IN THE COURT OF APPEAL OF NIGERIA
ON THUSDAY, THE 23rd of January, 2014
ALHAJI HASSAN KHALID .......... APPELLANT
1. AL-NASIM TRAVELS & TOURS LIMITED ......... RESPONDENTS
2. ALHAJI MUSTAPHA HARUNA ISMA'IL
Babatunde Akintade for Appellant
J. A. Achimugu with Yahaya Achadu for Respondent
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)
The Respondents, as plaintiffs, caused the Registrar of the High Court of Kano State to issue a writ of summons in Suit No K/95/2012 under the Undefended List on the 22nd of March, 2012 against the Appellant, as defendant, pursuant to the leave granted to the Respondents to so issue the writ of summons on the said 22nd of March, 2012 by the High Court of Kano State. The claims of the Respondents were for:
i. The sum of N87,688,561.60 being money due and payable to the Respondents by the Appellant for issuing tickets in the Respondents' name via online BSP link for the months of October to November, 2011.
ii. Court interest at the rate of 10% till the whole judgment sum is liquidated.
iii. Cost of filing and prosecuting this suit.
The writ of summons was supported by an affidavit of facts and the case of the Respondents was that their main line of business was the procurement and processing of visas and airline tickets for Hajji and Umrah travels to the Holy lands of Mecca and Medina in Saudi Arabia and they had an online BSP links to the different airlines which they used for their business. It was their case that they were approached by the Appellant sometime in January 2011 with a request that he be allowed to use their online BSP link for the purpose of making reservations and booking tickets with five airlines - Egypt Airlines, Ethiopian Airlines, Kenyan Airlines, Qatar Airlines and Turkish Airlines. It was their case that they consented to the request of the Appellant on the understanding that the Appellant shall remit all the monies due to them to their Corporate Account at Sterling Bank within three days after each ticket sale and that the said account shall be fully funded three working days before each BSP link; the terms of agreement were embodied in a Memorandum of Understanding attached as Exhibit A.
It was the case of the Respondents that the Appellant commenced the use of their BSP link for the sale of airline tickets and made a total sale of N768,415,568.10 between the months of January and October 2011 using their Sterling Bank Account and that as at November, 2011, they noticed a default in the sale remittances totalling N87,688,561.60 and as a result of which their BSP link was blocked. It was their case that they invited the Appellant for a meeting and whereat the Appellant admitted that he diverted the monies to fund a contract he got with the Jigawa State Government and promised to repay the monies as soon as possible and this undertaking was embodied in another Memorandum of Understanding dated 10th of Decembe4 2011, Exhibit B. It was their case that when the Appellant was not forthcoming on the repayment of the monies, they caused their Solicitors to write a letter of demand and in response to which the Solicitors to the Appellant wrote a letter pleading for more time to repay the money; the letter of demand and the response were Exhibits C and D. It was their case that the Appellant refused to repay the money till date and had no defence to the suit.
The writ of summons with the affidavit of facts were apparently served on the Appellant and he, in response, filed a notice of intention to defend dated the 2nd of April, 2012 along with an affidavit of facts in support.
The case of the Appellant was that it was indeed true that he approached the Respondent for the use of their BSP link for the sale, reservation and issue of tickets on the five mentioned airlines and that it was agreed that the payment for each ticket less his commission shall be paid into a dedicated account at Sterling Bank Plc. It was his case that he was an illiterate with very little knowledge of Western education and cannot properly read and write in English language without an interpreter and that he was not informed of the contents of two Memorandums of Understanding attached as Exhibits A and B and their contents were not interpreted to him before he appended his signature and he denied the contents of the documents. It was his case that he performed his undertaking with the Respondents to the best of his ability and was not owing the Respondents the sum of N87,688,561.60 and that he did not know how his alleged liability to the Respondents arose. The Appellant admitted receiving the letter of demand, Exhibit C, and it was his case that he gave the letter to his Solicitors to respond to but he never gave his Solicitors instruction to admit any form of liability.
