MAT HOLDINGS LIMITED & ANOR v. UNITED BANK FOR AFRICA PLC(2002)

MAT HOLDINGS LIMITED & ANOR v. UNITED BANK FOR AFRICA PLC

2002)LCN/1210(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2002

CA/K/288/2000

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

MAT HOLDINGS LIMITED
2. MOHAMMED A. TUDUN WADA Appellant(s)

AND

UNITED BANK FOR AFRICA PLC Respondent(s)

RATIO

THE POSITION OF THE LAW RELATING TO GENERAL DENIAL

The position of the law relating to general denial is no longer in doubt as could be seen in the case of John Holt and Company (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492, where it was held that the requirement of Order III rule 12 of the Supreme Court (Civil Procedure) Rules (which is similar to Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988, is not satisfied by a general statement in the affidavit that the defendant “has a good defence to the action”. And the court will refuse to allow a defaulting defendant to defend an action brought on the undefended list, if such general averment is unsupported by particulars which if proved would constitute such a defence.
It is not every time the defendant denies that the matter will be transferred from undefended to the general cause list. To succeed the defence must raise a triable question or for some other reason there ought to be a trial. FMG v. Sani (supra); Sodipo v. Lemminkainen OY & Another (No.2) (supra), University of Nigeria Nsukka v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.119) 19, 30 cited in the appellants brief. In University of Nigeria case (supra) the case of Jacob v. Booth’s Distillery Company (1901) 85 L. L 262, (1900 – 03) All ER 1427,1428 was cited with approval. Lord James of Hereford said in that judgment that –
“The view which I think ought to be taken of Order XIV is that the tribunal to which the application is made should simply determine Is there a triable issue to go before a jury or a court. It is not for that tribunal to enter into the merits of the case at all.” PER SALAMI, J.C.A.

