3PLR – JOB CHARLES (NIG) LTD V. OKONKWO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JOB CHARLES (NIG) LTD

V.

OKONKWO

IN THE COURT OF APPEAL

[ENUGU DIVISION]

3PLR/2001/182  (CA)

 

OTHER CITATIONS

FWLR (Pt.117) 1067

 

BEFORE THEIR LORDSHIPS:

JUSTIN THOMPSON AKPABIO, JCA (Presided and delivered the leading judgment)

EUGENE CHUKWUEMEKA UBAEZONU, JCA

SULE AREMU OLAGUNJU, JCA

 

BETWEEN

1. JOB CHARLES (NIG.) LTD.
2. J.U. NWOGWUGWU
3. EZEKIEL AYOGU

 

AND

1. J.E.N. OKONKWO

 

REPRESENTATION

A.J. Offiah (Mrs) from the firm of Chief A.O. Mogboh, SAN & B.O. Eneh Esq., for appellants.

Johnny C. Okonkwo Esq. (SAN) with him Amaochi Onyekuluje for respondent.

 

MAIN ISSUES

PRACTICE AND PROCEDURE – EVIDENCE – Affidavit evidence – uncontradicted averments in same – effect of.

PRACTICE AND PROCEDURE – “Triable issue” for the purpose of undefended list procedure – meaning of.

PRACTICE AND PROCEDURE – Processes – necessity of effective service of court processes on a defendant.

PRACTICE AND PROCEDURE – Undefended list procedure – party who filed notice of intention to defend – whether such party could validly contest service of a writ.

PRACTICE AND PROCEDURE – Undefended list procedure – trial court faced with a defendant who raises a triable issue in respect of one item but failed to do so in others – course open to trial court.

PRACTICE AND PROCEDURE – Undefended list procedure under order 24 rule 9 of Anambra State High Court Rules 1988 – duty of trial Judge thereunder.

 

MAIN JUDGMENT

JUSTIN THOMPSON AKPABIO, JCA. (Delivered the following judgment):

This is an appeal against a judgment of Ahanonu J., of Enugu State High Court of Nigeria, holden at Enugu in suit No. E/229/99 placed on the undefended list delivered on 7/12/99, wherein he gave judgment in favour of the plaintiff in the sum of N771,000.00 with costs of N5,000.00.

 

In the suit of the plaintiff placed on the undefended list the plaintiff’s claim against the three defendants jointly and severally was that he granted a loan of N400,000.00 (Four hundred thousand naira) to the 1st and 2nd defendants for the expansion of their petroleum business along Port Harcourt – Aba Road. By an agreement dated 23rd March, 1995, the 1st and 2nd defendants agreed to pay N40,000.00 (Forty thousand naira) quarterly as interest. The 3rd defendant signed the said agreement as a guarantor or surety. By 16th December, 1998 when the 2nd defendant was reported dead, the defendants had paid N319,000.00 of the principal sum of N400,000.00 leaving a balance of N81,000.00, while no money whatsoever was paid in respect of the interest contents of N40,000.00 per quarter.

 

Thus a total of N771,000.00 was due and payable by the defendants to the plaintiff as at June, 1999. The plaintiff therefore instituted this action jointly and severally against the three defendants claiming the said sum of N771,000.00 plus N500,000.00 being legal costs for the suit (including solicitor’s fees and other charges).

 

On being served with the court processes in this matter the defendants first got their counsel to enter a conditional appearance dated 1st September, 1999, on behalf of the 1st and 3rd defendants. They then followed up by filing on the same day, (1/9/99) a notice of intention to defend, supported by an affidavit of 11 paragraphs disclosing the following grounds of defence:

 

(a)     That the writ of summons and affidavit in support were wrongly served on them outside jurisdiction without leave of court.

