MR. PAT AGBACHI v. SAM AZUBUIKE
(2010)LCN/3842(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of June, 2010
CA/A/119/04
RATIO
CONTRACT: WHEN WILL A COMPLETE FAILURE OF CONSIDERATION ARISE
A complete failure of consideration in an agreement occurs where one of the contracting parties fails to receive the benefits. Where there is a claim of total failure of consideration, the innocent party is entitled to restitution. See Dantata v. Mohammed (2000) 5 SC 1 at 11. PER ABDU ABOKI, J.C.A.
CONTRACT: WHETHER AN AGREEMENT SHOULD BE IN A PARTICULAR FORM
The law does not require or insist that an agreement or contract should be in any particular form or according to any particular formalities. It is sufficient that the contract is a simple contract. See Omega Bank Plc, v. QBC Ltd. (2002) 16 NWLR Pt. 794 page 483. PER ABDU ABOKI, J.C.A.
COURT: HOW DOES THE COURT DETERMINE WHETHER TRIABLE ISSUE HAS BEEN RAISED
In deciding whether triable issue has been raised or not, what must be examined, by the Court is only the averments in the Defendant’s affidavit in support of the intention to defend. See
Udemba v. Morecafa Finance Nig. Ltd. (2002) FWLR Pt. 85 page 317.
To constitute a triable issue the affidavit in support of the notice of Intention to defend must set out a defence on the merit, not a sham intended to delay and frustrate justice. See:
Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR Pt. 144 page 283;
Agro Millers Ltd. v. CMB (1997) 10 NWLR Pt. 525 page 469;
Nwankwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR Pt. 749 page 513 at 539. PER ABDU ABOKI, J.C.A.
EVIDENCE: EFFECT OF FAILURE OF THE OTHER PARTY TO REPLY FACTS DEPOSED IN A COUNTER-AFFIDAVIT
It is trite that where facts in respect of anything deposed to in a counter-affidavit or further counter- affidavit are not met or addressed by the other party in a further and or better affidavit, the proper and only conclusion to reach is that the facts stated therein remain unchallenged and uncontroverted. See: A.G. Ondo State v. A.G. Ekiti State (2001) 17 NWLR Pt, 743 page 706 at 749-750;
Uzondu v. Uzondu (1997) 9 NWLR Pt. 521 page 446:
Ajewole v. Adetimo (1996) 2 NWLR Pt. 431 page 319:
Agwuneme v. Eze (1990) 3 NWLR Pt. 137 page 242. PER ABDU ABOKI, J.C.A.
JUSTICES:
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
MR. PAT AGBACHI – Appellant(s)
AND
MR. SAM AZUBUIKE – Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of the Federal Capital Territory, Abuja delivered on the 4th day of July, 2003 by T.U. Bello J. entering judgment in favour of the Plaintiff under the Undefended list against the Defendant.
The Defendant being dissatisfied with the judgment appealed to this Court vide an amended Notice of Appeal dated 14th August, 2004 and filed 29th March, 2005 pursuant to leave of this Court granted on 22nd March, 2005.
The facts of the case in a nutshell is that the Plaintiff claimed that the Defendant demanded the sum of N1Million as a consideration to facilitate the revalidation of a job allocation to his Company by the NNPC. The Plaintiff claimed that the Defendant gave him his complimentary card on the back of which the Diamond Bank account number was written, into which the said sum of N1 Million was to be paid.
When the Plaintiff lost the job allocation to his company, he demanded for the refund of the N1 Million he paid to the Defendant, because as he claims there is a failure of consideration.
The Plaintiff took out a Writ of Summons on the Undefended list against the Defendant at the lower Court.
The Defendant denied the claim of the Plaintiff and insisted that the N1 Million paid into his account with the Diamond Bank Plc. was an unsolicited gift by the Plaintiff, his long standing friend to him, in appreciation of series of favours done to the Plaintiff, who at that particular point in time needed to pay for a house. The Defendant denied ever making any demand whatsoever from the Plaintiff, as he was not in a position to carry out any revalidation. The Defendant contended that the Suit should be transferred to the General Cause list as he has a defence to the suit.
In support of the Writ of Summons on the Undefended list, is an affidavit of five paragraphs attached to which are three Exhibits marked as A, B, C. Exhibit A is a photo copy of the Defendant’s complimentary card. Exhibit B is a photo copy of Diamond Bank Plc. Current account deposit slip dated 10/1/2000 while Exhibit C is a demand letter written by the Plaintiffs Solicitor to the Defendant demanding a refund of N1 Million.
A Further and Better Affidavit of five paragraphs was deposed to in support of the claim of the Plaintiff.
The endorsed Writ of Summons on the Undefended list is hereby reproduced as follows:
“ENDORSEMENTS
The plaintiff claim is as follows:
That sometime in January 2000, the plaintiff requested the defendant to use his office to facilitate the revalidation of allocation order from NNPC, of some petroleum products to the plaintiffs company. To this request the defendant demanded from the plaintiff the sum of N1,000,000:00 (One Million Naira) only. This sum demanded was paid by the plaintiff to the defendant through the defendant’s bank account with Diamond Bank Plc. The anticipated validation was not effected and the plaintiff lost the job. The defendant has refused and/or neglected to pay back this sum to the plaintiff despite repeated demands to pay same.
WHEREFORE, the plaintiff claim against the defendant, the following reliefs:
1. The sum of N1,000,000:00 (One Million Naira) only, being money paid to the defendant on demand for a consideration that failed.
2. 21% interest per annum from the 11th day of January, 2000 to the date of judgment and thereafter 10% monthly interest until date of liquidation.
3. Costs of suit.”
The affidavit in support of the endorsed writ of summons at page 7 of the record of Appeal is hereby reproduced as foltows:-
AFFIDAVIT IN SUPPORT OF MOTION EX PARTE
I, David Ogbale, male, adult, Nigerian citizen of Plot 1110 Awolowo Street Area 11, Garki Abuja do hereby depose to this affidavit and state the following:
1. That I am the litigation clerk of Messrs. N.A. OBINNA & Co. Solicitors to the plaintiff/applicant herein.
2. That I am conversant with the facts of the case, by virtue of my office aforesaid.
3. That I have the consent of both my employers and that of the plaintiff/applicant to depose to this affidavit.
4. That I have been informed by Mr. Sam Azubuike the plaintiff, in our office this day information I verily believed to be true and correct as follows:
(a) That sometime in January 2000, the plaintiff requested the defendant to use his office to facilitate the revalidation of an allocation order from NNPC, of some petroleum products to the plaintiffs company.
(b) To this request, the defendant demanded the sum of N1,000,00:00 (One Million Naira) only, before he could assist the plaintiff, using his office as requested.
(c) The defendant instructed the plaintiff to pay this sum into (the defendant) Bank Account with Diamond Bank Plc. The photo copy of the defendant’s complimentary card and his Account No. 013 0400377006 written on the reverse side by the defendant is herein annexed and marked as Exh. A.
