavit in support of the defendant/ appellant’s notice of intention to defend, was the learned trial Judge right in refusing to transfer this suit (which was placed on the undefended list) to the general cause list?

(2) Did the Awka High Court have jurisdiction to entertain this suit?

(3) Was the order of the learned trial Judge, which directed the defendant/appellant to pay 25% per annum on the judgment debt from 23/2/2000 to 1/4/2001 justified in the circumstances?

To substantiate the 1st issue raised, the learned appellant’s counsel reproduced the provisions of Order 24, rule 9(2) and (3) of the High Court Rules, 1988 of Anambra State. The counsel cited a number of authorities to expatiate the phrase “triable issue” in the context of undefended list proceedings. In order to buttress his arguments the counsel cited the Court of Appeal decision in the authority of C. C.B. Plc. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt. 651) 19 also the case of Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 at 747; Frank Muobike v. Thomas Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 636 and Sebastine Udemba AND Anor: v. Morecab Finance (Nig.) Ltd. (2003) 1 NWLR (Pt. 800) 96. The learned counsel further raised questions as to whether the affidavit in support of the notice of intention to defend disclosed a defence on the merit. In a bid to proffer an answer to the question raised the counsel in a nutshell gave a narration of the background claim by the plaintiff; also the defence version per facts deposed to on his affidavit accompanying his notice of intention to defend. That in the absence of any counter-affidavit controverting the defence, the court is urged to deem same as having been admitted. Reliance was made on the authority of Muobike v. Thomas Nwigwe cited (supra) and Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 710. The learned counsel dwelt at length and emphasized the oral agreement reached between the parties and same which was not adhered to by the plaintiff/respondent. In other words, the failure to collect the vehicle by the plaintiff/respondent as per the terms agreed upon, resulted into the defendant/appellant selling same in view of the circumstances in which he found himself. That the averments deposed to in respect of the facts stated were not contradicted. That certainly, the situation is that which would have fairly called on the plaintiff for explanations. That the agreement between the parties ought to have been given effect as per the authority in the case of Nimanteks Associates Ltd. AND Anor: v. Marco Construction Company Ltd. AND 9 Ors. (1991) 2 NWLR (Pt. 174) 411.

The counsel further reproduced certain excerpts of the judgment of the lower court appealed against and submitted that the Judge made grave and fundamental misdirection thereat. This is more so especially in respect of exhibit A, the receipt of payment which the court said is the “only document in support of this transaction. Exhibit’ A’ contained no reference to another agreement regarding land rent or safety of the vehicle.” That the trial Judge totally misconceived the status of exhibit’ A’, being a receipt and therefore should not contain terms and conditions of a contract. Further more that the Judge failed to appreciate also that a contract need not be in writing but could be oral or even arise by the conduct of the parties. To further buttress his submission the learned counsel cited the authorities of Mark (Nig.) Ltd. v. Module AND Anor: (1965) ANLR (Reprint) 446 at 448; NAB Ltd. v. Felly Kemeh (Nig.) Ltd. (1995) 4 NWLR (Pt. 387) 100 and UN.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19 at 31.

That the question of whether or not property in the said vehicle had passed does not arise. Further still that the other considerations made by the trial Judge do not arise as issues to be considered in this appeal, and are therefore not relevant, especially the aspect of payment of money by the plaintiff to the defendant. The issue the counsel re-iterated, is whether or not the undefended list procedure applies to this case. That the defendant needed to be heard for the just determination of this case especially where he postulates a claim of counter-claim. Reference was made to the write up by Niki Tobi, JCA, (as he then was) in “The Nigerian Judge” at page 286 and same was noted in the case of Ivan v. Bilante International Ltd. (1998) 5 NWLR (Pt. 550) 396 at 402. That the above was sufficient to have had the matter transferred to the general cause list.

Further still that the Judge entered judgment for the plaintiff/ respondent without taking any evidence from him; this he contended is against the decided authority of U.B.A Plc. v. Mode (Nig.) Ltd. (2001) 13 NWLR (Pt. 730) 335, a Court of Appeal decision, whilst considering Order 24 rule 9 of the High Court Rules of Anambra State, 1988. Also the case of C.C.B. Plc. v. Samed Investment Company Ltd. under reference (supra).