 

(b)     That the transaction between the parties was purely a loan transaction between the plaintiff and 2nd defendant who died on 16th December, 1998 and had nothing to do with the 1st defendant which is a limited liability company, as there was no company resolution authorising the company to raise such a loan nor affixed their company seal.

 

(c)     Lastly, they admitted having borrowed the sum of N400,000.00 (Four hundred thousand naira) from the plaintiff, but said the 2nd defendant had paid back the sum of N370,000.00, before he died, the last of such payments being the sum of N20,000.00 paid on 2nd October, 1998, through plaintiff’s counsel, thereby leaving a balance of only N30,000.00 before death of 2nd defendant. The said affidavit was sworn to by one Emmanuel O. Dimkpa, the Chief Litigation Officer in the chambers of Chief Nduka Edede & Co., counsel to the defendants. However on the date of hearing none of the defendants was present in court, and no letter of explanation was sent. The learned trial Judge therefore gave judgment in favour of the plaintiff in the sum of N771,000.00 as claimed with cost of N5,000.00. The defendants were dissatisfied with the said judgment and so have now appealed to this court.

 

Briefs of arguments were later filed and exchanged, and issues for determination formulated. For the defendants who will hereinafter be referred as the appellants, two issues for determination were formulated as follows:-

 

“Issues for determination:

 

1. Whether the trial Judge lacked the jurisdiction to entertain the suit.

 

2. Whether the court was right in the circumstances of the case in entering judgment for the plaintiff without giving the defendants opportunity to be heard.”

 

On behalf of the plaintiff, who will hereinafter be referred to as the respondents, two issues, but differently worded were also formulated as follows:-

 

“A.     Whether the trial Judge possessed or lacked jurisdiction to entertain the suit ?

 

1. Was the learned trial Judge right in entering judgment for the plaintiff having regard to the circumstances of the case?”

 

After careful consideration of the issues formulated above by learned counsel on both sides, I am in agreement with them that there are only two issues for determination in this appeal. Since it was the appellants that brought the appeal to this court, I shall proceed to resolve this appeal in accordance with the formulations in appellants’ brief.

 

1. Re issue No. 1

 

“Whether the trial Judge lacked the jurisdiction to entertain the suit”

 

The main argument under this issue was that since the 1st and 2nd appellants resided and carried on business in Abia State outside the jurisdiction of the Enugu State High Court, where the action was instituted, it was incumbent on the respondent to have obtained leave of the Enugu State High Court before the issuance and service of the writ of summons under these circumstances. It was conceded that the Anambra State High Court Rules, 1988, applicable at Enugu State, did not make provision for conditions applicable for service of writ of summons outside jurisdiction, but it was further argued that by virtue of section 16 of the High Court Law, where our rules were silent on any salient point, the court was obliged to import and apply the practice and procedure applicable in the High Court of Justice in England on 30th September, 1960. Reference was then made to order 2 rule 4 Rules of Supreme Court of England 1960 which provides as follows:-

 

“No writ of summons for service out of the jurisdiction shall be issued without the leave of the court or Judge.”

 

The cases of Nwabueze v. Okoye (2002) 10 WRN 123; (1988) 4 NWLR (Pt. 91) page 664; Madukolu v. Nkemdilim (2001) 46 WRN 1;(1962) 1 All NLR (Pt. 4) 587; and Skenconsult (Nig) Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 S.C 6 were cited as authorities in support. Since no leave of court was obtained for both the issuance and service of the writ of summons outside jurisdiction, it was submitted that the whole trial was null and void and should be struck out.

 

In response to the above it was submitted on behalf of the respondent that Nigeria no longer has to import any legal provision from England, as Nigeria now has its own provisions governing the service of writs of summons and other court processes outside jurisdiction. Order 5 rule 18 of High Court Rules 1988 of Anambra State (applicable to Enugu State), was cited as a law which did not require any leave of court for the issue of any writ of summons.

 

“Provided that leave for service out of jurisdiction shall be required as prescribed in order 7 rule 19(2) of these Rules.”