SALAMI, J.C.A. (Delivering the Leading Judgment): In the trial court, the plaintiff took out a writ of summons, claiming against the defendant, the sum of N511,401.68; 21% interest from 20th May, 1996, to the date of judgment and 10% interest, until liquidation of the judgment debt. The application for the writ of summons, brought under the undefended list, was supported by affidavit alleging that the defendant has no defence to the action. The defendants, on the service of the writ of summons on them, caused a notice of intention to defend to be filed. But on the day, fixed for hearing of the action, 30th September, 1996, neither the defendants, nor their counsel was in court and as no explanation was proffered for their absence whereupon, the action was entertained and judgment entered in favour of the plaintiff. The defendants, on their part, explained that they wrote to the court explaining their absence, but the clerk of court failed or neglected to bring their letter to the attention of the learned trial Judge.
I do not think that it is proper for counsel to seek, from the comfort of their chambers, to conduct court proceedings by writing letters asking for adjournments. In the good old days, if counsel for whatever reason cannot go to court, the practice is to send another counsel to hold his brief and ask for adjournment. If the practice of correspondence, recently rearing its ugly head, is allowed to gain currency, in no distant future our courts will become court by correspondence as counsel would start conducting other proceedings, such as adoption of briefs by correspondence. The defendants should, therefore, count themselves lucky that the learned trial Judge entered judgment for the plaintiffs in respect of the reliefs claimed by it on account that the affidavit supporting the notice of intention to defend contains no defence. Learned Counsel could have struck out the notice of intention to defend in the absence of the givers of the notice or their counsel to canvass same.
The defendants were unhappy with the judgment, and being dissatisfied, appealed to this court, on 3 grounds of appeal. Pursuance of the memorandum of appeal, briefs of argument were filed and exchanged in accordance with the provisions of Order 6 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990. At the hearing of the appeal, learned Counsel representing the parties adopted and placed reliance on their respective briefs of argument. The appellants’ brief dated 16th November, 2000, was filed apparently within time on 17th November, 2000. The respondents’ brief, filed out of time on 30th July, 2001, was deemed to be properly filed and served on 12th November, 2001.
The appellants’ brief contained 3 issues for determination. The 3 issues identified as calling for determination in their brief read as follows:-
“1 Whether the appellants have disclosed a good and triable defence or issue to warrant being let to defend the suit.
2. Whether by the conduct of the plaintiff in keeping mute for 3 1/2 years and collecting money from the appellants as proposed and asserted in exhibit M.6 of the notice of intention to defend does not constitute estoppel and whether the appellants cannot plead estoppel by inaction and therefore amounting to a waiver.
3. Whether from the affidavit evidence which is accompanied by various documents as exhibits thereto the presiding trial Judge ought not to look at them and evaluate them before reaching any conclusion.
At the hearing of the appeal, learned Counsel for appellants related the issues to the grounds of appeal by relating issue 1 to ground 2; issue 2 to ground 3 and issue 3 to ground 1 of the grounds of appeal.
Respondent’s brief identified only one issue encompassing the 3 grounds of appeal as calling for determination. The formulation read as follows:-
“Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondent’s claims.”
The defendants (hereinafter referred to as appellants) frame three issues. Issue one is respectfully a variant of the appellant issue 3, which I think is not a valid or good issue. Issue 3 is not well thought out because it appears to me academic as there is nothing on the face of the record showing or portraying that the learned trial Judge did not look at and evaluate the affidavit in support of the notice of intention to defend as well as documents exhibited thereto. Indeed, the learned trial Judge after stating the claim of plaintiff (hereinafter referred to as respondent) observed thus:-
“The defendant filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no defence.”
This is clearly a proof that the learned trial Judge within the limit of assistance offered him by counsel considered the affidavit in support of the notice of intention to defend and found that it contains no defence on the merit as required by Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 and rejected the defence allegedly contained therein. It is not enough for counsel to dump materials on the court and refuse to go to court to advocate their position. It is within the right of the learned trial Judge to consider any defence accept or reject it. But the rejection of same does not imply refusal, failure or neglect to “look at and evaluate them”.
On the other hand, it is not clear why learned Counsel for respondents relies on a single issue when his brief in the sole question canvassed issues ranging from appraisal and evaluation of evidence to estoppel by conduct. I do not know how the learned counsel for appellants, whose habit it has become to muddle things expect the court to assist him in sifting argument in respect of one issue from those relevant to the other. He is lucky his client is not the appellant, I would have struck out its brief and dismiss the appeal. It seems learned Counsel are not prepared to learn or comply with simple rules of procedure such as those contained in the Court of Appeal Rules Cap. 62.