(d) That plaintiff promptly paid this sum of N1 Million to the defendant on the 11th of January, 2000, through the defendant said Account No. 013 0400377006. A photocopy of the Diamond Bank Current Account deposit slip issued to the plaintiff is herein annexed and marked as Exh. B.
(e) That the anticipated facilitation was never rendered as there was no revalidation and the plaintiff lost the order of allocation.
(f) The plaintiff had continually demanded from the defendant of this sum of money, had and received by the defendant, but to no avail.
(g) On 12th day of December, 2001, the plaintiff caused his solicitor messrs E. PAT. Aigbogun & Co. to write a demand letter to the defendant, after several promises to pay failed, and same was written. Annexed herewith is a photocopy of the said letter and marked as Exh. C.
(h) That up to this date, the defendant has blatantly refused/omitted or has neglected to pay this sum of money had an received,
(i) That the defendant does not have any defence to this claim/suit.
(j) That it is in the utmost interest of justice to grant the reliefs sought by the plaintiff, inclusive of the claim for interest.
5. that I do solemnly depose to this affidavit in goodfaith believing its contact to be true and correct and in accordance with the OATHS ACT Laws of the Federation (Cap 333) 1990.”
The Plaintiff before filing the action sent the Defendant a letter of demand and it is referred to in paragraph 4(g) of the affidavit in support of the claim and it reads thus:-
“E. Pat Aigboun & Co.
(LEGAL PRACTITIONERS)
N.2Ahmadu Bello Way
P.O. Box 1841, Kaduna
Date 12/12/2001
MR. PAT. AGBACHI,
Special Assistant to the National Secretary,
National Secretariat,
People’s Democratic Party, Abuja.
Sir,
DEMAND FOR REPAYMENT OF THE SUM OF N1,000.000.00
We are counsel to MR. SAM AZUBU1KE of No. 8B Saka Tinubu Street Victoria Island, Lagos on whose behalf we write you this letter. He has informed us that sometime in January 2000 he had requested you to render to him some services in the form of using your office for the revalidation of allocations of some petroleum products being LPFO/HPFO.
In anticipation of the services, you demanded for and he paid into your account in Diamond Bank, the sum of N1,000,000:00 (One Million Naira only) which money you duly received and confirmed that you received. However the anticipated services were never rendered by you to his benefit. It has therefore become necessary that you return the money as the purpose for which the money was paid to you has been woefully and shamefully frustrated.
We do by this letter therefore make unto you a categorical demand that you refund the said sum of N1,000,000.00 (One Million Naira only) within 14 (Fourteen) days of the date of this letter should you fail to refund the money at the close of business on Monday the 26th of February, 2001, we shall immediately commence legal action to recover the money with interest at the rate of 20% p.a. without further communications with you.
Thanks for your early and positive response please.
Yours faithfully,
(SGD)
E. PAT AIGBOGUN & CO.”
The Further and Better affidavit deposed to on behalf of the Plaintiff at page 8 of the record of Appeal is also reproduced as follows:-
“FURTHER AND BETER AFFIDAVIT
I, DAVID ADAKOLE, male, adult, Nigerian citizen of Plot 1110, Awolowo Street, Area 11, Garki, Abuja do hereby depose to this affidavit and state as follows:
1. That I am the Litigation Clerk in the law firm of Messrs. N. A. OBINNA & Co. solicitors to the Plaintiff.
2. That I am conversant with the facts of this case by virtue of my office aforesaid.
3. That I have the consent of both my employers and that of the Plaintiff to depose to this affidavit
4. That I have been informed by Mr. Sam Azubuike, the Plaintiff this day in our office, information I verily believe to be true and correct as follows:
a. That he is the Managing Director of Strategic Oil and Gas Ltd., with its head office address at No. 8 Saka Tinubu Victoria Island, Lagos.
b. That the said company deals mainly on oil and gas products.
c. That the N1,000,000:00 (One Million Naira) demanded and received by the defendant was to enable him use his office to facilitate the re-validation of an allocation order from NNPC
d. That it was not a gift of any sought that the defendant is not his father, uncle, friend or any blood relation of his (the plaintiff) to part with, such large sum of money of N1,000,000:00 (One Million Naira) as gift.
e. That he (the plaintiff) never collected any form of out of pocket expenses whatsoever from the defendant or from any body at all. (That he will be grateful if the defendant can furnish the details).
f. That he never stayed in Bolingo Hotel and towers at the expense of the defendant, as he the plaintiff, without being immodest is a man of means who can pay his bills, and had been in oil business for a long time.
g. That he has never been locked out of any Hotel before nor ever been detained in Wuse police stations, talkless of bail; and nobody including the defendant has ever paid one kobo in defrayment of my Hotel bill or any other bill for that mater on his (the plaintiffs) behalf.
h. That he (the plaintiff) still maintains that the defendant has no defence to this suit
5. That I depose to this affidavit in goodfaith believing same to be true and in accordance with the Oath’s Act 1990.”
In support of his notice of intention to defend, the defendant filed an affidavit of 6 paragraphs on pages 14-17 of the record of Appeal and same has been reproduced thus:-
“AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE
I, Emmanuel Mgor, male, Christian, Nigerian, Law clerk residing at plot 254 Asokoro District Abuja do make oath and state as follows:-
1. That I am a litigation clerk in the chambers of Karina Tunyan & Co. plot 589 Blantyre Street, Wuse 11, Abuja, solicitors to the defendant.
2. That by virtue of my position, I am conversant with the facts of this case.
3. That I have the consent of both my employer and that of the defendant in this suit to depose to this affidavit.
4. That I have been informed by Mr. Pat Agbachi, the defendant, in our chambers and I verily believe him to be true as follows:-
a. The defendant in this suit had variously acted as the Private Secretary to Dr. Okwesitieze Nwodo when the latter was the Governor of Enugu State between 1991 and 1993 and also Special Assistant to the said Dr. Okwesiilieze Nwodo who was the National Secretary to PDP between 1998 and 2002.
b. At all the times between 1991 and 2002, the plaintiff had remained an acquaintance of the defendant who always sought for one assistance or the otherfrom the said Dr. Nwodo.
c. Sometimes in January 2000, the plaintiff sought the assistance of the National Secretary of PDP to have him introduced to the management of NNPC for the purpose of having his previous allocation order from NNPC revalidated.
d. It was always the responsibility of the defendant as the Special Assistant to the National Secretary to draft such letters on behalf of his boss in favour of any person.
e. On the instruction of the National Secretary the defendant had written several letters of that nature including the one in favour of the plaintiff in this suit.
f. Because of the several trips which the plaintiff was making between Lagos and Abuja in the course of his discussion with the management of NNPC, the plaintiff at a point could no longer foot his hotel bills and had to stay at Bolingo Hotels and Towers at the expense of the defendant as a measure of the relationship that existed between the plaintiff and the defendant.
g. At some other times the plaintiff had collected various sum of money totaling about N450,000.00from the defendant for the plaintiffs out of pocket expenses which the plaintiff had always promised to pay back any time he had money to do so.
h. At a point the cost of lodging at Bolingo Hotels and Towers became too high for the defendant to bear, causing the plaintiff to move over to a cheaper accommodation at CONTOMA Guest House Wuse Zone 2.
