NIGER ALUMINIUM MANUFACTURING CO. LTD. & ANOR V UNION BANK OF NIGERIA PLC.

NIGER ALUMINIUM MANUFACTURING CO. LTD. & ANOR V UNION BANK OF NIGERIA PLC.


IN THE COURT OF APPEAL
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA

ON THURSDAY, 30TH APRIL, 2015


Appeal No: CA/K/155/2006

CITATION:

Before Their Lordships:

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA.

AMINA AUDI WAMBAI, JCA.


BETWEEN

NIGER ALUMINIUM MANUFACTURING CO. LTD.
IBRAHIM BAKO MUHAMMAD
(APPELLANT)

AND

UNION BANK OF NIGERIA PLC.
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Counter-Claim – Position of the law where a Counter-claim is directly related to a principal claim

In Shemar Nig. Ltd. vs. Mokt Industries Ltd. (2009) LPELR – 8871 (CA) this Court Per Okoro JCA (as he then was) held that:-

“Where the Counter-claim is directly related to the principal claim, it will be desirable, in an undefended list to transfer the suit to the ordinary cause list to try the two claims at once. It has the advantage of saving precious judicial time and cutting costs for the parties – see Nseik vs. Musa (2007) 10 NWLR (Pt.1043) 502. But where the counterclaim has nothing to do with the transaction leading to the main claim, provided there is evidence to sustain the main claim, Judgment ought to be entered for the Plaintiff while the Defendant is at liberty to sue on the counter-claim if he so desires this later counter-claim cannot hold the Plaintiff’s claim to ransom.” Per WAMBAI, JCA. read in context

2. Defence to an Action – Position of the law where a defendant has no real defence to an action

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. (DISSENTING) Per ABIRU, JCA read in context

B. COURT
3. Jurisdiction – What jurisdiction entails
Meaning of jurisdiction

Jurisdiction is 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. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority – Enyadike Vs Omehia (2010) 11 NWLR (Pt 1204) 92 and Abacha Vs Federal Republic of Nigeria (2014) 6 NWLR (Pt.1402) 43. It is “the blood, life wire, bedrock and foundation of adjudication and without it the ‘labourers’ therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain” – Attorney General of Lagos State Vs Dosunmu (1989) 3 NWLR (Pt 1 1) 552. A Court with jurisdiction builds on a solid foundation because jurisdiction is the rock on which Court proceedings are based. But a Court that lacks jurisdiction and continues to hear a matter and determine judicial proceedings builds on quick sand and all proceedings and steps based on it, no matter how well conducted, will not stand – Obiuweubi Vs Central Bank of Nigeria (2011) 7 NWLR (Pt 1247) 465 and Gwede Vs Independent National Electoral Commission (2014) 18 NW (Pt 1438) 56. (DISSENTING) Per ABIRU, JCA. read in context

C. EVIDENCE
4. Admission/Admitted Facts – The resultant effect where a party fails to respond to a business letter
Whether failure to respond to a business letter which by the nature of its contents requires a response amounts to an admission

It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter – Gwani Vs Ebule (1990) 5 NWLR (Pt 149) 01, Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt 836) 158, Zenon Petrol & Gas Vs Idrissiya Ltd (2006) 8 NWLR (Pt 982) 221, Nagebu Co. (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42. In fact, in I.O.M. Nwoye & Sons Company Ltd Vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210 the Court held that where a bank makes demands for settlement of debt by letters and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the overall debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due. (DISSENTING)Per ABIRU, JCA. read in context

D. JURISDICTION
5. Territorial Jurisdiction – The meaning of territorial jurisdiction
What territorial jurisdiction implies

Territorial jurisdiction is the power of a Court to hear and determine a matter submitted to it for adjudication considered with reference to the territory within which it is to be exercised. Territorial jurisdiction means (a) jurisdiction over cases arising in or involving person residing within a defined territory, and (b) territory over which a governance, one of its Courts or one of its sub-divisions has jurisdiction Iyanda Vs Lamba II (2002) 8 NWLR (Pt 801) 267. (DISSENTING) Per ABIRU, JCA. read in context

6. Territorial Jurisdiction – The steps to be considered in dealing with a question of territorial jurisdiction of a Court
Determinant of territorial jurisdiction

The question raised is an inter-state matter and it has nothing to do with judicial divisions of the High Court of Kaduna State which is an intra-state matter and it is thus not governed by the High Court of Kaduna State (Civil Procedure) Rules. This point was made in International Nigerbuild Construction Co Ltd vs Giwa (2003) 13 NWLR (Pt 836) 69 by the Court of Appeal thus:
‘There is a world of distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a Court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of Court of the various States of the Federation.
But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one State but brought in another, the criteria is different.’
The above passage was quoted with approval by the Supreme Court in the case of Dairo Vs Union Bank of Nigeria Plc & Anor (2007) 16 NWLR (Pt 1059) 99 and by this Court in Muhammed Vs Ajingi (2013) LPELR-C A/K/5/2006. The first step in the approach to dealing with a question of territorial jurisdiction of a Court is to always understand that where there is a dispute as to the proper venue of hearing a matter that has inter-state elements, it is an issue of conflict of laws or what is called private international law. This point was made by Wheeler J in the unreported judgment in Suit No K/65/70 – Misr Nigeria Limited Vs Yusufu Ibrahim delivered on the 23rd of October, 1970 thus:
“Now Nigeria having a Federal form of Constitution with separate High Courts for each State, it would seem to me on principle that this question of jurisdiction of various State High Courts, in the absence of legislature on the point, is governed by the rules of common law on the position in private international law.”
This passage was quoted with approval by the same Judge in Barzasi Vs B. Visioni Limited (1973) 1 NRNLR 1 at 3-4. The point was restated by Oduyemi, JCA in Professor Albert Ogunsola Vs All Nigeria Peoples Party & 2 Ors (2003) 9 NWLR (Pt 826) 462 thus:
“Where the dispute as to venue is….as between the High Court of one State and the High Court of another State of the Federation of Nigeria or between the High Court of one State in the Federation and the High Court of the Federal Capital Territory then the issue of the appropriate or more convenient forum
is one to be determined under the rules of Private International Law formulated by Courts within the Federation. Each State in Nigeria possesses its own rules prescribing the jurisdiction of its High Court in conflict of laws situations. These rules are contained in the High Court Laws of each State and, with the exception of the States making up the former Eastern Region, the rules are based substantially on the English Law – Muhammed Vs Ajingr supra. Section 28 of the High Court Law of Kaduna State provides that the principles of common law and the doctrines of equity shall, in so far as they relate to any matter in respect of which the State is for the time being competent to make Laws, be in force within the jurisdiction of the Court. Conflict of laws in England is governed by the principles of common law and as such, by this provision, the High Court of Kaduna State has the same jurisdiction in matters affecting conflict of laws as the Court of England – Barsoum Vs Clemessy International & Anor (1999) 12 NWLR (Pt 632) 516 at 526 and Zabusky Vs Israeli Aircraft Industries (2008) 2 NWLR (Pt 1070) 109. This point was affirmed by Wheeler J in Barzasi Vs B. Visioni Limited supra.” (DISSENTING) Per ABIRU, JCA. read in context

E. PRACTICE AND PROCEDURE
7. Undefended List Procedure – Essence/purpose of the undefended list procedure/summary judgment

It is now well established that the whole idea and object of the undefended list procedure is for attainment of quick or expeditious but fair determination of simple and uncontested claims for the recovery of debts and liquidated money demand by a special and short procedure devoid of technicalities, the rigours of pleadings and burden of hearing evidence. See S.P.D.C. vs. Arho-Joe Nig. Ltd. (2006) 3 NWLR (Pt.966) 172; Epe Local Govt. vs. Keshinro (2009) ALL FWLR (Pt. 437) 1275; Mechanical System Ltd vs. Desco (Nig) Ltd (2011) ALL FWLR (pt. 555) 393; Zakhem Oil Service Ltd. vs. Art In Science Ltd (2010) All FWLR (Pt.547) 776.
Thus, in the words of Niki Tobi JSC in UBA vs. JARGABA (2007) 43 WRN 1, at 25,

“The procedure is designed to secure quick justice and to avoid injustice likely to occur when there is no genuine defence on merits to the Plaintiffs case”.

