ELDER J.O.AGHIMIEN & ORS v. THE EXECUTIVE GOVERNOR, EDO STATE & ORSApril 12, 2021
MR. EMMANUEL S. AKPAN v. MR. NTIENYONG UDO AKPAETOKApril 16, 2021
FUGRO SUBSEA LLC VS PETROLOG LIMITED
(2021) Legalpedia (CA) 01411
In the Court of Appeal
HOLDEN AT LAGOS
Thursday, February 18, 2021
Suite Number: CA/L/1122/2018
ONYEKACHI AJA OTISI
TANI YUSUF HASAN
FUGRO SUBSEA LLC
AREA(S) OF LAW
JUDGMENT AND ORDER
LAW OF CONTRACT
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Respondent, an indigenous Oil and Gas Company in Nigeria, is the owner and operator of the “DSV VINNICE”, a diving support vessel that carries the Nigerian Flag. On 22/3/2015, the Appellant and Respondent entered in a Memorandum of Agreement (MOA) for the purpose of establishing mutual cooperation in seeking business opportunities of mutual interest in diving and subsea services in Nigeria and Africa at large which will require the DSV VINNICE. Parties reached a firm agreement under the MOA that in the event of success in obtaining a new business opportunity, the basic principle of cooperation shall be that the party who has secured the contract shall act as the lead contracting party with the client, and subcontract the applicable services to the other party. Subsequent to the execution of the MOA, the Appellant secured a contract with Sonangol PEP, an Angolan Company to render emergency pipeline repair on Oil Block 3/05 in the subsea area of Congo and Angola. In furtherance of the MOA, the Appellant engaged the Respondent as a subcontractor, and hired the DSV VINNICE to carry out the specialist operation in the high seas. Parties then executed a Charter Party Agreement on 11/10/2015 in respect of the DSV VINNICE. Under the agreement, the Appellant as charterer of the DSV VINNICE was responsible for paying for charter hire fees at an agreed marine vessel rate of $105,000 USD per day, which sum covered vessel hire, cost for Dive Technicians, meals and accommodation for the vessel crew, mobilization/demobilization of vessel, mobilization/demobilization of personnel, and all other expenses that were incidental to the operation of the DSV VINNICE. However, the Appellant failed to meet this financial obligation. As at 7/4/2016, the total value of the outstanding invoices of the Respondent yet to be settled by the Appellant amounted to $2,181,967.87 Despite repeated demands by the Respondent for settlement of its indebtedness, the Appellant failed to do so, which prompted the Respondent to institute an action under the undefended list procedure of the Federal High Court. The Respondent by an originating Motion ex-parte sought some order, which was granted by the Court. Pursuant to that Order of Court, the Respondent, filed the Writ of Summons marked ‘undefended’ and an affidavit in respect of same as prescribed by Order 12 of the lower Court’s Rules. The Appellant did not file a notice of intention to defend but rather entered a conditional Memorandum of Appearance and filed a Motion on Notice seeking an order of stay of proceedings and/or an order striking out the suit for lack of jurisdiction among other reliefs. The lower court dismissed the Appellant’s Motion on Notice and consequently entered judgment in favour of the Respondent wherein all the reliefs sought were granted. Aggrieved by the ruling and judgment of the trial court, the Appellant lodged this appeal, The Respondent filed a Motion on Notice seeking the striking out/dismissal of the entire appeal and/or issue 3 as formulated in the Appellant’s Brief.
Preliminary Objection Upheld; Appeal Dismissed
Issues Of Determination
Considering the facts and circumstances of the case at the lower Court, whether the said Court was correct to have reached the decisions delivered on 4th May, 2018 and 21st May, 2018.