 

The provisions of order 7 rules 19(1) and (2) were then reproduced to show that no leave of court was required if the writ of summons or other process of court was to be served outside the state if the service is to be effected elsewhere within Nigeria. It was only where a writ of summons was to be served on a defendant out of Nigeria that leave of the court shall be obtained.

 

It was then submitted that since in the instant case, Abia State in which the 1st and 2nd appellants were resident, was within Nigeria no leave of court was required either for issuance or service of the writ of summons even though out of the jurisdiction of Enugu State High Court. The cases of Okafor v. Igbo (1991) 8 NWLR (Pt. 210) 476; and NNPC v. Anwuta (2000) 13 NWLR (Pt. 684) page 363 were cited and relied upon. In the last mentioned case it was submitted that Ikongbeh, JCA of the Court of Appeal, Port Harcourt Division had held in his lead judgment that leave was not required to issue and serve process originating from Port Harcourt and meant to be served in Falomo, Lagos, which is outside Rivers State.

 

I have carefully considered the two arguments canvassed above by learned senior counsel on both sides, and also done some research on my own and come to the conclusion that there is no doubt that service of a writ of summons on a defendant is a sine qua non to any effective adjudication. Any adjudication without effective service of appropriate court process on a defendant is nothing but a nullity. (See Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587 and Skenconsult (Nig) Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 S.C 6.

 

However, where a defendant, though not properly served with a writ of summons nevertheless attends court and participates actively in the proceedings, he would be deemed to have waived his rights, and would no more be heard to complain of non-service. This is so because failure to serve a writ (as required by court rules) is an irregularity and not an illegality.

 

In the case of Public Finance Securities Ltd. v. Jefia (1998) 3 NWLR (Pt. 543) 602 at 612 A-B, on the question whether a party who filed notice of intention to defend matter on undefended list could validly contest service of writ, the Court of Appeal (Benin Division) per Rowland, JCA held inter alia as follows;-

 

“A party who has filed his notice of intention to defend a matter on the undefended list cannot turn round to deny service of the writ of summons in the case. If a party was not served with the writ of summons it would not have the material on which its notice of intention to defend the action would be based. The party would not have had notice of the action. He cannot therefore file a notice of intention to defend it.”

 

The appeal was therefore unanimously dismissed. On the authority of the foregoing, I hold that since the appellants had already entered conditional appearance in this case, and also filed their notice of intention to defend, on the same day, as was done in the case of Jefia (supra), it is too late for them to turn round now and complain of non-service or non-endorsement of writ “for service out of jurisdiction” or for failure to obtain leave, which has been shown to be now unnecessary. Issue No. 1, is therefore hereby resolved in favour of respondent, namely that the court had jurisdiction to have entertained the suit.

 

Re issue No. 2

 

“Whether the court was right in the circumstances of the case in entering judgment for the plaintiff without giving the defendants opportunity to be heard.”

 

Under this issue, the main argument of the appellants’ counsel was that after the appellants had filed their notice of intention to defend and their affidavit in support, they did not come to court on 25/10/99, which was the return date. However, on that date neither the appellants nor their learned counsel was in court. Instead of ordering a fresh hearing notice to be issued, the learned trial Judge proceeded to hear the case in the absence of the appellants. Counsel for the respondent took that opportunity to make the submission that under the rules, the affidavit in support of intention to defend should have been sworn to by the defendants or one of them and not by a non-party to the proceedings. The learned trial Judge apparently bought that submission and so held the affidavit of the appellants to be not only non-authoritative, but also “watery” and without merit. In the submission of learned appellants counsel the affidavit of appellants raised quite a number of triable issues e.g. whether the 2nd appellant had already paid the sum of N370,000.00 before his death; and also whether the transaction was a money lending transaction or one between a business financier and business owners. Learned trial Judge never considered any of these issues, but rather summarily held that no triable issue was disclosed by the affidavit, and so gave judgment in favour of respondent.

