(Supreme Court – July, 2015) 

Legalpedia Electronic Citation: LER[2015] SC.177/2006

 

AREAS OF LAW: ACTION, APPEAL, COURT, DAMAGES, JURISDICTION, PRACTICE AND PROCEDURE, UNDEFENDED LIST, WORDS AND PHRASES

SUMMARY OF FACTS

The Plaintiff/Appellant instituted this action at the High Court of the Federal Capital Territory, against the Defendant/Respondent, under the Undefended List claiming the sum of Five Million, Eighty Eight Thousand, Two Hundred and Eleven Naira, Eighteen Kobo (N5, 088, 211.18) over an overdraft of Five Hundred and Seventy Thousand (N570, 000.00) which he allegedly granted to one Charles Ogbolu. The Respondent filed a Notice of Intention to Defend and averred that he was not privy to the loan agreement between the parties. The trial court entered judgment for the Appellant under the Undefended List. On appeal to the Court of Appeal at the instance of the Respondent, the lower court struck out the Appellant’s claim on grounds that the trial court lacked jurisdiction to entertain the claim amongst others and allowed the appeal. Aggrieved by the decision of the lower court, the Appellant has appealed to this court.

HELD

Appeal Succeeds In Part, Cross Appeal Dismissed

ISSUES FOR DETERMINATION

• Whether the lower court was right to have discountenanced the Preliminary Objection of the appellant and allow (sic) the new issues raised by the respondent (then appellant) without leave of court?
•  Whether the lower court was right to have decided that the trial court in the circumstances had no jurisdiction to try the matter?
•  Whether the lower court was right to have held that the trial court was wrong to have heard and determined the matter under the Undefended List as it did?

RATIONES

NOTICE OF PRELIMINARY OBJECTION – EFFECT OF FAILURE TO COMPLY WITH ORDER 3 RULES 15 OF THE COURT OF APPEAL RULES IN FILING A NOTICE OF PRELIMINARY OBJECTION

“Indeed, as with Order 2 Rule 9 of the Supreme Court Rules (as amended in 2009), failure to bring the notice in accordance with Order 3 Rule 15 of the Court of Appeal Rules (supra) does not render it ineffective, Agbaka v Amadl and Anor [1998] 7 SCNJ 367, 375; Maigoro v Garba [1999] 10 NWLR (pt. 624) 555; [1999] 7 SCNJ 270; Ajide v. Kelani (l985) 2 NSCC 1298, 1306”. PER C.C. NWEZE, J.S.C

APPEAL – DUTY OF A RESPONDENT WHO INTENDS TO CHALLENGE THE COMPETENCE OF AN APPEAL

“This court has taken the view that a respondent, who intends to challenge the competence of an appeal, has the option of raising a preliminary objection to it either by giving the appellant three clear days’ notice before the date of hearing pursuant to the above rule or by incorporating it in the respondent’s brief or both, Magit v University of Agriculture, Makurdi and Ors (supra) 29, B-F; Equity Bank of Nigeria Ltd. vs. Halilco Nig. Ltd. (2006) 7 NWLR (pt. 980) 568”. PER C.C. NWEZE, J.S.C

FRESH ISSUE ON APPEAL – A PARTY SEEKING TO RAISE FRESH ISSUE ON APPEAL MUST SEEK THE LEAVE OF COURT

“It is still a valid general principle that where a party seeks to raise a fresh issue on appeal, he must seek the leave of court. Where he fails to do so, the issue, which ipso facto is rendered incompetent, would be liable to be struck out, A-G., Oyo State v Fairlakes Hotel Ltd [1988] 12 SC (pt. 1) 1; [1988] 5 NWLR (pt. 92) 1; Uor v Loko [1988] 2 NWLR (pt. 77) 430”. PER C.C. NWEZE, J.S.C