That in the absence of the plaintiff/respondent failing to give evidence therefore the defendant/appellant was denied the right to the cross-examination he would have undertaken. That this had infringed his right of fair hearing. In the absence of any hearing following which judgment was entered, the learned counsel therefore urged this court to intervene and strike down the judgment of the learned trial Judge.

On issue No.2 relating to the jurisdiction of the trial court the counsel argued that in distributing cases, the Chief Judge is not authorized to act arbitrarily, but must be guided at all times by the relevant provisions of the High Court Law and the High Court Rules regulating same. That full account must have been taken of Order 4 rules 1, 2, 3 and 4 of the High Court Rules, 1988 in the distribution of the instant case. On the necessity to obey the rules of court, counsel cited a number of authorities to support his submission. That it is wrong for the trial Chief Judge to have said that the issue of where the suit was commenced is not one of jurisdiction but that of convenience.

On issue No.3, the learned counsel argued and restated the position of the law where a claim and award can be made of a pre- judgment interest provided it was contemplated by the agreement between the parties or under a mercantile practice or a principle of equity such as fiduciary relationship. Reference in support were made to the authorities in Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (Pt. 122) 422 at 448; Abdullahi v. Waje Community Bank (2000) 7 NWLR (Pt. 663) 9; Owena Bank (Nig.) Plc. v. Adedeji (2000) 7 NWLR (Pt. 666) 609. That no evidence of any mercantile custom was placed before the learned trial Judge to justify the interest of 25% per annum which he awarded on the judgment debt and which, by the said judgment is to run from 23/2/2000 (being date the deposit was paid) to 1/4/2001 (the date of judgment). Furthermore, and on the facts of this case, he argued that no principle of equity would, on the peculiar facts of the case, justify the said award of interest. He therefore urged the court to set it aside.

On the respondent’s behalf, the learned counsel Mr. J. I. Iguh relied on the respondent’s brief of argument dated and filed on the 7th October, 2002 and therefore urged this court to dismiss the appeal and affirm the judgment of the lower court.

On the brief of arguments the respondent also formulated three issues for determination and same are as per those raised by the defendant/appellant and that which I do not see it necessary to reproduce for avoidance of repetition.

In order to substantiate the 1st issue raised, the counsel Mr. Iguh substantially reproduced the respondent’s claim as borne out on his affidavit in support of his claim to prove that his claim is for money paid to the appellant for a consideration that failed and for the interest thereon. That contrary to the contention by the appellant, it is clear from his claim that he, the respondent, is not claiming in contract but for a liquidated money demand, for a consideration that failed, for money had and received and in respect of which the suit was appropriately taken out under the undefended list as provided for by Order 5 rule 14, of the High Court Rules of Anambra State, 1988.

That it is not the law that once there is a notice of intention to defend, the Judge must automatically transfer the suit to the general cause list. In other words, for such transfer to be effected, the court must be satisfied that there is a triable issue as provided for by the provision of Order 24 rule 9(2) of the High Court Rules of Anambra State, 1988. The authorities in support are N.S. C. Ltd. v. Celtic Ltd. (2002) 1 WRN 67 at 69 ratio 2, also A. C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) 25, (1994) 4 SCNJ (Pt. 11) 268 at 270. That the notice of intention to defend in the matter at hand does not disclose any defence or triable issue. That there was a complete failure of consideration with the appellant having sold the vehicle after receiving money from the respondent. That a contract does not exist where there is a failure of consideration. The provisions of sections 139 and 144 of the Contract Law, Cap. 32, Vol. 2, Revised Laws of Anambra State of Nigeria, 1991 are under reference; also the Law of Contract (Fifth Edition) by Cheshire and Fifoot, London Butterworth AND Co. (Publishers) Ltd. 1960, pages 57 – 66; a further authority is the case of Grayshot v. Minister of Agric (2002) 9 NWLR (Pt. 771) 1, (2002) WRN 104 at 106 ratio 1 also at page 119. In the circumstance therefore, that respondent was entitled to sue and get judgment as he did under the undefended list.