 

It was then argued that the learned trial Judge was in the interest of justice obliged to adjourn the case before judgment so as to give the defendants or their counsel the opportunity to respond to the issues raised by the plaintiffs counsel. The undefended list procedure was not designed to deprive litigants of the opportunity of joining issues in cases in court. There was no justice where a defendant who has filed a notice of intention to defend and who was not informed of the date of hearing and the date of judgment was not heard. It was then submitted that the defendants/appellants right as enshrined in section 36 of the Constitution had been breached which rendered the proceedings null and void. The cases of Adigun v. A.G., Oyo State (1987) 1 NWLR (Pt. 53) 678 at 709; (1987) 4 S.C 272; Nishizawa Ltd. v. Jethwani (2001) 8 WRN 153; (1984) 12 S.C 234 at 284-285 as well as Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) page 1; and Frank Muobike v. Thos Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 672-677 were cited in support.

 

The court was then urged to allow this appeal. In response to the above, the learned senior counsel for the respondent first spent a disproportionately long time and space in his brief summarising and criticising the appellants’ brief, before going over to his own submissions. He made the point that the appellants were emphasising more on what they called “unfair trial” or “lack of fair hearing” rather than on the question whether their affidavit in support of intention to defend disclosed a triable issue or not. They complained that the learned trial Judge entertained arguments from respondent’s counsel on whether an affidavit in support of intention to defend should be sworn to by a defendant in person or it could be sworn to by any other person on his behalf as was done in the case. They also complained about the contention of respondent’s counsel on whether defendants/appellants should have been present in person to “argue” or “move” their affidavit. Whichever way one looks at it the appellants complained that the learned trial Judge took a decision on the matter (whether rightly or wrongly) in the absence of the appellants who were defendants, without waiting for them or issuing fresh hearing notices, for them to come and respond to the arguments of learned counsel for respondent. In their submission taking a decision in these circumstances amounted to an unfair trial, which was null and void. The court was urged to set aside the whole trial as a nullity.

 

Learned senior counsel for respondent then pointed to the fact that this line of reasoning went contrary to the issue for determination formulated by the appellants, which was whether the court was right in entering judgment for the plaintiff in the circumstances of this case. Learned senior counsel then proceeded to argue that the learned trial Judge was right in coming to the decision he did because under order 24 rules 9(1) and 9(2) of the High Court Rules, 1988 of Anambra State (applicable to Enugu State) which governs the hearing of suits placed in the undefended list, there is no room for oral evidence by the parties. Everything is done by affidavits and counter-affidavits if after considering the affidavits filed on both sides, the court finds and holds that the defendant has a good defence to the suit of plaintiff, the matter would be transferred to the general cause list for hearing on pleadings. But if the court came to the conclusion that the affidavit in support of intention to defend filed by the defendants did not disclose a defence on the merit or a “triable issue” judgment would be given or entered in favour of the plaintiff on the same day. He emphasised that the whole essence of the undefended list procedure was to save time and expense and prevent the plaintiff from being dribbled by the defendant and kept away from money to which he was legitimately entitled. (The case of Bature v. Savannah Bank of Nigeria Ltd. (1998) 4 NWLR (Pt. 546) 438 was cited in support. He then submitted that the learned trial Judge had carefully considered the whole affidavit in support of intention to defend, and came to the conclusion that it was “watery” and cannot be said to have raised any bona fide issue for trial. Furthermore, the return date of 25/10/99 was well known to the appellants who had compiled the appeal records themselves and made the writ of summons page 1, in the said records. And yet on the said date, both they and their learned counsel failed to show up, nor did they send any letter to explain their absence. They cannot now come to complain of injustice or unfair hearing, as they were given every opportunity to attend court and make their defence. The court was therefore urged to dismiss their appeal.

I have carefully considered all the legal arguments canvassed above by learned Senior Advocates on both sides and come to the following conclusions.