Having concluded my discussion on the preliminaries, I propose to commence the consideration of the appeal with the only issue calling for determination which is appellants’ issue I, which is co-terminus with the respondent’s only formulation.
In respect of the issue, appellants postulated that paragraphs 2(c), (d) and (j) of the affidavit in support of the application for issuing the writ of summons contain the proof of respondent’s claim. But contended that the assertions were denied by paragraph 3(e) of the affidavit in support of the notice of intention to defend wherein it was alleged that N150,000.00 was paid on a cheque drawn on 22/11/91, which averment was not countered by the respondent. Learned Counsel further argued that it was also averred in paragraph 3(f) of their affidavit in support of the notice of intention to defend that a further repayment of N200.000.00 was made coupled with a request for a 50% waiver, which averments were equally not denied by the respondent. Learned Counsel, in the appellants’ brief referred to paragraph 3(g) of their affidavit and argued that some officers of the respondent were informed of the appellants’ position and they verified and found the same to be true his client should have been credited with the waiver. Learned Counsel then contended that if the various amounts stated above reflect the correct position of appellants’ account respondent’s exhibit 7, the statement of account, would have no probative value. Learned Counsel then read in the appellants’ brief provisions of Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988 and asked what then is a defence on the merit within the meaning of Order 23 rule 3(1) (supra). Learned Counsel then read to the court from the cases of Sodipo v. Lemninkainen OY & Another (1986) 1 NWLR (Pt. 15) 220, 231; FMG v. Sani (1990) 4 NWLR (Pt.l47) 688, 699 and the unreported decision of this court FCA/K//40/83 SAC Enterprises Ltd. v. Car Ploetner Nig.) Ltd delivered on 15/3/84. Learned Counsel also referred to the case UNN v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19,30.
Thereafter, learned Counsel submitted that the appellants’ affidavit discloses these triable issues:-
“a. A dispute to the amount owed by the appellants in view of the averment that N150,000.00 and N200,000.00 were paid-in respectively which ought to drastically reduce appellants’ indebtedness.
b. That exhibit M6 has equally altered the position of the appellants’ indebtedness to the bearest minimum and the contents of exhibit M6 was not controverted.
c. That exhibit 7 of the supporting affidavit to the claim was not a true reflection of the transaction and is entitled to a full statement of account which was not given to the appellants despite demand for it.”
He urged upon the court that the above issues have passed the test and ought to have been heard on the general cause list.
The question is has the appellants’ affidavit as well as the documents attached thereto shown a triable issue or thrown some doubt on the case of the respondent? I do not think that the affidavit raised, notwithstanding the plethora of authorities marshalled in appellants’ brief of argument, serious facts which call for the action being transferred from the undefended list to the general cause list as suggested by the appellants. Let me quickly dispose of the averment contained in paragraph 3(g) of the appellants’ affidavit. I am of the firm view, with respect, that discussion with unnamed officials of the respondent has little or no evidential value.
I agree with learned Counsel for respondent that it is common ground that the appellants are owing the respondent. It is, therefore, trite that a party who has admitted indebtedness to the other has duty to amply demonstrate to the trial court how the indebtedness admitted was liquidated. In this connection, the appellants relied on paragraph 3(b),(e),(f),(g) and (i) of the affidavit in support of the notice of intention to defend. On scanning the affidavit in support of the notice of intention to defend particularly paragraphs 3(b)(e)(f)(g) and (i) I find paragraphs 3(e) and (f) pertinent and propose to deal with them serially.
In paragraph 3(c) appellants averred as follows:
“(e) That on the 22nd October, 1990, Ekenna, Ekenna & Co. Barristers and Solicitors of 15A Beirut Road, Kano, wrote a letter of demand of the outstanding balance to which a reply was written and a proposal for payment was made and contrary to the contents of paragraph 2(h) of the affidavit in support of the writ a cheque No. 573121 of Nigeria International Bank Limited Kano Branch for N150,000.00, dated 22/11/91 was honoured and credited to his account.
A copy of the said cheque is herewith annexed and marked as exhibit M4, while the reply to Ekenna, Ekenna & Co, is herewith annexed and marked as exhibit M5.”
Paragraph 2(h) of the affidavit in support of the application for writ of summons deposed to by respondent which averment in paragraph 3(e) above is intended to refute reads as follows.
“(h) That thereafter, the 2nd defendant Muhammad Tudun-Wada made part payments to the plaintiff by
cheques drawn on Nigerian International Bank Limited dated 16th Dec. 1991, in the sum of N120,000; 30th Dec. 1991, in the sum of N100,000.00 and 17th January, 1992, in the sum of N100,000 and all the three cheques bearing his usual signatures bounced on (sic) Nigeria International Bank Ltd. F1 Airport Road Kano. Copies of the three bounced cheques have been shown to me and are herewith attached and marked as exhibit 5.”