The counsel further contended that with the appellant having tried to set up a 3rd party claim at paragraph 8 of his affidavit in support of the notice of intention to defend, it cannot be inferred or even remotely be suggested that the respondent was a party to the contract for payment of N750.00 (seven hundred and fifty Naira) between the appellant and the undisclosed land owner. That with the respondent not being a privy to the contract it follows therefore that no privity of contract exists between him and the said undisclosed land owner. Counsel submitted further that the defence at best, is, a jus tertii and does not avail the appellant. The authorities cited in support are: Ladimeji v. F.M.WH (2002) 3 NWLR (Pt. 648) 340, (2002) 7 WRN 39 at 43 – 44 and also pages 47 – 49 per Aderemi JCA where a contract binds only parties to it. Also the cases of R.E.D. v. Nwosu (2002) 11 WRN 28 at 30 ratio 3 and Thomas Chukwuma Makwe v. Chief Obanua Nwukor (2001) 7 SCNJ 87 at 88 to 89. That the plaintiff/respondent was not bound to the 3rd party owner of the land where the vehicle was parked either in contract or in tort. That there is no liability on the respondent in tort to pay to the 3rd party for parking the vehicle. That the third party claim raised by the appellant without privity of contract is not a legal defence and consequent to which the learned trial Chief Judge was right in finding that the appellant’s grounds for asking to be heard was frivolous, vague and designed to delay the hearing of the suit. The counsel therefore urged the court to resolve this issue against the appellant.

The submission on issue No.2 is whether the learned Chief Judge of Anambra State had the jurisdiction to entertain this suit? The counsel dwelt at length on the relevant provisions of sections 270,272 and 273 of the 1999 Constitution of the Federal Republic of Nigeria which are in respect of establishment of a High Court for each State, jurisdiction general and constitution of State High Court respectively and which take no cognisance of judicial divisions. That in the light of various decided authorities which are trite, to suggest that the Chief Judge of Anambra State sitting at Awka in the Awka Judicial Division has no jurisdiction in respect of a contract entered into at Nkpor in ldemili Judicial Division of the High Court of Anambra State cannot be a true reflection of the position of our law.

A further reference was made by counsel to Order 4 rules 3 and 4 of the High Court Rules of Anambra State, 1988 where it provides that a suit may be brought in the judicial division where the defendant resides or carries on business. That this was exactly what the respondent did. Counsel further reiterated the trite nature of the law that, it is the claim of the plaintiff or his statement of claim as against the defence of the defendant that determines the jurisdiction of the court. The authorities in point are Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517; Morike v. Adamu (2002) 5 WRN 78 at 81 ratio 5; Matari v. Dangaladima AND Ors. (1993) 3 NWLR (Pt. 281) 266; Dangida v. Mobil (2002) 7 NWLR (Pt. 766) 482, (2002) 4 WRN 44 at 47 ratio 3; Ibeanu v. Ogbeide (1994) 7 NWLR (Pt. 359) 697 also Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414, (1994) 7 – 8 SCNJ 524 at 531 ratio 4 per S. U. Onu (JSC) and at 533 per Y. O. Adio, JSC ratio 1. That based on the foregoing arguments the learned trial Chief Judge had jurisdiction to entertain this matter and he accordingly acted within his jurisdiction. The 3rd and last issue is whether the learned trial Chief Judge was right in awarding interest at the rate of 25% per annum on the judgment debt from 23/2/2000 to 1/4/2001 to the plaintiff/ respondent.

With reference to the respondent’s affidavit the counsel argued that it did clearly set out the grounds upon which the claim was based and his reasons for claiming the interest in paragraphs 12 and 13. That the averments were neither denied nor challenged by any counter-affidavit or in the affidavit of the appellant in support of his notice of intention to defend. That it is common know ledge that the money would have yielded interest to the respondent had he deposited same in his bank account. Furthermore, and from all indications that the defendant at the time of accepting the money from the plaintiff, never intended to fulfil his own part of the contract. Reference in support was made to the authority in the case of R.E.O. v. Nwosu (2002) 11 WRN 28 at 29 ratios 1 and 2.

The counsel urged this court to refuse the appeal and to re- affirm the judgment of G. U. Ononiba, C. J. delivered on Thursday the 3rd day of May, 2001.

For the determination of the 1st issue raised, it would be necessary as a pre-requisite to reproduce certain paragraphs of the plaintiff’s affidavit setting out the grounds upon which his claim was based. Paragraphs 4,5,6,7,8,9,11,12 and 13 for instance state as follows:

“4 That in the presence of Mr. Augustine Okekedike I paid the defendant Five thousand Naira as commitment fee.

That on 23/2/2000 the defendant came to my house in Nimo and in the presence of Mr. Augustine Okekedike I paid the defendant Two hundred thousand Naira (N200,000.00) as part payment for the purchase of the said Mercedes Benz 1621 Tipper and he issued me with a receipt. The receipt is hereto annexed and marked exhibit ‘A’.