This is so because a defendant who has no defence on merit to the Plaintiff’s claim should not be allowed to dribble the Court, or waste the precious judicial time by putting up sham defences to frustrate or cheat the Plaintiff out of securing Judgment which he is entitled to with dispatch. Such a defendant should not be allowed to put up just any defence which is not for the purpose of offering any real defence but at gaining time to postpone his obligation and indebtedness to the Plaintiff.
See Agro Millers Ltd vs. C.M.B. (1997) 10 NWLR (Pt 525) 469, UBA PLC. vs. Jargaba (2002) 2 NWLR (Pt 750) 200, 222, Bank For West Africa Ltd. vs. Unakalamba (1998) 9 NWLR (Pt. 585) 245.However, the point must be re-echoed, as provided by the then Order 22 Rule 3 (1) and (2) of the Rules of the Lower Court, that the procedure under the undefended list is not intended to shut out a defendant from contesting the suit where he can show in his affidavit, that he has a defence on the merit or there is a serious irreconcilable conflict between his affidavit in support of the notice to defend and the Plaintiff’s affidavit or where his affidavit raises a triable issue. Nikwo Market Community Bank (Nig) Ltd vs. Paul Ejikeme Uwabuchi Obi (2010) LPELR – 2051 (SC) also reported in (2010) 14 NWLR (Pt 1213) 169 Ataguba & Co. vs. Gura (Nig) Ltd (2005) 8 NWLR (Pt. 927) 429 SC. Per WAMBAI, JCA. read in context

8. Undefended List Procedure – Condition for a matter/suit on the undefended list to be transferred to the general cause list

…For this purpose, it suffices if the defendant shows satisfactorily, a prima facie defence or a triable or bona fide issue or question for trial or raises an issue which requires further investigation by the Court to verify its veracity or an issue which casts doubt on the Plaintiff’s claim or calls for further explanation by the Plaintiff. Global Bank Ltd vs. Standard Alliance Insurance (2010) LPELR 4201 (A) Agro Millers Ltd vs. C.M.B. (1997) 10 NWLR (Pt.525) 469, Anunobi vs. Obiwelozo (2003) 12 NWLR (Pt. 835) 617. Per WAMBAI, JCA. read in context

9. Defence on the Merit – What a defence of merit is
What constitutes a defence on the merit

A defence on merit as envisaged by Order 22 Rule 3 of the Rules of the Lower Court and as interpreted by a long line of cases, is a defence which deals directly and specifically on the Plaintiff’s claim or its authenticity or accuracy. Thus, the defence must of necessity relate to or be connected with the Plaintiff’s claim or raise a triable issue in relation thereto.

Nortex (Nig) Ltd. vs. Franc Tools Co. Ltd. (1997) 4 NWLR (Pt.507) 603; Dala Air Services vs. Sudan Airways (2005) 3 NWLR (Pt 912) 394 at 413; C-Hataguba & Co. vs. Gura (NIG) LTD. (2005) 8 NWLR (Pt.927) 429.
In the words of Salami JCA (as he then was) in Dala Air Services vs. Sudan Airways (Supra).

“……defence in my respectful opinion, are facts, which if proved, would exonerate the Defendant from the Plaintiff’s claim.
The affidavit is required to set up a defence against the Plaintiffs claim and not to rake up fresh suit or cause or causes of action against the Plaintiff….” Per WAMBAI, JCA. read in context

10. Undefended List Procedure – Duty of Court once a triable issue has been raised in the notice to defend

It is settled law that where as in this case, the affidavit in support of the defendant’s notice of intention to defend raises an issue that calls for further explanation from the Plaintiff and or casts a doubt in the Plaintiff’s claim, a triable issue would have been established and the proper cause of action for the Lower Court in line with Order 22 Rule 3(1) and (2) is to grant leave to defend and transfer the suit to the General Cause List to afford parties the opportunity of full pleadings and to adduce evidence which would offer explanation to resolve the conflicts. See Global Bank Ltd. vs. Standard Alliance Insurance (supra) and Ataguba & Co. Vs. Gura Ltd. (supra). It is also the law that where a counter-claim is directly related to the principal claim especially as in this case where the defendants/Appellants claim is so related to the principal claim that it affects the authenticity of the actual quantum of and the specified amount claimed by the Respondent, it will be more desirable to transfer the suit to the ordinary or General Cause List to try the two claims together at once, to save time, and cost. See Nseik vs. Musa (supra) and Shemar Nig. Ltd. Vs. Mokt. Industries Ltd. (Supra). Per WAMBAI, JCA. read in context

11. Service Of Originating Processes –The provision of Section 96 of the Sheriffs and Civil Process Act
Purport of Section 96 of the Sheriffs and Civil Process Act with respect to the jurisdiction of the High Court of a State over defendants outside its territory

The authority for service of a writ of summons out of jurisdiction of a Court but within the country, is Section 96 of the Sheriffs and Civil Process Act. It reads:
96 (1) A writ of summons issued out of or requiring the defendant to appear at any Court of a State or the Federal Capital Territory may be served on the defendant in any other State or the Federal Capital Territory.
96 (2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Federal Capital Territory in which the writ was issued.
It is by the provisions of Section 96 of the Sheriffs and Civil Process Act that the High Court of a State exercises jurisdiction over defendants outside the territory of the State and once the writ of summons is duly issued and served on such a defendant, the Court will exercise jurisdiction over him as if he was served within the territory of the State – Owners of the MV “Arabella” Vs Nigeria Agricultural Insurance Corp (2002) 15 NWLR (Pt 791) 570 at 585 E-G, Muhammed Vs Ajingi supra.” (DISSENTING) Per ABIRU, JCA. read in context

12. Undefended List Procedure – Essence/purpose of the undefended list procedure/summary judgment

Now the provisions of the High Court of Kaduna 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 the case Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR 20758(CA) stated 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 plaintiff’s 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 td Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 551, 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) 78. 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.” (DISSENTING) Per ABIRU, JCA. read in context

13. Defence On The Merit – The provision of the law for an affidavit to constitute defence on the merit
What constitutes a defence on the merit

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 1,002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs 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 plaintiffs 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 plaintiffs 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) td 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.” (DISSENTING) Per ABIRU, JCA. read in context


LEAD JUDGEMENT DELIVERED BY WAMBAI, JCA.


This appeal is against the decision of Kaduna State High Court in suit No. KDH/KAD/84/2005 delivered by Hon. Justice A. D. Yahaya on the 16th day of October, 2005 wherein Judgment was entered in favour of the Appellants against the Respondent.

By its writ of summons under the undefended list, the Respondent as Plaintiff before the Lower Court claimed against the Appellants as Defendants jointly and severally as follows:

“(1) The sum of Forty-Eight Million, Forty-Two Thousand, Six Hundred and Nine Naira, Thirty-Five Kobo N48,042,609.35) being the outstanding and unpaid balance as at 31st of January, 2005 in respect of overdraft facilities granted by the Plaintiff to the st Defendant and guaranteed by the 2nd Defendant.

(2) Interest on the said outstanding sum of N48,042,609.35 claimed at the rate of 27% Per annum from the 1st of February 2005 till the date of Judgment and thereafter at 10% per annum until the Judgment debt is liquidated.”

The Respondent filed along with the writ of summon, a 5 paragraph affidavit and annextures marked as exhibits E. 01 to E. 07.