“In Lignes Aeriennes Congolaises v. Air Atlantic (Nig) Ltd (2005) LPELR-5808(CA), this Court, per Garba, JCA (now JSC) on Section 20 Admiralty Jurisdiction Act said, at page 20: “The words in the section being simple, clear and even laconic should be given their ordinary, literary and grammatical meaning… The ordinary and literal meaning of the words is that any agreement entered into or made by any person, whether a party to any cause, matter or action, or not which seeks to oust the jurisdiction of the Court shall be null and void, if it relate to admiralty matter and falls into any of the categories set out in the section.” Contributing to the lead Judgment, Ogunbiyi, JCA (as he then was) said, pages 29 – 30, 35 – 37 of the E-Report: “On a clear intendment of the provision of Section 20 of the Admiralty Jurisdiction Decree (AJD, 1991) which same had been reproduced on the lead judgment, the intentional interpretation is specific, well spelt out and very much unambiguous. Without having to brain storm the contemplation, it is not far-fetched that the Court has a great latitude in the determination of the jurisdictional powers of invocation thereof. This is evidenced by the provision of Sub-Section (h) of the Decree to wit if: “h) in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.” The Court’s jurisdiction is well spelt out by the provision of Section 6(6)(a) of the Constitution. The provision of Section 20 (h) of the AJD, 1991, of itself also serves as corroboration wherein the use of the phrase, “if in the opinion of the Court”, is of great significance on the issue of whether or not the Court had jurisdiction. The case of Sonnar (Nig.) Ltd & Anor. v. Partenreedri M. S. Nordwind & Anor. (1987) 4 NWLR (Pt. 66) 520, (1987) All NLR 548, is of significant relevance for guidance… There is no doubt that parties to a contract are allowed within the law to regulate their rights and liabilities themselves. See the case of Gott v. Gandy 2 E & B 845 at p.847 per Erle, J. The Courts do not make contracts for the parties. The duty of the Court is to give effect to be intention of the parties as it is expressed in and by their contract -See Bramwell B. in Stadhard v Lee 3 B & S 364 at p 372. It is also conceded that when the intention of parties to a contract, as to the law governing the contract, is expressed in words, this certainly expressed intention in general and as a general rule determines the proper law of the contract. For this to be effective however, the choice of the law must be bona fide, legal and reasonable. In other words, it should not be capricious and absurd, but clearly identifiable and clear cut. Lord Denning M. R. in answer to a question “can parties by their private act remove the jurisdiction vested by our constitution in our Court?” had this to say in The Fehmorn (1958) 1 All E.R. 333 at p.335. ” … English Courts are in charge of their own proceedings and one of the rules which they apply is that a stipulation that all disputes should be judged by the Tribunals of a particular country is not absolutely binding. Such a stipulation is a matter to which the Courts of this country will pay much regard and to which they will normally give effect. But it is subject to the overriding principle that no one by his private stipulation can oust these Courts of their jurisdiction in a matter that properly belongs to them. I would ask myself therefore is this dispute a matter which properly belongs to the Courts of this country?” (underlining mine for emphasis.) With due regard, Oputa, JSC, in adopting the pronouncement by Lord Denning (supra) had the following to say in contributing to their decision in the case of Sonnar (Nig) Ltd & Anor v. Patenveedri M. S. Norwind & Anor (supra) at page 576. “Our Courts should not be too eager to divest themselves of jurisdiction conferred on them by the constitution and by other laws simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by statute it should be by clear and unequivocal words. If that is so, as indeed it is, how much less can parties by their private acts remove the jurisdiction properly and legally vested in our Courts? Our Courts should be in charge of their own proceedings. When it is said that parties make their own contracts and that the Courts will only give effect to their intentions as expressed in and by their contract, that should generally be understood to mean and imply a contract which does not rob the Courts of its jurisdiction in favour of another foreign forum.” The lower Court was properly in order by refusing to be robbed of its jurisdiction.” The learned trial Judge held that the court can only discharge its duty to give effect to the intention of the parties to a contract where there are no statutory limitations. I agree completely. A Court can only enforce a contract on the doctrine of pacta sunt servanda within statutory limits. This point was elucidated in Adedeji v Obajimi (2018) LPELR-44360(SC) where the Supreme Court per, Bage, JSC said: “It is trite that Courts are imbued with the judicial authority and jurisdiction to give life to contractual agreements made between parties, provided that, such contracts are rooted within the law.” Therefore, a contract that falls outside statutory limits cannot be enforced by the Court; The MV Panormos Bay & Ors v Olam Nigeria Plc (supra); JFS Investment Ltd v Brawal Line Ltd (2010) LPELR-1610(SC); Hull Blyth Nigeria Ltd v Jetmove Publishing Ltd (2018) LPELR-44115(CA). See also Fastech Nigeria Limited v Zamfara State Government & Ors (2019) LPELR-48135(CA) cited in the second List of Additional Authority filed by the Respondent on 7/12/2020.