That I paid to the defendant a total of Two hundred and Five thousand Naira (N205,000.00).

That when I went back to complete the payment and collect the said Mercedes Benz 1621 Tipper I discovered that the defendant had sold the vehicle.

That I demanded a refund of my money but the defendant started playing tricks with me.

That I have made several demands for the return of my money but the defendant will not pay.

That as far as I know, the defendant has no defence to the action,

That the defendant has been using my money to do business and has been making enormous profit on my money.

13.. That if I had ploughed my money into my business, I would have made a fantastic gain on it.”

In response and in support of his notice of intention to defend, the defendant on his affidavit at paragraphs 7,8,9,10,11,12 and 13 also had this to say:

“7. That the plaintiff paid me the sum of N205,000.00 in my office at Nkpor in February 2000.

That at the time of entering into this contract, I told the plaintiff and we mutually agreed as follows:

(a) That the land on which the vehicle was parked does not belong to me.

(b) I pay a total of N750.00k per day for parking the said vehicle there every day which figure is broken down thus:

N400.00 payment to the owner of the land.
N350.00k – security fee.

(c) From the date of payment of the N205,000.00k by the plaintiff to me, i.e. 23/2/2000, to the date when he would come to pay the balance and delivery of the vehicle, he would bear the burden of paying the N750.00k per day (supra).

(d) Plaintiff agreed to the above and promised to come back in four days time and pay everything and collect the vehicle.

That the plaintiff did not come again until March, 2001 despite all messages in that regard by me.

That meanwhile, in November, 2000, because the wooden body of the truck had gravely deteriorated on account of the rainy season and the parking and security expenses of the truck was rising astronomically, I sold same for N500.000.00.

That between 23/2/2000 and November, 2000 when I eventually sold the said vehicle, the plaintiffs deposit had been swallowed up by the payments pleaded in paragraph 8 supra.

That Obi Akpudo, Esq., informs me and I verily be- lieve that at the appropriate stage of these proceedings, he shall counter-claim for the balance of the said pay- ments deposed to in paragraph 8 (supra) which the plaintiff’s deposit does not cover. 13. That I have a defence to this suit.”

Order 24 rule 9(2) of the High Court Rules of Anambra State, 1988 states thus:

“2. If the party served with the writ of summons and affidavit delivers to the registrar not less than five days before the date fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, and the court is satisfied that there is a triable issue, then and in such a case the case shall be entered in the general cause list and pleadings shall be filed.”

(Italics mine for emphasis purpose.) The question that is apt having regard to the High Court (Civil Procedure) Rules, Order 24 rule 9(2) and (3) is, what amounts to a triable issue or when does a defendant’s affidavit in support of a notice of intention to defend raise a defence on the merit in a suit placed on the undefended list?

In determining what a triable issue is, the Court of Appeal has held in NAB Ltd. v. Felly-Kemeh (Nig.) Ltd. (1995) cited supra that it is immaterial that the defendant will at the end of the day lose the case. The same decision was reached in Mark (Nig.) Ltd. v. Module Anal: also (supra).

Furthermore, in the authority of C.C.B. (Nig.) PIc. v. Samed Investment Co. Ltd. under reference (supra) Ubaezuonu, JCA (as he then was) at page 31 paragraph “F” of the report held among other things and said:

“What is a triable issue in the context of an undefended list proceeding? In my respectful view, a defendant’s affidavit in support of the notice of intention to defend raises a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim.”

Also to buttress the above conclusion is the case of Jipreze v. Okonkwo as well as Frank Muobike v. Thomas Nwigwe under reference supra where at p.636 paragraphs “A” – “B”, Fabiyi, J.C.A re-echoed the above position and said among others:

“I strongly feel that a triable issue is an uncontroverted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the undefended list. Such material allegation requires further investigation by the court to unearth the veracity or other-wise of the same. Such must portray a strong defence which cannot and should not be given a wave of the back-hand.”

A further related authority is the judgment of the Court of Appeal (Enugu Division) in CA/E/100/2000: Sebastine Udemba AND Anor: v. Morecab Finance (Nig.) Ltd. (supra).

The deduction, having regard to the inference on the authorities, under reference is that, the success of defence case at the end of the day is not the criteria or the yardstick for the measurement of what amounts to a triable issue.