 

Trial under the undefended list in Enugu State is governed by the provision of order 24 rule 9 of the Anambra State High Court Rules, 1988, which reads as follows:-

 

“9(1) The hearing of a suit placed in the undefended list shall be as prescribed in this rule.

(2)     If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day 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 case the suit shall be entered in the general list and pleadings shall be filed.

 

(3)     Where any defendant neglects to deliver the notice of defence and affidavit, as described in the sub-rule (2) within the time fixed by the said rule, the court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.

 

(4)     Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by sub-rule (2), within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of sub-rule (3), or where he delivered the notice and affidavit but the court is not satisfied therefrom that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”

 

From the foregoing, it is quite clear that what a trial court must do before giving judgment or dismissing the claim or transferring it to the general cause list for hearing on pleadings is to go through both the affidavit of plaintiff in support of the claim, and the affidavit in support of intention to defend, and decide whether there is disclosed any triable issue between the parties. If there is such a triable issue, the matter would be transferred to the general cause list for trial on pleadings. If however the learned trial Judge comes to the conclusion that there is no triable issue disclosed, he will enter judgment in favour of plaintiff as per his claim. There is no provision for any further oral hearing of the matter after the affidavit of intention to defend has been filed. Further more, whether there is or there is no triable issue raised between the parties must be gathered from within the four walls of the affidavit in support of intention to defend, and no more; not even from legal arguments of learned counsel on both sides. In the instant case the affidavit in support of intention to defend was an 11-paragraph affidavit which I consider necessary to reproduce in full as follows:-

 

“I, Mr. Emmanuel O. Dimkpa, male Christian, Chief Litigation Officer in the chambers of Chief Nduka Edede & Co. and residing at No. 41 Okwu Avenue, Aba, citizen of Nigeria make oath and state as follows:-

 

1. That I am conversant with the facts of this case in my capacity as the litigation and administrative officer in the chambers.

 

2. That the 1st and 3rd defendants are not indebted to the plaintiff.

 

3. That the purported transaction that transpired was between the deceased, 2nd defendant and the plaintiff on a purely personal business transaction as per exhibit JEN-1 as averred in paragraph 13 of the affidavit in support of the claim.

 

4. That the purported transaction has no nexus between the 1st defendant as a company with the plaintiff or the deceased 2nd defendant as there was no company resolution to enter into such borrowing whatsoever or common seal of the company at that time.

 

5. That the agreement purportedly binding the 1st defendant and 3rd defendant was executed in Aba, in Abia State between the plaintiff as a business financier and not as a money lender on the 23rd of March, 1995.

 

6. That I am reliably informed by Chief Nduka Edede that the deceased 2nd defendant who the plaintiff knows very well had as at 23rd of June, 1998, paid N250,000.00 out of the N400,000.00 of the joint venture business between him and the plaintiff.

 

7. That the plaintiff knows that the 2nd defendant who is his friend and business partner died on the 16th of December, 1998 and was duly informed.

 

8. That prior to the death of the 2nd defendant, he made a further payment of N20,000.00 as per letter of 2nd October, 1998 to the plaintiff counsel bringing the total sum of payment to N370,000.00 leaving a balance of N30,000.00 before his death.

 

9. That the plaintiff’s claim to the best of my knowledge and belief is baseless and speculative as the personal amount paid by the deceased 2nd defendant to the plaintiff has almost been completed before his death.

 

10. That the 1st and 3rd defendants will raise all legal and equitable defences to the jurisdiction of the court to hear this case that no leave was granted before the writ of summons and service was effected on the defendants on the 30th August, 1999.

 

11. That I swear to this affidavit in good faith believing the contents to be true and correct in accordance with the Oaths Act of 1990.

 

Sgd.

