ADENIRAN
V.
ADE-USAT FISHERIES (NIG.) LTD
(2009) JELR 53573 (CA)
Court of Appeal 15 Dec 2009 Nigeria
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Case Details
Suit Number:CA/I/2/2002
Judges:CLARA BATA OGUNBIYI JCA (Presided and Read the Lead Judgment) CHIDI NWAOMA UWA JCA MODUPE FASANMI JCA
Counsel:Oluseun Abimbola Esq. - for the Appellants.
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Chima Obi Esq. - for the Respondent.
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OGUNBIYI JCA (Delivering the Lead Judgment): This is an appeal against the decisions of Oyo State High Court variously delivered on 25 May 2001 and 20 July 2001. The ruling of the court in the earlier decision dismissed the defendants/appellants’ motion at pages 18-20 challenging the jurisdiction of the lower court and is evidenced at pages 24-28 of the record of appeal. The latter ruling however gave judgment in favour of the plaintiff on an undefended listaction atpages 42-47 of the said record. The appellants’ notice of appeal is at pages 54-56 of the record; it is undated and filed 30 August 2001 wherein six grounds of appeal inclusive an omnibus ground were raised. By the leave of this court granted on 29April 2002, the defendants/ appellants also appealed against the interlocutory ruling of 25 May 2001 on
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the issue of jurisdiction and to argue same in the final appeal and further filed 4 additional grounds of appeal.
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The plaintiff/respondent’s writ of summons marked undefended A with the accompanying affidavit and exhibits are at pages 1-9 of the record and same contains the following reliefs:
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“(i) The plaintiff’s claim against the 1st and 2nd defendants is the sum of N3,773,320.00 (three million, seven hundred and
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seventy-three thousand, three hundred and twenty-naira) due B
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to the plaintiff and being thevalue of Savannah Bank of Nigeria
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Plc cheque dated 7 June 2000 returned unpaid in June 2000 which cheque was issued to the plaintiff by the defendants in settlement of the said sum of N3,773,320.00 (three million,
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seven hundred and seventy-three thousand, three hundred and twenty-naira) being the outstanding balance in the account of C
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the defendants with the plaintiff in respect of the purchase of various types of fishes and which the defendants have failed, refused or neglected to pay despite repeated demands.
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) Interest pursuant to section 57 of the Bills of Exchange Act
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on the value of the dishonored cheque at 21% per annum D
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from 1 July 2000 till payment.
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) Interest at the rate of 21% per annum from March 2000 till the date of judgment and at 10% per annum thereafter until payment.”
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The facts of the case leading to this appeal is not disputed by the parties and E
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the stating (sic) is therefore relevant to give a brief insight as follows:
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The plaintiff/respondent commenced this action at the Oyo State High Court against the defendants/appellants to recover the value of the dishonoured cheque issued by the defendants/appellants to the plaintiff/
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respondent in settlement of debt and the statutory interest thereon under the undefended list action pursuant to Order 23 of the High Court of Oyo F
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State (Civil Procedure) Rules, 1988.
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The 1st defendant/appellant had in June 1996 at Ibadan entered in a credit sale agreementwith theplaintiff/respondent for the supply of various types of fishes and maintains an account to record the transactions between
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the defendants/appellants and the plaintiff/respondent. G
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By the account maintained by the defendant/appellant with the plaintiff/respondent, the sum of N3,773,320.00 (three million, seven hundred and seventy-three thousand, three hundred and twenty-naira) became due and payable to the plaintiff as at 6 March 2003 and a cheque for this amount
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was issue in favour of the plaintiff by the defendants which cheque was H
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dishonoured on presentation at Ibadan. The defendants/appellants’ case at
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the court was that they did not issue the said cheque to the plaintiff but admitted that a pre-signed blank cheque without filling the plaintiff’s name
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and amount was given to the plaintiff as a trade practice for security for the payment of fish supplied and that it was fraudulent for the plaintiff to fill in their name and amount on the cheque. They contend that there is therefore the need for oral evidence at the normal course of hearing to prove the issue of fraud. It is also the contention of the defendants that the Oyo State High Court has no jurisdiction to hear this case because the contract of sale of
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fish was performed in Lagos and that the 1st defendant resides in Abeokuta and the dishonoured cheque was not issued in Ibadan.