FRESH ISSUE ON APPEAL – THE ISSUE OF JURISDICTION IS AN EXCEPTION TO THE RULE OF RAISING FRESH ISSUE ON APPEAL

“However, the issue of jurisdiction constitutes an exception to this general principle for it (such an issue of jurisdiction] could be raised for the first time before an appellate court, with or without leave, Obiakor and Anor v The State [2002] 10 NWLR (pt. 776) 612,626 G; Gaji v. Paye[2003] 8 NWLR (pt. 823) 583; Oyakhire v The State [2006] 7 SCNJ 319,327 – 328; [2006] 15 NWLR (pt.1001) t57; Okoro v. Nigerian Army Council (2000) 3 NWLR (pt. 647) 77,90 – 91; Ajakaiye v. Military Governor, Bendel State (1993) 9 SCNJ 242; Yusuf v. Cooperative Bank Ltd(1994) 7 NWLR (pt. 359) 676”. PER C.C. NWEZE, J.S.C

 

ISSUE OF JURISDICTION – AN ISSUE OF JURISDICTION CAN BE RAISED ON APPEAL FOR THE FIRST TIME WITHOUT THE LEAVE OF COURT

“Due to its fundamental nature, it is exempted from the disabilities and restrictions which hamper other legal points from being canvassed or agitated for the first time on appeal, Western Steel Works Ltd and Anor. v. Iron steel workers Ltd (I987) 2 NWLR (pt 179) 188. In effect, such an issue of jurisdiction could always be raised without leave, Aderibigbe v. Abidoye [2009] 10 NWLR (pt. 1150) 592, 615,paragraphs C – G; Comptroller Nigeria Prisons Services Lagos v. Adekanye (2002) 15 NWLR (pt. 790) 33; Obatoyinbo v Oshatoba (1996) 5 NWLR (pt. 450) 531; Management Enterprises Ltd. v Otusanya (1987) 2 NWLR (pt 179) 188”. PER C.C. NWEZE, J.S.C

 

ISSUE OF JURISDICTION – THE ISSUE OF JURISDICTION BEING FUNDAMENTAL CAN BE RAISED WITHOUT LEAVE OF THE APPELLATE COURT

“It can never be too late to raise the issue of jurisdiction because of its fundamental and intrinsic nature and effect in judicial administration, Magari v Matari [2000] 8 NWLR (pt 670) 722, 735; Akegbe v Ataga [1998] 1 NWLR (pt 534) 459,465; State v Onagoruwa [1992) 2 SCNJ 1; A.G., Lagos v Dosumu [1989] 3 NWLR (pt 111) 552. Indeed, leave of the appellate court is unnecessary since it can itself raise it suo motu as soon as sufficient facts or materials are available for it to do so, Obikoya v. The Registrar of Companies (1975) 4 SC 31, 35; NNPC v Orhiowasele and Ors(2013) LPELR -20341(SC); Elabanjo v Dawodu [2006] 15 NWLR (pt. 1001) 76; Ndaejo v. Ogunnava [1977] 1 SC 11; Chacharos v. Eklmpex Ltd (1988)1 NWLR (pt. 68) 88; Bakare v. A.G. federation[1990] 5 NWLR (pt. 152) 516; Oyakhire v. State [2006] 15 NWLR (pt. 1001) 157; Oloriode v. Oyebi [1984] l SCNLR 390; Ezomo v. Oyakhire [1985] 1 NWLR (pt 2) 193; Akegbeja v. Ataga [1998] 1 NWLR (pt 534) 459, 468; 469; Bronik Motors v. Wema Bank Ltd [1983] 6 SC 158; Senate President v Nzeribe (2004) 41, WRN 60; Odiase v Agbo (1972) 1 All NLR (pt 1) 170; Dickson Moses v The State (2006)7 SCM 137, 169”. PER C.C. NWEZE, J.S.C

ISSUE OF JURISDICTION – IT IS DESIRABLE TO RAISE AN OBJECTION ON THE ISSUE OF JURISDICTION TIMEOUSLY TO SAVE TIME AND COST

“Thus, although it is desirable that preliminary objections on issues of jurisdiction be raised early, once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce. What is more, it is always in the interest of justice, where necessary, to raise jurisdictional issues so as to save time and costs and to avoid a trial which may, ultimately, amount to a nullity, Osadebay v. A-G., Bendel State (I991) 1 NWLR (pt.169) 525; Owoniboys Tech. Services Ltd v John Holt Ltd (1991) 6 NWLR (pt.199) 550; Okesuji v. Lawal [1991] 1 NWLR (pt.170) 661; Katto v. Central Bank of Nigeria [1991] 9 NWLR (pt. 2I4) 126; Utih v. Onoyivwe (1991) 1 NWLR (pt.166) 166)”. PER C.C. NWEZE, J.S.C