(i) The N1M. Diamond Bank pay-in-slip in favour of the defendant is not in consideration of any contract or agreement to revalidate any allocation order by NNPC or any other organization since the defendant was in no position to do so, but a mere gift in appreciation of the past kindness shown to the plaintiff by the defendant.
j. The plaintiff even made a further promise to the defendant that any time his order was revalidated, that he would give him the sum of N3M, irrespective of the One Million Naira gift previously made to him to enable him rent a house.
k. When the plaintiff could not pay up his bills at Kantonma Guest House, he was locked out of the Hotel by the Hotel management and detained at Wuse Police Station until the defendant was contacted who then came and defrayed the Hotel expenses totaling about N2000,000:00 and also arranged for his bailfrom the police station.
I. When the defendant got an accommodation, he informed the plaintiff who assisted him by paying the two years rent of N1M.”
m. The defendant never entered into any agreement or contract to use the defendant’s office to revalidate any petroleum product allocation order with the plaintiff or any other person(s) since the defendant had no such powers.
n. The plaintiff had an occasion to visit the NNPC in company of the defendant’s boss whereupon they were informed that orders previously made under the military regime would not be revalidated and that the current policy of the NNPC was to deal with corporate bodies on term contracts with the NNPC.
o. The defendant never received any demand notice from the plaintiff or his agent or representative and were surprised to be issued with the unit in Suit No. FCT/HC/CV/956/002 and the accompanying Court order placing same on the ‘Undefended list*.
p . The defendant has a defence to the claim of the plaintiff.
q. The defendant hereby urges this honourable court to return the suit to the General Cause list.
5. That it will be in the interest of justice that the reliefs sought by the plaintiff are not granted.
6. That I swear to this affidavit in goodfaith believing same to be true and in accordance with the Oath Act, 1990.”
In this Judgment the Defendant will hereinafter be referred to as the Appellant while the Plaintiff will be referred to as the Respondent.
Parties exchanged their briefs of argument. The Appellant’s brief of argument dated 11th August, 2004 was filed on 29th March, 2005. In his brief of argument the Appellant distilled from the four grounds of appeal four issues for determination as follows:-
“i. Whether the trial Court was right in assuming jurisdiction to hear and conclude the matter when the proper and necessary parties were not before the Court.
ii. Whether the Affidavit filed by the appellant in support of the Notice of intention to Defend disclosed a defence or raised issues for trial between the Appellant and the Respondent to justify letting in the Appellant to Defend.
iii. Whether it was proper for the learned trial judge to have entered judgment under the Undefended list in favour of the Respondent when the Respondent filed a Further and Better Affidavit in response to the depositions in the Appellant’s Affidavit accompanying the Notice of Intention w Defend.
iv. Whether the learned trial Judge was right to have without any evidence of nexus or connection whatsoever, concluded that the money which the Respondent gave to the Appellant was money demanded as consideration by the Appellant for facilitating a revalidation of the Respondent’s allocation order with N.N.P.C. by the Appellant and since that could not be carried out by the Appellant, the value for the consideration has failed and the Respondent is entitled to a refund.”
The Respondent’s brief of argument dated 4th May, 2005 was filed on the same date. In the said brief of argument the Respondent formulated two issues for determination as follows:-
“1. Whether the proper and necessary parties were not before the learned trial Court for the trial Court to assume jurisdiction vide the evidence before the court.
2. Whether the Appellant’s Notice of Intention to defend discloses any defence on the merit to warrant a transfer to the General Cause list, under Order 23 of the High Court (Civil Procedure) Rules of the Federal Capital Territory, Abuja.”
The Respondent’s brief of argument also contains a Notice of Preliminary objection which reads thus:-
“NOTICE OF PRELIMINARY OBJECTION.
TAKE NOTICE that the Respondent shall at the hearing of the Appeal, raise preliminary objection to the competence of the Appeal herein:
(1) An order of Court striking out the amended Notice of Appeal herein for being incompetent.
ALTERNATIVELY
(2) An order of Court striking out the Appellant’s brief for being incompetent.”
The purpose of Preliminary objection to an appeal is to contend that the appeal is incompetent or fundamentally defective and should be terminated. It is for this reason that it is prudent where a Respondent raises a Preliminary objection in his brief of argument, the objection must be considered first before any further step is taken in the appeal. See Adetoro v. Ogo Oluwa Kitau Trading Co. Ltd (2002) 9 NWLR Pt. 771 page 157.
If the objection is sustained the appeal would be terminated. See N.E.P.A. v. Ango (2001) 15 NWLR Pt. 737 page 627 at 646.
A Respondent, intending to rely on Preliminary objection to the hearing of the appeal is required to file the notice disclosing the grounds of the objection and to give the Appellant three clear days notice before the hearing. Even though notice of Preliminary objection should be by way of Motion on Notice, the notice of Preliminary objection can be incorporated in the Respondent’s brief. Where notice of preliminary objection is incorporated in the Respondent’s brief, leave of the court to move the notice of objection must be obtained before the oral hearing of the appeal commences, otherwise it would be deemed to have been waived and abandoned. See:
Nsirim v. Nsirim (1990) 3 NWLR Pt. 138 page 285;
Oforkir v. Madike (2003) 16 WRN 1;
Ohenhen v. Uhumuavbi (1995) 6 NWLR Pt. 401 page 303.
When a Respondent incorporates his notice of Preliminary objection in his Respondent’s brief it may be appropriate for the Appellant to respond to it in his reply brief. See Egbunike v. A.C.B. Ltd. (1995) 2 NWLR Pt. 375 page 34. Where facts are involved, the Appellant may file a separate Counter-affidavit in response. Where the objection is on point of law an Appellant may reply to the objection during oral argument.
However, where a notice of Preliminary objection was filed by a Respondent who raised his objection and argued it in his brief of argument and the Appellant in his reply brief, reacted to the points so raised, that will satisfy requirement of giving notice of Preliminary objection to the Appellant, provided the Appellant is neither misled nor denied the opportunity to respond to the objection. Order 10 rule 1 of the Court of Appeal Rules 2007 provides as follows:-
“A respondent intending to rely upon a Preliminary objection to the hearing of the Appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.”
In the instant case there is nothing on the record of the Court to indicate that the notice required under Order 10 rule 1 of the Court of Appeal Rules 2007 was filed. The learned Counsel for the Respondent said nothing about the Notice of Preliminary objection during his oral address. The Appellant neither filed a reply brief to Respondent’s Preliminary objection, nor did his Counsel make any statement in his oral submission on behalf of the Appellant in response to the Preliminary objection.