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On the issue of jurisdiction, it is the plaintiff’s contention that the
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plaintiff’s claim is not predicated on a breach of contract but on the cheque
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issued by the defendants in payment of his debt and which was dishonoured
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on presentation at Savannah Bank, Ibadan where the plaintiff resides.
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In accordance with the Rules of Court, both parties filed their briefs with that of the appellants dated 29 October 2003 and filed on 30 October 2003 while the respondent’s was dated 5 May 2006 but filed 8 May 2006.
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The two briefs were by the orders of this court deemed properly filed and served on 20 October 2004 and 11 July 2007 respectively. In consonance to the grounds of appeal filed, the appellants contend that six issues be raised for determination while respondent in turn formulated five issues which are all in congruent and relating one to the other. I would therefore adopt the five issues adumbrated by the respondent for the determination of this appeal and the issues are as follows:
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“(i) Whether considering the claim of the plaintiff as endorsed on the writ of summons and by virtue of the provisions of Order 10, rule 4(1) of the High Court of Oyo State (Civil Procedure)
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Rules, 1988, the Oyo State High Court has jurisdiction over
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this suit. ) Whether considering the writ of summons, the notice of intention to defend the contendingaffidavits and their respective exhibits and the provisions of Order 23, rule 3(1) of the High Court of Oyo State (Civil procedure) Rules, 1988, the lower court was not right in holding that the defendants have not made out a defence on the merit to warrant the transfer of this case from the undefended list to the general cause list.
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(i i) Whether the lower court was wrong in relying on the authority of London Joint Stock Bank Ltd. v. Macmillan (1918) AC
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777 to emphasize the need to take reasonable and ordinary precaution against forgery in drawing out cheques. Whether considering the provision of section 57 of the Bills of Exchange Act, Chapter 35, Laws of the Federation of Nigeria,
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1990, the lower court waswrong in granting the plaintiff interest A on the judgment sum being the value of the said dishonoured cheque and whether considering the judgment on interest payment, it is correct to state that the lower court granted a double interest in favour of the plaintiff.
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Whether from the fact of this case, the lower court was wrong B
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in making the defendants jointly liable for the value of the
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dishonoured cheque issued to the plaintiff by the defendants and the interest thereon.”
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On 19 October 2009 when the appeal was called up for hearing, the learned
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counsel, Messrs Oluseun Abimbola and Chima Obi were both in court wherein they represented their respective clients, the appellants and the C
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respondent. While the appellants’ counsel urged in favour of allowing the appeal, the respondent submitted same as lacking in merit and ought to be dismissed.
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Issue No. 1 questions the jurisdiction of the lower court in handling
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the matter of claim before it. Submitting on the absence of jurisdiction, the D learned appellants’ counsel cited the provision of section 10, rule 3 of the High Court of Oyo State (Civil Procedure) Rules, 1988, with great approval.
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He garnered that a suit upon the breach of any contract shall be commenced and determined in the judicial division in which such contract ought to have
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been performed or in which the defendant resides or carries on businesses. E
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That section 10 of the High Court Law of Oyo State, Cap. 46, Law of Oyo
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State, 1978 only vests jurisdiction on the High Court of the State in respect of matters over which jurisdiction is exercisable in Oyo State. Further reference was made to section 270 and 272 of the Constitution of the Federal
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Republic of Nigeria, 1999. Counsel argued further that with the appellants being resident and carrying on businesses outside Oyo State and in Ogun F
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State, they are not subject to the jurisdiction of the Oyo State High Court talkless of any judicial division in Oyo State. Counsel cited the case of
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U.N.N. v. Orazulike Trading Co. (1989) 5 NWLR (Pt. 119) 19 at 26 in support of his arguments. That with the cause of action having been shown
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to have arisen in Lagos, which facts counsel argued, were not denied by the G respondent, that the Oyo State High Court have therefore been robbed of jurisdiction in this matter. That the learned trial Judge in its ruling have no foundation or finding nor made anyfinding on how hearrived atthe conclusion that he had jurisdiction in this matter.