He obtained an order of Court on 17/02/2005 placing the suit on the undefended list and a further order for service of the processes on the Appellants by substituted means (by pasting)

The Appellants filed a notice of intention to defend supported by 21 paragraphed affidavit and 7 annextures marked as Exhibits 1-7. The learned trial Judge considered the two affidavits and their annextures and found that it had jurisdiction to entertain the matter and also that the Appellants did not disclose any defence on the merit. Consequently, the Court entered Judgment for the Respondent as claimed.

Unhappy with the said decision, the Appellants approached this Court by a notice of appeal filed on 05/08/2005 containing 2 grounds.

The notice of appeal was by leave of Court amended only to effect the new name of the Respondent from “Broad Bank of Nig. Ltd.” to its new Name of “Union Bank of Nigeria Plc.”

In the prosecution of the appeal, and in compliance with the Rules of this Court, briefs of argument were exchanged. In the Appellants’ amended brief of argument settled by Muhammad Sani Katu Esq. filed on 04/11/2014, two issues were identified for determination, thus:-

“(1) Whether or not the Lower Court had jurisdiction to hear and determine suit KDH/KAD/54/2005 having regards to the facts that the cause of action in that suit occurred outside the Jurisdiction of the Lower Court i.e. Lagos State and the Appellants carry out business and reside respectively also outside the jurisdiction of the Lower Court i.e. Niger State.

(2) Whether or not having regards to the Appellants Notice of Intention to Defend, the Lower Court was right to have held that the Appellants had not disclosed any defence on the merit.”

The Respondent in its brief of argument filed on 11/10/2006 but deemed filed on 29/11/2006 and settled by Charles Igunbor Esq., distilled a lone issue for determination; which is:-

“Whether on the material evidence before the learned trial Judge, the learned trial Judge was right in holding that the Appellants did not disclose a defence on the merit to the Respondents claims to warrant a transfer of the matter from the undefended list to the General Cause List.”

At the hearing of the appeal on 25/02/2015 none of the counsel was present in Court though they were in Court on 05/11/2014 when the appeal was adjourned to 25/02/2015 for hearing. The Counsel having filed their briefs of argument, the briefs were deemed as argued pursuant to Order 18 Rule 9 (4) of the Rules of this Court.

I have considered the issues raised by both parties, and I adopt the 2 issues raised by the Appellant upon which this appeal will be determined.

ISSUE NO. I

WHETHER OR NOT THE LOWER OURT HAD JURISDICTION TO HEAR AND DETERMINE SUIT KDH/KAD/54/2005 HAVING REGARDS TO THE FACTS THAT THE CAUSE OF ACTION IN THAT SUIT OCCURRED OUTSIDE THE JURISDICTION OF THE LOWER COURT I. LAGOS STATE AND THE APPELLANTS CARRY OUT BUSINESS AND RESIDE RESPECTIVELY ALSO OUTSIDE THE JURISDICTION OF THE LOWER COURT i.e. NIGER STATE.

On this first issue, the learned Counsel for the Appellant argued that the Lower Court had no jurisdiction to entertain the suit as none of the Appellants was resident or carry on business within the jurisdiction of the Court but in Kontagora, Niger State, the cause of action having arisen in Lagos State, also outside the jurisdiction of the Lower Court.

He contended that the attempt made by the Respondent in paragraph 3 (c) to show that the 2nd Appellant is the ‘alter ego’ of the 1st Appellant and resides at No. 25 Jabi Close, Kaduna, cannot be correct in the face of the Appellant’s deposition in paragraph 18 of the affidavit in support of Notice of intention to defend that he resides at No. 81 Kontagora, GRA, Niger state and for which reason, substituted service was effected at the said No. 25 Jabi Close Kaduna although he no longer resides there having leased the property to a particular tenant since 1998. The learned trial Judge he argued, was in error to hold that the 2nd Appellant was found in the said Kaduna house without taking cognisance of the fact that service, was thereat effected by pasting.

Counsel insisted that the necessary condition precedent to the exercise of the Court’s jurisdiction having been absent, the proceedings were vitiated, relying on Military Administrator of Benue State vs. Abayilo (2001) 5 NWLR (pt 705) 19 at 31. we were accordingly called upon to declare the entire proceedings a nullity, relying on Madukolu vs. Nkemdilin (1962) 2 SCNLR 341, Sanusi vs. Ayoola (1992) NWLR (Pt. 265) 275 at 301 and Marley vs. Isah (2000) NWLR (Pt. 658) 651

Responding to the Appellants’ argument, the learned Counsel to the Respondent while admitting that jurisdiction is the bed rock of any judicial adjudication, submitted that the learned trial Judge was right in holding that it had jurisdiction to entertain the matter.

He contended that while the Respondent deposed that the factory/office of the 1st Appellant was moribund and under lock and key and that both the 2nd Appellant’s wife and guard confirmed that he resided at the said No. 25 Jabi Close, GRA, Kaduna, coupled with the fact that after being served by pasting at the said address the Appellants responded by filing a notice of intention to defend, it does not lie in this month to contend that he does not reside there, the Appellant having failed to substantiate his mere assertion by sufficient evidence or materials that he does not there-in reside. He relied on the case of Public Finance Securities Ltd. vs. Jefia (998) 3 NWLR (Pt 543) 602, 612.

He argued that the 2nd Appellant who has prior to the institution of the suit related with the Respondent using this same address must be estopped from denying the address, placing reliance on W.A.E.C. .vs . Akinkunmi (2002) 7 NWLR (Pt 766) 322 343-344.

He contended that the learned trial Judge having found that the 2nd Respondent resides at the said address in Kaduna, the Respondent was entitled to take advantage of any of alternative venues in instituting the action, the Lower Court was thus right to hold that it had Jurisdiction. He referred to Okafor vs. Ezenwa (2002) 13 NWLR (Pt.784) 319, 335-336 C-A.

We were urged to resolve the issue in favour of the Respondent against the Appellant.

The pivotal role of the Order 10 Rules 3 and 4 of the Kaduna High Court (Civil Procedure) Rules in the resolution of this issue calls for the reproduction of their provisions here:-

Order 10 Rule 3 –

“All suits for specific performance, or upon the breach of any contract shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the Defendant resides or caries on business.”

Order 10 Rule 4 –

“All other suits shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the Defendant resides or carries on business”.

Rule 4 as reproduced, in particular, makes it clear that a suit shall be instituted or commenced either where:-

(a) The defendant resides;

(b) Carries on business;

(c) The cause of action arose; and
Where there are more than one defendants residing in different judicial division,

(d) In any one of such judicial divisions.

The Appellants contention that they do not reside in Kaduna within the jurisdiction of the Court is hinged on paragraphs 18 and 19 of the affidavit in support of their Notice of Intention to defend that the 1st Appellant is situated at Kontagora while the 2nd Respondent resides at No. 81 G. R. A. Kontagora and not at No. 25 Jabi Close, Kaduna, which though owned by him, had been on lease to a particular tenant.

There are however in addition to paragraph 3 (c) of the Respondent’s affidavit in support of the motion for substituted service, other pieces of evidence which sufficiently show that the 2nd Respondent resides at No. 25 Jabi close, Kaduna. These are, namely:-

(1) Previous correspondences between the Respondent and the Appellant in 2004 as evidenced in Exhibits E. 06 and E. 07 at pages 56 and 57 of the record of appeal wherein letters for the Appellants had been addressed to the 1st Appellant in care of the 2nd Appellant and personally to the 2nd Appellant respectively, through No. 25 Jabi Close, Kaduna, which 2nd Appellant has responded to.

(2) The affidavit in support of Respondent’s application for substituted service wherein it was deposed at paragraph 3 (f) that on several occasions when the bailiff went to effect personal service on the 2nd Respondent at No. 25 Jabi Close Kaduna, his (2nd Appellant’s) wife and guard had told the bailiff that the 2nd Appellant was either not around or has travelled but when S. I. Unoakhe Esq. of Counsel accompanied the bailiff to the house on 21/03/2005, he met the 2nd Appellant’s wife who went inside to call the 2nd Appellant only to return to say that 2nd Appellant had instructed that whatever message there was for him should be left with the wife.