The lower Court took the arguments on the matter and it, in a considered Ruling delivered on the 23rd of April, 2012, entered judgment in favour of the Respondents on the terms of the claims on the writ on summons. On the 24th of April, 2012, the very next day after the judgment, the Appellant filed an application before the lower Court praying for an order setting aside the judgment entered on the 23rd of April, 2012. The Appellant predicated the application on the grounds that the originating processes were not filed in accordance with the Rules of Court and that the annexures attached to the affidavit of facts in support of the writ of summons were misleading and contradictory and were not admissible in law and that as such the lower Court was misled into entering judgment in favour of the Respondents. The Respondents opposed the application. The lower Court entertained the application on the merits and dismissed same in a considered Ruling delivered on the 17th of July, 2012. This present appeal is against both the judgment delivered on the 23rd of April, 2012 and the Ruling delivered on the 17th of July, 2012.
The Appellant filed a notice of appeal dated the 20th of July, 2012 and it contained five grounds of appeal. In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 8th of November, 2012 and it consisted of seventeen pages. The Respondents filed a brief of arguments consisting of fourteen pages and dated the 28th of November, 2012. The brief of arguments was filed on the 3rd of December, 2012. The Appellant filed a reply brief of arguments dated the 23rd of May, 2013 and, it consisted of six pages. At the hearing of this appeal on the 5th of November, 2013, Counsel to the parties relied on their respective briefs of arguments.
Counsel to the Appellant distilled three issues for determination in his brief of arguments and these were:
i. Whether the trial Court validly assumed jurisdiction to entertain the suit.
ii. Whether the trial Court was right in affirming its decision earlier delivered on the 23rd of April, 2012 in the ruling of the 17th of July, 2012.
iii. Whether the trial Court can grant monetary award/relief against a defendant when the plaintiff has not made out his case to be entitled to same.
Counsel to the Respondents adopted the three issues for determination as formulated by Counsel to the Appellant. This Court will treat the issues seriatim.
On the first issue for determination, Counsel to the Appellant stated that a trial Court cannot assume jurisdiction where there is none and he referred to the case of Ohakim Vs Agbaso (2010) 7 SCNJ 137 where the Supreme Court listed the general determinants of jurisdiction to include the statute establishing the court, the subject matter of litigation, the litigating parties, the procedure by which the case is initiated, proper service of process, territory where the cause of action arose or where the defendant resides and composition of the Court. Counsel stated that, in the instant case, the writ of summons was not issued in accordance with the rules of Court and he referred specifically to the provisions of section 23(2) of the High Court of Kano State (Civil Procedure) Rules 1988 which requires that a copy of Rules 1 to 4 of Order 23 should be annexed to each copy of the writ of summons for service and that nothing was mentioned in the affidavit as regards this annexure and this was a clear attempt to obviate the law/rules. Counsel stated that the Undefended List procedure was a special procedure and he referred to the cases of CRPDIC Ltd Vs Obonghe (2001) FWLR (Pt 54) 353 and Jagal Pharm Ltd Vs Hassan (2008) 14 WRN 160. Counsel stated that adherence to the rules of court was a sine qua non to a competent adjudication as they are sacrosanct and he referred to the cases of FBN Plc Vs TSA Industries Ltd (2010) 38 WRN 1 and Nworah Vs Akpata (2010) 3 SCNJ 1. Counsel stated that the lower Court thus erred when it assumed jurisdiction in the matter.
In response, Counsel to the Respondent referred to the Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552 on what amounts to jurisdiction and stated that looking at the claims of the Respondents as well as the parties, it is clear that the lower Court was right to assume jurisdiction in the matter. Counsel referred to the provisions of Order 23 Rules 1 to 4 and stated that they empowered lower Court to place a suit under the Undefended List if it is satisfied that there is no defence to the action and that the lower Court acted within its powers when it assumed jurisdiction. Counsel stated that all the authorities cited by the Counsel to the Appellant were out of place and irrelevant. Counsel submitted that the lower Court had jurisdiction to entertain the matter in the circumstances and he referred to the cases of Magaji vs Matari (2000) 5 SC 46, amongst others.
Now, jurisdiction is the power house of any form of adjudication by a court or a tribunal. The learned authors of Blacks Law Dictionary 5th Ed. at page 766 state of the term 'jurisdiction' that it is of comprehensive import embracing every kind of judicial action. They define it as the power of the court to decide a matter in controversy and that it presupposes the existence of a duly constituted court with control over the subject matter and the parties. They opine that jurisdiction defines the power of the courts to inquire into facts, apply the law, make decisions and declare judgment; it is the legal right by which judges exercise their authority and it exists when a court has cognzance of the class of cases involved, proper parties are present and the point to be decided is within the power of the court.