Undoubtedly and as rightly re-stated by the respondent’s counsel on his brief, it is not the law that once there is notice of intention to defend, the Judge in the circumstance must transfer to the general cause list. The confirmation of this is where the law for this purpose has made provisions for proper application in appropriate situations. In other words, the transfer is not a matter of course but that which must first satisfy the condition precedent and thus the justification and relevance of rule 9(2) and (3) of Order 24 of the High Court Rules where the affidavit in support of notice of intention to defend must satisfy the court of a triable issue thereon, or defence on the merit, to qualify for a transfer.

The learned respondent’s counsel in support of his arguments cited the Court of Appeal authority, Kaduna Division, in the case of N.S. C. Ltd. v. Celtic Ltd. (supra) wherein Omage, JCA held that the affidavit in support of notice of intention to defend must show at a glance the viability of a defence. A further authority of Job Charles (Nig.) Ltd. AND 2 Ors. v. Dr: J.E.N. Okonkwo (supra) is also in point on the same proposition.

Their Lordships of the Supreme Court also in the case of A. C.B. Ltd. v. Gwagwada (supra) held inter alia, that the significance of the notice of intention to defend is borne out by the affidavit accompanying the notice showing that the grounds for asking to be heard in defence are not frivolous vague or designed to delay the trial of the action.

As rightly posed by both counsel, the relevant question to ask at this juncture is, did the affidavit of the appellant in support of his notice of intention to defend disclose a triable issue or defence on the merit? In other words, did the said affidavit throw any doubt on the plaintiff/respondent’s entitlement to the sum of money claimed by him in the trial court? More relevantly, did the said affidavit raise issues which either require further explanations by the court to ascertain the veracity or otherwise of the claim by the plaintiff/ respondent? While the respondent’s counsel answered the questions raised in the negative, the appellant contends otherwise. Paragraphs 8 – 11 of the affidavit in support of the notice of intention to defend give an indication that having regard to the facts deposed to by the defendant, there are undoubtedly certain fundamental terms of the contract, which the plaintiff’s claim had failed to address. In other words, the defendant was saying that there seemed to be more than that available to the court at the material time relating to the intention of the parties, which necessarily needed to be uncovered.

It is significant to state that the discovery of the relating uncovered facts whether true or not, the determination of such could only have been possible through the parties themselves who were seized of the relevant information and the true position of situation of that which existed between them. What was relevant at that stage was the possibility of a need for further explanation, which mayor may not necessarily lead to the success of the case. It is the court’s duty therefore to collect all the necessary facts relating to the intentions of the parties with the view to giving effect thereto. The authority of Nimanteks Associates Limited AND Anor: v. Marco Construction Company Ltd. AND 9 Ors. (supra), is in point.

Another related question that could also be asked is, whether having regard to the deposition by both parties, there were enough facts and bringing out their intentions sufficient to have enabled the court act thereon and thus giving logical and reasonable effect on the merit?

Further still and on the authority of U.N.N. v. Orazulike Trading Co. Ltd. (supra), it was held that all that is necessary is for the defendant’s affidavit to cast doubts on the plaintiff’s case and/or require some explanation from the plaintiff, consequently the case would therefore be transferred onto the general cause list.

From the depositions there is no controversy that the plaintiff paid the sum of N205,000.00 to the defendant.

The crux of the matter however is, having regard to the depositions of parties and the document exhibit’ A’ whether that before court, in themselves, serve sufficient deductions to portray all that the parties intended or agreed upon as alleged by the defendant. A further corollary question to pose is, with the deductions reached by the trial Chief Judge, and having regard to all the facts of this case and given due consideration whether, the plaintiff is entitled to recover his deposit under the undefended list procedure and without reference to the agreement entered into between him and the defendant as alleged? The appellant unequivocally is shouting for an opportunity to be heard and that is all his quest and no more. He had also given the reason why he should be heard. Is it therefore fair and just to shut him out from being heard? The respondent argued that his claim at the lower court was not in contract but for a liquidated money demand; for consideration that failed, for money had and received. However and that notwithstanding despite the nature of the plaintiff’s claim, should the defendant not have been allowed to die before he was buried? Undoubtedly and in my humble opinion the denial to the defendant of the opportunity for further explanation in the light of the existing overwhelming reason so to do, certainly amounted to denial of justice and consequently of fair hearing as provided by section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.