Since the Respondent has not complied with the provisions of Order 10 rule 1 of the Court of Appeal Rule 2007, then the alleged notice of Preliminary objection canvassed in the Respondent’s brief cannot be taken. The notice of Preliminary objection is therefore incompetent and is discountenanced by this Court.
I have carefully perused the issues as formulated by the respective parties for the determination of this Appeal. Out of the four issues formulated by the Appellant, I find that issues 1 and 2 are similar to the two issues presented by the Respondent for the determination of the Appeal. I will however restructure the issues presented by the Appellant for the purpose of just and effective determination of this Appeal. Issue 4 will be subsumed by issue 1 while issue 3 will collapse into issue 2. I am of the opinion that issues 1 and 2 of the Appellant as now restructured are capable of resolving the issues in dispute in this Appeal. I adopt same for the determination of this Appeal.
ISSUE 1
‘Whether the trial Court was right in assuming jurisdiction to hear and conclude the matter when the proper and necessary parties were not before the Court.”
Learned Counsel for the Appellant submitted that the trial Court was wrong to assume jurisdiction and conclude the case when the proper and necessary parties for full and valid determination of the case were not parties to the suit. He argued that for a proper determination of the issues involved the necessary party must be included. He referred the Court to the cases of:
Benson Akintola Sunmonu Ige & Ors v. Babajide Akinwunmi Farinde & Ors (1994) 7 NWLR Pt. 354 page 42;
Obilaso Anabarinye & Ors. v. Nelson Nwakaihe (1979) 1 NWLRL Pt. 481 page 378;.
Uku v. Okumagba (1974) 3 SC. 35.
He argued that though in the present case money was paid by the Respondent into the Appellant’s account, it is not possible to effectively determine and unequivocally conclude that the said money was paid by the Respondent for purpose of the revalidation of allocation order made to the Respondent’s Company and which company name the trial Court did not get to know.
Learned Counsel contended that it is only the company in whose name and for whose benefit the revalidation of allocation order is sought that can effectively depose to the fact that the revalidation was not made.
Learned Counsel submitted that the ideal party to sue, should be the company, and that if the company was not instituting the action on its own, at least it should have been joined as a party.
He maintained that since the proper and necessary parties were not joined as parties to the suit, a vital condition precedent to the exercise of jurisdiction by the Court was not met. He argued that the Court was therefore wrong to have assumed jurisdiction in the matter. He referred the Court to the cases of:
Madukolu v. Nkemdilim (1962) 1 All NLR Pt. 4 page 587 or (2001) 46 WRN 1;
Ebuka v. Esedebe (2003) 17 WRN 137 at 144;
Olawuyi v. Adeyemi (1999) 4 NWLR Pt. 147 page 746.
Learned Counsel for the Appellant submitted that there is nowhere on the face of both the Writ of summons, the affidavit accompanying the writ of summons and the Further and Better affidavit where the learned trial Judge saw the following :-
“1. That the Appellant demanded the sum of N1M. from the Respondent as consideration for facilitating the revalidation of the allocation order given to the Respondent Company by NNPC.
2. That the N1m. paid into the account of the Appellant by the Respondent is not for any other purpose but for the very reason deposed to in the Respondents affidavit – i.e. as consideration for facilitating the revalidation of the allocation order made to the Respondents Company – which the Appellant had vehemently denied.”
He submitted that there is no nexus or connection whatsoever between the deposition in the Respondent’s affidavit (para. 4c) and the payment of the N1M into the account of the Appellant as the Respondent sought to establish using Exhibits A and B to warrant the learned trial Judge conclude that the only reason why the money was paid into the account of the Appellant was because the Appellant so demanded and the Respondent complied. The only possible nexus or connection remains the depositions of the Respondent in the affidavit, and the Appellant has denied this.
Learned Counsel contended that in the absence of that nexus, the learned trial Judge was wrong to have come to the conclusion it did, and automatically shut out the door against the Appellant from establishing his defence.
Learned Counsel contended that since there was no connection whatsoever between the money paid into the account of the Appellant and the deposition in the affidavit of the Respondent accompanying the Writ of summons. The learned trial Judge he argued resorted to extraneous considerations and evidence as there was nothing substantial before the trial Court to justify the conclusion reached.
Learned Counsel for the Appellant submitted that it was wrong for the learned trial Judge to imput any evidence outside the ones placed before the Court either directly through testimony of witnesses or through affidavit as in the present case. He referred the Court to the case of UBA Plc, v. Mode Nig. Ltd. and Anor. (2001) 13 NWLR Pt. 730 page 335 at 341.
Learned Counsel maintained that the matter ought to have been transferred to the General Cause list and that mere deposition in affidavit accompanying a Writ of summons do not automatically entitle a claimant to judgment under the Undefended List Procedure. He referred the Court on this point to the case of UBA Plc, v. Mode Nig. Ltd. and Anor. (supra).
He argued that Exhibiting the Appellant’s Complimentary Card with Appellants Account Number at the back and the pay-in-slip showing payment of N1M. into the said account does not suffice as none of the above action shows:
the demand for payment of N1M by the Appellant as well as the purpose of the payment of N1m. Into the account of the Appellant.
He further argued that since the instruction to pay N1M. into the account of the Appellant and the fact that it was to be consideration for the Appellant to facilitate the revalidation of the allocation order made to the Respondent’s Company is neither manifested nor established. He urged the Court to allow the Appeal on this ground.
In his Response on this first issue learned Counsel N.A. Obinna argued that what constitute proper or a necessary party to an action is dictated by the live issue before the Court for consideration. He maintained that the Plaintiff/Respondent before the Court is Mr. Sam Azubuike and the Defendant/Appellant is Mr. Pat Agbachi. He argued that they are human persons known to law and that the Court has jurisdiction.
Learned Counsel contended that though the Appellant insisted that the Respondent’s Company ought to be joined, he give the name of the Company neither did he state that the company is a legal person known to law. He submitted that a company can be a business name and not a legal person and therefore cannot be joined as a party.
Learned Counsel for the Respondent referred the Court to paragraph 4(i) of the affidavit in support of the Writ of summons on page 7 of the records, which states thus:-
“4(a) that sometimes in January 2000, the Plaintiff requested the defendant to use his office to facilitate the revalidation of an allocation order from NNPC of some petroleum products to the Plaintiffs company.”
Learned Counsel submitted that in law there is no difference between the owner of a business name and his business name.
He argued that even if the Appellant alleged that the name of the Company in question is Strategic Oil and Gas Ltd. (which is not conceded), the Appellant must still go further to establish that the Strategic Oil and Gas is an incorporated Company having a legal personality. He referred the Court to the case of Bank of Baroda v. Iyalabani Co. Ltd. (2002) 13 NWLR Pt. 185 page 551. Learned Counsel contended that the essence of joinder of a party is to be bound by the outcome of the proceedings. He cited the case of Udo v. S.S.N.C. (2001) 14 NWLR Pt. 732 page 116 at 162.