The word 'jurisdiction' has been defined by our courts to mean the authority which a court has to decide matters before it or to take cognzance of matters presented before it for its decision Ndaeyo Vs Ogunnaya (1977) 1 SC 11 and Miscellaneous Offences Tribunal Vs Okoroafor (2001) 18 NWLR (Pt 745) 295. It was described by Eso, JSC in Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 111) 552 at 609 as "the blood, life wire, bedrock and foundation of adjudication and without it the 'labourers' therein, that is both litigants and counsel on the one hand and the judge on the other hand, labour in vain." Also in Umanah Vs Attah (2006) 17 NWLR (Pt 1009) 503 Onnoghen JSC held that jurisdiction "is a fundamental issue in litigation particularly as it can be said to supply the blood that gives life to the authority of the court to entertain the matter formally presented before it."
The limits of the jurisdiction of a court are imposed by the statute, charter or commission under which the court is constituted and may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited. A court must as a matter of law blindly follow and apply its jurisdictional limits or limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of the statute to obtain or achieve the clear intentions of the lawmaker. A court of law cannot do more than this - Oloba Vs Akereja (1988) 3 NWLR (Pt 84) 508, Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461, Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt.1318) 423.
Counsel to the Appellant contended that the lower Court was wrong to have assumed jurisdiction to entertain the suit under the Undefended List and he hinged his submission on the provision of Order 23 Rule 2 of the High Court of Kano State (Civil Procedure) Rules. Counsel stated that the Rules require the Registrar of. Court to attach a copy of rules 1 to 4 of Order 23 to the writ of summons and affidavit of facts to be served on a defendant in an action under the Undefended List and that the processes served on the Appellant in the instant case did not have such a document attached. Counsel submitted therefrom that this robbed the lower Court of jurisdiction to entertain the matter. The Appellant never raised this issue before the lower Court either before filing his notice of intention to defend or at any thereafter during the hearing of the matter and he fully participated in the proceedings.
With respect to Counsel, his submission was an open display of ignorance of the concept of jurisdiction of a court to entertain a matter. It is a carry-over of the general confusion that has been introduced by some case law authorities into the meaning of the concept of jurisdiction of Courts. There is a whole world of difference between procedural irregularity and the substantive jurisdiction of a court to hear a matter and procedural irregularity does not qualify as an issue of jurisdiction that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity. An irregularity in the exercise of jurisdiction should, and must not, be confused with total lack of jurisdiction which takes cognizance of the general meaning of the word "jurisdiction" as the authority which a court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. Procedure for invoking the jurisdiction of court is different from the power of the court to decide matters which on the face of the proceedings have been presented in the formal way for its decision and which are within its jurisdiction. It is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the court or tribunal in going into matters before it are matters of procedure regulated by procedural rules.
It is matters of substantive jurisdiction that that can be raised at anytime and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party at the earliest opportunity upon being served with the court process and before taking any further step in the matter, otherwise he will be deemed to have waived the irregularity and be foreclosed from raising it again - Kwaa Vs. Kwakwa 3 WACA 176, Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Odu'a Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523) 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR Pt 1155) 387, the unreported decision of this court in Appeal No CA/K/5/2006 - Muhammed vs Ajingi delivered on the 12th of February, 2013, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448. This point was elaborately explained by Ayoola, JSC in Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1. His Lordship laid down the guidelines to be followed at pages 31 to 32 where he said thus:
"....This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows: (i) where on the face of the proceedings a superior court is competent, incompetence should not be presumed; (ii) where on the face of the proceedings the court is incompetent, the court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties and if it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on the face of the proceedings; (iii) where the incompetence of the court is affected by evident procedural defect in the commencement of proceedings and such defect is not dependent on ascertainment of facts, the court should regard such incompetence as arising ex facie; (iv) when the competence of the court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts, the incompetence cannot be said to arise on the face of the proceedings and the issue of fact if properly raised by the party challenging the competence of court should be tried first before the court makes a pronouncement on its own competence; (v) where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court's incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or affidavit in cases commenced by originating summons; (vi) a judgment given in proceedings which appear ex facie regular is valid."
The issue canvassed by the Appellant in this appeal was a matter of procedural irregularity and having participated fully in the proceedings before the lower Court without raising the issue, he cannot be heard to raise it in this appeal and the judgment entered by the lower Court cannot be challenged before this Court on that ground - Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488. The first issue for determination is resolved against the Appellant.