(italicsing mine)
A comparison of the two averments does not disclose that the respondent alleged that a cheque for N150,000.00 was dishonoured nor any of the three cheques claimed to have been dishonoured dated 22/11/91. It seems to me that the appellants respectfully, chose to pursue shadow rather than the substance of this case. They impliedly, by their ominous silence, admitted that the three cheques totalling N320,000.00 averred to in paragraph 2(h) of the respondent’s affidavit were tendered for payment and were not honoured by appellants’ bank. An uncontroverted affidavit evidence is deemed admitted. The court is to act on such unchallenged or uncontroverted averment. See A.M.F Agbaje v. Ibru Sea Food Ltd. (1972) 5 SC 50 and Globe Fishing Industries Limited & Others v. Chief Folarin Coker (1990) 7 NWLR (Pt. 162) 265, (1990) 11 SCNJ 56,78.
I now turn on appellants’ paragraph 3(f) which, in my respectful view, is the linch-pin of their defence. It reads thus:-
“(f) That on the 16/3/92, based on an earlier discussion the 2nd defendant had with the Managing Director of the plaintiff at the Headquarters Lagos, the defendants wrote the plaintiff a letter asking for 50% waiver and since then the plaintiff kept mute on the matter, which made the defendants to think that the request made was granted and that the said account ought to have been credited in excess of N7,000.00. The said letter is annexed herewith and marked as exhibit M.6, while the payment transfer form, for the sum of N200,000.00 additionally paid, is herewith annexed and marked exhibit M.7”. (italicising mine)
There is no document or documents marked respectively as exhibits M.6 and M7. But if the appellants meant pages 25 – 26 and 27 – 28 respectively to be M.6 and M.7, I will discuss both of them presently. Exhibit 7 can conveniently be described as virtually blank and is of no evidential value. The two documents at pages 27 and 28 are undated and incomplete. For instance, the value of the draft in figure is not stated at p.28 and is marked advise copy and portion reserved for official use at page 27 is not treated. Before proceeding to exhibit 6, may I rhetorically ask whether the appellants’ account would still be in credit in excess of N7000.00 inspite of the dishonouring of their cheques worth N320,000.00?
Exhibit M6 is a letter dated 5th March, 1992. It seems to be the pivot of appellants’ defence. I propose to read paragraphs 7, 8, 9 and the footnote to which I have been referred by the learned Counsel for respondent. They read as follows:-
“7. The Managing Director, during the interview he granted the undersigned as mentioned above, graciously offered 25% which according to our understanding, would reduce our indebtedness to N289,500.15 and which, after the payment of the N200,000 now available with us, would still leave an outstanding debt balance of N89,500.15 which would certainly take sometime before we could settle finally.
8. We, therefore, request you to kindly consider our original request for a 50% waiver as a means of settling this matter once and for all because we have not been able to come up with any additional funds in the interim between the meeting with the Managing Director and today.
9. Alternatively, however, you wish to consider, if you are unable to accommodate our request, the rescheduling of any outstanding amount (the 89,500.15 indicated above), to December, 1992, in frozen state without interest. We believe that at that time we would have overcome most or even all our difficulties and would be in a position to settle any amounts outstanding.
We look forward to your usually kind considerations and attention.
Faithfully Yours
Pp IMAR NIGERIA LIMITED
Mohammed A. Tudun- Wada,
(Chief Executive).
NB Photocopy of our draft for N200,000 is hereby, attached which we would pay to our account with you as soon as we are appraised of your position on our request.
What emerges from the nota bene or the note at the foot of the letter is that appellants sent to the respondent a mere photographic copy of the draft allegedly drawn for N200,000.00. Appellants merely sent a photographic copy of the draft. The release of the draft itself to respondent was subject to the acceptance of the proposal contained in their letter, exhibit M6, which, according to the appellants, the respondent failed to react to. Consequently the said N200,000.00 draft (if any) was never released to nor credited to the appellants’ account with the respondent. The averment in paragraph 3(f) of the affidavit in support of the notice of intention to defend to the effect that additional N200,000.00 had been paid and has not been reflected in their account with the respondent is false. It is a blunt distortion of fact. Further, as observed earlier, an undated draft is inchoate or invalid and could not form basis for giving any credit or consideration to the appellants.
It is doubtful, if the appellants could argue validly that the respondent stood them up for more than three years in respect of their exhibit M.6. It is true that business correspondence should be attended to promptly and, if not, it may most probably make the other side to change its position. This is estoppel by conduct. But estoppel by conduct is a shield and not a sword. It can only be used as a defence to thwart a claim and not a foundation for commencing an action. See Ikabala v. Ojosipe (1988) 4 NWLR (Pt.86) 119. This equitable defence is only available to a defendant and not a foundation for a claim. In any case, the appellants were not kept in suspense or waiting as being contended. They made forwarding of their draft to the respondent conditional upon its acceptance of their proposal. Since the bank did not call for the draft which the appellants by their letter, exhibit M.6, admitted retaining it was abundantly clear to them that the proposals were unacceptable to the respondent. In any case, they gave no consideration for the waiver or novation sought and it does not avail them.