(3) Although Appellant’s Counsel picked hole with the heavy reliance placed on exhibit EO 4 (See pages 48-50 of the record) by the learned trial Judge in arriving at the conclusion that the property could not have been leased in 1998 as claimed by the Appellants as the property itself was acquired in 1999, there is no doubt that Exhibit E. 04 was made in 1999 albeit without disclosing the date and the month in 1999.

(4) Lastly, the fact that the Appellants filed a notice of intention to defend may also lend credence to the fact that 2nd Respondent resides at No. 25 Jabi Close, Kaduna where the processes were, by substituted means, pasted.

In the circumstance, I hold that the Appellants not only failed to prove that 2nd Appellant does not reside at No. 25 Jabi Close, Kaduna but also are estopped from contending otherwise. See WAEC vs. Akinkunmi (Supra), Opara vs . Omolu (2002) 10 NWLR (Pt 774) 190, Agbogunleri vs. Depo (2008) 3 NWLR (PT.1074) 217, UBA Plc. vs. Comrade Cycle Ltd. & Anor, (2013) LPELR – 20 737 (CA).

The Respondent having proved that the 2nd Appellant resides at No. 25 Jabi Close, Kaduna, within the jurisdiction of the Lower Court, the Respondent was by Order 10 Rule 4 of the Rules of the Lower Court entitled to commence the action in Kaduna and the Court was thus right in holding that it had jurisdiction to entertain the suit. I resolve this issue against the Appellant and in favour of the Respondent.

I proceed to 2nd issue for determination.

ISSUE NO.2

WHETHER OR NOT HAVING REGARDS TO THE APPELLANTS NOTICE OF INTENTION TO DEFEND, THE LOWER COURT WAS RIGHT TO HAVE HELD THAT THE APPELLANTS HAD NOT DISCLOSED ANY DEFENCE ON THE MERIT.

The Appellant’s Counsel argued that contrary to the requirement that a claimant of liquidated demand must disclose facts showing the amount owed and how it is arrived at, and which facts must not be in conflict with the facts in the defendants affidavit in support of Notice to defend, the Appellants have deposed that the sum of N2,453,762.00 in the account of the 2nd Appellant with the Respondent was cleared by the Respondent without authorization and was not used for the purpose of settling the debt as alleged by the Respondent, which fact not being challenged, is deemed admitted, relying on Military Administrator of Benue State vs Abayilo (2001) 5 NWLR (Pt 705) 19 at 33 Para C-D.

Exhibits 4, 5, and 6 in support of the Appellants Notice of Intention to defend Counsel argued, are in conflict with the Respondents Exhibit E. 05 which conflict cannot be resolved without calling oral evidence, and which is sufficient to transfer the case to the General Cause List.
He referred to FALOBI vs. FALOBI (1976) 9-70 SC 1, Akinsete vs. Akindutire (1966) All NLR 147 and Nya vs. Edem (2000) 8 NWLR (Pt. 669) 349.

Counsel further contended that the Court should be liberal in determining whether there is a defence on the merit and where, as in this case, there are disputed facts from the comparism of the affidavits, the suit should be transferred to the General Cause List. Reference was made to the cases of Jos North Local Govt vs. Damyan (2000) 10 NWLR (Pt.675) 281, Calvenply Ltd vs. Pekas International Ltd. (2001) 9 NWLR (Pt. 717) 164, 174 Para F-G. We were urged to hold that the Notice of Intention to defend disclosed a defence on the merit and to allow the appeal.

Responding to these arguments by the Appellants Counsel, learned Counsel to the Respondent contended that the Appellants’ Notice of Intention to defend did not disclose any defence on the merit as the Appellant’s affidavit did not deny the facts of obtaining the loan and that same remain unpaid, which facts not having been controverted are deemed admitted. He referred to Nwagboso & Ors. vs. Ejiogu (1997) 11 NWLR (Pt.527) 173, 177, I.M.B. Nig. Ltd. vs. Dabiri (1998) 1 NWLR (Pt.533) 284, 299.

He argued that for a defendant to be entitled to defend the suit, the Notice of Intention to defend must be such as would require the Plaintiff to proffer explanation to certain matters of the claim or seriously question the Plaintiffs claim, but that the Appellants neither challenged any aspect of the Respondent’s claim nor cast any doubt thereon, thus, Counsel, argued the learned trial Judge was right in entering Judgment for the Respondent citing in support the case of UBA Plc. vs. Jargaba (2002) 2 NWLR (Pt 750) 200, 222.

The only defence put up by the Appellants in their affidavit that the Respondent used the 2nd Appellant’s account to transact illicit foreign exchange business without giving him a share of the profit and also that Respondent fraudulently cleared and converted the sum of N2,453,762.00 from the Appellants’ account, learned Counsel argued, are separate from the loan obtained by the Appellants which they have refused to repay, the subject of the suit, and which only entitles the Appellants to sue for damages but does not constitute a defence on the merit; contending further that even a counter-claim does not constitute a defence on the merit, relying on Dala Air Services vs. Sudan Airways (2005) 3 NWLR (Pt 912) 394 at 413 C-H & 414 A-E.

We were urged to endorse the decision of the Lower Court and dismiss the appeal.

It is now well established that the whole idea and object of the undefended list procedure is for attainment of quick or expeditious but fair determination of simple and uncontested claims for the recovery of debts and liquidated money demand by a special and short procedure devoid of technicalities, the rigours of pleadings and burden of hearing evidence. See S.P.D.C. vs. Arho-Joe Nig. Ltd. (2006) 3 NWLR (Pt.966) 172; Epe Local Govt. vs. Keshinro (2009) All FWLR (Pt. 437) 1275; Mechanical System Ltd vs. Desco (Nig) Ltd (2011) All FWLR (pt. 555) 393; Zakhem Oil Service Ltd. vs. Art In Science Ltd (2010) All FWLR (Pt.547) 776.

Thus, in the words of Niki Tobi JSC in UBA vs. Jargaba (2007) 43 WRN 1, at 25,

“The procedure is designed to secure quick justice and to avoid injustice likely to occur when there is no genuine defence on merits to the Plaintiffs case”.

This is so because a defendant who has no defence on merit to the Plaintiff’s claim should not be allowed to dribble the Court, or waste the precious judicial time by putting up sham defences to frustrate or cheat the Plaintiff out of securing Judgment which he is entitled to with dispatch. Such a defendant should not be allowed to put up just any defence which is not for the purpose of offering any real defence but at gaining time to postpone his obligation and indebtedness to the Plaintiff. See Agro Millers Ltd vs. C.M.B. (1997) 10 NWLR (Pt 525) 469, UBA Plc. vs. Jargaba (2002) 2 NWLR (Pt 750) 200, 222, Bank For West Africa Ltd. vs. Unakalamba (1998) 9 NWLR (Pt. 585) 245.

However, the point must be re-echoed, as provided by the then Order 22 Rule 3 (1) and (2) of the Rules of the Lower Court, that the procedure under the undefended list is not intended to shut out a defendant from contesting the suit where he can show in his affidavit, that he has a defence on the merit or there is a serious irreconcilable conflict between his affidavit in support of the notice to defend and the Plaintiff’s affidavit or where his affidavit raises a triable issue. Nikwo Market Community Bank (Nig) Ltd vs. Paul Ejikeme Uwabuchi Obi (2010) LPELR – 2051 (SC) also reported in (2010) 14 NWLR (Pt 1213) 169; Ataguba & Co. vs. Gura (Nig) Ltd (2005) 8 NWLR (Pt. 927) 429 SC.

For this purpose, it suffices if the defendant shows satisfactorily, a prima facie defence or a triable or bona fide issue or question for trial or raises an issue which requires further investigation by the Court to verify its veracity or an issue which casts doubt on the Plaintiff’s claim or calls for further explanation by the Plaintiff. Global Bank Ltd vs. Standard Alliance Insurance (2010) LPELR 420, (A) Agro Millers Ltd vs. C.M.B. (1997) 10 NWLR (Pt.525) 469, Anunobi vs. Obiwelozo (2003) 12 NWLR (Pt. 835) 617.

