CENTRAL BANK OF NIGERIA V PETER O. IKPILA & ANOR
March 8, 2025ALHAJI ISIYAKU YAKUBU V ALHAJI ALIYU KAMA & ANOR
March 8, 2025Legalpedia Citation: (2024-01) Legalpedia 43022 (CA)
In the Court of Appeal
Holden At Yola
Wed Jan 31, 2024
Suit Number: CA/YL/156/2022
CORAM
ITA.G. MBABA (PJ), OFR, Justice Court of Appeal
PATRICIA A. MAHMOUD, Justice Court of Appeal
PETER O. AFFEN, Justice Court of Appeal
PARTIES
UPPER BENUE RIVER BASIN DEVELOPMENT AUTHORITY
APPELLANTS
J.C. UZOR GLOBAL WIDE NIG LTD
RESPONDENTS
AREA(S) OF LAW
CONSTITUTIONAL LAW, CONTRACT, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The total sum of N9,987,045.00 (Nine Million, Nine Hundred and Eighty Seven Thousand, and Forty Five Naira) only was the total sum for two contracts awarded to and executed by the Plaintiff for the Defendant in the year 2012 and 2016 respectively.
The Plaintiff (respondent) brought a matter under the summary judgment procedure to recover the above mentioned sum when the Appellant failed to pay the sum. The Appellant as Defendant filed no defence to the claim of the Respondent.
The learned trial Judge gave judgment in favour of the Plaintiff by granting the claim and awarding him One Million Naira (N1,000,000) as general damages and N300,000 (Three Hundred Thousand Naira) as cost of prosecuting the Suit.
Dissatisfied by the decision, the Appellant filed the instant appeal.
HELD
Appeal dismissed
ISSUES
1. Whether the trial Court had jurisdiction to entertain the Suit and enter judgment for Respondent, in view of the claims for interest and general damages?
2. Whether the Respondent, as named in the Suit, had locus standi to bring the claim, in view of the error in the name used?
RATIONES DECIDENDI
LEAVE TO APPEAL – WHETHER AN APPEAL AGAINST A DECISION OF A LOWER COURT SITTING AS COURT OF FIRST INSTANCE REQUIRES LEAVE TO APPEAL
It should be appreciated that this Appeal is against a final decision of the lower Court, sitting at first instance and so the Appeal is as of right, requiring no application for/leave to appeal. See Section 241(1)(a) of the 1999 Constitution, as amended. See also the case of Ogar Vs Kano State (2021) LPELR – where it was held:
“I should start by observing that the Respondent’s Counsel was wrong to argue that Appellant needed the leave of Court to argue the grounds of appeal, on the ground that they touched on issues of facts and mixed law and facts. I cannot fathom how Respondent’s Counsel came to such weird view, after acknowledging that Appellant was entitled to appeal, as of right, under Section 241(1) of the 1999 Constitution, where appeal is against a final judgment of the trial Court, sitting at first instance. This being an appeal against a final judgment of the High Court, sitting at first instance, Appellant did not require leave of Court to file any ground of appeal, whether of law, facts, or mixed law and facts. The authorities on this are replete. See Section 241(1)(a) of the 1999 Constitution (as amended); Chartered Bank Ltd Vs African Trust Bank Ltd & Anor (2005) LPELR-11350 (CA); AULT & WIBORG NIG LTD Vs NIBEL INDUSTRIES LTD (2010) LPELR-639 SC; Dankwambo Vs Abubakar & Ors (2015) LPELR-25716 (SC), and ONOWU Vs OGBOKO & ORS (2016) LPELR-40074 (CA), where we held: “The law is however trite that where Appellant appeals against an interlocutory decision of a Court, he must seek and obtain the leave of the lower Court or of the appellate Court to appeal, especially where the ground(s) of appeal raise(s) question of facts or of mixed law and facts. See Section 14 (1) of the Court of Appeal Act, 2004; Kwazo Vs Railway Property Co Ltd Anor. (2014) LPELR 23737 (CA); Garba Vs Ummuani (2013) 12 WRN 76; Otu Vs ACB Intl Bank Ltd (2008) 3 NWLR (pt.1073) 179. Though by Section 241 (1)(a) (b) of the Constitution of Nigeria 1999, appeal can lie without leave of the lower Court or appellate Court, where it is of a final decision of the High Court, sitting at first instance, or where the ground of appeal is of law alone, it is always advisable to seek leave where the decision is not of a final judgment of the High Court sitting at first instance. This is because it is sometimes difficult to conclude whether a ground(s) of appeal is purely of law and raises no issue of facts or mixed law and fact. See the write-up “Appeals to Court of Appeal: Observable Errors/problems -Trouble Shooting” by this author, (2015) CAR 396 at 401. See also UBA Plc Vs Onuoha & Ors (2014) LPELR-24360 CA; NJC Vs Agumagu (2015) LPELR 24503 (CA); Salihu & Ors Vs RTEAN & Ors (2013) LPELR 24503 CA; Garuba Vs Omokhodion (2011) LPELR 1309 (SC).”