He argued that misjoinder or nonjoinder does not disturb the jurisdiction of the Court to entertain a matter. He referred the Court to the cases of:
Udo v. S.S.N.C. (supra) at page 162;
In re: Leonard Okoye & ors. v. Nigeria Construction and Furniture Co. & Sons Ltd. (1991) 6 NWLR Pt. 199 page 501;
Union Beverages v. Pepsi Cola (1994) 2 SCNJ 157 at 176.
Learned Counsel maintained that the claim before the Court is for money had and recorded for a failed consideration and not a claim for declaration. He urged the Court to dismiss the issue for lack of merit. It is not in dispute that the parties before the trial Court were Mr. Sam Azubuike the Plaintiff and Mr. Pat Agbachi as the Defendant. The parties are natural persons, known to law. The claim of the Plaintiff/Respondent at the lower Court is for money had and received to which no consideration was given. The Plaintiff at the lower Court to buttress this fact exhibited the deposit slip of payment as Exhibit B to his affidavit in support of the claim under the Undefended list.
The said Exhibit B is on page 4 of the Record of Appeal. It is a Current Account Deposit Slip for diamond Bank Limited dated 10/1/2000 in which the sum of N1,000,000 was lodged into the account of Patrick Agbachi No. 0130400377006 and the name of the Depositor is Sam Azubuike. The transaction was processed at Diamond Bank Ltd. Victoria Island Branch on 11th January, 2000.
The only reason which could make a person a party to an action is that he should be bound by the outcome of the action. The question to be determined in the action must be such that cannot be effectively and efficiently and completely settled unless such a person is joined.
The Supreme Court said in the case of Leonard Okoye & Ors. v. Nigeria Construction and Furniture Co. Ltd. and Anor. (1991) 6 NWLR Pt. 199 page 501 at 532 Per Akpata J.S.C.:-
“In my view, failure to join a necessary party is an irregularity which does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it”. See also:-
Labiru Ltd. v. Building &Civil Engineering Contractors (1962) 2 SCNLR 118;
Ekpere v. Aforije (1972) 1 All NLR (Pt.1) 220.
In Union Beverages v. Pepsi Cola (1994) 2 SCNJ 157 at 173 the Supreme Court said Per Adio JSC:
“Proceedings will not he a nullity on the ground of lack of competence of the Court or lack of jurisdiction where a plaintiff fails to join a party who ought to have been joined. In suck a case, the Court may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”
(underline mine for emphasis)
Also in Udo v. S.S.N.C. (2001) 14 NWLR Pt. 732 page 116 at 162 the Court said of the effect of nonjoinder Per Edozie JCA thus:-
“An action cannot be defeated on the grounds of non-joinder. It is settled law in all the Courts that where an action has not been properly constituted whether as regards joinder of the cause of action or as to parties, it has been procedurally beneficial and prudent to raise objection to the defect in the action before or at hearing of the Action. See Kalu v. Odili (1992) 5 NWLR Pt. 240 page 130.”
The Appellant had argued that it is only the company in whose name and for whose benefit the revalidation of allocation order is sought that can effectively depose to the fact that the revalidation was not made and that the company is the ideal party to sue.
It is trite that only a person who personally provided consideration can enforce a contract. Where the consideration is provided for the benefit of a third party, that third party cannot himself enforce the agreement. See:
ET & EC Nig. Ltd. v. Nevico Ltd. (2004) 3 NWLR Pt. 860 page 327;
Plateau Investment & Property Dev. Co. Ltd. v. Ebhota (2001) FWLR Pt. 64 page 374;
Makwe v. Nwakor (2001) FWLR Pt. 63 page 1;
ACB Plc, v. Nnodika (1996) 4 NWLR Pt. 443 page 483 at 484;
Union Beverages Ltd. v. Pepsi Cola International Ltd. (1994) 3 NWLR Pt. 330 page 1;
LSDPC v. NL & SF Ltd. (1992) 5 NWLR Pt. 244 page 653;
Ikpeazu v. ACB (1965) NMLR 374.
In the instant case there is no evidence before the Court that the N1,000,000 paid to the Appellant was company money or that it was being paid on behalf of the company. The company never took any active role in the transaction. The transaction was between Sam Azubuike the Respondent and Patrick Agbachi the Appellant. It is my opinion that the company is not a necessary party to be joined or the ideal party to sue in this matter for the refund of the money paid into the Appellant’s Account by the Respondent.
It has also been contended on behalf of the Appellant that there is no nexus between the payment of N1m. to the account of the Appellant and the fact that the N1M was consideration for the Appellant to facilitate the revalidation of allocation order made to the Respondent’s Company.
It can be deduced from Exhibit 3 the complimentary card of the Appellant given to the Respondent containing the Bank account Number of the Appellant is that it is a request or demand that some amount be paid into that account.
In the instant case the sum of N1M. was paid into the said account which has not been denied by the Appellant. The Respondent stated in paragraph 4(a) – (e) the purpose for which the amount was paid and that the Appellant failed to give consideration for the N1m. he received.
A complete failure of consideration in an agreement occurs where one of the contracting parties fails to receive the benefits. Where there is a claim of total failure of consideration, the innocent party is entitled to restitution. See Dantata v. Mohammed (2000) 5 SC 1 at 11.
In the instant case the Appellant having failed to facilitate the invalidation of the job allocation to the Respondent’s company, the Respondent who provided the consideration is competent in filing an action for the recovery of the consideration of N1m. he paid the Appellant.
The defence of the Appellant on paragraph 4(c),(i),(m),(o) and (p) was that it was a gift in respect of the past consideration rendered to the Respondent.
It is trite that a party who induced another party to enter into a contract and has indeed benefited from the contract cannot subsequently deny the validity of that contract. See Okechukwu v. Onuorah (2000) 12 SC Pt II page 104 at 109.
In giving effect to the agreement between parties the Court has a duty not to look at what the parties wrote or said but also at what they did, their conduct or “modus operandi”. See Nwodi v. Anukam (2001) 14 WRN 38 at 39.
The law does not require or insist that an agreement or contract should be in any particular form or according to any particular formalities. It is sufficient that the contract is a simple contract. See Omega Bank Plc, v. QBC Ltd. (2002) 16 NWLR Pt. 794 page 483.
An agreement may be made by word of mouth or partly by word of mouth and partly in writing. See Adesoye Olanlege v. Afo Continental Nig. Ltd. (1996) 7 NWLR Pt. 458 page 29 at 39.
An oral transaction or agreement freely entered into by the parties is binding on the parties thereto and gives rise to an enforceable contract. See: J. E. Osfaevire Ltd. v. Tripoli Motor Ltd. (1997) 5 NWLR Pt. 503 page 1; Omega Bank (Nig.) Plc. v. OBC Ltd. (supra).
In the instant case it can be inferred from the paragraphs of the affidavit mentioned above that the Appellant was in the know of the existence of the job at the NNPC for which the Respondent was seeking for an assistance to push for his company. The fact that there was no written agreement between the Appellant and the Respondent does not go to show that there is no nexus between the payment of N1M. into the Account of the Appellant which he had not denied and the said NNPC Job. The agreement between the Appellant and Respondent though oral is enforceable, consideration having passed from the Respondent to the Appellant.