The respondent, contrary to the appellants’ wrong contention, is not disputing payment of N150,000.00 to it. Appellants on their own showing, failed to send the draft for N200,000.00 to the respondent. They also are not contesting that N320,000.00 paid to the respondent by three cheques was unpaid owing to dishonour of the relevant cheques in paragraph 2(h) of the affidavit as deposed to in affidavit in support of the application for the writ of summons. The respondent claim on the writ of summons it caused to be issued on 20th May, 1996, is for N511,401.68. The dishonoured cheques between them amounted to N320,000.00 when added to the withheld draft drawn in favour of the respondent for N200,000.00, puts appellants’ indebtedness to the respondent at N520,000.00. Clearly therefore there is no triable issue to go to the jury. The test set up in the case FMG v. Sani (supra) per Uwais, JSC (as he then was) that
“In that regard a complete defence need not be shown it will suffice, if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial is not met in the circumstance of the instant appeal.
The rules of court providing for cases to be placed on undefended list are deliberately designed to allow for quick dispensation of justice to avoid unnecessarily clogging our legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defences directed at frustrating the plaintiff out of judgment he well deserves. A case should not be transferred from undefended to the general cause list merely on the whims and caprices of a defendant, who merely finds the words fair hearing a convenient as well as handy slogan.
The position of the law relating to general denial is no longer in doubt as could be seen in the case of John Holt and Company (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492, where it was held that the requirement of Order III rule 12 of the Supreme Court (Civil Procedure) Rules (which is similar to Order 23 rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988, is not satisfied by a general statement in the affidavit that the defendant “has a good defence to the action”. And the court will refuse to allow a defaulting defendant to defend an action brought on the undefended list, if such general averment is unsupported by particulars which if proved would constitute such a defence.
It is not every time the defendant denies that the matter will be transferred from undefended to the general cause list. To succeed the defence must raise a triable question or for some other reason there ought to be a trial. FMG v. Sani (supra); Sodipo v. Lemminkainen OY & Another (No.2) (supra), University of Nigeria Nsukka v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.119) 19, 30 cited in the appellants brief. In University of Nigeria case (supra) the case of Jacob v. Booth’s Distillery Company (1901) 85 L. L 262, (1900 – 03) All ER 1427,1428 was cited with approval. Lord James of Hereford said in that judgment that –
“The view which I think ought to be taken of Order XIV is that the tribunal to which the application is made should simply determine Is there a triable issue to go before a jury or a court. It is not for that tribunal to enter into the merits of the case at all.”
Order XIV rule 1(a) of the Judicature Act, 1875, which was considered in Jacob’s case is in pari materia with Order 23 rule 3(1) of Kano State High Court (Civil Procedure) Rules, 1988. It also requires the defendant to show a good defence to the action on the merits to entitle a defendant to defend.
See also the case Agro Millers Ltd. v. CMB (1997) 10 NWLR (Pt.525) 469; Franchal Nigeria Ltd. v. Nigeria Arab Bank Limited (1995) 8 NWLR (PtA12) 176. A mere claim or assertion simpliciter may not qualify as a good defence to the action on the merit to entitle a defendant to defend or as a triable issue or question to go before a jury or a court. The averments or material allegations contained in the affidavit in support of the notice of intention to defend should be substantial which if not challenged or controverter would entitle the defendant to judgment otherwise the courts will be saddled by unnecessary flimsy issues. I find support in the dictum of my learned brother, Fabiyi, JCA, in Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620, 636 where he stated thus:-
“A triable issue is an uncontroverted or uncontradicted material allegation contained in the affidavit in support of the notice of intention to defend an action brought under undefended list which averment requires further investigation by the trial court to unearth its veracity or otherwise. Such material allegation must demonstrate a strong or at least a defence which cannot be dismissed with a wave of hand.”
After my appraisal and evaluation of the material allegations or averments contained in the affidavit in support of the notice of intention to defend together with the documents thereto placed before the trial court, I find no justification whatsoever, for transferring the suit from undefended to the general cause list. The appellants’ affidavit does not disclose a defence on the merit to warrant their being entitled to defend. I therefore, dismiss the appeal and affirm the decision of the learned trial Judge. I make order as to costs, which is assessed at N5,000.00 for the respondent.