……………………

DEPONENT”

 

From the foregoing it will be seen that the affidavit in question was not as “watery” as the learned trial Judge would want us to believe. First, from paragraphs 6 and 8 of the affidavit, the appellants clearly admitted obtaining a loan of N400,000.00 from respondent, out of which the 2nd appellant had repaid N370,000.00 before he died, leaving the balance of N30,000.00 only. Of the amount re-paid the last N20,000.00 was said to have been paid through plaintiffs counsel as per letter of 2nd October, 1998. It should be noted that according to the affidavit in support of plaintiffs claim only the sum of N319,000.00 was repaid to plaintiff leaving a balance of N81,000.00 from the original N400,000.00 borrowed. However, since receiving the affidavit of intention to defend, there has been no “further affidavit” filed by plaintiff disputing paragraph 8, to say that no sum of N20,000.00 was paid to their counsel on 2/10/98. The inference is of course that such an averment was true and must be accepted. Ajao v. Ashiru (1973) 1 All NLR (Pt. II) 51; (1973) 11 S.C 23; Omoregbe v. Lawani (1980) 3-4 S.C 108 at 117; Alagbe v. Abimbola (1978) 2 S.C 39 at 40; Incar Nig. Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453,461- 462. It is my considered view therefore that judgment should have been entered for the plaintiff/respondent for the sum of N30,000.00 admitted by the appellants as what was outstanding from the principal sum of N400,000.00 lent to them. As for the remaining sum of N600,000.00 which respondent claimed to be the aggregate of the sum of N40,000.00 payable to him every three months as his share of profit from appellants’ business there has been controversy about the legal basis for that sum both in the affidavit of the parties at the trial court and in their briefs filed in this court. Was this money payable as interest on the capital sum of N400,000.00? If interest, was the respondent a registered money lender, a licensed bank, or was the money just a friendly loan, which should not have attracted any interest or was the respondent a shareholder in appellants’ business in which case the money would be dividends. However, the place from which the answer would be found should be the agreement exhibit JEN 1. signed by all the parties, under paragraphs 3 and 7 which provide as follows:-

 

“3.     From the 23rd day of March, 1995, the business owners (i.e. the appellants) shall pay to the business financier (i.e. the respondent) the sum of N40,000.00 (Forty thousand naira only) every three months till the termination of this arrangement being part of his benefits for the provision of the funds.”

“7.     For avoidance of doubt the sum of N40,000.00 (Forty thousand naira) paid quarterly does not form part of the sum of N400,000.00 provided by the business financier.”

 

Although the respondent called it “benefits for the provision of the funds” the obvious inference was that such money was “interest” usually charged by licensed bank and registered money lenders. Whether the respondent fell within or outside any of these categories was a matter that could only be resolved after a full scale trial on pleadings. So, the learned trial Judge should have entered judgment in respect of the N30,000.00 admitted by the defendants/appellants, and then transferred the claim of N600,000.00 for interests or “benefits for provision of funds” to the general cause list for hearing on pleadings. See the case of Pavlovic Ivan v. Bilante International Ltd. & Anor. (1998) 5 NWLR (Pt. 550) 396 where it was held by this court that:

 

“If there are two or more items of claim in a suit, and the defendant raises a triable issue in respect of one item, but failed to do so in the other or others, nothing stops the trial Judge from entering judgment in respect of the item for which no bona fide defence has been raised, and then sending the other for trial on pleadings.”

 

See also Franchal (Nig) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt. 412) 176 at 188.

On the totality of the foregoing, this appeal hereby succeeds partially and is hereby allowed in part. Judgment is hereby entered in respect of the sum of N30,000.00 being balance of the sum of N400,000.00 loan given to the appellants by the respondent, for the expansion of their business, which has not yet been liquidated.

 

In view of the controversy surrounding the question whether respondent is entitled to the payment of N40,000.00 every three months as his “benefits for the provision of the funds”. I hold that a triable issue was raised in respect of that matter, and the learned trial Judge ought not to have entered judgment in respect of that item. Judgment entered in respect of that item is therefore hereby set aside, and the matter sent back to the court below for trial on pleadings by another Judge of the Enugu State High Court.

