Judgment
JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal, Calabar Division, Coram Victor Aimepomo O. Omage, JCA, Nwali Sylverter Ngwuta, JCA (as he then was) and Mojeed Adekunle Owoade, JCA, delivered on 22nd November, 2007 which set aside the decision of the trial Court delivered on 23rd September, 2005. Aggrieved by that decision, the Appellant has now appealed to this Court.
The facts of the case leading to this appeal are that on 24th June, 2005, the Respondent as Plaintiff, filed a Writ of Summons at the High Court of Cross River State wherein he claimed against this Appellant as defendant, the sum of N420,000.00 being money paid for supply of 60 metric tons of palm kernel fruits which he failed to perform and also failed to refund despite repeated demands. He also claimed 10% interest on the said sum from the date of judgment till payment. With leave of Court granted on 12th July, 2005 the suit was placed under the undefended list and marked accordingly.
It was adjourned to 26th July, 2005 for hearing.
Upon being served with the processes, the Appellant filed a notice of intention to defend together with a counter-affidavit on 13th September, 2005. The counter affidavit filed by the Appellant disclosed triable issues.
Indeed, in paragraph 24 of the counter-affidavit the Appellant stated as follows:- “The defendant states that the plaintiff from Exhibit L has been supplied with a total of 50 metric tons of fresh fruit bunches between the 3rd of April, 2004 and 25th November, 2004 contrary to his false and fraudulent claims that nothing has been supplied to him since he paid N420,000.00 to Ayip Eku Oil Palm Estate.”
The learned trial judge in a considered judgment found that the money claimed by the Respondent cannot be extracted from the Appellant as he was acting for his principal, Ayip-Eku Oil Palm Ltd. The learned trial judge held as follows:- “Having held as above, no use shall be served in transferring this matter to the general cause list as the present claims cannot be extracted from the defendant on record. The plaintiff’s claims herein are accordingly dismissed against the defendant on record.”
Dissatisfied with that judgment, this Respondent appealed to the Court below which in a unanimous judgment delivered on 22/11/2007 allowed the appeal as follows:- “For these reasons, I am in agreement with the learned counsel for the Appellant that the learned trial judge erred in this case for failing to transfer the suit from the undefended list to the ordinary cause list as provided for in Rule 3(2) of Order 23 of the High Court (Civil Procedure) Rules of Cross River State. Consequently, this appeal is meritorious and it is allowed. The judgment of Eyo E. Ita J, in Suit No.
HC/271/2005 dated 23rd September, 2005 is hereby set aside. It is hereby ordered that Suit No. HC/271/2005 be remitted for trial before another judge of the High Court of Cross River State. There shall be no order as to costs.”
Equally dissatisfied with that judgment, the Respondent in that appeal who is now the Appellant before this Court filed a Notice of Appeal on 21st January, 2008.
At the hearing of the appeal, counsel for the Appellant adopted and relied on their brief of argument filed on 12th September, 2008 in urging the Court to allow the appeal. On their part also, counsel to the Respondent adopted and relied on the Respondent’s brief of argument filed on 23rd December, 2008 in urging the Court to dismiss the appeal.
The appellant nominated a sole issue for determination thus:- “Whether there was any triable issue in the suit justifying the learned trial Judge’s dismissal of it.”
The Respondent also formulated one issue for determination as follows:- “Whether the Court of Appeal was right when it held that the defence canvassed by the Appellant in the trial Court raised a triable issue which justified the transfer of the matter to the general cause list for trial and not a dismissal of the Respondent’s case as the trial judge ordered.”
Now, a careful look at the issue formulated by the Appellant vis-a-vis the Respondent’s version, it would be clear that both parties are canvassing the same issue. I shall proceed to determine this appeal on the issue as formulated by the Appellant, same being relevant and apt to wit:- Whether there was any triable issue in the suit justifying the learned trial judge’s dismissal of it.
In his argument in support of this issue, learned counsel for the appellant submitted that the learned Justices of the Court below erred when they held that the Appellant’s affidavit in support of his notice of intention to defend clearly raised triable issues. Relying on the case of Ataguba & Co. v Gura Nigeria Ltd (2005) 8 NWLR (pt. 927) 429.
Learned counsel for the Appellant stated that looking at the writ of summons and Exhibit B attached to the affidavit in support of Notice of Intention to defend, the 60 tons of oil palm fruits to be supplied to the Respondent was to have come from Ayip Eku Estates Ltd. That the Appellant was only acting as an agent for Ayip Eku Oil Palm Estates Ltd.