It is clear from Paragraphs 4(a) , 4(b), 4(c), 4(d), 4(e) of the affidavit in support of the Notice of Intention to Defend at pages 14-17 of the Record of Appeal that there are strong indications that the N1M. paid into the account of the Appellant for which he did not deny receiving was for the purpose of facilitating the revalidation of the job the Respondent was seeking for his Company from the NNPC.
It can also be inferred from the above sub-paragraphs of the affidavit that the Appellant as a Special Assistant to the National Secretary of the PDP between 1998 and 2002 when the cause of action arose was in a position to facilitate the job at NNPC for the Respondent’s company.
The finding of the lower Court on the nexus between the Appellant and the N1m. at page 28 of the record reads:-
“I am more inclined to believe that the story of the plaintiff was the exact relationship between plaintiff and the defendant, the introduction of the word “gift” in the circumstance is only intended to mislead the Court away from the truth of the matter. Paragraph (1) of the defendant counter-affidavit as quoted above is in my view, very eloquent on the intention of the parties, and that is simply put. The money which plaintiff gave the defendant was consideration for securing revalidation of plaintiff’s order with NNPC by defendant and since that could not be carried out by defendant, the value for the consideration has failed and the plaintiffs in my view should be entitled to a refund.”
It is trite that an appellate Court will not interfere with the findings of a trial Court where same are based on credible evidence before it. See: Anode v. Mmeka (2008) 10 NWLR Pt. 1094 page 1 at 19; Fyneface v. Fyneface (2007) 9 NWLR Pt. 1040 page 588; Mwojekwu v. Eiikemi (2005) 5 NWLR Pt. 657 page 402; AVOP Plc, v. A.G. Enugu State (2000) 7 NWLR Ft. 664 page 260.
In the instant case I find the finding of fact of the lower Court not only reasonable and credible but also supported by the depositions filed on behalf of the parties. I will therefore not disturb it but grant it a full endorsement. This first issue is resolved in favour of the Respondent.
ISSUE 2
“Whether the Affidavit filed by the Appellant in support of the Notice of intention to Defend disclosed a defence or raised issues for trial between the Appellant and the Respondent to justify letting in the Appellant to Defend.”
Learned Counsel for the Appellant referred the Court to Order 23 rule 3 of the Civil procedure Rules of the High Court of the Federal Capital Territory Abuja, and submitted that what a Defendant in an Undefended suit is required to do to be allowed to defend the suit is to deliver a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit.
He argued that the duty placed on the Appellant therefore is to file a notice of Intention to defend accompanied by an affidavit disclosing on the merit and not to establish the defence at the stage. He referred the Court to the cases of:
Nigeria Arab Bank Ltd. v. Felly Ikeme Nig. Ltd. & Anor (1995) 4 NWLR Pt. 387 page 100 at 104:
UBA Plc, v. Mode Nig. Ltd. (supra) at 339.
Learned Counsel argued that it is just for the Defendant to show that he has a defence which is worth listening to, not necessarily that it must definitely succeed completely. He referred the Court to the cases of:
University of Nigeria Nsukka v. Orazuruike Trading Co. Nig. Ltd. (1989) 5 NWLR Pt. 119 page 19 at 21:
Jipreze v. Okwonkwo (1987) 3 NWLR Pt. 62 page 737:
Santory Company Ltd. & Anor. v. Abdulmalik Salim Elabed (1998) 12 NWLR Pt. 579 page 538 at 540.
Learned Counsel submitted that the Appellant’s affidavit in support of Notice of Intention to Defend raised many fundamental issues, which could not have been validly resolved any way except in a full trial. Specifically he referred to paragraphs 4a, 4b,4c, 4d, 4e, 4f, 4g, 4h, 4i, 4k, 41, 4m of the affidavit. He submitted that these paragraphs did disclose clearly that the Appellant has a defence which can be established if the matter was heard fully. He cited the cases of:
Willichi Nig. Ltd. v. Mahogany Nig. Ltd. (2001) 50 WRN 121:
University of Nsukka v. Qrazuruike Trading Company Nig. Ltd. (1989) 5 NWLR Pt.119 page 19 at 21.
Learned Counsel for the Appellant submitted that the learned trial Judge was wrong when he held that the Notice of Intention to Defend does not in his view disclose any defence on the merit and that the Plaintiff was entitled to judgment in his claim.
He argued that the decision on whether a defence on the merit has been disclosed to warrant transfer of a suit from the Undefended list to the General cause list is not an arbitrary one, or strictly subjective one, but has to be reached applying definite principles. He cited the cases of:
Nigeria Arab Bank Ltd. v. Felly Ikeme Nig. Ltd. & Anor (supra):
Major Akpang Obi Odu & Anor v. Mrs. Tina Agbor-Henson (2003) 2 NWLR Pt. 804 page 355 at 360-362.
He maintained that Courts have been enjoined to approach the issue more liberally and he referred the Court on this point to the case of Santory Company Ltd. & Anor. v. Abdulmalik Salim Elabed (supra) 538 at 540.
Learned Counsel contended that in the Appellant’s case where the affidavit in support of the notice of intention to defend introduced elements radically opposed and contrary to the depositions in the affidavit accompanying the writ of summons, the trial Court ought to have adopted liberal approach and allowed the Appellant to defend the suit. He referred the Court to the cases of:
Santory Company Ltd. & Anor. v. Abdulmalik Salim Elabed & Anor. (supra);
Willichi Nig. Ltd. v. Mahogany Nig. Ltd. (supra).
Learned Counsel maintained that the filing of further and better affidavit by the Respondent was direct response to the deposition contained in the affidavit accompanying the Notice of Intention to Defend filed by the Appellant. He referred the Court to paragraphs 4c, 4d, 4e, 4f, 4g, 4h of the further and better affidavit.
Learned Counsel submitted that the Undefended list Procedure leaves no room for the filing of Further and Better affidavit in reply to the depositions contained in an affidavit accompanying Notice of Intention to Defend. He argued that resorting to this procedure will convert the entire procedure to trial by affidavit. He referred the Court to the case of Major Akpang Obi Odu & Anor v. Mrs. Tina Agbor-Henson 355 at 363.
He argued that by resorting to that procedure the Appellant had been denied the opportunity of establishing the crux of the defence he raised in his notice of intention to defend, he maintained that if the matter was heard either through Cross-examination of the Respondent whenever he testifies in the witness box to destroy those depositions reduced to further and better affidavit or by Appellant leading evidence to establish the deposition in his own affidavit in support of the notice of Intention to Defend. He cited the case of Willichi Nig. Ltd. v. Mahogany Nig. Ltd. (supra).