In the write up “The Nigerian Judge” by Niki Tobi, JCA (as he then was), at p. 286 postulations were made as to situations that would give rise to triable issues some of which would include:

“…, (b) where there are disputes as to the facts which ought to be tried (c) where there is a real dispute as to the amount due .to the party making a claim which would, necessitate taking an account to determine the amount or (d) where there are reasonable grounds or a fair probability of a bona fide defence such as a counter- claim.”

The above postulations were also noted in the case of Ivan v. Bilante International Ltd. (supra). The appellant in the matter at hand for instance on his averments of the affidavit reproduced (supra) has laid a ground for counter-claim. There is no further affidavit against the claim by the plaintiff. By the provision of sub-rule (4) to rule 9 of Order 24 of the Rules of Anambra High Court, before judgment is given under this procedure:

“…the suit shall be heard as an undefended suit, … .calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

In the authority of UBA Plc. v. Mode (Nig.) Ltd. under reference, (supra), the subjection of the word heard as provided for in Order 24 rule 9(4) has been interpreted by his Lordship Ubaezonu, JCA where he said:

“The rule merely relieves the plaintiff of the burden of summoning witnesses before the court to prove his case formally. It does not relieve the plaintiff of the burden of giving evidence or being subjected to cross- examination.”

The same principle of law was applied in the further decision in C. C.B. Plc. v. Samed Investment Company Ltd.. cited (supra). The trial Judge in the instant case proceeded to enter judgment for the plaintiff/respondent after holding that the notice of intention to defend did not disclose a triable issue. The plaintiff/respondent did not also give evidence and the defendant/respondent who, by the decision in U.B.A. Plc. v. Mode (Nig.) Ltd. (supra) had a right of cross-examination was, in consequence denied same. There was therefore no hearing following which judgment was entered for the plaintiff.

Having regard to the determination and the reasoning so reached in respect of issue No.1, it is my considered opinion and I so hold that the defendant/appellant’s affidavit in support of the notice of intention to defend disclosed a triable issue and that which required a further explanation by the plaintiff. The learned trial Chief Judge was therefore in error, when he refused to transfer this suit (which was placed on the undefended list) to the general cause list. The appeal on the 1st issue therefore succeeds.

The second issue was whether the learned Chief Judge of Anambra State had jurisdiction to entertain the suit.

Section 270( 1) of the 1999 Constitution of the Federal Republic of Nigeria provides “There shall be a High Court for each State of the Federation”. Sub-section 2 thereof provides as follows’ “The High Court of a State shall consist of:

“(a) a Chief Judge of the State; and

(b) such number of Judges of the High Court as may be prescribed by a law of the House of Assembly of the State.”

The effect and the implication of this provision is that there is only one High Court of a State and in applying to the matter at hand, every Judge in Anambra State therefore has jurisdiction to hear any case in the State. The creation into various judicial divisions, is merely for administrative convenience as per that specified in the case of Alhaji Oloyede Ishola v. MemuduAjiboye (1994) 6 NWLR (Pt. 352) 506, (1994) 7 – 8 SCNJ 1 at p. 12 perA. 1. Iguh, JSC, also at page 85 lines 16 to 36. A further authority in support is the case of Ukpai v. Okoro (1983) 11 SC 231 or (1983) NSCC 599 as well as the provisions of sections 272 and 273 of the Constitution which provide for the jurisdiction and constitution of the High Court of a State but take no cognizance of judicial divisions.

Further still in the Supreme Court decision of Ben Nwabueze AND Anor: v. Justice Obi Okoye (1998) 4 NWLR (Pt. 91) 664, (2002) 10 WRN 123 at 126 to 127 ratio 2, Agbaje, JSC held that, as regards the High Court of Anambra State, the area of territorial jurisdiction embraces the whole of Anambra State. From the foregoing, the contention that the Chief Judge of Anambra State sitting at Awka in the Awka Judicial Division lacks jurisdiction in respect of the said contract entered into at Nkpor in Idemili Judicial Division of the High Court of Anambra State, cannot be a reflection of the position of our law, as rightly submitted by the respondent’s counsel.

It follows therefore that the submissions made by the appellant’s counsel on the said issue No.2 as well as the authorities cited in support thereof all serve no useful purpose. This is so because in the light of the constitutional provisions (supra), the said issue No. 2 is not an issue properly to be so raised whatsoever. In other words I hold, without mincing words that as rightly submitted by the respondent’s counsel the learned trial Chief Judge had jurisdiction to entertain this matter and did act within his jurisdiction. The appeal on this issue therefore fails.