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The learned counsel thereupon has called on this court to evaluate H
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the evidence on record and to make the proper finding which can only lead
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to the conclusion that the lower court lacked jurisdiction. Counsel further cited the case of Daniel Bassil & Anor v. Fajebe & Anor (2001) FWLR
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(Pt. 51) 1914, (2001) 7 SCM 32 at 38. Counsel therefore reiterated the error fell into by the trial Judge by assuming jurisdiction over this suit when the cause of action neither arose nor the appellants residing within Oyo State.
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Submitting in response to the question of jurisdiction, the learned
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respondent’s counsel analysed in great detail the findings of the lower court in that respect and submitted adequate jurisdiction, especially when
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consideration is had to the subject matter of the claim before the court, which counsel argued was predicated on the dishonoured cheque and not contract. Counsel drew a clear distinction between the provisions of Order
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10, rules 3 and 4(1) of the High Court of Oyo State (Civil Procedure) Rules,
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1988. That while the former is dealing on suits upon contract, the latter
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could appropriately cover claim on dishonoured cheque as it is in the case at hand. The learned counsel on this issue cited anumber of decided authorities in support of his submission and concluded that considering the claim of the plaintiff as endorsed on the writ of summons and by virtue of the provisions
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of Order 10, rule 4(1) of the High Court of Oyo State (Civil Procedure) Rules, 1988, the Oyo State High Court has jurisdiction over this suit. He therefore urged this court to hold that the lower court was right in assuming jurisdiction as it did in this matter.
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It is pertinent to restate the trite law that the issue of jurisdiction is
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so fundamental that the absence of it renders the court handling the matter completely impotent. Jurisdiction over a subject matter is the pivot power of
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assumption by a court. In the determination of jurisdiction or competence of a court, the apex court in the celebrated case of Madukolu v. Nkemdilim (1962) 1All NLR(Pt. 4) 587 had succinctly laid down some guiding principles
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to be present before a court can be seised of a matter before it. It was
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therefore stated per Bairamian F.J. that a court is competent when:
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“(1) It is properly constituted as regards members of the bench, and no member is disqualified for one reason or another; and
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(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from
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exercising its jurisdiction; and
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(3) The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
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Karibi-Whyte JSC in Matari v. Dangaladima (1993) 3 NWLR (Pt. 281)
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266 also had this to say at 275 among others:
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“ ... Jurisdiction is a radical and fundamental prerequisite for
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adjudication.”
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It is also the duty of a trial Judge as rightly submitted by the learned
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appellants’ counsel that he must consider all issues canvassed before him A
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and to make findings therein. This was clearly put forth in the case of Bala
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v. Bankole (1986) 3 NWLR (Pt. 27) 141 also Harriman v. Harriman
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(1989) 5 NWLR (Pt. 119) 6 at 17.
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At pages 26 and 27 of the record of appeal, the learned trial Judge
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after analyzing the case had the following to say: B
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“The complaint of the defendants is that the cause of action in
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this case arose outside the jurisdiction of this court. Their counsel contended that all the facts and event that led to the accrualof thecause of action took place outside the jurisdiction
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of the court. On the other hand, learned counsel for the plaintiff drew the attention of the court to the claim before the court C
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which is based on a dishonoured cheque. The writ is indorsed with a claim for N3,773,320.00 (three million, seven hundred and seventy-three thousand, three hundred and twenty-naira) being the value of Savannah Bank of Nigeria Plc cheque dated
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7 June 2000 which was dishonoured on presentation. The D plaintiff is also claiming interest on the amount of the said cheque. The basis of the objection to jurisdiction of this court
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is that the action is founded on breach of contract which was entered into outside the jurisdiction of this court, and which
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was also to be performed outside jurisdiction. In that wise, I E
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think the objection is misconceived and thedefendants’ motion
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is hereby dismissed.”