The Appellants contention is that the Notice of Intention to defend disclosed a defence on the merit which assertion was premised on two grounds, namely:-

“(1) That his account with the Respondent was used by the Respondent without his consent to transact business of Foreign Exchange and

(2) That there are conflicts between the two affidavits which could only be resolved by calling oral evidence”.

The first arm of the defence put up by the Appellant as contained in paragraphs 9-13 of the affidavit in support of the Notice of defend is a complaint that the Respondent unlawfully used his account to transact business of Foreign Exchange and made a profit of $8 ,000,000.00 without giving him his share of the profit despite the Respondent’s promise to do so. This complaint or claim as deposed in the said paragraphs 9-13 in my most humble view, amounts to pleading a counter – claim, which in law, is a separate and distinct claim from the Respondent’s claim against the Appellant.

The Respondent’s claim in this appeal is predicated upon the loan facility of N15,000,000.00 granted to the Appellant on 19/01/2001 which has, over the years as at the time of the suit, in accordance with the terms and conditions risen to N48,042,609.35. This fact is not denied or challenged and same must be deemed as admitted. Nwagboso & Ors. vs. Ejiogu (1997) 11 NWLR (PT.527) 173, 177, I.M.B. Nig. Ltd vs. Dabiri (1998) 1 NWLR (PT.533) 284, 299.

The question that arises is whether these facts as deposed by the 2nd Appellant which I consider amounts to pleading a counter-claim, constitutes a defence on the merit to the Plaintiff’s claim to warrant the transfer of the case to the “General Cause List.”

A defence on merit as envisaged by Order 22 Rule 3 of the Rules of the Lower Court and as interpreted by a long line of cases, is a defence which deals directly and specifically on the laintiff’s claim or its authenticity or accuracy. Thus, the defence must of necessity relate to or be connected with the Plaintiff’s claim or raise a triable issue in relation thereto.

Nortex (Nig) Ltd. vs. Franc Tools Co. Ltd. (1997) 4 NWLR (Pt.507) 603; Dala Air Services vs. Sudan Airways (2005) 3 NWLR (Pt 912) 394 at 413; C-Hataguba & Co. vs. Gura (Nig) Ltd. (2005) 8 NWLR (Pt.927) 429.

In the words of Salami JCA (as he then was) in Dala Air Service vs. Sudan Airways (Supra).

“……defence in my respectful opinion, are facts, which if proved, would exonerate the Defendant from the Plaintiff’s claim. The affidavit is required to set up a defence against the Plaintiffs claim and not to rake up fresh suit or cause or causes of action against the Plaintiff….”

In the instant case, the facts averred in paragraphs 9-13 of the Appellants’ affidavit in support of the Notice of Intention to defend are to the effect that 2nd Appellant’s account was unlawfully used by the Respondent for transacting Foreign Exchange business and was denied his part of the profit, which claim, does not relate to the Respondent’s main claim of the loan obtained from it by the Appellant. It is a counterclaim which is not directly related to the Plaintiff’s claim nor does it have anything to do with the transaction leading to the Plaintiffs main claim.

In Shemar Nig. Ltd. vs. Mokt Industries Ltd. (2009) LPELR – 8871 (CA) this Court Per Okoro JCA (as he then was) held that:-

“Where the Counter-claim is directly related to the principal claim, it will be desirable, in an undefended list to transfer the suit to the ordinary cause list to try the two claims at once. It has the advantage of saving precious judicial time and cutting costs for the parties – see Nseik vs. Musa (2007) 10 NWLR (Pt.1043) 502.

But where the counterclaim has nothing to do with the transaction leading to the main claim, provided there is evidence to sustain the main claim, Judgment ought to be entered for the Plaintiff while the Defendant is at liberty to sue on the counter-claim if he so desires this later counter-claim cannot hold the Plaintiff’s claim to ransom”.

I therefore hold that this claim by the Appellants which is entirely unrelated to the Respondent’s claim and which they can institute separately against the Respondent, cannot constitute a defence to the Respondent’s claim nor hold the Respondent’s claim to ransom.

The second arm of the defence as contended is the one contained at paragraphs 14 to 17 and covered by Exhibits 4, 5, and 6 which Appellants argued are in conflict with the Respondent’s Exhibit E. 05. The essence of these paragraphs and Exhibits 4, 5, and 6 is that the 2nd Appellant deposited the sum of N2,453,762.00 with the Respondent which the Respondent fraudulently cleared through another account without authorization and withheld same but was not used to pay the debt and reduce the Appellant’s indebtness to the Respondent as claimed by the Respondent, in that it was not reflected in Exhibit E. 05. It was the argument of the learned Counsel to the Appellants that these facts and exhibits which are in conflict with the said Respondent’s Exhibit E. 05 indicating the Appellant’s indebtness as N48,042,609.35 has not been challenged, as the Respondent did not file any further affidavit.

The fact that the Respondent did not file any further affidavit is not in contention. What is in contention is the necessity or otherwise of filing a further affidavit to resolve conflicts, if any, between the two affidavits. By the depositions in the said paragraphs 14-17 of the Appellant’s affidavit in support of the Notice of Intention to defend, the sum of N ,453,762.00, transferred from his Ikoyi branch account to Ikeja branch account with the Respondent was unlawfully used or converted by the Respondent not for a purpose of offsetting part of the debt owed.

The 2nd Appellant raised this issue in his letter through his Counsel dated 18/04/2002, Exhibit 5, to which the Respondent vide Exhibit 6 written by the Company Secretary/Legal Advisor on 17/05/2002 responded and admitted being informed of the transfer but it was for the purpose of reducing the 2nd Appellant’s indebtness to the Bank. The letter also stated that the Appellant’s indebtness to the Respondent stood at N24,412,225.28 as at 5th March, 2002.

I have gone through the 2nd Appellant’s statements of account, Exhibit 7, at pages 77-78 (same as Exhibits E. 05 at pages 51-56 attached by Respondent) covering the periods between 25/08/2001 and 3 / 9/2002 (pages 51-53) and from 11th October, 2002 to 31s January, 2005. (Pages 54-55 of the record) without seeing the said figure reflected anywhere in the statements of account. The absence of any record of this sum of money in the statements of account issued by the Respondent who alleges that the money was used for the payment of the 2nd Appellant’s indebtness to it, undoubtedly calls for an explanation from the Respondent as to what the money was used for. Had the money been used for the settlement of the debt and so reflected, it would have affected the outstanding balance now claimed by the Respondent.

It is clear from the comparism of the two affidavits and exhibits on both sides that the Appellants’ Exhibits 4, 5, and 6 conflict with Respondent’s Exhibit E. 05 with respect to the use to which the sum of N2,453,762.00 cleared from the 2nd Appellants Ikoyi branch account with the Respondent purportedly for settling the Appellants debt with the Respondent, was put; the amount not being reflected in the statements of account or being explained by the Respondent.

It is settled law that where as in this case, the affidavit in support of the defendant’s notice of intention to defend raises an issue that calls for further explanation from the Plaintiff and or casts a doubt in the Plaintiff’s claim, a triable issue would have been established and the proper cause of action for the Lower Court in line with Order 22

Rule 3(1) and (2) is to grant leave to defend and transfer the suit to the General Cause List to afford parties the opportunity of full pleadings and to adduce evidence which would offer explanation to resolve the conflicts. See Global Bank Ltd. vs. Standard Alliance Insurance (supra) and Ataguba & Co. Vs. Gura Ltd. (supra).

