IN THE COURT OF APPEAL OF NIGERIA
ON THUSDAY, THE 23rd of January, 2014
CA/K/257/2012
BETWEEN
ALHAJI HASSAN KHALID .......... APPELLANT
V.
1. AL-NASIM TRAVELS & TOURS LIMITED ......... RESPONDENTS
2. ALHAJI MUSTAPHA HARUNA ISMA'IL
REPRESENTATION
Babatunde Akintade for Appellant
J. A. Achimugu with Yahaya Achadu for Respondent
MAIN JUDGMENT
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."
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.
"....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 interprete