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On the foregoing findings and conclusions, the learned appellants’ counsel argued that same is erroneous and without any foundation. The determinant issue is whether the learned trial Judge was correct in holding that it had
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jurisdiction. Relevant and for the consideration is the nature of the plaintiff’s F
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claims which same as contained at page 2 of the record, has been reproduced earlier in the course of this judgment.
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It is a well settled principle of law that in the determination of whether a court had jurisdiction or not, regard had to be had to indorsement
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on the writ and statement of claim of the plaintiff only and not on the G defendants’ statement of defence. The following authorities are relevant in support: Road Transport Employers Ass.& Ors.v. National Union of Road Transport Workers & Ors. (1996) 8 NWLR (Pt.469)737 at 743 and Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt.671) 107 at pages 114 and 117.
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The apex court has further restated the position of the law on the H
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foregoing issue in the case of Attorney-General, Federation v. Guardian
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Newspapers Ltd. & Ors. (1999) 9 NWLR (Pt. 618) 187 at 233, (2001) FWLR (Pt. 32) 87 wherein it states:
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“... It is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of the court: Adeyemi v. Opeyori (1976) 9-10 SC 31. This is because it is the plaintiff who invokes the constitutional right for a determination of his rights and accordingly, the exercise of the judicial powers of the constitution vested in the courts.”
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The next question to pose is, what therefore was the nature of the plaintiff’s
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claim and case at the lower court?” To answer this question, regard must be had to the writ of summons and consequent upon which the ruling of the court at pages 26 and 27 was predicated. The main subject matter of claim
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is the sum of N3,773,320.00 (three million, seven hundred and seventy-
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three thousand, three hundred and twenty-naira) which was held out as due
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to the plaintiff. The said sum being a cheque issued to the plaintiff and which was returned unpaid. It is for the settlement of the purchase of various types of fishes and which the defendants were alleged to have failed or neglected to pay.
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In my view and as rightly submitted by the learned respondent’s counsel from the said subject matter before the court, it is clearly deduced that the claim of the plaintiff is predicated on the cheque issued by the defendants, and which was dishonoured on presentation for payment at Savannah Bank of Nigeria Plc. at Ibadan. This is also the basis of the judgment of the lower court; in other words, the claim for the said cheque and interest thereon. The claim as rightly submitted by the respondent’s
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counsel is predicated on the dishonoured cheque and not on contract as wrongfully misconceived by the appellants’ learned counsel, and which is subject to Order 10, rule 3 of the High Court of Oyo State (Civil Procedure)
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Rules, 1988. It is relevant on the one hand to reproduce the provision of
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Order 10, rule 3 of the High Court of Oyo State (Civil Procedure) Rules
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which states:
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“All suits for specific performance or upon the breach of any contract shall be commenced and determined in the judicial division in which such contract ought to have been performed
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or in which the defendant resides or carries on business.” On the other hand, Order 10, rule 4(1) of the said rules also says:
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“4(1) All other suits shall be commenced and determined in the judicial division in which the defendant resides or carries on business or in which the cause of action arose.
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It is also of relevance to reproduce certain paragraphs of the plaintiff/ respondent’s affidavit in support of the writ of summons at pages 3 and 4 of
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the record and specifically, the facts deposed to at paragraphs 5, 9, 10, 11, 12, 13, 14, 15, 16 and 17 as follows:
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“5. That in June 1996, the 1st defendant entered into a credit sale A agreement with the plaintiff in Ibadan for the supply of various types of fishes to the tune of N2.5m (two million, five hundred thousand naira). Acopy of the agreement is exhibitA herewith.
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That an account was opened by the plaintiff to record the
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transactions between the plaintiff and the defendants. B
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That pursuant to the agreement, several consignments of fishes
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were collected by the defendants at the Ibadan office of the plaintiff and partial payments were made by the defendants to the plaintiff at Ibadan.
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That as at May 2000, the amount outstanding against the defendants in their account was the sum of N3,773,320.00 C
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(three million, seven hundred and seventy-threethousand, three hundred and twenty-naira) which the defendants have failed or refused to pay despite repeated demands.