“The basic principle of our adversarial jurisprudence is that it is the duty of the defendant to raise his defence; Federal University of Technology Minna, Niger State & Ors v. Olutayo (2017) LPELR-43827(SC). Under the Undefended List procedure, where the defendant fails to file a notice of defence and affidavit in support, which discloses sufficient particulars to challenge and cast some doubt on the plaintiff’s claim, or where the defendant’s depositions in the affidavit in support of the notice of intention to defend shows that he has no defence to the action, and he is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment may be given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally; Ben Thomas Hotels Limited. v. Sebi Furniture Company Limited (1989) LPELR-769(SC); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (supra); Akahall & Sons Ltd v. NDIC (2017) LPELR-41984(SC).
“Let me commence by noting that it was very absurd for the Appellant to formulate issues for resolution of the preliminary objection by way of a motion on notice filed by the Respondent. A preliminary objection challenges the issue of jurisdiction of a Court or its competence to entertain a matter for defined reasons; Hassan v Aliyu (2010) LPELR-1357(SC), (2010) 17 NWLR (PT 1223) 547. As clarified in Akpan v Bob (2010) LPELR-376(SC) at 39 – 40; “An objection in law portrays a formal opposition of an objector against the happening of an event which has already taken place or is about to take place now or in the future and the objector seeks the court’s immediate ruling or intervention on the point. A preliminary objection seeks to provide an initial objection before the actual commencement of the thing being objected to.” It is therefore for the objector to give grounds for the objection and for the other party thereto to respond. The adverse party cannot by way of response to an objection evoke or frame issues for determination. Similarly, a respondent cannot challenge the competence of an appeal by an issue or issues he has formulated for the determination of the appeal, which issues would necessarily be rooted in the grounds of appeal filed by the appellant. See Okelue v Medukam (supra); Medukam v Egemole (2010) LPELR-9143(CA).
“As rightly observed by the Respondent, the Appellant failed to tie the issues to any grounds. Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal; Akpan v. FRN (2011) LPELR-3956(CA); Yussuf v. Ilori (2007) LPELR-5137(CA); Ukwuoma v. Okafor (2016) LPELR-41505(CA); Daisi v IGP (2019) LPELR-47897(CA). This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain the competence or otherwise of the issues and ascertain whether any ground of appeal has been abandoned. If this admonition had been adhered to by learned Counsel for the Appellant, there would have been no need for this head of the objection. That said, the point must be made that the extant COA Rules do not prescribe that Issues for determination must be tied to the grounds in briefs of parties, on pain of a sanction. Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the attitude of the appellate Courts appears to be one of liberality. The Court would resound the caution but still go on to examine the issues against the grounds. Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal.