ISSUE OF JURISDICTION – THE ISSUE OF JURISDICTION CAN BE CANVASSED ON APPEAL FOR THE FIRST TIME WITHOUT THE REQUIREMENT OF LEAVE OF COURT

“A jurisdictional issue, such as the one under consideration, could be canvassed, for the first time, on appeal, without leave of that court, Western Steel Works Ltd and Anor. v. Iron Steel workers Ltd (supra); Aderibigbe v. Abidoye (supra) 615 paragraphs. C – G; Comptroller Nigeria Prisons Services Lagos v Adekanye (supra); Obatoyinbo v Oshatoba (supra); Management Enterprises Ltd v Otusanya (supra”). PER C.C. NWEZE, J.S.C

 

JURISDICTION OF THE FEDERAL HIGH COURT – FACTORS TO CONSIDER IN DETERMINING THE JURISDICTION OF THE FEDERAL HIGH COURT

“Now, from a conspectus of recent decisions’ it would be correct to assert that this court has, now, taken the position that in considering the issue of the jurisdiction of the Federal High Court under section 251 (supra), both the status of the parties (that is’ whether it is the Federal Government or any of its agencies) and the subject matter of the claim (that is, whether it relates to any of the enumerated items in the said section) have to be looked at, Obiuwevbi v. CBN (2011) LPELR -2185 (SC) 20, C-F, Citing Oloruntoba-Oju v Abdul-Raheem and Ors [2009] s-6 SC (pt 11) 57;(2009)6 MJSC (pt 1) 1; NURTW and Anor v RTEN and Ors (2012) LPELR -7840 (SC) 47, C-G; NNPC and Ors v Orhiowesele and Ors (supra); PDP and Anor v Sylva and Ors (2012) LPELR -7814 (SC) 52-53, G-E; James v INEC and Ors [decision of thiscourt delivered on March 13,2015); Ohakim v Agbaso [2010] 19 NWLR (pt 1226) 172, 236 – 237, G-D; Kakih v PDP and Ors (2014) 15 NWLR (pt 1430) 374,414, F-G; Ahmed v Ahmed and Ors (2013)15 NWLR (pt 1377) 274,335, C-H”. PER C.C. NWEZE, J.S.C

ACTION FOR DECLARATION OR INJUNCTION – QUESTIONS A COURT SHOULD CONSIDER IN AN ACTION FOR DECLARATION OR INJUNCTION AFFECTING THE VALIDITY OF AN EXECUTIVE OR ADMINISTRATIVE ACTION OR DECISION BY THE FEDERAL GOVERNMENT OR ITS AGENCIES

“In action under this class, the court would be required to resolve three sub-questions (i) whether the claim relates to the validity of any executive or administrative action or decision; (ii) if either of the parties is the Federal Government or any of its agencies and (iii) the nature of the reliefs, that is, whether they are for declaration; injunction; damages or specific performance, PDP v Sylva (2012) LPELR -7814 (SC) 52-53, G-E; Oloruntoba-Oju v. Dopamu (supra) 815-816; 829-830, A-C; University of Abuja v Ologe (supra) 722; PDP v Sylva (2012) LPELR -7814 (SC) 52-53, G-E; Ladoja v INEC (2007) LPELR – 1738 (SC) 27-28,G-D; Obi v INEC(2007) 11 NWLR (pt 1046) 565,636- 637, G-C;638, B-E; Ahmed v Ahmed and Ors (supra) 335, C-H”. PER C.C. NWEZE, J.S.C

PUBLIC OFFICERS (PROTECTION) ACT – SECTION 2 OF THE PUBLIC OFFICERS (PROTECTION) ACT IS INAPPLICABLE TO CASES OF CONTRACT