MOHAMMED, J.C.A.: The judgment of my learned brother, Salami, JCA, in this appeal, was read by me before its delivery today. I am in full agreement with him, that there is no merit at all in this appeal, which deserves to be dismissed.
The only issue arising for determination is whether or not, the averments contained in the appellants’ affidavit in support of their notice of intention to defend the suit really disclose a defence on the merit to the suit to justify granting the appellants leave to defend the suit by transferring the same to the general cause list of the lower court for hearing. The learned trial Judge Ubbaonu, J. (of the blessed memory) indeed, examined the affidavit in support of the notice of intention to defend and said:-
“The defendant filed a notice of intention to defend the suit. The affidavit supporting the intention to defend contains virtually no defence”.
This finding of the learned trial Judge is clearly supported by the relevant facts averred in the affidavit in support of the respondent’s claims and the appellants’ affidavit in support of their notice of intention to defend the suit as carefully analysed in the leading judgment of my Lord Salami, JCA, with which I entirely agree.
Accordingly, I also dismiss this appeal and affirm the judgment of the lower court with N5000.00 costs to the respondent.

OMAGE, J.C.A.: The respondent was the plaintiff in the court below. In a writ of summons, dated 13th June, 1996, the respondent claimed against the defendants now appellants the following;
(i) “The sum of N511,401.68k, as balance due of money advanced to the defendant by the plaintiff in a bridging loan transaction.
(ii) 21% interest on outstanding loan on the facility from 20th may, 1996, to date of judgment.
(iii) 10% interest at court rate from the date of judgment until entire detail is liquidated. The claim was made by the plaintiff against the defendants jointly and severally. The claim was made under the undefended list procedure.”
Upon receipt of the claim, the defendants now appellants filed a notice of intention to defend. In the affidavit in support of the notice, the defendants averred that they presented several cheques in payment of the bridging loan of N250,000 secured from the respondent, that the interest charged by the respondent was high and the defendants sought a reduction of the loan, that a payment by cheque of N150,000 was made by it on 22/1/91, and a further payment of N200,000 was made in 1992, to the respondent which in the appellants’ view should leave in credit to the appellant the sum of N7000.00. The defendants exhibited M6, a letter dated 6/3/92, said to be addressed by the appellants as defendants to the respondent as the plaintiff in the court below. In the letter, the appellant urged the respondent’s manager to grant to the appellants 50% waiver of the indebtedness to the plaintiff, after which if the condition is fulfilled, the appellants will pay to the debt account with the respondent the sum of N200,000. No evidence was produced of the acceptance of the appellants’ proposition to the respondent and no evidence was supplied by the appellants of the payment into the account of the said sum of N200,000.
In its affidavit in support of its claim under the undefended list, the plaintiff averred that all the cheques issued by the defendants in alleged payment of the debt were dishonoured; and none was credited. At the hearing of the plaintiff’s application for judgment under the undefended list, the High Court Kano Coram Ubbaonu, J. held on 30/9/96, thus;
“The defendants filed a notice of intention to defend the suit. The affidavit supporting the intention is defend contains virtually no defence judgment to entered in favour of the plaintiff against the defendants in the sum of N516,401,68.19. Plus 21% interest per annum at bank rate from 20th May, 1996, to date of judgment and thereafter, 10% interest per annum at court rate, until the whole judgment debt is fully satisfied. The defendants should pay N1,500.00 cost to the plaintiff.”
It is against the decision that the defendants filed three grounds of appeal and formulated three issues as follows:
“(1) Whether the appellants have disclosed a good and triable defence or issue to warrant being let in to defend the suit.
(2) Whether by the conduct of the respondent/plaintiff in keeping mute for 3 1/2 years and collecting money from the appellants as proposed and assented in exhibit M6 of the notice of intention to defend does not constitute estoppel. Whether the appellants cannot plead estoppels by inaction and therefore amounting to a waiver.
(3) Whether from the affidavit evidence which are accompanied by various documents as exhibits thereto, the presiding trial Judge ought not to look at them and evaluate them before reaching any conclusion.”