“There are established rules and principles that govern formulation of issues for determination of an appeal. Fundamentally, neither party in an appeal, is allowed or entitled to formulate more issues than the grounds of appeal; Anyegwu & Anor v. Onuche (2009) LPELR-521(SC); Nweze v State (2017) LPELR-42344(SC). While an issue for determination may arise from one or a combination of grounds of appeal, one ground of appeal cannot birth more than one issue. Thus, while, where appropriate, a number of grounds of appeal could birth a single issue, one issue cannot be founded on more than one ground of appeal. This is proliferation of issues, which is totally frowned upon; Labiyi v. Anretiola (1992) LPELR-1730(SC), (1992) 10 SCNJ 1 at 2; Nwankwo v Yar’Adua (2010) LPELR-2109(SC); Yisi Nigeria Limited v. Trade Bank Plc (2013) LPELR-20087(SC). Where an appellant has formulated more than one issue from one ground of appeal, the issues are incompetent and liable to be struck out; Okwuagbala & Ors v. Ikwueme & Ors (2010) LPELR-2538(SC); Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (2010) LPELR-2488(SC).
“Further, it is settled that for issues for determination in an appeal to be competent, they must flow from the grounds of appeal; Akpan v Bob (supra); Nwankwo v Yar’Adua (2010) LPELR-2109(SC); Ukiri v Geco-Prakla (Nig) Ltd (2010) LPELR-334(SC); Idika & Ors v Erisi & Ors (1988) 2 NWLR (PT 78) 563. An issue for determination in an appeal must be formulated from a ground of appeal, which in itself represents the broad outline of the complaint against the decision being challenged. The purpose of a ground of appeal is to define the complaint against the decision being appealed against. Issues for determination cannot therefore be at large, but must fall within the purview of the grounds of appeal filed. It cannot be overemphasized that competent issues for determination must be based on, related to or arise from the grounds of appeal. Any issue or issues not formulated or distilled from a ground of appeal is incompetent, and, must be struck out; Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra); Olowosago v. Adebanjo (1988) 9 SC 87; Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (2008) 18 NWLR (PT.1119) 388.
“The ground that a judgment or decision of the lower Court is against the weight of evidence is an omnibus ground of appeal. Clarifying what is implied by an omnibus ground, the Apex Court, per Kalgo, JSC in Bisiriyu Akinlagun & Ors. v. Taiwo Oshoboja & Anor (2006) LPELR-348(SC) at page 19, (2006) 5 SC (PT.11) 100: “An omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document. It cannot be used to raise any issue of law or error in law. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22. See also Lagga v. Sarhuna (2008) LPELR-1740(SC); Nefco Nigeria Limited & Ors v. Mr Udo Ekere & Ors. (2013) LPELR-20423(CA). Therefore, no issue can be raised on an omnibus ground alone. The omnibus ground will stand as support for a complaint on a finding of fact on a specific issue that must be founded on a substantive ground of appeal challenging that finding. As unequivocally stated by this Court in The Nigeria Foundation for The Support of Victims of Terrorism v. Coalition on International Criminal Court Ltd/Gte (2020) LPELR-49885(CA), per Nimpar, JCA, at page 10: “It is now settled that an Appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise an issue of law as has been done in the Appellant’s brief. Such issue of law must be raised as a separate Ground of Appeal and made an adjunct to the Omnibus Ground of Appeal. See Davies V. Powell Duffryn Associated Collieries Ltd. (1942) AC 601 at 616 – 617 and Onaga & Ors. v. Micho & Co. & Ors. (1961) All NLR 324; (1961) 2 ANLR 209; (1961) 2 SCNLR 107.”