 

Since each party has won something in this court, there shall be no order as to costs.

 

EUGENE CHUKWUEMEKA UBAEZONU, JCA.: I agree

 

SULE AREMU OLAGUNJU, JCA : I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Akpabio, JCA. I agree in principle with the leading judgment that the first issue of whether the trial court had jurisdiction to entertain the action should be resolved against the appellants for broadly the reasons canvassed in the leading judgment. On the question of whether the learned trial Judge was right in entering judgment for the plaintiff/respondent I would rather express an unqualified caveat that the learned trial Judge having got badly mixed up with the procedure for summary trial under the undefended list the action should be transferred wholly to the general cause list. In other words, I do not find it persuasive that the undefended list procedure under order 24 rule 9 of the Anambra State High Court Rules, 1988, is amenable to a staggered form of judicial resolution whereby judgment can be entered on the undefended list for the amount admitted by the defendant while transferring the contentious part of the claims to the general cause list for trial. I will take the two issues seriatim.

 

As regards the issue of jurisdiction, service of the writ of summons originating from the Anambra State High Court on the defendants/appellants who were residing in Abia State without the proper endorsement as provided by section 97 of the Sheriffs and Civil Process Act, Cap. 407 of the Laws of the Federation of Nigeria, 1990, and within the time stipulated by section 99 thereof is, prima facie, viodable. The point was examined by this court in Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254, 273, based on the Supreme Court’s decision in Skenconsult Nigeria Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 S.C 6. To make amends for such defective service the defendant is entitled to ask the court which issued the process to have the service set aside before he takes any further step in the proceedings. Where, however, the aggrieved defendant took step in the proceedings in the sense that after noticing the defect he participated fully without complaining he is deemed to have waived his right to complain about the defect in the service of the writ and is, in law, precluded from doing so. See Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 193; (1985) S.C 260; NEPA v. Onah (1997) 1 NWLR (Pt. 484) 680; and Ezuma v. Nkwo Market Community Bank Ltd. (2000) 10 NWLR (Pt. 675) 638, 648-649. In this particular case the appellant who alleged non-compliance with section 97 of the Sheriffs and Civil Process Act having filed notice of intention to defend the action he is deemed to have waived the irregularities in service of the writ.

 

With regard to the issue of whether it was proper for the learned trial Judge to have entered judgment for the plaintiff/respondent under the undefended list procedure outlined in rule 9 of order 24 of the Anambra State High Court Rules, 1988, the crucial test is whether the facts deposed to by the defendant raised a triable issue as may be deemed sufficient to constitute a defence to the plaintiff’s action. In an 11-paragraph affidavit of the notice of intention to defend the action the defendants/appellants raised a number of points including the facts that the transaction giving rise to the action by the plaintiff/respondent was a purely personal business between him and the 2nd defendant who had died before the action was filed at the trial court; that fact, it is averred, is evidenced by an agreement between the plaintiff/respondent and the 1st defendant/appellant, a limited liability company, and its late Managing Director and majority shareholder. That there was no nexus between the company and the plaintiff/respondent in the sense that there was no resolution of the company authorising it to enter into the agreement. The affidavit also raised question of interest on the loan and whether the plaintiff/respondent is a business financier or a money-lender.

 

Given the meaning of the words ‘triable issue’ or ‘bona fide issue’ as ‘a genuine issue and ‘one which will preclude entry of summary judgment whenever there is the slightest doubt as to the facts’ there can be no gainsaying it that the facts deposed to by the defendants/appellants in their notice of intention to defend raised triable issues in the sense that an impartial umpire will be prompted to call for detailed facts on both sides: see Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737, 744; and Obi v. Nkwo Market Community Bank Ltd., (2001) 2 NWLR (Pt. 696) 113, 126-127. The Supreme Court has held that where facts sufficient to defend the action are disclosed in the notice of intention to defend it is not necessary for the trial Judge to consider at that stage whether the defence has been proved: see F.M.G.v. Sani (1990) 4 NWLR (Pt. 147) 688, 699.