See also AULT & WIBORG (NIG) LTD VS NIBEL INDUSTRIES LTD (2010) LPELR – 639 (SC); Dangwambo Vs Abubakar & Ors (2015) LPELR – 25716 (SC). – Per I. G. Mbaba, JCA
SUMMARY JUDGMENT – THE PURPOSE/ESSENCE OF THE SUMMARY JUDGMENT PROCEDURE – HOW THE SUMMMARY JUDGMENT PROCEDURE WORKS
Several case laws have developed on Summary Judgment or undefended list procedure to explain the rationale for the procedure, which is to allow for quick dispensation of justice and avoidance of delays in case of debts and monetary claims which the Defendant has no credible defence. See the case of Barau Vs. Aliyu (2022) LPELR – 57107 (CA) and Ilorin East Local Government Vs. Alasinrin & Anor. (2012) LPELR – 8400 (CA), where this Court held:
“It is well known that proceedings taken under the undefended List procedure are Sui generis, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefensible. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and counsel at the hearing. The provision states: “Whenever application is made to a court for issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponents 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.” (Order 22 Rule 1).”
In the case of Imoniyame Holdings Ltd & Anor. Vs. Soneb Enterprises Ltd & Ors (2010) LPELR – 1504 (SC), the Apex Court held:
“It should constantly be kept in view that the purpose of the Undefended List procedure is to enable a plaintiff obtain quick judgment in clear cases where the defendant has no defence to the claim of debt or liquidated sum by the plaintiff. The procedure is not intended to be adopted in proceedings where the facts or issues are contentious and will throw doubt on the claim of the plaintiff. In such a circumstance, the proper procedure is by ordinary writ of summons followed by pleadings that is why such a matter, though commenced under the Undefended List, must be transferred to the General Cause List to be dealt with appropriately, as was done in the instant case on appeal.” Per ONNOGHEN, JSC
See also UBN Vs. Awmar Properties Ltd (2018) LPELR – 44376 (SC) where it was held:
“Order 23 Rules of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules provides for the undefended list. It states that: 1. Whenever application is made to a Court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim 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. The procedure under the Rules referred to above are designed to prevent delay in cases where the plaintiff has a clear case and the defendant has no defence. So, where the plaintiff satisfies the Court with affidavit evidence which the defendant cannot answer, the Court would enter judgment for the plaintiff thereby avoiding a full-blown trial with the usual expense, frustrations and delay. On the other hand if the defendant files an affidavit which discloses a defence on the merit, he would be granted leave to defend by the Court, and if there are material conflicts in the affidavits of both parties, the suit would be taken out of the Undefended List and placed on the general cause list for a hearing in the well-known way. It prevents worthless and sham defences. See: M.C. Investment Ltd & Anor v. C.I. & C.M. Ltd (2012) 6 SC (Pt. 1) p. 188, Gambo v. Ikechukwu & Ors. (2011) 10 SC P.1, International Bank Ltd v. Brifian Ltd. (2012) 5 SC (Pt. II) p. 190, Nkwo Market Community Bank (Nig.) Ltd v. Obi (2010) 4-7 SC (Pt. 1) p. 30.” Per RHODES-VIVOUR, JSC (Pp. 8-10, paras. E-B) – Per I. G. Mbaba, JCA
COURTS – CONDUCT OF COURTS TO MATTERS BROUGHT UNDER THE SUMMARY JUDGMENT PROCEDURE – WHERE A DEFENDANT FILES A NOTICE OF INTENTION TO DEFEND