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That attached herewith as exhibit B is a copy of the statement
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of account of the defendants. D
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That on 17 May 2000, the 1st defendant signed type written undertaking before the private secretary/administrative manager to the Alake of Egbaland to pay the said sum of N3,773,320.00 (three million, seven hundred and seventy-three
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thousand, three hundred and twenty-naira) in specified E
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installments within a short time. A copy of the undertaking is
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exhibit C herewith.
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That the 1st defendant failed to redeem his promise in exhibit C. That on 7 June 2000, the defendants issued the 2nd defendant’s Savannah Bank of Nigeria Plc. cheque in payment of the said F
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sum of N3,773,320.00 (three million, seven hundred and seventy-three thousand, three hundred and twenty-naira) to the plaintiff.
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That the said cheque was returned unpaid by the Savannah Bank several times and finally on 23 June 2000. A copy of the G cheque is exhibit D herewith. That the defendants were promptly notified each time the cheque was returned unpaid, but the defendants have up till now not paid the said sum of N3,773,320.00 (three million,
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seven hundred and seventy-three thousand, three hundred and H
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twenty-naira) due to the plaintiff, notwithstanding repeated
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demands.”
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The exhibits A, B, C and D are very explicit and clear. Also, from the facts
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revealed at paragraphs 15-17 of the record of appeal, it was only when the cheque, exhibit D, issued by the defendants to the plaintiff in settlement of their debts was dishonoured when presented at Savannah Bank (Nigeria) Plc., that the plaintiff went to court to recover the value of the cheque and interest thereon. Paragraph 5 of the affidavit has deposed to the place of entering into the credit sale agreement by parties which is in Ibadan.
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It is also evident and not controverted that by paragraph 1 of the
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plaintiff’s affidavit in support at page 3 of the record, the plaintiff’s company, who are the creditors to the defendants/appellants are situate at Ibadan. This is further confirmed, especially having regard to the defendants/
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appellants’affidavit stating defence to the plaintiff’s claim at pages 30-32
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of the record of appeal, wherein there is neither a denial nor reference
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made in response to the plaintiff/respondent’s paragraph 1. Sincethe plaintiff/ creditor lives in Ibadan, action for the payment of debt or recovery of the value of the dishonoured cheque ought to be at Ibadan. This is apt and more so, in the absence of any stipulation in exhibits A, the copy of the agreement,
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or C, the copy of the undertaking to pay the said sum, as to where payment is to be made. Relevant authorities to substantiate are the cases of I.K. Martins (Nig.) Ltd. v. University Press Ltd (1992) 1 NWLR (Pt. 217) 322 at 335 and Abia State Transport Corporation v. Quorum Consortium Ltd. (2003) FWLR (Pt. 151) 1975 at 1992. As rightly submitted also and argued by the learned respondent’s counsel, the cause of action arose at the time the defendants/appellants’
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cheque for the settlement of the indebtedness to the plaintiff/respondent was presented and dishonoured at Ibadan where the respondent lives.
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I would wish to point out at this juncture that the learned appellants’
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counsel from all indications is very much aware and not in any doubt of the
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real subject matter of the claim before the court, wherein same did not
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affect its jurisdictional powers whatsoever. This I say because the learned appellants’ counsel in his submission at paragraph 5.9 of his brief of argument, at page 7, submitted that “the sum claimed which is the subject matter of dispute and the purported issuance of Savannah Bank cheque by
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the appellants...”
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The learned appellants’ counsel in his submission extensively relied also on the facts deposed to in support of their motion seeking the order of the lower court striking out the suit for lack of jurisdiction. This is evidenced at page 18 with the supporting affidavit at pages 19 and 20 of the record.
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By the provision of Order 23, rule 3(1) of the High Court of Oyo State (Civil Procedure) Rules, 1988, the nature of the suit required that the defendants/
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appellants ought to have filed a notice of intention to defend, support by an affidavit: Diamond Bank v. G.S.M. Agro Allied Ltd (1999) 8 NWLR (Pt.
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616) 558 at 565. A
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On the deduction of issue No. 1, same I hold is in the circumstance, resolved against the appellants. In other words, it is my considered view that the lower court was right when it assumed jurisdiction over the subject matter in issue.
