Effects Of Summary Judgement (II)

ARIWOOLA, J .S.C. (Delivering the Leading Judgment):

The action that finally led to this appeal emanated from the High Court of Justice of Delta State in the Asaba Division, Holden at Asaba.

The action was initiated by the Asaba Textile Mill PIc as plaintiff, hereinafter referred to as the appellant, while the respondents herein were the defendants at the trial court.        The action was commenced by a writ of summons under the undefended list procedure. The plaintiff had claimed by the endorsement on its writ of summons as follows:

“(a)      The sum of Five million, five hundred and sixty two thousand, eight hundred and seventy five Naira, seventy two kobo (N5,562,875.72) being the defendants’ indebtedness to the plaintiff which sum the defendants refused to refund despite repeated demands.

Interest on the said N5,562,875.72 at the rate of 20% until the entire sum is liquidated.” In support of the claim was an affidavit of 19 paragraphs to which various documents were attached and marked exhibits to respectively. By paragraph 17 of the supporting affidavit, the defendants were said to have no defence to the action. But on the 4th day of December, 2003 upon being served with the processes, the defendants filed their “notice of intention to defend” the action.

Attached to the said notice was an affidavit of 26 paragraphs to which various documents were attached as exhibits.

In its ruling of the 5th of February, 2004, the trial court having considered all the processes filed, granted the defendants leave to defend the action and thereby transferred the suit “from the undefended list to the general cause list for hearing and determination” .

Thereafter, by a notice of motion dated 6th February, 2004 the respondent sought the following order from the trial court:

“To enter judgment for the plaintiff for the sum of Nl,415,050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court.”

To the notice of motion, the appellants filed a counter affidavit of 9 paragraphs.

In its considered ruling on the said application, the trial court held inter alia, thus:

“This court having ruled and transferred this case to the general cause list … cannot go back and by whatever means or name or rule try to reopen that which is closed. It would, however, have been different if pleadings have settled and this issue were to arise out of the pleadings filed as a result of the transfer of this suit to the general cause list.”

The refusal of the trial court to enter judgment summarily as sought led to an appeal to the court below on two grounds of appeal as follows, bereft of the particulars:

“(a) Error in Law

The learned trial Judge erred in law by refusing to enter judgment on the admissions made by the respondents in their affidavit evidence.

(b) Error in Law

The Learned trial Judge erred in law in holding that he was functus officio thereby denying him jurisdiction to consider the appellant’s case”

Before the court below in the said appeal, the appellant sought the following relief:

“That the ruling of the High Court be set aside and judgment entered on the admitted sum ofN1 ,415,050.01 (One million, four hundred and fifteen thousand, fifty Naira, one kobo) by the respondents in favour of the appellant.”

In its considered judgment on pages 73-105 of the record, the court below allowed the appeal and finally held as follows:

“I hold that there was an admission of indebtedness of the respondents to the appellant to the tune of N 1,415.050.01 and that the trial Judge was wrong in his finding that there was no such admission and therefore resolved the sole issue in favour of the appellant.”

The respondents were dissatisfied with the decision of the court below leading to the instant appeal to this court.

Upon being served with the record of appeal, parties filed their respective brief of argument and exchanged same accordingly.

On the 9th of October 2012 when this matter came up for hearing, Mr. Ejike Ezenwa, of counsel for the appellants identified his brief of argument for the appellants. He sought leave of court to abandon issue No.2 formulated on page 2 of the brief with the arguments on pages 17-20 of the brief of argument, excluding the conclusion on that page. He sought not to rely on the said argument any longer. Having been abandoned, the second issue formulated on page 3 and the argument of counsel on the said issue on pages 17 to 20 were accordingly struck out.

Learned counsel, thereafter referred to the brief of argument he filed on 1011 012007 but which was deemed properly filed and served on 17/0612008. He adopted the said brief of argument and sought to rely on the submissions therein to pray the court to allow the appeal and set aside the decision of the court below.

Learned appellants’. counsel referred to the preliminary objection of the respondent and contended that not having been argued by the respondent in its brief of argument, it was of no moment and should be discountenanced.

Mr. C. O. Erondu of counsel for the respondent referred to the notice of preliminary objection he filed on 19th September 2008 though dated 2nd September 2008. He also referred to the respondent’s brief of argument which was filed on the same 19/09/2008 attached to the notice of preliminary objection. He adopted the said brief of argument. He referred to the argument of the preliminary objection on the first part of the brief of argument with the second part containing the argument on the appeal. He moved his preliminary objection and finally urged the court to uphold the preliminary objection and then dismiss the appeal in its entirety.

Before I proceed further to consider the appeal, I have considered the preliminary objection raised by the respondent to the appeal. I found no substance in the said preliminary objection and therefore without any further ado, being of no moment and lacking in substance and merit the said preliminary objection is overruled and dismissed.

Now to the merit of the appeal. The appellants relied on only one issue for determination distilled as follows:

“Whether there was clear and unequivocal admission of indebtedness of the sum of Nl ,415,050.01 by the appellants to the respondent and whether the court of Appeal Justices was (sic) right to have entered judgment for the respondent.”

The respondent in its own brief of argument also distilled a sole issue for determination of this appeal. The said issue was couched as follows:

“Whether the Court of Appeal was right to allow the respondent’s appeal and grant its application for part judgment on the admission of the appellants.”

As shown above, it is clear that the sole issue distilled by both the appellants and the respondent respectively are the same though couched differently. The issue is:

“Whether the court below was right in allowing the appeal based on an alleged admission of indebtedness by the appellants to the respondent in their affidavit in support of their notice of intention to defend an action earlier brought under the undefended list procedure.”

In arguing this issue, the appellants contended that the court below was wrong in setting aside the ruling of the trial court which dismissed the respondent’s motion for Part judgment based on alleged admission as there was no admission of any indebtedness by the appellants. They contended further that the court below was in error in entering judgment in favour of the respondent for the sum of Nl ,415,050.01.

They referred to the background of the case from the filing of writ of summons under the undefended list procedure until the case E was transferred to the general cause list having found that there was need to try the case on pleadings.

Learned appellants’ counsel submitted that the order or decision of the trial court transferring the matter to general cause list is an order directing parties to file pleadings and calling order directing that F trial shall be by pleadings and calling of itnesses.

The appellants contended that the respondent did not comply with the order for pleadings to be filed and trial conducted. Instead the respondent filed a notice of motion for Judgment for the sum of N1 ,415,050.01 claiming same to have been admitted by the  appellants out of the respondent’s claim of N5 ,562,875 .72 under undefended list, a claim which had been transferred to the general cause list.

Learned appellants’ counsel submitted that the appeal by the respondent to the court below was an indirect appeal against  the order of the trial court which directed trial by pleading. He submitted further that there is no right of appeal against an order of court transferring a suit from the undefended list to the general cause list. He referred to section 241 (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the learned Justices of the court below failed to appreciate that the respondent by failing to file pleadings as ordered by the trial court had consciously circumvented the decision and order of the trial court and by awarding judgment to the respondent based on the respondent’s application for part judgment has tactfully encouraged the violation of the Constitution bar imposed by section 241 (2)( a)(i) of the 1999 Constitution (as amended).