He submitted further that the judgment of the learned trial judge which dismissed the suit was correct, having found that there was no cause of action against the Appellant. He contended that the Appellant could not have been the proper party to proceed against as the cause of action would have been well founded if the Respondent had proceeded against Ayip Eku Oil Palm Estate Ltd.
He referred to Afolayan v Ogunrinde (1990) 1 NWLR (pt. 127) 369, Nishizawa Ltd v Jethwani (1984) SC 234 and FMG v Semi (1990) 4 NWLR (pt. 147) 668. Counsel submitted that the decision of the Court below that the suit be remitted back to the High Court and heard on the general cause list was not in line with the decision in UBA Plc v Jargaba (2007) 11 NWLR (pt. 1045) 247 at 273. That the transfer of the suit was dependent on leave being granted to defend by the Court and the power to grant leave to defend is discretionary and not mandatory.
In response, learned counsel for the Respondent referred to the case of Dalla Air Services v Sudan Airways Ltd (2004) All FWLR (pt. 238) 684 to submit that the learned trial Judge misconceived the nature of the proceedings and his powers on matters brought under the undefended list which he contends does not involve hearing of the matter to make findings and final conclusions. Counsel contends that the learned trial judge wrongly came to a conclusion after examining the affidavit of the parties when he dismissed the suit on the ground that some legal defence had been raised by the defendant.
Learned counsel to the Respondent submitted further that the Court of Appeal was right when they held that the learned trial Judge was in error in dismissing the case of the Plaintiff rather than transfer same to the general cause list. Counsel lauded the position of the Court below that the duty of the trial judge was to determine at that stage if the facts disclosed by the defendants’ affidavit prima facie afforded a defence, not necessarily a complete defence but which shows a triable issue.
He observed that once the facts deposed to in the affidavit of the defence raise triable issues, the only course open to the learned trial Judge was to transfer the suit to the Ordinary Cause List under Rule 3(2} of Order 23. He referred to the cases of Nishizawa Ltd. vs Jethwani (1984) 12 SC 234, FMG v Sani (1990) 4 NWLR (pt 147) 688, Alhaji Abdul Yahaya Bawa v Sheleba Phenias (2007) 4 NWLR (pt. 1024)251 at 266.
With respect to the argument by learned counsel to the Appellant that the learned trial Judge has discretion to grant leave to the defendant to defend, therefore since leave was not granted, the learned trial Judge was not obliged under the rule of Court to transfer the matter to the general cause list, counsel to the Respondent submitted that a trial Judge has no discretion here but to follow the rule and the provisions strictly.
He submits that by Order 23 Rule 4, a trial Court can only refuse to grant leave to defend where he finds no defence on the merit or triable issues disclosed in the affidavit of the defendant and must then enter judgment for the plaintiff. He referred to the case of Amede vs UBA (2008) 8 NWLR (pt 1090) 623.
The various rules of Courts provide for cases involving liquidated money demand to be placed on undefended list and heard expeditiously without the Court having to go the whole hog of a full blown trial with attendant expenses, frustration and delay. The procedure is deliberately designed to allow for quick dispensation of justice.
Order 23 of the High Court (Civil Procedure} Rules of Cross River State provides for this special procedure and it reads as follows:- Order 23 (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 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 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 circumstance of the particular case. (2) There shall be delivered by the plaintiff to the Registrar upon the issue of the writ summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service. (3)(1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just. (2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List and the Court may order pleadings, or proceed to hearing without further pleadings. (4) Where any Defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally. (5) Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under Rule 4.
Order 23 Rule 3(1} and (2} above, just like in every High Court rules makes explicit provision of a what the Court must do where a defendant’s affidavit in support of Notice of Intention to defend discloses a defence on the merit, and that is to give the defendant leave to defend the action and remove the suit from the undefended list and place it on the ordinary cause list for hearing.
See Intercontinental Bank Ltd v Brifina Limited (2012) 13 NWLR (pt. 1316) 1, Made v Aborishade (1960) SCNCR 398, Owoade v Omitola (1988) 2 NWLR (pt. 77) 413, Bona v Asaba Textile Mill Plc (2013) 2 NWLR (pt.1338) 357, MC Investments Ltd & Anor v Core Investments & Capital Markets Limited. There is no provision in the rules which allows the Court to dismiss the suit where the affidavit in support of notice of intention to defend discloses triable issues.