“Now, applying these principles to the issues for determination as framed by the Appellant, the incompetence of the said issues becomes very apparent. In the first place, by the admission in paragraph 8.5 of the Appellant’s Reply Brief, Issue 1 was distilled from grounds 1 and 3; while Issue 2 was distilled from grounds 2 and 3. Thus, Issues 1 and 2 were both distilled from ground 3. By established principles governing formulation of issues as highlighted above, this amounts to proliferation of issues; Labiyi v. Anretiola (supra); Nwankwo v Yar’Adua (supra); Yisi Nigeria Limited v. Trade Bank Plc (supra). Ground 3, which is an omnibus ground of appeal, cannot birth 2 different issues for determination. Both Issues 1 and 2 are thereby rendered incompetent; Okwuagbala & Ors v. Ikwueme & Ors (supra); Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra) and are hereby struck out. Issue 3 was, admittedly, not founded on any ground of appeal. It is trite that an issue for determination must be distilled from a ground of appeal. To reiterate, any issue not formulated or distilled from a ground of appeal is incompetent, and, must be struck out; Okonobor & Ors v Edegbe & Sons Transport Co. Ltd (supra); Olowosago v. Adebanjo (supra); Drexel Energy and Natural Resources Ltd v. Trans International Bank Ltd (supra); Bayero v. Mainasara & Sons Ltd (2006) LPELR-7587(CA), (2006) 8 NWLR (Pt.982) 391.
“The Appellant’s Counsel argued that Issue 3 was an issue relating to jurisdiction and that the issue of jurisdiction can be raised, even when it was not captured by the grounds of appeal, citing Okunrinjeje & anor v Ajikobi (supra). There is no doubt that the issue of jurisdiction can be raised at any stage of the proceedings, even without leave of Court; Gaji v Paye (2003) LPELR-1300(SC); Opobiyi v Muniru (2011) LPELR-8232(SC); Agbiti v Nigerian Navy (2011) LPELR-2944(SC). But that issue must arise from or be related to a ground of appeal. In Okunrinjeje & anor v Ajikobi (supra), the issue of jurisdiction was not raised in the air, the Court found it was subsumed in the appeal. What must be relied on is the ratio decidendi of a case and not a comment made obiter. The particulars in support of the ground must reveal the breach on jurisdiction complained about in no uncertain terms; Federal Housing Authority v Kalejaiye (2010) LPELR-1267(SC); Minister of Petroleum & Mineral Resources v Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC). The ground of appeal must detail the precise complaint on jurisdiction in its particulars. This would present a clear picture of the complaint to the adverse party and demonstrate to the Court that there has indeed been a breach of jurisdiction. This is fundamental as it is not every complaint labelled as a breach of jurisdiction that is, in actual fact, what it portends to be. As was emphasized in Federal Housing Authority v Kalejaiye (supra) per Mukhtar, JSC (as he then was), page 25-26: “It is not every ground of appeal that raises the issue of jurisdiction that will be regarded as one. The particulars supporting the ground must be thoroughly examined in order to convince a court that there exists a breach complained of.”
“By the clear wordings of Order 7 Rule 5, it is the Court that is empowered to raise such an issue suo motu but it must give the parties an opportunity to address it on that issue. The point has been made that the issue of jurisdiction can be raised at any stage of the proceedings, even by the Court suo motu, with the caveat that the parties must be given an opportunity to address it on; Odutola v University of Ilorin (2004) LPELR-2632(SC); Stirling Civil Engineering (Nigeria) Ltd v Yahaya (2005) LPELR-3118(SC); Egharevba v Eribo (2010) 9 NWLR (PT 1199) 411; Jev v Iyortom (2014) LPELR-23000(SC).
“The law is quite settled that grounds of appeal must arise from the decision appealed against and the complaint must be against the ratio of the decision; FRN v Mohammed (2014) LPELR-22465(SC). A ground of appeal must arise from the decision of the lower Court on appeal.