It is also the law that where a counter-claim is directly related to the principal claim especially as in this case where the defendants/Appellants claim is so related to the principal claim that it affects the authenticity of the actual quantum of and the specified amount claimed by the Respondent, it will be more desirable to transfer the suit to the ordinary or General Cause List to try the two claims together at once, to save time, and cost. See Nseik vs. Musa (supra) and Shemar Nig. Ltd. vs. Mokt. Industries Ltd. (Supra).

In the circumstance, I am in agreement with the Appellants’ Counsel that the learned trial Judge ought to have granted the Appellants leave to defend and transferred the suit to the General Cause List. The Lower Court having not done so and this Court being satisfied that the learned trial Judge ought to have so transferred the case to the General Cause List, I find merit in this appeal, and accordingly it is hereby allowed.

The decision of the trial Court is set aside and the case is hereby remitted to the Hon. Chief Judge of Kaduna State to be placed on the General Cause List for trial de novo.

The Respondent shall pay cost of N30,000.00 to the Appellants.

ADEFOPE-OKOJIE, JCA.

I am in agreement with the lead judgment of my learned brother AMINA AUDI WAMBAI JCA. Her Lordship considered and ably resolved the issues in contention in this appeal.

I agree with the reasoning and the conclusion reached therein and abide by the Orders made.

ABIRU, JCA.

I have had the privilege of reading the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I am afraid that I am unable to agree with the reasoning and the conclusions reached therein.

The claim of the Respondent against the Appellants before the lower Court was for the sum of N48,042,609.35 being the outstanding and unpaid balance due as at 31st of January, 2005 in respect of overdraft facilities granted by the Respondent to the first Appellant and which was guaranteed by the second Appellant together with interest at the rate of 27% per annum from the 1st of February, 2005 till the date of judgment and thereafter at the rate of 10% per annum until the judgment debt is liquidated. The action was commenced under the Undefended List Procedure and the Respondent filed an affidavit of facts in support of the claim with exhibits attached. The Respondent applied for the issuance of a concurrent writ for service on the first Appellant in Kontagora in Niger State along with the one for service of the 2nd Appellant in Kaduna State. The Respondent also applied for leave to serve the concurrent writ on the first Appellant in Kontagora, Niger State by substituted service and to serve the second Appellant in Kaduna also by substituted means. The applications were granted by the lower Court and the processes were duly served on the Appellants.

The Appellants responded by filing a notice of intention to defend and an affidavit of facts in support of the notice of intention to defend and to which were attached affidavits. The Appellants pleaded to the facts of the case and they raised the issue of the jurisdiction of the lower Court to entertain the suit on the ground that the headquarters of the Respondent, where the cause of action arose, was in Lagos and that the first Appellant’s office was situate at Kontagora in Niger State and the second Appellant resided at No 81, Kontagora GRA Niger State. The second Appellant deposed in the affidavit of facts that though he owned the property at No. 25 Jabi Road Kaduna, where he was served, the property had been let out to a particular tenant since 1998. The lower Court heard the matter under the Undefended List and it overruled the objection of the Appellants to its jurisdiction and held that the Appellants did not disclose any defence on the merits and it entered judgment for the Respondent as claimed.

The Appellants were dissatisfied with the judgment of the lower Court and they caused their Counsel to appeal against the judgment and a notice of appeal dated the 5th of August, 2005 and containing two grounds of appeal was filed. In arguing the appeal before this Court, Counsel to the Appellants filed an amended brief of arguments dated the 25th of October, 2014 on the 4th of November, 2014 and this was sequel to the leave granted to the Appellant by this Court to amend the name of the Respondent from Broad Bank Nigeria Ltd to Union Bank of Nigeria Plc. The Respondent retained its brief of arguments filed on the 11th of October, 2006 and which this Court deemed properly filed on the 29th of November, 2006. The respective briefs of the parties were deemed argued and adopted at the hearing of the appeal, following the absence of their respective Counsel.

Two issues arose for determination in this appeal and these were:

i. Whether or not the lower Court had jurisdiction to hear and determine the suit having regards to the facts that the cause of action occurred outside the jurisdiction of the lower Court, i.e. Lagos State and the Appellant carried on business and resided respectively also outside the jurisdiction of the lower Court in Niger State.

ii. Whether or not having regards to the Appellants’ notice of intention to defend, the lower Court was right to have held that the Appellants had not disclosed any defence on the merit.

The arguments of the Counsel to the Appellants and to the Respondent on the issue of jurisdiction have been reproduced in the lead judgment and need no repetition here. In dealing with the issue of jurisdiction, the lower Court stated in the judgment thus:

“… The plaintiff and the 1st defendant are both resident outside the jurisdiction of this Court. The 2nd defendant was served by substituted means at No. 25, Jabi Close Kaduna and he has filed a Notice of Intention to defend supported by an affidavit.

Mr. S Shuaibu learned counsel for the defendants has submitted that the defence mainly is on jurisdiction of this Court because the 2nd defendant does not reside in Kaduna but at Kontagora, and since the transaction took place in Lagos, this Court has no jurisdiction. He referred to paragraph 18 and 19 of the affidavit in support.

There is nothing supporting the averments of the 2nd defendant that he is resident in Kontagora. The averments should have been accompanied by some document establishing that fact. This is necessary because the 2nd Defendant was served in Kaduna by pasting at No. 25, Jabi Close Kaduna and has appeared in Court. Again, if he says that No 25 Jabi Close had been leased out since 1998, it raises very serious questions as to how he came to be served there and was found there, if the house is leased to someone else. Again, he acquired the property 1999 as Exhibit EO4 attached to Writ of Summons shows. So when he acquired it in 1999, what happened to lease supposedly made since 1998? Of more serious concern, is the fact that he kept completely mute and refused to disclose the name of the resident of No 25, Jabi Close now. He simply averred that it “had been on lease since 1998 to a particular tenant”. We do not know who this tenant is. Such failure to make sufficient disclosure does not help the 2nd defendant as a finding on it cannot be made judiciously. It is not the duty of the plaintiff to show anything. They have done their part by causing the processes to be served by pasting at No 25, Jabi Close, Kaduna and they have got the nd defendant to react. If after pasting, he never reacted, that might have given an indication that he is not really resident there. But he did. I hold that the objection to my jurisdiction has not been properly made out. I hold that this Court has jurisdiction to entertain the suit…”

Jurisdiction is 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. It is the power of the Court to decide a matter in controversy and presupposes the existence of a duly constituted Court with control over the subject matter and the parties. Jurisdiction defines the power of Courts to inquire into facts, apply the law, make decisions and declare judgment. It is the legal right by which Judges exercise their authority – Enyadike Vs Omehia (2010) 11 NWLR (Pt 1204) 92 and Abacha vs Federal Republic of Nigeria (2014) 6 NWLR (Pt.1402) 43. It is “the blood, life wire, bedrock and foundation of adjudication and without it the ‘labourers’ therein, that is both the litigants and counsel on the one hand and the Judge on the other hand, labour in vain” – Attorney General of Lagos State vs Dosunmu (1989) 3 NWLR (Pt 11 1) 552. A Court with jurisdiction builds on a solid foundation because jurisdiction is the rock on which Court proceedings are based. But a Court that lacks jurisdiction and continues to hear a matter and determine judicial proceedings builds on quick sand and all proceedings and steps based on it, no matter how well conducted, will not stand – Obiuweubi vs Central Bank of Nigeria (2011) 7 NWLR (Pt 1247) 465 and Gwede vs Independent National Electoral Commission (2014) 18 NWLR (Pt 1438) 56.

Now, jurisdiction has many variants and the question raised by the Appellants, whether the High Court of Kaduna State had jurisdiction in this matter since the parties were not resident in Kaduna State and the cause of action did not arise in Kaduna State, touched upon the territorial jurisdiction of the High Court of Kaduna State. Territorial jurisdiction is the power of a Court to hear and determine a matter submitted to it for adjudication considered with reference to the territory within which it is to be exercised. Territorial jurisdiction means (a) jurisdiction over cases arising in or involving person residing within a defined territory, and (b) territory over which a governance, one of its Courts or one of its sub-divisions has jurisdiction€“ Iyanda Vs Lamba II (2002) 8 NWLR (Pt 801) 267.