In the words of my learned brother, Galadima, JSC in the case of Intercontinental Bank Ltd v Brifina (supra), he observed as follows:- “In consideration of an action brought under undefended list by the plaintiff, the trial Judge is faced with a decision whether to hear the case or transfer it to the general cause list.” It follows therefore that in an action brought under the undefended list there are only two options available to the Court which are either that the suit be heard under the undefended list procedure or transferred to the general cause list.
Permit me to reiterate the trite position of the law that the rules of Court are meant to guide the Court in the proper adjudication of cases. The rules of Court are meant to be obeyed. SeeStowe v Benstowe (2012) 9 NWLR (pt 1306) 450, Afolabi v Adekunle (1983) 14 NSCC 398 at 405, University of Lagos v Aigoro (1985) 1 NWLR (pt 1) 143, Fidelity Bank Plc v Chief Andrew Monye & Ors (2012) 10 NWLR (pt 1307) 1, Nigerian Agricultural and Co-operative Bank Ltd v Mr. Lewechi Ozoemelam (2016) 9 NWLR (pt 1517) 376.
Order 23 Rule 3(1} and (2} of the High Court (Civil Procedure} rules of Cross River State earlier reproduced in this judgment employs the use of the word “may” which in this context points to the mandatory realm. In construing the word, the authors of the Black’s Law Dictionary are of the view that:- “In dozens of cases, Courts have held may to be synonymous with shall or must, usually in an effort to effectuate legislative intent.” It is used in the above provision in a directory sense and not in a permissive sense of that word.
In the case of Amadi v NNPC (2000) 10 NWLR (pt 674) 76 at 97 – 98, this Court made the matter clearer where Uwais, JSC, (as he then was} observed as follows:- “No universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try and get at the real intention of the legislative by carefully attending to the whole scope of the statute to be construed.”
From the facts of this case, the issue is not whether the Appellant was the proper party to the suit of the Respondent at the trial Court but whether the learned trial judge was right to dismiss the suit upon being satisfied that the defendant’s affidavit disclosed triable issues. I agree with counsel to the Respondent that where the affidavit of the defendant prima facie discloses triable issues, the only discretion afforded the Court under the rule is to grant leave to the defendant to defend the suit.
In the instant case, a scrutiny of the Appellant’s counter-affidavit with attached documents in support of his notice of intention to defend the suit at the trial Court would reveal that he had a prima facie defence to the action. In the circumstance, the trial Court ought only to have transferred the suit to the ordinary cause list as prescribed by the rules of Court. He was wrong to have dismissed the suit without hearing the case. The sole issue in this appeal therefore is resolved against the Appellant.
Having resolved the sole issue against the Appellant, I hold that this appeal lacks merit and it is accordingly dismissed. The judgment of the Court below is hereby affirmed. There shall be no order as to costs. Appeal dismissed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, Okoro, JSC, just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that the appeal lacks merit and should be dismissed. I too will dismiss it. Appeal dismissed.
MUSA DATTTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother, John Inyang Okoro, JSC just delivered, I adopt same as mine in dismissing the unmeritorious appeal. I abide by the consequential orders made in the lead judgment including the order on costs.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I totally agree with his reasoning and conclusion therein.
He addressed the sole issue in this appeal meticulously and decisively, and there is nothing that I could add that would make any difference or enhance the well-articulated points he made in the lead judgment, therefore, I will adopt his reasoning as mine, and it is on that premise that I also dismiss this appeal. I abide by the consequential orders in the lead judgment. Appeal dismissed.
EJEMBI EKO, J.S.C.: The issue in this appeal is whether the suit of the undefended list at the trial Court disclosed any triable issue or prima facie defence that would warrant the Court transferring to the General Cause List for hearing on evidence inter partes. As my learned brother, JOHN INYANG OKORO, JSC puts it in the judgment just delivered-there are only two options available to the Court which are either that the suit be heard under the undefended list procedure or transferred to the General Cause List?
I agree under Order 23 Rule 3 of Cross River State High Court (Civil Procedure) Rules, under consideration; there is no provision empowering the trial Court to dismiss the suit in limine upon the Notice of Intention to Defend verified by an affidavit. Once the supporting affidavit verifying the facts on which the defendant proposes to defend the suit discloses a triable issue, or discloses a defence, the trial Court is only obliged to transfer the suit to the General Cause List. Thereafter the defendant may file whatever preliminary objection he may have to the competence of the suit.
I also agree that the appeal is lacking in substance, and it is hereby dismissed with no order as to costs.