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Issue 2 is whether considering the case before the lower court, B
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there were material defences to the plaintiff/respondent’s claims, in the
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defendants/appellants’ affidavit of defence that required the transfer of the case to the general cause list from the undefended list for oral evidence to be led.
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Submitting to substantiate the said issue, the learned appellants’ counsel poised that where the notice of intention to defend and affidavit of C
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defence disclose prima facie , a triable issue requiring a full context of the action, that the defendant is entitled to have the suit transferred to the general cause list. Learned counsel cited the authority in the cases of Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 and Saw v. Hakim (1889) 5 TLR 72 in support. D
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That from the appellants’ affidavit of defence and supporting exhibits at pages 30-36 of the record, it is clear that there were misrepresentations in the respondent’s affidavit of claim attached to the writ of summons at pages 3-9 of the record which necessitate a cross-examination of witnesses,
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particularly with respect to the issuance of the cheque in the sum claimed E
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upon which the respondent claims interest for its dishonour under the Bills
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of Exchange Act.
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In summary, learned counsel argued that contrary to the holding of the learned trial Judge, the appellants’ affidavit evidence before the court did disclose material and substantial defences for which the lower court
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ought to have transferred the case to the general cause list, rather than F
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grant summary judgment.
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The respondent in response to the appellants’ submission critically had the analytical view point of the writ of summons, the notice of intention to defend, the contending affidavits and their respective exhibits as well as
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the provisions of Order 23, rule 3(1) of High Court of Oyo State (Civil G Procedure) Rules, 1988 and sanctioned the conclusion arrived at by the learned trial court. In other words, that the defendants have not made out a defence on the merit to warrant the transfer of this case from the undefended
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list to the general cause list. Learned counsel submitted further that
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throughout all the paragraphs of the appellants’ said affidavit, they did not H
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state that there existed a credit sales agreement or any other agreement for
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frozen fish between them and the so called Stallion Nigeria Limited. Furthermore, that the appellants in their affidavit did not deny or dispute the
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truth of the fact that they entered into credit sales agreement for frozen fish with the respondent at Ibadan as deposed to by the respondent at paragraphs 5, 6, 7 and 8 of the plaintiff’s affidavit at page 3 of the record. The learned counsel graphically reproduced the said paragraphs and related same to exhibit A at pages 5 and 6 of the record. That by the nature of the transaction, the appellants are estopped
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from saying they have no business relationship of credit sales agreement
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for frozen fish with the respondent. Furthermore, that the finding of the lower court above cannot be disturbed by the appellate court unless it is found to be perverse or unsound. Counsel cited in support the case of
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Aboshim v. Ugah (1993) 2 NWLR (Pt. 278) 752 at 758. That the appellants’
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affidavit has not disclosed any defence on the merit but full of fanciful
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defences designed to dribble and frustrate the respondent and cheat him out of the judgment they well deserve. Learned counsel cited the Supreme Court’s decision in the Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 per Obaseki JSC; also the cases of Nishizawa v.
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Jethwani (2001) 8 WRNP 153; Mat Ltd. v. UBA Plc (2002) 46 WRNP 54;
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Okanume v. U.A.C. Plc. (2002) 21 WRNP 114 and Nigeria Oil Mills Ltd.
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v. Allied International Ind. (Nig.) Ltd (2003) FWLR (Pt.154) 545, (2002) 40 WRNP 61.
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That the lower courthad enough affidavit and documentary evidence
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at its disposal to resolve any conflict in evidence brought about by the appellants’ affidavit withoutany need for acounter-affidavit or oral evidence.
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Also cited in support is the case of Winlyn Limited v. N.A.C.B. Consultancy and Finance Company Ltd. (2000) 8 NWLR (Pt. 670) 594. Counsel urged that the issue be resolved against the appellants.
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For the determination of the second issue, it is pertinent to first
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relate to the lower court’s line of reasoning wherein it held at page 47 of the
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record as follows:
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“On the whole for the reason which I have given, I hold that the defendants have not made out a case to warrant the transfer of this case to the general cause list. Accordingly, leave to
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defend is hereby refused and I hold that the plaintiff is entitled to summary judgment for the amount claimed.”