On the second issue for determination, Counsel to the Appellant submitted that the lower Court was in error in affirming its judgment of 23rd of April, 2012 in its Ruling of 17th of July, 2012 in the face of overwhelming evidence. Counsel stated that the exhibits relied upon by the lower Court in entering the judgment contained misleading and confusing facts contrary to the undefended List procedure and this was enough reason for the lower Court to have transferred the matter to the general cause list and he referred to the case of Nworah Vs Akputa (2010) 3 SCNJ 1. Counsel stated that the issue of illiteracy raised by the Appellant in the affidavit in support of his notice of intention to defend was a substantial point in the circumstances of this case that merited the matter being taken out from the Undefended List procedure and he referred to the cases of Odumade Vs Ogunnaike (2010) 39 WRN 128 and Ogunleye vs Safejo (2010) 3 WRN 80 on the treatment of illiterates. Counsel stated that lower Court engaged in speculation on the issue of the illiteracy of the Appellant and it thus aided the Respondents to the prejudice of the Appellant and that this was wrong of the lower Court and he referred to the cases of Akinwale Vs Akinwale (2010) 31 WRN 129 and Olalomi Industries Ltd Vs NIDB (2009) 39 WRN 1. He urged this Court to resolve this issue in its favour.
The Counsel to the Respondent stated that a judgment under the Undefended List is a judgment on the merits and it cannot be set aside by the same court except on appeal and that the only exception was in cases of fraud, nullity, etc and that the Appellant did not bring his case within the exception. On presumption of correctness of a judgment of Court, Counsel referred to the case of Oshiomole Vs Federal Government of Nigeria (2005) NWLR (Pt 907) 414 and stated that once a Court has given judgment in a matter, it is functus officio and cannot revisit the matter except in a case of fraud or in some other instances and he referred to the cases of Renawa Vs NACB Ltd (2007) 2 NWLR (Pt 1017) 155 and Onwuka Vs Maduka (2002) 18 NWLR (Pt 799) 586.
Counsel submitted that the lower Court was right in affirming its earlier judgment of 23rd of April, 2012 in its Ruling of 17th of July 2012.
In dismissing the application of the Appellant seeking to set aside the judgment delivered on the 23rd of April, 2012, the lower Court stated in the Ruling thus:
"The law in respect of circumstances under which a court of law can set aside its final judgment or judgment on the merit is very clear. All the learned Counsels representing the Applicant and the Respondent have stated the correct position of the law in their respective written addresses. Court of law can only do that upon special and exceptional circumstances such as fraud, etc. However, in the application and from all the above, it is very clear and I hereby hold that the Applicant has failed to establish those special and exceptional circumstances such as fraud, etc to warrant this Honorable Court to set aside the judgment it gave against him under the undefended list which was delivered on the 23rd of April, 2012. Consequently, the motion on notice filed by him dated the 24th of April, 2012 is hereby dismissed accordingly."
Now, it is settled law that once a Court delivers its decision in a matter it becomes functus officio and cannot revisit the decision. This Court speaking on the phrase "functus officio" in its unreported judgment in Appeal No CA/K/63/2007 - Diamond Bank Plc Vs Mshelia delivered on the 13th of November, 2013 stated:
"... the phrase functus officio" means a task performed; having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. This means in practice that idea that the specific duties and functions that an officer was legally empowered and charged to perform have been wholly accomplished and, thus, the officer has no further authority or legal competence based on the original commission. This is because the thing which originally had life becomes dead or moribund after the performance of the duty or function by the authority. When it is used in connection with a court, it means that once a court has decided a matter before it, that court has no further force or authority over the matter and it lacks competence or jurisdiction to review or revisit its decision and/or to re-open the said matter for further deliberations. It cannot assume appellate status over its decision, except under exceptional circumstances and where there is a statutory provision in that regard - Buhari Vs Independent National Electoral Commission (2008) 19 NWLR (Pt 1220) 246, Federal Polytechnic, Idah Vs Onoja (2012) 12 NWLR (Pt 1313) 72, Nwoko Vs Azekwo (2012) 12 NWLR (Pt. 1313) 151."