 

That will be how far I am prepared to stretch the provision of rule 9 of order 24 of the Anambra State High Court Rules, 1988, on the undefended list procedure. It could well be that as canvassed in the leading judgment given similarity of facts the decisions of this court in Franchal (Nig) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt. 412) 176, 188; and Pavlovic Ivan v. Bilante International Ltd. (1998) 5 NWLR (Pt. 550) 396, may be authoritative in expanding the scope of judgment on the undefended list to enable judgment to be rendered placement, partly on the undefended list followed by the controversial part on the general cause list. But I can find no necessity to strain at the leash on a major principle of the law that cut across the summary and regular forms of proceedings.

 

However that may be, I am one with my learned brother, Akpabio, JCA., in the leading judgment in every respect on the two issues except on the partial judgment on the appellants’ supposed admission of indebtedness to the respondent. On the score of the difference I will resolve issue 2 in favour of the appellants that their notice of intention to defend the respondent’s action raised triable issues which are justification for transferring without any further ado the proceedings to the general cause list in their entirety. I will defer to the order in the leading judgment that the action be heard on the merit by another Judge of the Enugu State High Court other than Ahanonu, J. But I will not differ from the leading judgment on the order for costs by which I abide.

 

Cases referred to in the judgment

Adigun v. A.G., Oyo State (1987) 1 NWLR (Pt. 53) 678; (1987) 4 S.C 272.

Ajao v. Ashiru (1973) 1 All NLR (Pt. II) 51; (1973)11 S.C 23.

Alagbe v. Abimbola (1978) 2 S.C 39.

Bature v. Savannah Bank of Nig. Ltd. (1998) 4 NWLR (Pt. 546) 438.

Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1.

Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 193; (1985) 2 S.C 260.

Ezuma v. Nkwo Market Community Bank Ltd. (2000) 10 NWLR (Pt. 675) 638.

F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688.

Franchal (Nig) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt. 412) 176.

Ibrahim v. Balogun (1999) 7 NWLR (Pt. 610) 254.

Incar Nig. Ltd. v. Adegboye (1985) 2 NWLR (Pt. 8) 453.

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

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

Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587.

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

N.N.P.C. v. Anwuta (2000) 13 NWLR (Pt. 684) 363.

N.E.P.A v. Onah (1997) 1 NWLR (Pt. 484) 680.

Nishizawa Ltd. v. Jethwani (2001) 8 WRN 153;(1984) 12 S.C 234.

Nwabueze v. Okoye (2002) 10 WRN 123; (1988) 4 NWLR (Pt. 91) 664.

Obi v. Nkwo Market Community Bank Ltd. (2001) 2 NWLR (Pt. 696) 113.

Okafor v. Igbo (1991) 8 NWLR (Pt. 210) 476.

Omoregbe v. Lawani (1980) 3- 4 S.C 108.

Public Finance Securities Ltd. v. Jefia (1998) 3 NWLR (Pt. 543) 602.

Skenconsult (Nig) Ltd. v. Ukey (2001) 49 WRN 63; (1981) 1 S.C 6.

Statutes referred to in the judgment

Sheriffs and Civil Process Act, Cap. 407 Laws of the Federation of Nigeria, 1990 Ss. 91, 97 & 99.

Constitution of the Federal Republic of Nigeria, 1999 s. 36

Rules of courts referred to in the judgment

High Court (Civil Procedure) Rules of Anambra State, 1988 Or. 5 r. 18, Or. 7 r. 19(1)(2) & Or. 24 r. 9(1)(2).

Rules of Supreme Court of England 1960 Or. 2 r. 4.