“It is now settled law that section 2 of the public Officers (Protection) Act (and all such enactments similarly worded like it, for example, section 26 (l) (a) and (b) of the Nigerian Agricultural Insurance Act (supra)) do not apply to cases of contract, Nigerian ports Authority v. CGFCS and Anor (1974)1 All NLR (pt. 2) 463; Salako v. L.E.D.B. and Anor (1953) 20 N,L.R. 169; Osun State Government v Dalami (Nig Ltd (2007) LPELR -2317 (SC) 13, A-B; (2007) All FWLR (pt 365)439,452, A-F; I. T. P. P. v UBN Plc(supra); PCHS Co Ltd and Ors v Migfo Nig Ltd (2012) LPELR -972s) (SC), PER C.C. NWEZE, J.S.C

 

UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE

“It is no longer open to argument that the Undefended List procedure is a truncated form of the civil litigation process peculiar to the adversarial judicial system. Under the said procedure, ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried, UBA and Anor v Jargaba (2007) LPELR -3399 (SC) 27; Agwuneme v Eze [1990] 3 NWLR (Pt. I37) 242. Essentially, therefore, it is designed to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff’s case, International Bank for West Africa Limited v Unakalamba [1998] 9 NWLR (pt. 565) 245”. PER C.C. NWEZE, J.S.C

UNDEFENDED LIST PROCEDURE – AN UNDEFENDED LIST PROCEDURE IS MEANT TO SHORTEN THE HEARING OF A SUIT IN A CLAIM FOR LIQUIDATED SUM

“It is, usually, meant to shorten the hearing of a suit where the claim is for a liquidated sum, Co-operative and Commerce Bank (Nigeria) Plc v. Samed Investment Company Limited [2000] 4 NWLR (pt. 651) 19”. PER C.C. NWEZE, J.S.C

 

 UNDEFENDED LIST – OBJECT OF THE RULES RELATING TO ACTIONS ON THE UNDEFENDED LIST

“The object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims, Bank of the North v Intra Bank SA (1969) 1 All NLR 91; Bendel Construction Co. Ltd. v Anglo Development Co. (Nigeria) Ltd lL972l Ail NLR (pt.1) 153; Olubusola v Standard Bank (t975) 1 All NLR (pt.1) 125; N. M. C. B. (Nig) Ltd v Obi (2010) LPELR -2051 (26) 26 which are, virtually, uncontested, Ataguba and Co v Gura Nig Ltd (2005) LPELR -584 (SC) 16-17; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283 at 324-325; Nwankwo and Anor v EDCS UA (2007) LPELR -2108 (SC) 46; Bank of the North v Intra Bank S.A. (1969) 1 All NLR 97; Ataguba & Co. v. Gura (Nig.) Ltd.(2005)8 NWLR (pt.927) 429;[2005] 2 SCNJ, 139,157; (2005) 2 S.C (Pt.1) 101. Such rules are, thus, designed to relieve the courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to because the case is, patently, clear and unassailable, Cow v. Casey (1949) 1 K.B.4B2; Sodipo v. Leminkainen and Ors [1986] NWLR (pt.15) 220; IJBA and Anor v Jargaba (2007) LPELR -3399 (SC) 24; Obaro v Hassan (2013) LPELR – 20089 (SC); Planwell Ltd v Ogala(2003)18 NWLR (pt.852) 478;(2003) 12 SCNJ 58, 68. In such a case, it would be inexpedient to allow a defendant to defend for the mere purpose of delay, Sodipo v Leminkainen [1986] 1 NWLR (pt.15) 220; Adebisi Macgregor Ass. Ltd v N. M.B. Ltd (1996) 2 NWLR (pt.43) 378; (1996)2 SCNJ 72, 81. PER C.C. NWEZE, J.S.C

 

UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE IS NOT DESIGNED TO SHUT OUT A DEFENDANT WITH A TRIABLE ISSUE

“However, this procedure is not designed to shut out a defendant who can show in his affidavit in support of intention to defend that there is, indeed, a triable issue, Nishizawa v Jethwani [1984] 12 SC I24, I34; Akpan v A. I. P. I. C Ltd (2013) LPELR -20753 (SC); Ataguba and Co v Gura Nig Ltd (supra); Nortex (Nigeria) Limited v. Franc Tools Co. Ltd (1997)4 NWLR (pt. 501) 60.” PER C.C. NWEZE, J.S.C

 