“I want to foremostly observe that the Reply Brief, in which the Appellant raised seven Issues for determination, out of which four issues relate to the Respondent’s Brief, is rather befuddling and is by no means a reply brief, as provided for by Order 19 Rule 5(1) of the Court of Appeal Rules, 2016, which provides that a reply brief which shall deal with all the new points arising from the Respondent’s brief. By these provisions, a reply brief is not mandatory. It is only necessary and usually filed when an issue of law or argument raised in the respondent’s brief calls for a reply. Where a reply brief is necessary, it should be limited to answering any new points arising from the respondent’s brief. A reply brief does not provide a fresh window for an appellant to reargue or rehash submissions already made in the appellant’s brief. It is also does not provide opportunity for the appellant to raise new arguments or distil new issues for determination of the appeal. However, when a respondent has raised new points in his brief and the appellant fails to file a reply to the new points argued, he will be deemed to have admitted the truth of everything stated in the respondent’s brief in so far as such is borne out by the record; Godsgift v State (2016) LPELR-40540(SC); Abdullahi v. The Military Administrator & Ors (2009) LPELR-27(SC) Ojiogu v. Ojiogu & Anor (2010) LPELR-2377(SC). See also Mainstreet Bank Ltd v Bina (2016) 12 NWLR (PT 1526) 316 at 331-332; Mozie v Mbamalu (2006) 15 NWLR (Pt 1003) 466 at 497, cited and relied on by the Respondent in the List of Additional Authorities filed on 18/3/2020”.
“Order 12 of the Federal High Court (Civil Procedure) Rules, 2009 makes provisions for the Undefended List procedure. I shall reproduce hereunder Order 12 Rules 1, 2, 3 and 4: 1. Whenever application is made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case. 2. There shall be delivered by the Plaintiff to the Registrar for the issuance of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service. 3. (1) 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 disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just. (2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary cause list and the Court may order pleadings, or proceed to hearing without further pleadings. (3) Where pleadings are ordered the provisions of order 13 rule 3 of these Rules shall apply. 4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) of this order, or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgement given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally. The Undefended List procedure, governed by these provisions has received established interpretation in a number of judicial pronouncements. As rightly submitted by Senior Counsel for the Respondent, the Undefended List procedure is sui generis; Uhembe v Parkes (supra). Basically, the object of the undefended list procedure is for a quick despatch of certain types of cases, such as debt or liquidated money demand. The purpose of the Undefended List procedure is to enable a plaintiff to obtain quick judgment in clear cases where the defendant has no defence to the claim of debt or liquidated sum by the plaintiff, and it is inexpedient to allow a defendant to defend for mere purposes of delay; Ataguba & Co. v. Gura (Nig) Ltd (2005) LPELR-584(SC); Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283, (1990) LPELR-1801(SC); Akahall & Sons Ltd v. NDIC (2017) LPELR-41984(SC).
“By this peculiar procedure, an application is first made to a Court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application must be supported by an affidavit which would set forth the grounds upon which the claim is based and stating that, in the deponent’s belief, there is no defence thereto. Now, the affidavit evidence of the plaintiff must reveal facts that ground the belief that the defendant has no defence to the action. This is fundamental, because where there are uncertainties or nebulous depositions, the matter cannot be heard under the undefended list procedure. The Court, if satisfied that there are good grounds for believing that there is no defence thereto, shall enter the suit for hearing in the “Undefended List”, and mark the writ of summons accordingly. A date for hearing shall then be given. The marking of the writ of summons as Undefended List is done pursuant to the order of the Court. This obviously means that the writ of summons attached to the originating motion ex parte seeking order of court to mark the writ as undefended, cannot be the same writ of summons to be served on the defendant. The writ of summons served on defendant, if the order of Court is granted, is a specially and peculiarly endorsed writ of summons now marked undefended. The writ of summons initiated under this procedure cannot be issued by the Registrar prior to the presentation and consideration of the application for issuance of same by the Court, otherwise such writ of summons which is issued and marked undefended before the Court’s order to do so shall be incompetent and liable to be declared a nullity by the Court; Cash Affairs Finance Ltd. v. Inland Bank (Nig) Plc (supra); Obaro v Hassan (2013) LPELR-20089(SC); Equity Bank of Nigeria Ltd. v. Halilco Nigeria Ltd. (2006) LPELR-5611(CA), (2006) 7 NWLR (Pt 980) 568; Bayero v. Mainasara & Sons Ltd (2006) 8 NWLR (Pt.982) 391 at 425; (2006) 36 WRN 136; China Geo-Engineering Corporation Nig Ltd v Isa (2007) LPELR-8954(CA).