The law is trite, that where the defendant, in a case under summary judgment (that is placed on the undefended list procedure) fails to file notice of intention to defend the suit, and affidavit, disclosing a defence on the merit, then the trial court has no other option than to enter judgment for the Plaintiff, where the Court finds the claim sustainable under the undefended list procedure. And even where the defendant files a notice to defend and affidavit therefor, the trial court can still enter judgment for the Plaintiff, where, in its opinion, no defence is made out by the defendant to warrant transferring the case to the general cause list. Sometimes, where the main claim (debt) is so obvious and undenied, the trial court is entitled to enter judgment on the same and transfer the contentious elements (like assessment of damages and interests) to the general cause list for the parties to file pleadings to prove same by due process.
See the case of Eco International Bank Plc Vs. NULGE, Jalingo LGC & ANOR. (2014) LPELR – 24171 (CA), where it was held:
“By the procedure under the undefended list, where a Defendant, as in the instant appeal, the Respondents, fails or neglects or refuses to file a notice of intention to defend, the resultant duty on the Court below was to proceed to enter judgment against the Respondents. However, it is of crucial importance to point it out at once that where the case of a Plaintiff under the undefended list procedure as put forward by him in his supporting affidavit does not prove any legitimate claim against a Defendant, it does not matter that such a Defendant did not file any notice of intention to defend, the Court is under no duty to enter judgment against such a Defendant against whom the Plaintiff has not proved anything on legally admissible evidence. See Benkay Nig. Ltd. V Cadbury Nig. Ltd (2012) LRCN 57 @ Pp. 64 -65.” Per GEORGEWILL, JCA (P. 43, paras. B-F)
See also Joel Oluumrinboye Export Co. Ltd & Ors Vs. Skybank Plc (2009) LPELR – 1618 (SC) where the Supreme Court held:
“This is so because on the date fixed for the hearing, if no such notice and affidavit have been filed, Rule 4 Order 23 empowers the Court to enter judgment in favour of the plaintiff as the suit would truly be undefended. In the instant case, the appellants contended that their purported notice of intention to defend the action together with an affidavit filed more than a year after date fixed for the hearing of the writ of summons under the undefended list and without the leave of the Court granting extension of time to do so, is valid and ought to have been considered in deciding whether to enter judgment for the respondent or not. I hold the firm view that they are wrong. To agree with their interpretation is to make complete nonsense of the provisions of Order 23 and the purpose it was designed to serve that of speedy hearing of actions based on liquidated money demand or simple debt claims. It would amount to holding that a defendant would be granted licence to employ whatever delay tactic he can muster to frustrate the action of the plaintiff under the Undefended List only to be allowed at the end of the day to stroll in and defend the action when the intention is obviously to frustrate the plaintiff. In the circumstance, I resolve the issue against the appellant.” Per ONNOGHEN, JSC (Pp. 16-20, paras. E-F)
In the case of Kwara State Govt. & Ors. Vs. Guthrie Nig. Ltd (2022) LPELR – 57678 (SC) it was held:
If the Defendant intends to defend the suit, he must file a notice in writing together with an Affidavit disclosing a defence on the merit, and the Affidavit should contain enough facts and particulars to satisfy the Court to remove the case from the Undefended List to the General Cause List. Where the Affidavit discloses no defence, then the case would not go on the General Cause List. See P.A.S. & T.A.V. R. M. GMBH (1997) LPELR-2899(SC), and Ed-Of Nig. Ltd. V. Snig Nig. Ltd. (2013) LPELR-19888(SC), where this Court held: “The Respondent must, therefore, show in the Affidavit supporting his Notice of Intention to Defend not only the fact of his intention to defend, but the further fact of a defence on the merit, beyond disclosing an ex facie good defence to the Appellant’s action, the Defendant must supply full details of the actual defence he intends, if given leave, to place before the Court.” In this case, by filing the action against Appellants under the Undefended List, the Respondent was saying that they had no defence to the action, however, Order 23 Rule 3 of the Kwara State High Court (Civil Procedure) Rules says: “(1) If the party served with the Writ of Summons and Affidavit delivers to the Registrar, not less than 5 days before the date fixed for hearing, a notice in writing together 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 pleadings.” It is clear, therefore, that the Notice of Intention to Defend is a different process leading to the determination of the question of whether the Appellants had any defence to the action, in which case, the Court may grant them leave to defend, and remove the action from the Undefended List to the Ordinary Cause List.” Per AUGIE, JSC (Pp. 17-19, paras. C-B) – Per I. G. Mbaba, JCA
DAMAGES – MEANING OF DAMAGES – WHETHER DAMAGES CAN BE AWARDED IN A SUMMARY JUDGMENT
…damages is usually a consequential order upon the establishment of a wrong against the defendant. But it does not flow in a summary judgment, except same is specifically provided in the agreement between the parties. But, where the ancillary claim of general damages was not awardable, as in the circumstance of this case, the said award of damages cannot, in my opinion, invalidate or vitiate the entry of the judgment in respect of the main claim.
– Per I. G. Mbaba, JCA
AWARD OF COST – DISCRETIONARY POWERS OF THE TRIAL COURTS TO AWARD COST
It should also be appreciated that award of cost to a successful party is a consequential order, which the trial Court is empowered to make on its own discretion, whether in an undefended cause or ordinary trial on the general cause list. And so, the exercise of the discretion in respect of the cost awarded by the trial Court was in keeping with the norm.
See Akanoh Vs Nwabuisi & Ors (2016) LPELR – 25607 (CA):
“Issues of award for costs and damages are exclusively within the discretion of the trial Court and cannot be questioned, unless a complaining party establishes that the discretion was not properly exercised. See the case of Ayangoke & Anor vs Key Stone Bank Ltd (2013) LPELR – 21806 (CA); S.T.B. Ltd vs Anumnu (2008) ALL FWLR (pt.399) 409; UBA LTD vs Odusote Book Stores Ltd (1995) 12 SCNJ 175; Uwa Printers Nig Ltd vs Investment Trust Co. Ltd (1988) NWLR(pt.92) 110.
See also NNPC Vs CLIFCO Nig. Ltd (2011) LPELR – 2022 (SC):
“The award of cost is entirely at the discretion of the court, costs follow the event in Litigation. It follows that a successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs the court must act judiciously and judicially. That is to say with correct and convincing reasons. See Anyaegbunam v. Osaka 1993 5 NWLR pt.294 p.449, Obayagbona v. Obazee 1972 5 SC p.247.”