UNDEFENDED LIST PROCEDURE – NATURE OF AN AFFIDAVIT IN SUPPORT OF A NOTICE OF INTENTION TO DEFEND

“For this purpose, the said affidavit in support of the notice of intention to defend must, of necessity, disclose facts which will, at least, throw some doubt on the case of the plaintiff, Agro Millers Limited v. Continental Merchant Bank (Nigeria) Plc(1997)10 NWLR (pt. 525) 469; this it can achieve by donating facts which, on the face of the affidavit, disclose a reasonable defence, Jipreze v Okonkwo [1987] 3 NWLR (pt.62) 737; Bendel Construction Co. Ltd v Anglocan Development Co. (Nig.) Ltd(1972) l All NLR 153. The affidavit should not, merely, parade general statements that the defendant has a good defence to the action. Such a general statement must be supported by particulars which, if proved, would constitute a defence , John Holt and Co. (Liverpool) Ltd v Fajemirokun (1961)All NLR 492”. PER C.C. NWEZE, J.S.C

 

 UNDEFENDED LIST PROCEDURE – WHAT CONSTITUTE A DEFENCE ON THE MERIT IS WITHIN THE DISCRETION OF A TRIAL COURT

“What will constitute a defence on the merit will depend on the facts of the case. This is within the discretion of the trial court: a discretion which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend, Grand cereals and Oil Mills Ltd v. As-Ahel International Marketing Ltd and Anor [2000] 4 NWLR (pt. 652) 310; Alhaji Danfurani v Shekari (I996) 2 NWLR (pt. 433) 723; Alhaji Ahmed v Trade Bank of Nigeria Plc (1997) 10 NWLR (pt. 524) 290; Calvenply Limited v Pekab International Limited [2001] 9 NWLR (pt. 717) 164”. PER C.C. NWEZE, J.S.C

UNDEFENDED LIST PROCEDURE – IMPLICATION OF DISCLOSING A DEFENCE ON THE MERIT IN AN UNDEFENDED LIST PROCEDURE

“Where such a defence is disclosed, the justice of the case would demand that the matter be transferred to the General Cause List for hearing on the pleadings, N.M.C.B. (Nig) Ltd v Obi(2010) LPELR 2051 (SC) 26; Adebisi Macgregor Associates Ltd v Nigeria Merchant Bank Ltd [1996] 2 NWLR (pt. 431) 378; ACB Ltd v. Gwagwada (1994) 4 SCNJ (pt. II) 268; Olubusola Stores v. Standard Bank of Nig. Ltd (1975) NSCC 137; John Holt and Co (Liverpool) Ltd v Fajemirokun (1961) ANLR 513; N. M. C. B (Nig) Ltd v Obi(supra)”. PER C.C. NWEZE, J.S.C

 

CLAIM ON INTEREST – DUTY OF A PARTY CLAIMING INTEREST

“Where interest is being claimed as a matter of right, the proper practice is to, claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim, Ekwunlfe v Wayne (West Africa) Ltd (supra)”. PER C.C. NWEZE, J.S.C

 

LIQUIDATED ‘SUM’ OR ‘DAMAGES’ – MEANING OF LIQUIDATED ‘SUM’ OR ‘DAMAGES’

What then is a liquidated ‘sum’ or ‘damages’? Damages is said to be liquidated when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other side. Stein vs. Bruce 366 S.W 2d. 732, 735 (Blacks Law Dictionary, Sixth Edition at page 391). See also the cases of Eko Odume vs. Ume Nnachi (1964) 1 All NLR 324 at 328 and Maja vs. Samouris (2002) 7 NWLR (Pt. 765) 78 at 102”. PER J. A. FABIYI, J.S.C

 

LIQUIDATED SUM – FACTORS IN DETERMINING LIQUIDATED SUM

“It is now clear that the factors for determining a liquidated sum are as follows :-

(a)        The sum must be arithmetically ascertainable without further investigation.

(b)        If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach.

(c)        The agreed and fixed amount must be known prior to the breach. PER J. A.FABIYI, J.S.C

 

STATUTES REFERRED TO:

Court of Appeal Rules

Federal High Court Act, Cap 134, LFN,1990

Nigerian Agricultural Insurance Act

Public Officers’ Protection Act

Supreme Court Rules (as amended in 2009

 

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