Learned Counsel for the Appellant submitted that the trial Judge was wrong in not transferring the suit to the General cause list to give the Appellant the opportunity to Defend. He contended that if there was nothing raised in the affidavit accompanying the Notice of Intention to Defend, the Respondent would not have made copious references to the said deposition in his Further and Better Affidavit, denying the depositions contained therein.
Learned Counsel conceded that Order 23 rule 5 gave the trial Judge the power to call evidence at any stage of the proceedings under the Undefended list, but filing of Further and Better Affidavit cannot be a substitute for calling of evidence through a witness who can be cross-examined by the Appellant. He referred the Court on this point to the cases of:
Willichi Nig. Ltd. v. Mahogany Nig. Ltd. (supra):
Major Akpang Obi Odu & Anor v. Mrs. Tina Agbor-Henson (supra)
He urged the Court to resolve this issue in favour of the Appellant and allow the appeal on this ground.
In his response to the argument canvassed on behalf of the Appellant, learned Counsel for the Respondent submitted that it is now settled law that a defendant who does not have a defence to the liquidated claim of the plaintiff should not be allowed to dribble and frustrate the plaintiff from the seat of judgment he deserves. The Court was referred to the cases of:
U.T.C. v. Pamotei (1989) 2 NWLR Pt. 103 page 244:
Nishizawa v. Jethwani (1984) 12 SC 234:
Ben Thomas Hotel Ltd. v. Sebi Furniture Co. Ltd. (1989) 12 SCNJ 171.
He contended that the defendant is obliged to disclose a defence and not a sham defence which is speculative and fishy. Learned Counsel argued that looking at the Appellant’s Notice of Intention to defend, it cannot be said that it disclosed a defence on the merit. He contended that an averment in an affidavit must not be self contradictory or vague and that a bare averment in an affidavit unsupported by service of the facts is an insufficient disclosure of a defence on the merit. He cited on this point the case of Agro Miller Ltd, v. C.M.B. (1997) 10 NWLR Pt. 525 page 469 at 478-479. He insisted that the Defendant must go on to buttress his allegation of fact in his affidavit with proof/evidence (documentary) to establish his assertion. He argued that it is not a mere atmospheric assertion, which anybody can make and that a Defendant must answer the point of substance of the Plaintiffs claim.
Learned Counsel argued that the affidavit of the Appellant in support of his Notice of Intention to Defend is self-contradictory while paragraph 4(f) of the affidavit of the Notice of Intention to Defend alleged to the effect that the Respondent could not pay his Hotel bill at Bolingo Hotel, hence the Appellant paid on his behalf. Paragraph 4(h) of the same affidavit contradicted itself when he said that when the Respondent could not pay the Bolingo Hotel bill, the Respondent moved to a cheaper Hotel – Kontoma Guest House Wuse, Zone 2.
Learned Counsel for the Respondent argued that another contradiction can be seen in paragraph 4(k) and 4(j) of the same Notice of Intention to Defend of the Appellant while paragraph 4(k) alleged that the Respondent could not pay his hotel bill in Kontoma Guest House, the Respondent was locked out by the Hotel and detained at Wuse Police Station until the Appellant came and paid “about N200,000” yet it is the same Respondent that was content according to the Appellant to make a gift of N1 Million to the Appellant with a promise of additional N3 million, when his order is revalidated. He referred the Court to paragraph 4(j) at page 16 of the records of Appeal.
N.A. Obinna Esq. learned Counsel for the Respondent contended that a cool and calm reading of paragraph 4(a),(b), (c), (d), (e), (1), (j), (n) of the affidavit in support of the Notice of Intention to defend of the Appellant, will reveal that the Appellant admitted the claim of the Respondent and that in these paragraphs, the Appellant is not feigning ignorance of the existence of a job order from NNPC, neither is the Appellant saying he did not receive the sum of N1 million from the Respondent. In the said paragraph 4(n) the Appellant gave reasons why the job order was not revalidated by the NNPC. Learned Counsel maintained that the excuse of the Appellant that he was in no position to push for the revalidation of the job order from NNPC is being economical with his truth. Learned Counsel referred to the case of Nwakwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR Pt. 749 page 513 at 542.
Learned Counsel argued that such admission negates the transfer of the matter to the general cause list. He maintained that mere filing of a further and better affidavit by the Plaintiff does not show that there is a triable issue.
Learned Counsel argued that where a defendant states in his affidavit in support of his Notice of Intention to defend, that the Plaintiff is not an incorporated company and therefore lacked the legal capacity to commence an action, and the plaintiff filed a further and better affidavit exhibiting a Certified True Copy of its Certificate of Incorporation from Corporate Affairs Commission to show due incorporation, should not be a reason to transfer the matter to the General cause list. He referred the Court to the case of Attorney-General Ondo State v. Attorney-General Ekiti State (2001) 17 NWLR Pt. 743 page 706.
Learned Counsel maintained that the Appellant deposed in his affidavit to the effect that the Respondent is a man of straw who could not amongst others, even pay his hotel bills, it therefore behoves on the Respondent to respond to these new allegations.
Learned Counsel contended that the Appellant is at liberty to file further Counter-affidavit if he likes, to controvert the Respondent’s further affidavit. He submitted that the Further and Better affidavit is principally or first and foremost an affidavit, and that it is within the rubric of affidavit envisaged by Order 23 rule 1 of the High Court (Civil Procedure) Rule of the Federal Capital Territory, Abuja.
Learned Counsel insisted that the Appellant was blowing hot and cold at the same time while in his brief at pages 15-16 he argued that Undefended list procedure do not admit further and better affidavit in reply to the depositions contained in the affidavit in support of the Notice of Intention to Defend, and that that shows that there is a triable issue, the Appellant in his Notice of Appeal initiating this Appeal has in the Particular II of ground 2 stated thus:-
“The judge failed to consider the Further and Better affidavit filed by the plaintiff dated 28th of February 2003, which revealed that the allocation order from NNPC was in the name Strategic Oil & Gas Ltd. not the plaintiff.”
Learned Counsel posed the question that if the Appellant alleged that the Honourable trial Judge did not give attention or meaning to the further and better affidavit filed by the Respondent, then why should the matter be transferred to the General cause list simply because the Respondent merely filed a further and better affidavit which was not considered?
N.A. Obinna argued that it is not true that it is only when a matter is transferred to the General cause list that justice is said to be done. He maintained that after all matters from the general cause list also go on Appeal and the Appeal Courts in their wisdom may affirm or set aside those judgments.
In deciding whether triable issue has been raised or not, what must be examined, by the Court is only the averments in the Defendant’s affidavit in support of the intention to defend. See
Udemba v. Morecafa Finance Nig. Ltd. (2002) FWLR Pt. 85 page 317.
To constitute a triable issue the affidavit in support of the notice of Intention to defend must set out a defence on the merit, not a sham intended to delay and frustrate justice. See:
Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR Pt. 144 page 283;
Agro Millers Ltd. v. CMB (1997) 10 NWLR Pt. 525 page 469;
Nwankwo v. Ecumenical Dev. Co. Society (2002) 1 NWLR Pt. 749 page 513 at 539.