“Now, after the writ of summons marked Undefended is served on the defendant, the defendant is to file in Court, 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 disclosing a defence on the merit. The Court must scrutinize the affidavit evidence of the defendant attached to the notice of intention to defend to see if a defence has been disclosed on the merit. Only a real defence and not a sham defence that is merely intended to delay and frustrate the plaintiff will be allowed; Macaulay v. NAL Merchant Bank Ltd (supra); UBA Plc v Jargaba (2007) LPELR-3399(SC); Nkwo Market Community Bank (Nig) Ltd v Obi (2010) LPELR-2051(SC). In the affidavit, the defendant must condescend upon particulars and state clearly what his defence is; Peter Tiwell (Nig) Ltd v Inland Bank (Nig) Ltd (1997) 3 NWLR (PT 494) 408. It must not be a general denial or an affidavit that makes no real disclosure. It must not be a half-hearted defence; Tahir v. J Udeagbala Holdings Ltd (2003) LPELR-6144(CA). The facts to be stated in the affidavit of the defendant must be such that will require the plaintiff to offer explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff.
“In Nishizanta Ltd v. Jethwani (1984) LPELR-2037(SC), (1984) 1 S.C. 234 at pages 39 – 40 of the E-Report, Aniagolu, JSC gave two broad guiding principles on the undefended list procedure to be borne in mind, namely: “(i) that a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness; and (ii) that, on the other hand, a plaintiff should not be permitted to shut out a real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to “show cause against such [plaintiffs] application by affidavit” as required by Order 10 Rule 3 of Lagos High Court Rules, he is out of Court and must have a judgment signed against him no matter how genuine a defence he has disclosed by means other than by an affidavit under that rule of the Order.” It is not for the Court to decide, upon filing of a notice of intention to defend and the affidavit in support, whether the defence put forward by the defendant in the affidavit succeeds or will ultimately succeed. What the trial Court is required to do at that stage is simply to consider the affidavit evidence from both parties and decide whether the affidavit of the defendant discloses any defence to the action. There is no resolution of the conflicts or contending positions of the parties so as to arrive at a judgment as to which of the parties is right or entitled to judgment on the merit at this stage; Nishizanta Ltd v. Jethwani (supra); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (2010) LPELR-1504(SC); NPA v. Aminu Ibrahim and Company & Anor (2018) LPELR-44464(SC). G.M.O. Nworah & Sons Co Ltd v Akputa (2010) LPELR-1296(SC), (2010) 9 NWLR (PT 1200) 443.
“Where the defendant succeeds in creating doubts as to the veracity of the plaintiff’s claims, a defence has been disclosed on the merit. At that point, the Court shall grant leave to the defendant to defend the action and the Suit shall be removed from the Undefended List and transferred to the general cause list. The Court may then order pleadings, or proceed to hearing without further pleadings. Thus, pleadings may or may not be ordered by the trial Court where the conclusion that the defendant has disclosed a defence on the merit has been reached. Therefore, by the Undefended List procedure, pleadings need not filed alongside the originating motion ex parte for an order to have the writ marked undefended.
“It is trite that findings of court that have not been appealed against are binding on the parties; Adejobi v State (2011) LPELR-97(SC); Amale v Sokoto Local Government & Ors (2012) LPELR-7842(SC); Ladoja v Ajimobi (2016) LPELR-40658(SC). Such finding cannot be tampered with by the appellate Court.