The question raised is an inter-state matter and it has nothing to do with judicial divisions of the High Court of Kaduna State which is an intra-state matter and it is thus not governed by the High Court of Kaduna State (Civil Procedure) Rules. This point was made in International Nigerbuild Construction Co Ltd vs Giwa (2003) 13 NWLR (Pt 836) 69 by the Court of Appeal thus:

‘There is a world of distinction between jurisdiction as it relates to the territorial or geographical jurisdiction of a Court and jurisdiction in relation to the judicial division within which to commence an action. The distinction between venue, as an aspect of jurisdiction which could be administrative or geographical, in which a suit may be heard, is often provided in the rules of Court of the various States of the Federation.

But when it comes to territorial jurisdiction, which is whether a suit ought to have been brought in one State but brought in another, the criteria is different.’

The above passage was quoted with approval by the Supreme Court in the case of Dairo vs Union Bank of Nigeria Plc & Anor (2007) 16 NWLR (Pt 1059) 99 and by this Court in Muhammed vs Ajingi (2013) LPELR-C A/K/5/ 0 6. The first step in the approach to dealing with a question of territorial jurisdiction of a Court is to always understand that where there is a dispute as to the proper venue of hearing a matter that has inter-state elements, it is an issue of conflict of laws or what is called private international law. This point was made by Wheeler J in the unreported judgment in Suit No K/65/70 – Misr Nigeria Limited vs Yusufu Ibrahim delivered on the 23rd of October, 1970 thus:

“Now Nigeria having a Federal form of Constitution with separate High Courts for each State, it would seem to me on principle that this question of jurisdiction of various State High Courts, in the absence of legislature on the point, is governed by the rules of common law on the position in private international law.”

This passage was quoted with approval by the same Judge in Barzasi vs B. Visioni Limited (1973) 1 NRNLR 1 at 3-4. The point was restated by Oduyemi, JCA in Professor Albert Ogunsola vs All Nigeria Peoples Party & 2 Ors (2003) 9 NWLR (Pt 826) 462 thus:

“Where the dispute as to venue is….as between the High Court of one State and the High Court of another State of the Federation of Nigeria or between the High Court of one State in the Federation and the High Court of the Federal Capital Territory then the issue of the appropriate or more convenient forum is one to be determined under the rules of Private International Law formulated by Courts within the Federation.”

Each State in Nigeria possesses its own rules prescribing the jurisdiction of its High Court in conflict of laws situations. These rules are contained in the High Court Laws of each State and, with the exception of the States making up the former Eastern Region, the rules are based substantially on the English Law – Muhammed vs Ajingi supra. Section 28 of the High Court Law of Kaduna State provides that the principles of common law and the doctrines of equity shall, in so far as they relate to any matter in respect of which the State is for the time being competent to make Laws, be in force within the jurisdiction of the Court. Conflict of laws in England is governed by the principles of common law and as such, by this provision, the High Court of Kaduna State has the same jurisdiction in matters affecting conflict of laws as the Court of England – Barsoum vs Clemessy International & Anor (1999) 12 NWLR (Pt 632) 516 at 526 and Zabusky vs Israeli Aircraft Industries (2008) 2 NWLR (Pt 1070) 109. This point was affirmed by Wheeler J in Barzasi vs B. Visioni Limited supra.

The English Court exercises jurisdiction, as a matter of right, in an action in personam under the English conflict of law rules, irrespective of where the cause of action arose or where the parties are resident, in three situations:

(a) Presence: Once the defendant sets foot in England and is served with the writ of summons, the English Court will exercise jurisdiction over the defendant and it makes no difference that the defendant was on a transient visit to England when he was served with the writ of summons and/or that the defendant thereafter departed from England – Colt Industries Ltd Vs Sadie (1966) 1 All ER 673, Razelos vs Razelos (1970) 1 All ER 386 and Maharanee of Baroda vs Wilderstein (1972) 2 A1l, ER 689.

(b) Submission: Where a defendant outside jurisdiction accepts service through a Solicitor or an agent within jurisdiction and pleads to the merit of the case, he is deemed to have conferred jurisdiction on the English Court – Sphere Drake Insurance Plc vs Gunes Sikerta (1988) 1 Lloyds Rep 139 and The Messianiki Tolini (1984) 1 Lloyds Rep 266.

(c) Assumed Jurisdiction: Where a defendant is outside jurisdiction and he is duly served outside jurisdiction with a writ of summons issued with the leave of the English Court obtained under its Rules of Court, the English Court will assume jurisdiction over the defendant.

It is important to emphasize that under these rules of conflict of laws, the location of the place where the cause of action arose or the place of residence of the defendant plays no part in determining jurisdiction of a Court to hear the matter “ Olayiwola Benson vs Joseph Oladipupo Ashiru (1967) NMLR 363, Nigerian Ports Authority vs Panalpina World Transport (1974) 1 NMLR 82 and Zabusky vs Israeli Aircraft Industries (supra). The only exception is in respect of land matters; it is the Court of the lex situs, i.e. the Court of the place of location of the land, that possesses jurisdiction in land matters, and no other Court – Lanlehin vs Rufai (1959) 1 FSC 184 and Societe General Bank (Nig) Ltd vs Festus Olabode Aina (1999) 9 NWLR (Pt 619) 414

The applicable situations in the instant case are the second and third situations, submission and assumed jurisdiction. The second Appellant claimed that he resided outside jurisdiction, but he was served within jurisdiction by substituted means and he accepted service and attended the High Court Kaduna to plead to the merit of the case. The second Appellant is deemed to have conferred jurisdiction on the High Court of Kaduna State and cannot be heard to complain against the jurisdiction of the lower Court to hear the mater. The first Appellant was served in Kontagora, Niger State with leave obtained under the Rules of the High Court of Kaduna State. The authority for service of a writ of summons out of jurisdiction of a Court but within the country, is Section 96 of the Sheriffs and Civil Process Act. It reads:

96 (1) A writ of summons issued out of or requiring the defendant to appear at any Court of a State or the Federal Capital Territory may be served on the defendant in any other State or the Federal Capital Territory.

96 (2) Such service may, subject to any rules of Court which may be made under this Act, be effected in the same manner as if the writ was served on the defendant in the State or the Federal Capital Territory in which the writ was issued.

It is by the provisions of Section 96 of the Sheriffs and Civil Process Act that the High Court of a State exercises jurisdiction over defendants outside the territory of the State and once the writ of summons is duly issued and served on such a defendant, the Court will exercise jurisdiction over him as if he was served within the territory of the State – Owners of the MV “Arabella” vs Nigeria Agricultural Insurance Corp (2002) 15 NWLR (Pt 791) 570 at 585 E-G, Muhammed vs Ajingi supra. Moreover, the first Appellant appeared before the High Court of Kaduna and it also pleaded to the merits of the case against it. It, too, cannot be heard to challenge the jurisdiction of the High Court of Kaduna State over the matter – Odu’a Investment Co. Ltd vs Talabi (1997) 10 NWLR (Pt 523 1. The lower Court was thus on very firm ground when it held that it had jurisdiction to entertain the matter.

The first issue for determination is resolved against the Appellants.