The law is that a court of law can set aside its own judgment or order only in two instances; namely: (i) where it is so empowered by statute to do so; and (ii) under its inherent jurisdiction in specified and certain situations - Yakubu Vs Governor, Kogi State (1997) 7 NWLR (Pt 511) 66, Fada Vs Naomi (2002) 4 NWLR (Pt 757) 318, Ene Vs Asikpo (2010) 10 NWLR (Pt 1203) 477. A court can set aside the decision reached in the judgment or order under its inherent jurisdiction where it is shown that it was made without jurisdiction or is a nullity due to absence of fair hearing, or was reached as a result of fraud - Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (PT.1216) 247, Dingyadi Vs INEC (No.1) (2010) 18 NWLR (Pt.1224) 1. Ede Vs Mba (2011) 18 NWLR (Pt 1278) 236, Adeyemi-Bero Vs Lagos State Property Development Corporation (2013) 8 NWLR (Pt 1356) 238.Reading through the affidavit in support of the motion to set aside the judgment, the Appellant did not canvass any of these grounds as the reason for the application. The application was thus bound to fail from the very beginning. The lower Court was on very firm ground when it dismissed the application. The second issue for determination is resolved against the Appellant.
On the third issue for determination, Counsel to the Appellant submitted that the lower Court erred in believing every piece of evidence presented by the Respondents on the basis that the Appellant had no defence to the action and that the evidence that the lower Court premised the finding that the Appellant had no defence fell far short of what the law requires in proof of a case of this nature. Court implored this Court to, in interest of justice, uphold the appeal and reverse the findings of the lower Court and he referred to the cases of Oyewole Vs Akande (2009) 7 SCNJ 225 and Pan African International Incorporated Vs Shoreline Lift Boats Ltd (2010) 7 WRN 1.
In response, Counsel to the Respondents stated that the affidavit of facts of the Appellant in answer to the case under the Undefended List did not disclose any defence on the merit or any triable issue to warrant the trial Court transferring the matter to the general cause list. On what amounts to defence on the merits or triable issue, Counsel referred to the cases of Akinyemi Vs Governor of Oyo State (2003) FWLR (Pt 140) 1821, Hinterland Resources Ltd Vs Fixity Investment Ltd (2007) All FWLR (Pt 355) 487 and Ataguba & Co Vs Gura Nig Ltd (2005) All FWLR (Pt.256) 1219.
The provisions of the High Court of Kano State Rules relating to the Undefended List provide a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied - United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.
Speaking on the essence of the Undefended List procedure, this Court in its judgment in Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR-20758 stated at pages 21 - 22 thus:
"It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiffs case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff's claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled - Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G.M.O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs Eze (2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice - Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd Vs Duke (2010) 8 NWLR (Pt.1196) 278. Thus, Order 23 rule 3(1) of the High Court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend."
In its deliberations on the case of the Respondents under the Undefended List, the lower Court stated:
"I have carefully gone through the entire processes filed. At the end, I find that the only issue for consideration and determination of this Hon. Court is whether or not the Defendant has in his affidavit in support of his Notice of Intention to Defend disclosed a defence on the merits. In other words, triable issue(s).
In determining this singular issue, I have carefully scrutinized the affidavit in support of the Notice of Intention to Defend alongside the affidavit in support of the writ of undefended list. From the affidavit in support of the Notice of Intention to Defend, it is manifest that the defendant has raised the issue of illiteracy and that of not instructing Messrs A.G. Ibrahim Esq, the principal of Baban Malam & Co to admit any form of liability of the claim as contained in Exhibit D attached to the affidavit in support of the writ of undefended list.
The defendant in his affidavit in support of his Notice of Intention to defend paragraphs 2 and 3 raised the issue that he is not literate in western education and cannot properly read or write any document in English without the assistance of an interpreter. He therefore denied being informed or have knowledge of the contents of Exhibit A and B which were not explained and interpreted to him by virtue of paragraphs 5 - 11 of the affidavit in support of the Notice of Intention to Defend.
The elementary law of evidence is that he who asserts must prove. Mere fact that a person has stated in an affidavit that he is an illiterate is not sufficient. He has to establish his assertion. And from a careful scrutiny of the affidavit in support ...it is very clear that the affidavit of the defendant did not contain any jurat. The presumption therefore is that the defendant is a literate Person.