“The doctrine of pacta sunt servanda or the more incisive pacta convent quae neque contro leges neque dolo malo inita sunt omni modo observando sunt, simply means that agreements of parties to a contract, which are neither contrary to the law, nor fraudulent, are to be adhered to in every manner and every detail; AG Rivers State v AG, Akwa Ibom State & anor (2011) LPELR-633(SC); Teju Investment and Property Co. Ltd v. Subair (2016) LPELR-40087(CA); Incorporated Trustees of Nigerian Baptist Convention & Ors v Governor of Ogun State (2016) LPELR-41134(CA). Section 20 of the Admiralty Jurisdiction Act was reproduced earlier. Section 1 of the said Act provides: 1. (1)The admiralty jurisdiction of the Federal High Court (in this Act referred to as “the Court”) includes the following, that is- (a)jurisdiction to hear and determine any question relating to a proprietary interest in a ship or aircraft or any maritime claim specified in section 2 of this Act; (Emphasis mine) By these clear provisions, an admiralty contract falls within the purview of the Act. From the facts leading to this appeal, the contract between the parties was an admiralty contract.
“It has been settled by the provisions of Order 12 of the lower Court’s Rules and by a plethora of judicial pronouncements that, as long as a plaintiff’s affidavit in support of his claim under the undefended list procedure has disclosed an unassailable claim and states grounds for his belief that the defendant has no defence thereto, a defendant who fails to file a notice of intention to defend supported by an affidavit which raises some doubt as to the veracity of the plaintiff’s claims and reveals a triable issue, is deemed to have admitted the said claims; Ben Thomas Hotels Limited. v. Sebi Furniture Company Limited (supra); Imoniyame Holdings Ltd & Anor v. Soneb Enterprises Ltd & Ors (supra); Akahall & Sons Ltd v. NDIC (supra). Citing with approval First Bank (Nig.) Ltd v. Khaladu (1993) 9 NWLR (Pt. 315) 44, the Supreme Court, per Akaahs, JSC, in Akahall & Sons Ltd v. NDIC (supra) said, pages 13 – 14 of the E-Report: “It was explained in First Bank (Nig.) Ltd v. Khaladu supra at page 55 that the failure to deliver a notice of intention to defend means only one thing that is, that the defendant has no defence to the plaintiff’s claim. Therefore, failure to file or deliver a notice of intention to defend as provided by the rules is tantamount to an admission by the defendant of the plaintiff’s claim and it is settled law that facts admitted need no proof. In the instant case, since the respondent failed to file the notice of intention to defend the affidavit, the appellant need not lead evidence to prove the debt.”
“By Order 12 (3), the defendant has five days to file a notice of intention to defend with his affidavit in support. By Order 12 (4), where any defendant fails to deliver the notice of defence and affidavit as prescribed by Order 12 Rule 3 (1), or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgement given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his claim formally. That is to say, the only duty placed on the trial Court after the defendant has failed to file a notice of intention to defend with an affidavit revealing a triable issue within the prescribed period, or when the trial Court has ruled that the defendant revealed no defence on the merit, is to enter judgment in favour of the plaintiff.
“In the circumstance that the Appellant failed to file a notice of intention to defend and an affidavit disclosing a defence on the merit, the learned trial Judge rightly entered judgment against the Appellant and in favour of the Respondent. In Obitude v. Onyesom Community Bank Limited (2014) LPELR-22693(SC), the Supreme Court, per Peter-Odili, JSC restated the position of the law: “Where a trial Court finds as in this case that defendant has no defence to a plaintiff’s suit placed under the undefended list, the Court has no option other than to enter judgment for the plaintiff for the sum of money claimed.”
STATUS(ES) REFERRED TO
Admiralty Jurisdiction Act, 1991|Constitution of the Federal Republic of Nigeria, 1999 as amended|Court of Appeal Rules, 2016|Federal High Court (Civil Procedure) Rules, 2009|
Babajide Olowoyeye, Esq., with Denis Dema, Esq., for the Appellant.|Chief Wole Olanipekun, SAN, with Akintola Makinde, Esq. and Olajide Salami, Esq., for the Respondent. |