The 3rd and last issue is the justification of the award of interest at the rate of 25% per annum on the judgment debt from 23/2/2000 to 1/4/2001 to the plaintiff/respondent. The basis for this claim is set out at paragraphs 12 and 13 of High Court of a State shall consist of:

“(a) a Chief Judge of the State; and

(b) such number of Judges of the High Court as may be prescribed by a law of the House of Assembly of the State.”

The effect and the implication of this provision is that there is only one High Court of a State and in applying to the matter at hand, every Judge in Anambra State therefore has jurisdiction to hear any case in the State. The creation into various judicial divisions, is merely for administrative convenience as per that specified in the case of Alhaji Oloyede Ishola v. Memudu Ajiboye (1994) 6 NWLR (Pt. 352) 506, (1994) 7 – 8 SCNJ 1 at p. 12 per A. 1. Iguh, JSC, also at page 85 lines 16 to 36. A further authority in support is the case of Ukpai v. Okoro (1983) 11 SC 231 or (1983) NSCC 599 as well as the provisions of sections 272 and 273 of the Constitution which provide for the jurisdiction and constitution of the High Court of a State but take no cognizance of judicial divisions.

The respondent laments the alleged fantastic and enormous gain made by the appellant by using his money for business and which same would have otherwise earned him benefit had he ploughed the money into his own business.

On an award of interest, the law is settled that pre-judgment interest may be claimed and awarded in circumstances where it had been contemplated by the agreement between parties or under a mercantile practice or a principle of equity such as a fiduciary relationship. The relevant authorities in support are Ekwunife v. Wayne (W/A) Ltd. and Abdullahi v. Waje Community Bank both cited (supra) as well as Owena Bank (Nig.) PIc. v. Adedeji (2000) 7 NWLR (Pt. 666) 609.

In the agreement between the parties there is nothing, which contemplates that the deposit paid would attract an interest. There, is also no such evidence placed before the learned trial Chief Judge to justify the award of such an interest per annum and for the said period of time. There is further no evidence on the facts to justify the award even on the principle of equity.

The judgment of the lower court had not also shown the reason undermining the motivation of the said award of interest. Interests are not to be awarded at large but rather that which must be specifically indicated and be proved; the failure to file any counter- affidavit against same as contemplated by the respondent notwithstanding. There was the expectation upon the plaintiff to have proved the justification. The absence of such, amounted to a speculation and without basis. As rightly argued and submitted by the appellant’s counsel the order made of the said 25% interest per annum on the judgment debt from 23/2/2000 to 1/4/2001 in the circumstance was not justifiable and that which is hereby set aside. The appeal on this issue like issue No.1 also succeeds.

In the result of this appeal, while issue No.2 fails, issues Nos. 1 and 3 succeed. On the totality therefore, I make an order setting aside the judgment of the learned Ononiba, C. J. sitting at the High Court, Awka in Anambra State and made on the 3rd May, 2001. Rather and in its place I hold that the affidavit filed by the defendant! appellant in support of his notice of intention to defend, raises a triable issue and the reason, which I therefore make an order transferring the suit No. A/I08/2001 onto the general cause list and parties are to file their pleadings before trial court for hearing. I also make a further order of N3,000.00 costs to the appellant against the respondent.

MOHAMMED, J.C.A.: I have read in advance the judgment of my learned brother, Ogunbiyi, JCA, which has just been delivered in this appeal. I entirely agree with the reasoning and conclusion arrived at in resolving all the 3 issues that arose for the determination of the appeal, which I hereby fully adopt as mine. The main issue for determination really is whether the appellant’s notice of intention to defend the undefended suit had disclosed a triable issue within the requirement of Order 24 rule 9(2) of the Anambra State High Court (Civil Procedure) Rules, 1988 which states:

“(2) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the date fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, and the court is satisfied that there is a triable issue, then and in such a case the case shall be entered in the general cause list and pleading shall be filed.”

