Technicality should not be used to sacrifice justice – SC

(i) The sum of N2,087,435.00 (Two million, eighty seven Thousand, four hundred and thirty five Naira only) plus interest on the said sum at 24% per annum calculated at monthly rate from 26/3/2001 until judgment and thereafter at 10% until final liquidation. (ii) The sum of N274,000.00 (Two hundred and seventy four thousand Naira) had and […]

(i) The sum of N2,087,435.00 (Two million, eighty seven Thousand, four hundred and thirty five Naira only) plus interest on the said sum at 24% per annum calculated at monthly rate from 26/3/2001 until judgment and thereafter at 10% until final liquidation.
 (ii) The sum of N274,000.00 (Two hundred and seventy four thousand Naira) had and received of the 2nd respondent by the 2nd and 3rd appellants in order to facilitate the payment of (i) above; plus interest at 24% per annum calculated at monthly rate from 3/5/2001 until judgment and thereafter at 10% until final liquidation.
 (iii) Cost assessed at N5,000.00 (five thousand Naira only).
From the writ of summons and as shown on the record, the proceedings in the trial court were instituted on an undefended list.
On the 13th March, 2002 and at the trial court’s proceedings, the defendants/appellants informed the court of their pending application before it. Their motion prayed the court to hear and consider their Notice of Intention to defend supported by an affidavit disclosing their defence on the merit. They also prayed orally and urged that the court should treat the late filing of their process as an irregularity in accordance with order 2(1) of the Sokoto State High Court (Civil Procedure) Rules 1987 (applicable in Zamfara State) and there upon extend the time within which the defendants/appellants are to file their Notice of Intention to defend and also the affidavit in support thereof. The appellants also filed a motion for extension of time to enter appearance, supported by an affidavit wherein they sought to explain their delay in filing.
The totality of the application was vehemently opposed to by the plaintiffs’ learned counsel and he urged the court to enter judgment in their favour. The court thereafter adjourned the matter for ruling which was on the 26th March, 2002 ruled in favour of respondents.  The trial court in other words refused to oblige the defendants’ application for being out of time. Consequently, judgment was therefore entered for the plaintiffs/respondents in terms of all their claims.
On appeal by the defendants/appellants to the Court of Appeal Kaduna Division, the learned Justices of that court affirmed the decision of the trial judge and dismissed the appellants appeal on the 16th December, 2004.
The appellants were dissatisfied with the outcome at the lower court and hence the appeal now before us.
Learned counsel for appellants, Nelson Uzuegbu, Esq formulated the following four issues for the determination of the appeal:-
“ISSUE NO. 1
Whether in view of the trial court’s refusal to consider the defendants’ affidavits, which were before him and thus denying the said defendants fair hearing, the learned Justices of the Court of Appeal did not err in their view that the learned trial judge properly exercised his discretion in the case before him.
This issue arises from grounds 3 and 5 of the Notice of Appeal.
ISSUE NO. 2
Whether the issue of jurisdiction was not rightly raised and for the first time before the learned Justices of the Court of Appeal .This issue arises from ground 2 of the Notice of Appeal.
ISSUE NO. 3
Whether the learned Justices of the Court of Appeal did not err in their refusal to determine the issues before them as to whether the affidavit evidence adduced by the plaintiffs/respondents (in view of the contradictions therein) was adequate to support the judgment of the trial court.
This issue arises from grounds 1 and 4 of the Notice of Appeal.
ISSUE NO. 4
Whether the learned Justices of the Court of Appeal were not wrong in formulating and resolving issues suo motu in the appeal before them without giving the parties an opportunity to furnish argument on the said issue. This arises from ground 6 of the Notice of Appeal.
In the record of appeal the trial court per its judgment in favour of the plaintiffs held and said:-
“The learned counsel for the defendants has conceded that the notice of intention to defend in our case has not been filed within time. It is therefore undoubtedly clear that the notice of defence and its supporting (sic) are out of time. The question is whether in such a situation order 2 of the rules can be invoked to remedy the situation so that the failure to file notice of intention to defend can be treated as an irregularity in our case.   The defendants were served about two months before the hearing date.   It was only on the said date for hearing the defendants filed their notice of defence out of time.   No leave has been sought to file the notice of defence out of time and no leave has been granted. The learned counsel for the defendants urges the court to do justice and consider the notice of intention to defend. I am of the view that the only justice the court can do is to abide by the rules of the court. The application of order 2 must be
 based upon reasons.   There is nothing before this court to assist in applying the said order (sic) no application for leave before this court and there is   nothing justifying the failure of the defendants to file notice of intention to defend within time. Consequently the court is bound by rule (4) of order 22. Having considered the writ of summon with its supporting affidavit and the failure of the defendants to file notice of intention to defend, I am satisfied that the defendants have no defence to the suit. The plaintiffs are therefore entitled to judgment. Accordingly judgment is hereby entered in favour of the plaintiffs as per the claims in the writ of summons.”
In affirming the conclusion arrived at by the trial court supra, the lower court in its judgment also said:-
“Since the learned trial judge has properly exercised his discretion in reaching his decision as can clearly be seen from the portion of the judgment reproduced in this judgment, this court, as an appellate court, should not interfere with the exercise of discretion of the trial court”
Their Lordships in other words held as proper the invocation of order 22 under undefended list and affirmed the judgment by the trial court.
The relevant question to pose at this juncture is, on the totality of the proceedings as revealed on the record of appeal, can it rightly be said that the Court of Appeal erred in affirming the exercise of discretion by the trial court as alleged by the appellants’? I hasten to restate the position of the law at this point which is settled that an appellate court will not ordinarily interfere with the exercise of discretion by the trial court, unless it can be shown that such exercise was either made arbitrarily (not based on any principle of law) or not in accordance with terms of justice. With due regard to the judgment of the trial court earlier reproduced supra, the following phrase there from is of relevant reference point wherein the judge amongst others said:-
“Having considered the writ of summons with its supporting affidavit and failure of the defendants to file notice of intention to defend, I am satisfied that the defendants have no defence to the suit.”
In the light of the foregoing pronouncement by the trial court judge especially the phrase “failure of the defendants to file notice of intention to defend”, same I hold, is not exactly correct especially where it is clearly stated that the notice of intention to defend was filed on the 13/3/2002, the same date the undefended suit was heard. In other words, as at the date of hearing the suit, the defendants/appellants had in fact filed their notice of intention to defend and served same on the respondents’ counsel.  This fact was drawn to the attention of the trial judge per the submission of counsel in court.  It is also on record that the defendants’ counsel orally applied and urged the court to extend the time within which to file the said notice and to invoke the provisions of order 2 rule 1 of the High Court Civil Procedure Rules under which the application was brought. The trial court was further urged to treat the late films of the notice as an irregularity, especially having regard to the facts deposed to on the affidavit in support of their notice of intention to defend.
In addition, reference can also be drawn to the document order 22 of the rules of court which was annexed to and served along with the writ of summons. Specifically , it will be noticed that rule 3(1) did not ex facie stipulate any time limit within which the defendants are expected to file the notice of intention to defend.
The reproduction of rule 3(1) which was served along with the writ on the defendants will give a better insight.
“3(1) if the party served with this writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.’’

To be continued