Exhibit A has complied with the Illiterate Protection Law because it contained a jurat. Exhibit B however, contained no jurat. But the witnesses of the defendant, one is a civil servant and the other a public servant. And the business of booking and issuing tickets on line BSP link, this Hon Court is quite aware, is not a business for illiterate persons. All these, coupled with the fact that affidavit of the defendant in support of the Notice of Intention to Defend, goes to show that the defendant was fully aware of what he has signed in respect of Exhibits A and B. The defendant therefore cannot say that he is not aware of the implications of Exhibits A and B to escape liability.
In view of the above, coupled with the fact that the defendant has failed to establish in his affidavit that he is an illiterate, the defence of illiteracy raised by him, I hereby hold, must fail. (see pages 57 to 59 of the records)
The lower Court continued thus:
"In the instant case, the Defendant did not deny approaching the plaintiffs to use the 1st plaintiff's online BSP for the sale, issue and reservation of tickets for Egypt Airlines, Ethiopian Airlines, Kenyan Airlines, Qatar Airlines and Turkish Airlines. He did not also deny signing Exhibits A and B, he did not deny receiving Exhibit C through his lawyer A.G. Ibrahim Esq. but he has denied knowing the contents of Exhibits A and B and that he did not instruct his lawyer to accept liability as in Exhibit D. As I have stated earlier, there was nothing establishing that the defendant is an illiterate in his affidavit in support of the Notice of Intention to Defend. There was nothing also, I hereby hold, establishing that t}e Defendant's Counsel, A.G. Ibrahim Esq carried out the instruction of the defendant wrongly. This Hon. Court therefore must accept Exhibits A, B, C and D in proof of the averments of the plaintiff as contained in their affidavit in support of their writ of undefended list." (See page 59 of the records)
The lower Court concluded that:
". .It suffices however to state that the claim of the plaintiffs herein can be dealt with under the undefended list because it is an amount that can be ascertained....In view of all the above therefore, I hereby hold that the defendant has no defence to this action. And it is the duty of this Hon Court not to allow any defendant who has no real defence to dribble and frustrate the plaintiff out of the judgment he is legitimately entitled to ..." (see page 60 of the records
The simple question on this issue for determination is whether the lower Court was correct when it found that the affidavit of the Appellant disclosed no defence on the merit. The complaint of the Appellant on this issue for determination is that the evidence relied upon by the lower Court to make its finding that the affidavit in support of the Notice of Intention to Defend fell far short of the requirements of the law.
In its unreported decision in Appeal No CA/K/83/2005 - Kele Vs Matthew delivered on the 22nd of November, 2013, this Court summarized the law on when affidavit is said to disclose a defence on the merit thus:
"The law is that for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into - Osifo Vs Okogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, the defendant's affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff's claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The 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. A mere general denial of the plaintiff's claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiffs claim - Ataguba & Co vs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt 997) 452, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320.
In S.P.D (Nig) Ltd Vs Arho-Joe (Nig.) Ltd (2006) 3 NWLR (Pt 966) 173, the Court of Appeal stated that "a triable issue or a defence on the merit under the undefended list procedure is where a defendant's affidavit in support of the notice of intention to defend is such that requires the plaintiff to explain certain matters with regard to his claim, or throws some doubt on the plaintiff s claim."
A triable issue is an uncontroverted material allegation contained in the defendant's affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a fair probability of a bona fide defence - Ataguba & Co Vs Gura (Nig) Ltd supra, G.M.O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babington-Ashaye Vs E.M.A. General Enterprises Ltd (2011) 10 NWLR (Pt.1256) 479.
Looking at the contents of the affidavit in support of the notice of intention to defend, this Court must say that it is unable to fault either the reasoning of the lower Court or its conclusion that the affidavit disclosed no reasonable defence on the merits. Apart from general denials, the affidavit raised two issues - illiteracy and that the Counsel to the Appellant did not comply with the instructions of the Appellant in writing Exhibit D, the response to the letter of demand. But ironically, the said affidavit by which the Appellant said he was an illiterate and cannot read and write in English was written in English language and was deposed to and signed by the Appellant himself without an illiterate jurat, showing that he required no interpretation to understand its contents. The lower Court was thus correct in presuming that the Appellant was not an illiterate as posited.