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It is the general principle of law and trite that the court has discretion to grant the defendant leave to defend on an undefended list action only if the defendants’ notice of intention to defend is accompanied with an affidavit
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disclosing a defence on the merit. Plethora of authorities which avail in support of this principle of law are as follows: Order 23, rule 3(1) of the
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High Court of Oyo State (Civil Procedure) Rules, 1988; Diamond Bank Nigeria Ltd. v. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt. 616) 558
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at 566; General Securities and Finance Co. Ltd. v. Lawrence Obiekezie A
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(1997) 10 NWLR (Pt. 526) 577 at 587; Fesco (Nig.) Ltd v. N.R. and C.P.
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Co. Ltd. (1998) 11 NWLR (Pt. 573) 227 at 23 and U.T.C. (Nig.) Ltd v.
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Pamotei (1989) 2 NWLR (Pt. 103) 244 at 282, (2002) FWLR (Pt.129)
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It is also very elementary to restate that in the exercise of the discretionary B
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powers imbued in the court, same must be judicial and judicious having
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regard to all the available facts and the circumstance placed before it.
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Under the undefended list procedure therefore, leave to defend
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will be granted once the notice of intention to defend and affidavit disclosing defence contain facts which in themselves show that there are triable issues
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to be contested in the action. It is also however significant to add that C
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whether or not that defence will ultimately succeed is totally irrelevant at this stage. The case supportive in point is Nishizawa Ltd. v. Jethwani (1984) 12 SC 234. The defendants/appellants’ notice of intention to defend and the affidavit in support are contained at pages 29-36 of the record of appeal and which the learned appellants’ counsel restated sufficiently D disclosed issues to be contested at the trial and thus necessitating oral evidence and cross-examination. A critical analyses of the paragraphs in question would give a sacrosanct and an establishing factor.
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In other words, the under following paragraphs are held out to relay
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factors which are the grounding sustenance of the application: E
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“(1) By summary, paragraphs 2, 3, 16-20 and 27 of the affidavit
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stating defence to the plaintiff’s claim at pages 30-32 of the record are clear-cut to the effect that the appellants were not indebted to the respondent.
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Furthermore, and having regard also to paragraphs 4-6 and 13 through 17, the facts have related that the appellants never F
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purchased fish from the respondent, but from Stallion Ltd, Lagos, to which they claim that payments were always made in bank draft and never to the respondent. Pages 30, 31, 33 and 35 of the record of appeal are supportive of the restatement
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of the claim. The appellants have further alleged the absence G
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of any evidence of invoice for the accrued debt presented by the respondent to show such accrual following the appellants’ denial thereof.
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Having regard to paragraphs 4-14, at pages 30 to 31 of the
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record, same further claimed to state that the appellants never H
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issued the cheque forming the subject matter of this suit and
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that the Savannah Bank cheque presented by the respondent, which was alleged and issued by the appellants, was a fraud.”
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Specifically, the reproduction of paragraphs 6, 7, 9, 26 and 27 of the affidavit stating defence to the plaintiff’s claim at pages 30, 31 and 32 of the record of appeal are relevant:
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“6. That at all times when the 2nd defendant purchased fish from Stallion Limited through the plaintiff, the plaintiff always insisted
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on collection from the 2nd defendant, signed, blank and undated cheque, as security for payment, before delivery of the fish to
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the 2nd defendant.
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7. That it was agreed that such blank cheques were to be returned
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to the 2nd defendant upon payment to Stallion Limited for the fish supplied...
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9. That exhibit D is one of such returned cheques with the plaintiff
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despite having received payment for supply of fish received...
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That exhibit B is a fraudulent document not known to the defendants. That the defendants are not indebted to the plaintiff at all, but rather the plaintiff is indebted to the 2nd defendant.”
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Order 23, rule 3(1) of the High Court of Oyo State (Civil Procedure) Rules, 1988 dealing with undefended list states as follows:
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“3(1) If the party served with the writ of summons and affidavit delivers to the registrar a notice in writing that he intends to
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defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon
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such terms as the court may think just.”