Per RHODES-VIVOUR, JSC (P. 23, paras. D-A) – Per I. G. Mbaba, JCA
INTEREST – WHETHER JURISDICTION IS DENIED A COURT DUE TO A CLAIM FOR INTEREST IN AN ISSUE UNDER SUMMARY JUDGMENT PROCEDURE
The case of Osita Vs. Nanka Micro Finance Bank Ltd (2018) ALL FWLR (PT. 946) 1078 at 1091; (2016) LPELR – 92119 (CA) is very instructive on the Issue of interest in undefended list matter, where it was held:
The grouse of the Appellant on this issue is that the claim of the Plaintiff should not have been decided under the Undefended List as it is an unliquidated money demand. I do not agree with his submissions. Counsel placed reliance on Gombe v. P.W.U (Nig) Ltd (1995) 6 NWLR Pt. 402 Pg.402, Ekerete v. UBA PLC (2005) 9 NWLR Pt. 930 Pg 401 and Befareen Pharmacy Ltd v. African International Bank Ltd (2005) 17 NWLR Pt. 954 Pg. 230. In Befareen Pharmacy Ltd v. African International Bank Ltd, the defendants filed a Notice of Intention to defend. The learned trial Judge considered the particulars of the claimant and the Supporting affidavit, the notice of intention to defend the defendant and the supporting affidavit, and in his considered ruling concluded that the defendant had not placed before the Court any bonafide issue for trial, and consequently proceeded to enter judgment for the Plaintiff as claimed. Gombe v. P.W.U (Nig) Ltd is in respect of Winding Up proceedings and as such irrelevant in this regard while in Ekerete v. UBA PLC, it was held by this Court that a decision which purports to consider interest on liquidated money demand denies jurisdiction to the Court under the undefended list procedure. The Supreme Court in Akpan v. AIPICL (2013) 6 SCNJ 400 at 418 held as follows: – “Generally, a claim for interest under the undefended list bears the same principles as in a claim under the general cause list. Any plaintiff claiming interest under the undefended list must disclose in his affidavit how his right to interest accrues and how the rate thereof was arrived at.” It is my humble view that the issue of interest on a liquidated sum cannot deny the Court of jurisdiction to determine a suit under the undefended list procedure provided the total sum claimed with interest as at the time the suit was instituted, was a liquidated sum. Interests that have accrued before the institution of a suit, if shown by affidavit how the said interest accrued, qualify as liquidated sum. As such, the trial Court had the jurisdictional competence to give judgment under the undefended list in the absence of a notice of intention to defend. See Abia State Transport Corporation & Ors v. Quorum Consortium Limited (2009) 4 SCNJ 1. Having considered the affidavit before the Court and the Exhibit attached thereto which was the account ledger of the Appellant, the learned trial judge was convinced that it was a liquidated money demand and accordingly placed the suit under the Undefended List procedure upon the application of the Respondent. Jurisdiction is determined by the nature of the Plaintiff’s claim before the Court. In the instant case, the Respondent’s claim was for a liquidated money demand under the undefended list procedure which demands the filing of an affidavit in support of the claim.
Thus, the mere fact of inclusion of relief for general damages and interest in a claim, placed on undefended list procedure or summary judgment, does not automatically invalidate or defeat a summary judgment entered for recovery of liquidated money demand, where the interest element is refused and the general damages awarded can be distinguished from the main claim, and debt entered is recoverable.
– Per I. G. Mbaba, JCA
MISNOMER – WHETHER SUING SOMEONE UNDER THE WRONG NAME CONSTITUTES A MISNOMER THAT CAN BE CORRECTED – MEANING OF MISNOMER
I do not think the Appellant was really serious and honest about its argument on this issue when it was obvious to it that this was an issue of using a wrong and erroneous name to initiate the action, which does not and cannot invalidate the action when the parties were clear on the real and correct name of the Respondent and had admitted that it was the party sued in the wrong name.