This takes us to the second issue for determination – whether or not having regards to the Appellants notice of intention to defend, the lower Court was right to have held that the Appellants did not disclose any defence on the merit. The case of the Respondent in the affidavit of facts in support of the writ of summons under the Undefended List was that by an offer letter dated the 19th of January, 2001, it, at the request of the Appellants, offered the first Appellant an overdraft facility in the sum of N15 Million on terms and conditions contained in the offer letter and that the first Appellant unconditionally accepted the overdraft facility on the said terms and conditions and that the second Appellant personally guaranteed the repayment of the facility and deposited the title documents of his property situate at No. 25, Jabi Close, Kaduna as security for the facility the offer letter, the Guarantee Agreement and the title documents of the property were Exhibits EO1, EO2, EO3 and EO4. It was its case that the overdraft facility was duly disbursed to and utilized by the Appellants and that the Appellants failed and/or neglected to repay the facility and that the account of the first Appellant, due to the default, continued to attract interest in line with the agreed terms and that as at the 31st of January, 2005 the debit balance in the account was N48,042,609.35 and that the Appellant failed to liquidate the amount despite repeated demands; the statement of account of the first Appellant and letters of demand were Exhibit EO5, EO6 and EO7.

In their response in the affidavit in support of the notice of intention to defend, the Appellants admitted taking the overdraft and drawing down on same and it was not their case that they had liquidated the overdraft facility. The case of the Appellant was that sometime in November, 2001 the second Appellant deposited a cheque of N2,453,762.00 into his account with the Respondent and the cheque was fraudulently cleared through another account without the authorization of the second Appellant and it was used by the Respondent and a copy of the cheque was Exhibit 4. It was their case that upon the discovery, the second Appellant instructed his Solicitors to write a letter of complaint to the Respondent that his cheque was cleared and he was denied access to the funds and that, in response, the Respondent stated that the funds of the cheque were applied towards paying the indebtedness of the second Appellant to it; copies of the letter of the Solicitors to the second Appellant and the response of the Respondent were Exhibits 5 and 6. It was their case that upon the receipt of the response of the Response, the second Appellant requested for his statement of account for the year 2001 and discovered that the funds of the cheque were not credited and reflected in the statement of account and a statement of account in the name of the first Appellant was attached as Exhibit 7. It was the case of the Appellants that they also had a counterclaim to the action.

Now the provisions of the High Court of Kaduna 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 the case Samabey International Communications Ltd vs Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR 20758(CA) stated 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 plaintiff’s 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) 551, 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.”

Thus, the simple issue for determination in this appeal is whether the lower Court was correct when it found that the affidavit of the Appellants disclosed no defence on the merit.

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 1,002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs 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 plaintiffs 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 plaintiffs 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.

In the instant case, the Appellants did not deny the case of the Respondent in the affidavit of facts filed in support of the writ of summons and neither did they contest the contents of all the exhibits attached thereto. The only case made out by the Appellants on their notice of intention, which was relevant to the claims of the Respondent, was that sometime in November, 001, the second Appellant deposited a cheque of N2,453,762.00 into his account with the Respondent and the cheque was fraudulently cleared through another account without the authorization of the second Appellant and it was used by the Respondent. It must be remembered that the claim of the Respondent was for sum due on the overdraft facility it granted to the first Appellant and which was guaranteed by the second Appellant and the debit balance claimed was the balance in the account of Nigeria Aluminum Manufacturing Company Ltd, the first Appellant, as at 31st of January, 2005, Exhibit EO5. The claim of the Respondent had nothing to do with the account of the second Appellant, Ibrahim Bako Muhammad. It must also be remembered that the first Appellant, as an incorporated entity, possessed a separate and distinct personality from the second Appellant with the right to have and operate its own account with the Respondent and that it was not synonymous with the second Appellant and neither was its account synonymous with that of the second Appellant. This is the essence of the concept of corporate personality which has become firmly established since the decision of the English House of Lords in the celebrated case of Salomon vs Salomon and Company Ltd (1897) AC 22 – Kano State Oil and Allied Products Ltd vs Kofa Trading Company Ltd (1996) 3 NWLR (Pt 436) 244, Zest News vs Waziri (2004) 8 NWLR (Pt 875) 267, Aso Motel Kaduna Ltd vs Deyemo (2006) 7 NWLR (Pt 978) 87, New Resources International Ltd vs Oranusi (2011) 2 NWLR (Pt 1230) 102.

Now, a look at the copy of the cheque of N2,453,762.00 referred to by the Appellants, Exhibit 4, shows that the cheque was in the name of “Alhaji Ibrahim B. Kontagora”, the second Appellant, and not in the name of the first Appellant. The Appellants stated that the second Appellant paid the cheque into his account, and not that the cheque was paid into the account of the first Appellant. The opening sentence of the Solicitor’s letter written to complain about the non-credit of the funds of the cheque, Exhibit 5, was:

“We are solicitors retained by Alhaji Ibrahim Bako Kontagora former Director and Guarantor in Broad Bank (hereinafter referred to as our client) on whose instructions and behalf we act”

The letter was not written on behalf of the first Appellant and nowhere in the letter was it stated that funds on the cheque had anything to do with the indebtedness of the first Appellant to the Respondent or with the account of the first Appellant with the Respondent. Exhibit E07, one of the letters of demand written to the second Appellant showed that the second Appellant operated other accounts with the Respondent in the names of Wyman Nigeria Ltd, Mohammed B. Bako, Alhaji Bako’s Estate and ABMK & Co Nigeria Ltd, all of which had debit balances, some running into Millions of Naira. The second Appellant did not deny or challenge the contents of this letter. There was nothing on the face of the affidavit in support of the notice of intention to defend showing that the said the cheque of N2,453,762.00 had anything to do with the indebtedness of the first Appellant to the Respondent and or with account of the first Appellant on which the claim of the Respondent was predicated. There was no correlation between the cheque and the indebtedness or the account of the first Appellant with the Respondent. I am unable, in these circumstances, to see how the sum of the cheque could have been credited into the account of the first Appellant and/or how the issue of the non-credit of the sum of the cheque into the statement of account of the first Appellant can be a triable issue or defence on the merit to the claim of the Respondent?

Further, the letter of demand addressed to the first and second Appellants in respect of the indebtedness of the first Appellant on the overdraft facility, Exhibit EO6, was dated February 26, 2004, over two years after the second Appellant stated that he paid in the cheque of N2,453,762.00 into his account, and the letter put the debit balance due on the overdraft facility granted to the first Appellant at N35,373,269.58 as at 31st of January, 2004. The letter notified the Appellants that the money would continue to attract interest and it demanded that the Appellants should take steps to liquidate the amount on or before the 17th of March, 2004. It was not the case of the Appellants that they contested the balance sum as stated and/or that they even responded to the letter. It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter – Gwani vs Ebule (1990) 5 NWLR (Pt 149) 201, Trade Bank Plc vs Chami (2003) 13 NW R (Pt 836) 158, Zenon Petrol & Gas vs Idrissiya Ltd (2006) 8 NWLR (Pt 982) 221, Nagebu Co. (Nig) td vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42. In fact, in I.O.M. Nwoye & Sons Company Ltd vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210 the Court held that where a bank makes demands for settlement of debt by letters and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the overall debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due. The cheque of N2,453 ,762.00 was thus a non-issue on the indebtedness of the first Appellant to the Respondent.

The Appellants also alluded to a counterclaim that they intended to file against the Respondent. They, however, did not state what their counterclaim was and/or the nature or the relationship of their intended counterclaim with the claim of the Respondent. It is not the duty of this Court to speculate on the nature and/or contents of the intended counterclaim of the Appellants. The Appellants did not show the relevance of their alluded counterclaim to the claim of the Respondent before the lower Court. It is very obvious that the Appellants did not raise any defence, either on the merit or otherwise to the claim of the Respondent.

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 lower Court was thus on a very solid ground when it found that the Appellants did not disclose any defence on the merit and it rightly entered judgment in favour of the Respondent as claimed.

It is for these reasons that I find no merit in this appeal. The appeal is downright frivolous and I hereby dismiss it. I affirm the judgment of the High Court of Kaduna State in Suit No KDH/KAD/84/2005 delivered by Honorable Justice A D Yahaya (as he then was) on the 16th of October, 2005. I award the costs of this appeal in the sum of N50,000.00 in favour of the Respondent. These shall be my orders in this appeal.

Appearances:

No appearance For Appellant(s)

No appearance For Respondent(s)