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It is apt to state that all the defendant needed to show by Order, 23, rule 3
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are facts which will justify a transfer of the case to the general cause list. With reference in particular to paragraphs 7 to 10 of the affidavit in support
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of the notice of intention to defend, same claimed that the defendants/
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appellants never issued the cheque in question. The said affidavit also raised issue of fraud on the part of plaintiff/respondent. The facts also sought to reveal that the defendants/appellants bought fish from a company known as Stallion Nigeria Ltd. and that the plaintiff was just a middleman. The
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exhibits A, B and C by the defendants also go to support the payment and receipts of the appellants’ debt.
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The plaintiff/respondent’s reliance was greatly placed on paragraphs 4 and 5 of the affidavit in support of the writ of summons pursuant to Order 23, rule 1 in respect of the undefended list affidavit which reproduction
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states as follows:
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“1. Whenever application is made to a court for the issue of a
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writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported
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by an affidavit setting forth the grounds upon which the claim A is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter
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the suit for hearing in what shall be called the “undefended
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list”, and mark the writ of summon accordingly, and enter B
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thereon a date for hearing suitable to the circumstance of the
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particular case.”
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It is relevant to emphasize the phrase, “the court ought to be satisfied that
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there are good grounds for believing that there is no defence thereto”. This
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calls for an exercise of discretion on the part of the court and as mentioned earlier, which must be judicious and judicial having regard to all the C
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circumstances relating to the case.
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From all indications and the intent and purpose of the affidavit, particularly at paragraphs 7 to 10 by the defendants/appellants stating the defence to the plaintiff’s claim, the facts contained therein clearly necessitate and entitles the appellants to interrogate and cross-examine the respondent’s D witnesses on its accompanying affidavit as rightly submitted by the learned appellants’ counsel. Relevant in support is the case of Agro Millers Ltd. v.
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Continental Merchant Bank Plc. (1997) 10 NWLR (Pt. 525) 469 at 477.
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It is also significant to restate that the appellants’exhibits A and B
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at pages 33 and 35 of the record, as well as paragraphs 3-17 of the affidavit E
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of defence which have raised issue of fraud against the respondent have
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not, as rightly submitted by the appellants’ counsel, been controverted. The said allegation no doubt requires special pleadings and oral evidence as
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provided for under Order 25, rule 5 of the High Court of Oyo State (Civil Procedure) Rules, 1988 in respect of particulars to be given where necessary.
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Also, and in support, is the case of Fuller v. Alexander (1883) 52 LJQB F
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From the totality of the facts deposed to in the defendants/appellants’ defence to the plaintiff’s claim, the justice of this case demands that the suit ought to be transferred to the general cause list for the just determination of
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the case and consequent to which I resolve issue two in favour of the G
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appellant.
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The rest of the issues, 3, 4 and 5 relate to the merit of the case which led to the decision arrived at by the lower court. I do not deem it necessary to dwell into their determination in view of the conclusion arrived
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at on issue 2. H
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On the totality of the entire appeal at hand, while issue one on
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jurisdiction is resolved against the appellants, issue two is in their favour and thus allowing the appeal in part. I therefore make an order setting aside the
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A judgment of the High Court of Oyo State delivered on 20 July 2001. In its place, a further order ismade transferring the said suit from being undefended to the general cause list for hearing and same to be assigned by the Chief Judge to another Judge other than Hon. Justice A. Adeniran.
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The appeal is allowed in part and I make no order as to costs.
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UWA JCA: I agree with the reasoning and conclusions arrived thereat in thelead judgment just delivered by my brother, Ogunbiyi JCA. I have nothing more to add. The appeal is also allowed in part by me and I abide by all the
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consequential orders made therein inclusive of costs.
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FASANMI JCA: I have read in draft the lead judgment just delivered by my brother, Ogunbiyi JCA. I agree that the appeal succeeds in part. I therefore abide by all the orders made therein, inclusive of costs.
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Appeal allowed in part
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