Before I recite the issue formulated by the respondent, I wish first to comment on the issues formulated by the appellants. The appellants failed to state the relationship of the grounds of appeal to the issues numbered 1 to 3 ground one of the appellants may with some exertion stretch to cover issue one when ground one is regarded as an omnibus ground only because it is alleged that the judgment is against the affidavit evidence. In the commencement page of the argument of the appellants on the issue, on page 5 of the brief, the appellants combined in issue one, the contents of grounds one and two in the grounds of appeal. And he did not explain it. In issue 2 of the appellants’ brief they raised the issue of estoppel by conduct. No ground of appeal relates to it. It is provided in section 151 of the Evidence Act, Cap. 112, that a person who by his conduct acts or omits or intentionally caused or permitted another to believe to be true, a state of fact or event and that other acted on it, the first person who offered or his representative will not be allowed to deny the truth of his action or averment made by him. There is nothing in the ground of appeal filed by the appellants on which the appellants based issue two. The appellants cannot and should not be allowed to argue an issue not formulated on the grounds of appeal, filed in their grounds of appeal. Issue two is therefore struck out. See Odife & Anor v. Aniemeka & Ors. (1992) 7 NWLR (Pt.25 1 ) 25 at 42. There are left on the appellants’ brief only issues one and three to be considered in this appeal by the appellants. My learned brother, I.A. Salami, JCA, has dealt fully with the issues in the appeal, I only wish to comment on issue one formulated by the appellant viz;
“Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondents claim.”
The respondent has recorded that the issue formulated by him is from grounds 1, 2 and 3 of the grounds of appeal. I do not so subscribe. The issue of the appellants is founded only on ground 2 and 3 of the appellants’ grounds of appeal as ground 2, on which issue 2 is said to be founded, does not contain any issue of estoppels alleged by the appellants in issue 2. In consideration of this appeal, I prefer the issue formulated by the respondent to the two valid issue composed by the appellants. The respondent’s issue contains and reflects in my view, the essential issue to be determined in this o appeal. Which is:
“Whether the notice of intention to defend filed by the appellants disclosed a defence on merit to the respondent claims.”
I have stated above the claim of the respondents against the appellants. It is a claim by the respondent from the appellants in the court below for the sum of N511,401.00K, with interest of 21% on the main sum, 10% at court rate, in both cases from the date of filing to the date of judgment, which the court below awarded in favour of the plaintiff/respondent. In the suit having been placed on the undefended list, the appellants/defendants in the court below, filed a notice of intention to defend it with an affidavit and several annexures. In the affidavit of intention to defend, the defendants now appellants admitted as true the transaction which the respondent deposed took place between the parties to create the liability of the defendants to the plaintiff. In the exhibit M6 dated 6/3/92, attached to the affidavit of intention to defend, the appellants admitted severally that it is owing the respondent a sum of money up to N386,000.20k, but seeks from the plaintiff/respondent a waiver of 50% of the debt upon which condition the appellants promised to pay to the respondent the sum of N200,000. The appellants failed to show any evidence of payment to the respondent of the said sum, and the photocopies exhibited to the cheques do not show any acknowledgement of the cheques by the respondent. One is left with a conclusion that no agreement to reduce the appellants’ liability by 50% was reached consequently no payment of N200,000 was made into the respondent to liquidate the appellants’ debt. The calculation of the appellants which allegedly put them in a credit of N7,000 with the respondent is moonshine.
In a hearing under the undefended list procedure, the court is concerned to see whether or not a triable defence has been manifested in the defendant’s affidavit of an intention to defend. Of course the first function of the court is to see whether the plaintiff’s claim discloses a cause of action, by which it is meant whether the plaintiff’s claim discloses any right of claim. In the instant appeal, the court below was justified to conclude on the liability of the defendants. When by the defendants’ affidavit, they admitted the claim of the plaintiff, and the exhibits annexed to the affidavit of defence support the plaintiff’s claim, who had averred in his affidavit that the cheques, allegedly issued by the defendants were dishonoured. At no time did the defendants deny this in their affidavit, instead the appellants attempted to place the fault on another. The cheques allegedly issued to the respondent by the appellants show no record of receipt of payment to any bank. At a glance, there is nothing on the affidavit of intention to defend by the appellants which contradicts the averments contained in the respondent/plaintiffs’ claim for the sum entered.
The learned court was right, when he ruled that the affidavit of intention to defend by the appellants raised virtually no defence. I agree therefore, with my learned brother, Salami, JCA, that the appeal lacks substance and it should be dismissed. I dismiss it. I abide by any order for cost made in the lead Judgment.