See the case of Director General NDLEA & Anor Vs. Mrs. Chizzy Ade (2022) LPELR – 57543 (CA) where we held: “Of course, the law is also trite that suing somebody in a wrong name or office does not defeat the suit where the person sued is actually in existence and has taken steps to accept the name used and/or defend the suit. See the case of Upper Graceland Hotel & Anor Vs Eze Ipeh (2019) LPELR-47552 (CA); Njoku Vs UAC Foods (1999) LPELR-13014 (CA); FCE (Technical) Gusua & Anor Vs Abubakar (2013) LPELR-22223 (CA), where such error was treated as mere misnomer. In the recent case of Elipse Int’l Exploration Ltd & Anor Vs Muwa Fuqa Tin Fields Ltd & Anor (2021) LPELR-55146 (CA), we held: “The law is even trite that being sued in a wrong name is not fatal to a suit when the defendant accepts that he/it was/is the person sued and takes steps to defend the action. See MTN Nigeria Communications Ltd Vs Aluko & Ors (2013) LPELR-20473 (CA); VIK Industries Ltd Vs J. Jumac Group Ltd & Anor (2019) LPELR-48840 (CA); see also The Registered Trustees of the Airline Operators of Nigeria Vs Nigeria Airspace Management Agency (2014) 8 NWLR (Pt.1408) 1, where my lord, Okoro, JSC, held such to be a misnomer that can be corrected: “A misnomer can be said to be a mistake in name, i.e., giving an incorrect name to a person in a writ of summons. It occurs when a mistake is made as to the name of a person who sued or was sued or when an action is brought by or against the wrong name… when both parties are quite familiar with the entity envisaged in the writ of summons and could not have been misled or have any real doubt or misgiving as to the identity of the person suing or being sued, there can be no problem of mistaken identity as to justify striking out the action…” In Agip Nig Plc Vs Ossai, this Court held: “The Law is also that where an incorrect name is given in a writ and the parties are not misled, in that they know the identity of the person suing or being sued, such is a misnomer that can be corrected. See the case of Osawaru & Anor Vs Fay-Dessy Catering (2011) LPELR-4872 (CA); Agbonmagbe Bank Ltd & Anor Vs CFAO (1961) ALL NLR (Pt.1) 116; AB Manu & Co. Vs Costain (WA) Ltd (1994) 8 NWLR (Pt.360) 112… If a party intended to be sued exists, but a wrong name is used to describe it, that, strictly speaking, is a misnomer… In this case, Appellant, Nigeria Agip Oil Company Ltd, appears to have also owned up to being called AGIP NIG PLC, as pleaded by the respondents, hence full participation in the case and filing of this Appeal on their said name. They cannot, therefore, complain…”
I think the Appellants in this appeal were wrong and insincere to argue that the 1st Appellant is not a juristic person simply because of the wrong spelling of its real name in the writ of summons.
See also Abubakar Rabius & Anor Vs. Sinohydro Abuja Ltd (2023) LPELR – 60681 (CA), where this Court held that: “…The law even comes to the rescue of the Respondent even where a suit is originated in a wrong name (or where the Project which brought the parties together was launched in a wrong name) as long as the parties to the contract were ad idem on the existence of it and nobody was misled. See the case of Kano Roads Traffic Agency (KAROTA) Vs Sani & Ors (2023) LPELR – 59347 CA, which held: “Of course, the law is also trite that suing somebody in a wrong name or office does not defeat the suit where the person sued is actually in existence and has taken steps to accept the name used and/or defend the suit. See the case of Upper Graceland Hotel & Anor Vs Eze Ipeh (2019) LPELR-47552 (CA); Njoku Vs UAC Foods (1999) LPELR-13014 (CA); FCE (Technical) Gusua & Anor Vs Abubakar (2013) LPELR-22203 (CA), where such error was treated as mere misnomer. In the recent case of Elipse Int’l Exploration Ltd & Anor Vs Muwa Fuqa Tin Fields Ltd & Anor (2021) LPELR-55146 (CA), we held: “The law is even trite that being sued in a wrong name is not fatal to a suit when the defendant accepts that he/it was/is the person sued and takes steps to defend the action. See MTN Nigeria Communications Ltd Vs Aluko & Ors (2013) LPELR-20473 (CA); VIK Industries Ltd Vs J. Jumac Group Ltd & Anor (2019) LPELR-48840 (CA).”
– Per I. G. Mbaba, JCA
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules, 2021
3. Adamawa State High Court (Civil Procedure) Rules, 2013