Having regard to the facts averred in paragraphs 4 to 13 of the plaintiff’s affidavit in support of his claim for the refund of his N205,000.00 paid to the defendant as part payment for the purchase of a Mercedes Benz 1621 Tipper, without disclosing how much the Tipper was sold to him, and the averments contained in the affidavit in support of the notice of intention to defend particularly in paragraphs 7 to 13 thereof which were not controverted, I am of the firm view that the defence disclosed therein can not be described as vague, frivolous or designed to delay the trial of the action. The defendant’s/appellant’s affidavit had therefore clearly disclosed a triable issue justifying entering the case on the general cause list for hearing on pleadings.

In the result, I also hereby allow this appeal and abide by the orders made in the leading judgment including the order on costs.

FABIYI, J.C.A.: I had a preview of the lead judgment of My Lord – Ogunbiyi, JCA. I agree with the reasons therein contained leading to the conclusion that the appeal is meritorious and should be allowed.

Order 24 rule 9(2) of the Anambra State High Court (Civil Procedure) Rules, 1988 requires that a defendant must file a notice of intention to defend five clear days before the date fixed for hearing. The notice of intention to defend must be accompanied by an affidavit which depicts triable issue(s). These requirements are basic. They are sine qua non. Refer to Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 SC 51; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 213) 523 at 532.

The respondent bargained for the purchase of a Mercedes Benz 1621 Tipper from the appellant. He made a down payment of the sum of N205,000.00 on 23/2/2000 and waited until November, 2000 without going to pay the balance. There is the ‘mutual agreement’ of the payment of N750.00 per day parking and security fees. Salient averments in respect of same were not denied. I am of the firm view that such constitutes a triable issue that should not be given a wave of the backhand. There is no doubt about it that the suit deserves to be entered in the general cause list for hearing on pleadings.

For the above reasons and the fuller ones contained in the lead judgment, I too, hereby allow the appeal. I endorse all the orders contained therein including the order on costs.

Appeal allowed

Nigerian Cases Referred to in the Judgment:

C. B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) 25

Abdullahi v. Waje Community Bank (2000) 7 NWLR (Pt. 663) 9

Ben- Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523 l

C.C.B. Plc. v. Samed Inv. Co. Ltd. (2000) 4 NWLR (Pt. 651) 19

Dangida v. Mobil (2002) 4 NWLR (Pt. 766) 482

Ekwunife v. Wayne W/A Ltd. (1989) 5 NWLR (Pt. 122) 422

Grayshot v. Minister of Agric (2002) 9 NWLR (Pt. 771) 1

Ibeanu v. Ogbeide (1994) 7 NWLR (Pt. 359) 697

Ishola v. Ajiboye (1994) 6 NWLR (Pt. 352) 506

Ivan v. Bilante Int. Ltd. (1998) 5 NWLR (Pt. 550) 396

Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737

Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414

Ladimeji v. F.M.WH (2002) 3 NWLR (Pt. 648)340 ed.

Makwe v. Nwukor (2001) 14 NWLR (Pt. 733) 356

Mark (Nig.) Ltd. v. Module (1965) ANLR 446

Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266

Morike v. Adamu (2002) 5 WRN 78

Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620

NAB Ltd. v. Felly-Kemeh (Nig.) Ltd. (1995) 4 NWLR (Pt. 387) 100

Nimanteks Associates Ltd. v. Marco Canst. Co. Ltd. (1991) 2 NWLR (Pt. 174) 411

NSC Ltd. v. Celtic (2002) 1 WRN 67

Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664

Olubosola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 SC 51

Owena Bank (Nig.) Plc. v. Adedeji (2000) 7 NWLR (Pt. 666) 609

R.E.O. v. Nwosu (2002) 11 WRN 28

Tukur . Govt. of Gongola State (1989) 4 NWLR (Pt. 117) 517

U.B.A. Plc. v. Mode (Nig.) Ltd. (2001) 13 NWLR (Pt. 730) 335

U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19

Udemba v. Morecab Finance (Nig.) Ltd. (2003) 1 NWLR (Pt. 800) 96

Ukpai v. Okoro (1983) 2 SCNLR 341

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federal Republic of Nigeria, 1999, Ss. 36(1), 270, 272 and 273

Contract Law, Cap. 32, Vol. 2, Revised Laws of Anambra State, 1991, Ss. 139 and 144

Nigerian Rules of Court Referred to in the Judgment:

High Court of Anambra State (Civil Procedure) Rules, 1988, 0.4 fr. 1,2,3 and 4; 0.5 r. 14; O. 24 r. 9

3PLR – PAUL OKOYE ANUNOBI V. KENNEDY OBIWELOZO

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

Law Nigeria Admin

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