This position of the lower Court was subsequently reinforced by the Appellant himself. The records of the court show that the affidavit in support of the motion to set aside the judgment and dated the 24th of April, 2012 was similarly written in English language and deposed to and signed by the Appellant personally without an illiterate jurat. Further, the records show that the Appellant also filed a motion dated the 17th of July, 2012 before the lower Court wherein he prayed for an order staying execution of the judgment and for installmental payments and again the affidavit in support thereof was written in English language and deposed to and signed by the Appellant personally without an illiterate jurat. These affidavits formed part of the records of this appeal and this Court is empowered to rely on relevant documents in its records that will assist it in doing justice in the case before it, notwithstanding that the documents were not referred to by the parties.
These document show that the assertion of the Appellant that he is an illiterate and did not thus understand the contents of the two Memorandums of Understanding, Exhibits A and B, as they were not interpreted to him is an obvious lie. The Appellant did not deny signing the Memorandums of Understanding. Additionally' the Appellant did not state the exact instructions he gave to his Counsel in replying the letter of demand and which the Counsel wrongly conveyed in Exhibit D. In Exhibit B, the Appellant admitted that he was owing the Respondents the sum of N87,688,561.60 being a BSP default for issuance of tickets, etc for two reporting periods of October and November, 2011 and he undertook to pay up the entire sum by the end of February, 2012. In Exhibit D, Counsel conveyed the apology of the Appellant for the delayed payment of the said sum and his promise to pay up the entire sum in the month of August, 2012 and his thanks to the Respondents for their patience and extreme magnanimity on the subject. These are clear cases of admission of the Respondents' claims and for which the Appellant did not disclose any defence. It is trite law that a defendant who has no real defence to the action should not be allowed to disturb 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 to continue to postpone meeting his obligation and indebtedness - Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc (2002) 15 NWLR (Pt 789) 46, Sanyaolu Vs Adekunle (2006) 7 NWLR (Pt 980) 551.
The decision of the lower Court that the Appellant disclosed no defence on the merits in his affidavit was very well-founded. The third issue for determination is resolved in favour of the Respondents.
This Court must say that it is appalled at the attitude of the Appellant in this case. It is elementary that the survival and thriving of the economic life of any community is dependent on the trust that exists amongst its players and trust can only be built by the honesty and integrity displayed in economic dealings. The refusal of the Appellant to honour his due obligations to the Respondents was dishonest and reprehensible and his further action of contesting the obligations in court by telling obvious lies was an open display of shameless irresponsibility. The name of the Appellant is preceded with the appellation of "Alhaji" which presupposes the fact that he is Muslim. At the core of the religion of Islam is the promotion of excellent moral character and it postulates that a good Muslim must be honest, have integrity, be trustworthy, be reliable, be responsible, etc. The Appellant did not display any these qualities in his dealings with the Respondents and it is a lesson on how far people will go to mortgage their conscience for a 'mess of pottage'.
But perhaps even more shocking was the approach of the Counsel to the Appellant to this case. The belief of any right thinking member of society is that a decent Counsel would not, and should not, use the administration of justice system to perpetuate unfairness, injustice and oppression. Being aware of the facts of this case, the reasonable expectation is that the Counsel to the Appellant would have taken steps to have the matter resolved amicably and not go to Court to canvass lies supported by baseless arguments all in a bid to delay the Appellant fulfilling his obligations to the Respondents. Counsel to the Appellant acted contrary to reasonable expectation. This attitude is not right and it is unexplainable to the common man on the street. It cannot engender public confidence in our justice system. Speaking on such attitude of Counsel, this Court in its unreported judgment in Suit No CA/K/319/2007 - Mbas Motel Ltd Vs Wema Bank Plc delivered on the 22nd of March 2013 stated thus:
"We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.
Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honor, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled "The Law as a Dynamic Profession" thus:
'We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession."
In Williams Vs Akintunde (1995) 3 NWLR (Pt 381) 101 at 115 B-C, Pats-Acholonu, JCA (as he then was) added thus:
"We all agree that the Attorney whose professional thoughts begin and end with his own private client is a pitiable mockery of what a great Lawyer really is and that only by taking part in the movements for the betterment of the Law of the profession can he practice Law in the grand manner, the only way it is worth practicing."
In saner climes, Counsel to the Appellant would have been reported to the appropriate unit of the Bar Association for disciplinary sanction. It is hoped that Counsel will learn to rise above the primordial impulse of doing whatever is the client's bidding without having regard to what the effect of their actions will be on the entire administration of justice system and the larger society.
In conclusion, this Court holds that this appeal is completely devoid of merits and it is hereby dismissed. The Respondents are awarded the costs of the appeal assessed at N75,000.00. These shall be the orders of this Court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.:
I had read in advance the leading judgment of my learned brother, Abiru, J.C.A. I endorse all his reasoning and conclusion in this appeal. The same is hereby dismissed by me and I abide by the cost awarded.
ITA G. MBABA, J.C.A.:
I have had the advantage of reading the lead judgment, while in draft, by my learned brother H.A.O. ABIRU JCA.
In his usual character of giving detailed elucidation and, as it were, lecturing, on any issue that he considers, he has dutifully, discussed and considered all the relevant points of law relating to jurisdiction and the power of the trial Court to award or enter judgment in a matter under the undefended list procedure, and I agree with him completely.
The discretion of the trial Court to determine whether or not a defendant's affidavit in support of a Notice of intention to defend an action, discloses a defence on the merit cannot be impeached by the strong and expert advocacy of the defence Counsel, founded on mere wishful thinking or on extrinsic complaint unrelated to the issue of indebtedness of the Defendant, which is not denied. And where the trial Court has properly exercised its discretion that the Defendant has no defence to the claim, and entered judgment for the plaintiff, that judgment is final and cannot be reversed by the trial Court, but only on appeal, upon the faulting of the exercise of discretion by the trial Court. The Appellant could not therefore seek the trial Court to reverse itself, by means of a motion to set aside its earlier decision, as it has become functus officio in the case. See the case of DIAMOND BANK PLC. VS. MSHELIA CA/K/63/2007; FED. POLYTECHNIC, IDAH VS. ONOJA (2012) 12 NWLR (Pt. 1313) 72; NWOKO VS. ASUQUO (2012) 12 NWLR (Pt.1313) 151; ABDULFATAI VS. KAYODE (2012) LPELR 14324; KAYODE VS. ABDULFATAI (2013) 33 WRN 14S at 178.
In the case of ALH. HASSAN KHALID VS. ALH. UMAR ISMAILS & ANOR: CA/K/256/2012 an unreported decision of this Court, delivered on 9/12/13, where like in this case, Appellant had complained against the refusal of the trial Court set aside its earlier decision which entered judgment for the Respondent, we held:
"I hold that the trial Court was right to refuse the application to set aside the judgment of 23/4/12, as it had become functus officio in that case. See the case of REMAWA VS. NACB LTD (2007) 2 NWLR (Pt. 1017) 155.
In that case of KHALID VS. ISMAIL (supra), the Appellant had taken out a motion seeking to set aside the judgment of 23/4/12 entering the judgment debt for the Respondent, saying that the Registrar of the Court did not serve the Defendant with the provisions of order 22 Rules 1 - 4 of the High court (civil Procedure) Rules, when, the Defendant was served with the Order placing the suit on the undefended list and with the processes filed by the plaintiff therefore. But he had responded to the process by filing Notice of intention to defend the suit and affidavit therefore, which did not disclose any defence on the merit. We held on page 20 - 21 thereof:
Thankfully, Appellant knew that the suit was one brought under the Undefended List Procedure, and so even if the Registrar of the Lower Court failed to serve him with the provisions of Order 23 Rules 1 - 4 of the High Court (Civil Procedure) Rules, he knew what the claim was about and took the appropriate steps towards it, by filing a Notice of intention to defend and an affidavit to support the intention! He was therefore not misled, or under any disadvantage or prejudice, even if he was not given the provisions of that law.
I believe, the Undefended List Procedure was developed because of people like the Appellant, who would want to invent every legal trick in the world to frustrate a simple case of debt repayment and run away from civil and contractual obligations, and dishonestly use the proceeds of sales transaction, without paying for same. The Undefended List Procedure came into force to facilitate speedy determination of simple debt recovery and liquidated money demands, to check the antics of mischievous debtors. See the case of ILORIN WEST LOCAL GOVT. VS ALASINRIN (2012) 23 WRN 114 at 135 - 136.
Appellant cannot therefore fault the assumption of jurisdiction of the trial Court in this case on the allegation of failure of the Registrar of the Lower Court to comply with Order 23 Rule 2 of the High Court (Civil Procedure) Rules, having taken full part in the case and filed notice to defend and affidavit which failed to disclose a defence on the merit with this and the fuller reasons in the lead judgment I too dismiss this appeal and abide by the consequential orders in the lead judgment.