The affidavit in support of the notice of Intention to defend is said to raise a triable issue where from the facts deposed the Plaintiff will be required to explain certain matters with regard to the claim or where the affidavit throws doubt on the Plaintiffs claim. See UBA Plc, v. Mode Nig. Ltd. (2002) FWLR Pt. 112 page 147.
In the instant case it has been argued on behalf of the Appellant that paragraphs 4(a),(b), (c), (d), (e), (f), (g), (h). (i) (k), (l) and (m), of the affidavit in support of the Notice of Intention to defend disclose that the Appellant has a defence. I have earlier reproduced the said paragraphs in this Judgment. I find nothing in those paragraphs sufficient to warrant inviting the Respondent to make an explanation on any matter with regard to his claim. The said paragraph deposed to by the Appellant in support of his Notice of Intention to Defend have not cast any doubt in the mind of the Court as to the genuineness of the Respondent’s claim.
The Appellant had admitted receiving the One Million Naira which he claimed was a gift to him by the Respondent for the past services he rendered to the Respondent. However the Respondent had insisted that the One Million Naira paid into the current account of the Appellant at Diamond Bank Plc. is a consideration to facilitate getting the NNPC to revalidate the job allocated to the Respondent’s Company and since the consideration has failed the Respondent wrote a letter of demand for the Refund of the money. Since no consideration has been offered by the Appellant for the money paid into his account by the Respondent, the Appellant is under a legal obligation to refund the said One Million Naira to the Respondent. The claim by the Appellant that the amount is a gift or an assistance for the payment of his two year rent made to him by the Respondent is a sham defence intended to delay and frustrate the Respondent from receiving justice.
It is trite that where facts in respect of anything deposed to in a counter-affidavit or further counter- affidavit are not met or addressed by the other party in a further and or better affidavit, the proper and only conclusion to reach is that the facts stated therein remain unchallenged and uncontroverted. See: A.G. Ondo State v. A.G. Ekiti State (2001) 17 NWLR Pt, 743 page 706 at 749-750;
Uzondu v. Uzondu (1997) 9 NWLR Pt. 521 page 446:
Ajewole v. Adetimo (1996) 2 NWLR Pt. 431 page 319:
Agwuneme v. Eze (1990) 3 NWLR Pt. 137 page 242.
In the instant case the Appellant deposed in his affidavit in support of his Notice of Intention to defend that the Respondent could not amongst others, even pay his hotel bills, which tends to infer that the Respondent is a man of straw. The Respondent in my opinion has a duty to respond to these new allegations.
The Appellant is at liberty to file further counter-affidavit to controvert the Respondent’s further affidavit if he deems it necessary or desirable.
I agree with the submission of learned Counsel for the Respondent that a further and better affidavit is principally or first and foremost an affidavit and that is within the fabric of affidavit envisaged by Order 23 rule 1 of the High Court (Civil Procedure) Rules of the Federal Capital Territory Abuja.
It follows therefore that in a suit under the Undefended list procedure where the Plaintiff failed to file a further affidavit to dispute the averment contained in the Affidavit in support of Notice of Intention to defend the action filed by the Defendant, the inference will be that such an averment was true and must be accepted by the Court. See:
Job Charles Nig. Ltd. v. Okonkwo (2002) FWLR Pt. 117 page 1067;
Inkar Nig. Ltd, v. Adegboye (1985) 2 NWLR Pt. 8 page 453:
Omoregbe v. Lawani (1980) 3-4 SC 108:
Alagbe v. Abimbola (1976) 2 SC 95:
Ajao v. Ashiru (1973) 11 SC 23.
It is my opinion also that whether or not further affidavit is required of the Plaintiff to file, may depend on the nature of the averments deposed to in the Defendant’s affidavit in support of the Notice of Intention to defend.
It has been argued on behalf of the Appellant that the learned trial Judge did not give attention or meaning to the further and better affidavit filed by the Respondent. The Appellant also stated in his Notice of Appeal initiating this Appeal in Particular 11 to Ground 2 of the Amended Notice of Appeal page 2 thus:
“The Judge failed to consider the Further and Better affidavit filed by the plaintiff dated 28th of February 2003, which revealed that the allocation order from NNPC was in the name Strategic Oil & Gas Ltd. not the plaintiff”
I have earlier said in this Judgment that Strategic Oil & Gas played no role in the transaction between the Appellant and the Respondent and that even if it has, its non joinder in this suit will have no effect at all on the outcome of the decision of the trial Court, which cannot be a nullity merely on account that a party who in the opinion of the Appellant ought to be joined has not been so joined.
The purpose of joinder of a party is to get him bound by the outcome of the decision of the Court. In the instant case Strategic Oil & Gas has nothing to lose or gain by the order of the lower Court that the Appellant refund money paid to it for failure of consideration.
I have earlier said in this Judgment that nothing has been disclosed by either the Appellant or Respondent to indicate that the money paid from the Appellant is from the coffers of the said Strategic Oil & Gas Company.
In the instant case the Affidavit in support of the Notice of Intention to defend has not disclosed any triable issue to warrant the transfer of the suit to the General Cause list. I am of the opinion that the fact that the Further and Better affidavit filed by the Respondent was not considered is not a reason why the trial Court should transfer the suit to the General Cause list.
It was proper for the trial Judge to have entered judgment under the Undefended list in favour of the Respondent.
This issue is also resolved in favour of the Respondent. The decision of the trial Court delivered on 4/7/2003 is hereby affirmed. I will however not make any order as to costs.
MARY U. PETER-ODILI , J.C.A.: I have had the privilege of reading the draft judgment of my learned brother, Abdu Aboki, JCA whose decision and reasonings I agree with. For emphasis the learned trial judge was right in not accepting the suggestion of joining Strategic Oil & Gas Ltd as plaintiff. This is because the Further and Better Affidavit filed by the Plaintiff was clearly an afterthought and not supported by the facts as evinced by the supporting affidavit to the Undefended List process and even in the affidavit of Defendant’s intention to defend. At the risk of stating the obvious and trite in law, the two main objectives for joining a party to an action are as follows:-
(a) to put an end to litigation and not to have two parallel proceedings in which the same issue is raised leading to different and inconsistent results.
(b) to make the person joined to be bound by the result of the litigation. See Mogaji. Mogaji (1986) 1 NWLR (pt. 19) 759.
Another way of stating it is that a person can be joined, (a) when the justice of the matter demands that the party has to be joined before the case can be properly determined; or (b) where the plaintiff’s case or the defendant’s case in the existing action cannot be effectually and completely determined without the joinder. See Nnaji v. Aneka (1996) 2 NWLR (pt.430) 269 Chinweze v. Masi (1989) 1 NWLR (pt. 97) 254.
The Appellant did not satisfy the court as to thee need to join Strategic Oil & Gas Company, as the dispute between plaintiff and defendant affected them and the Court could and did in fact conclude the determination under the Undefended List procedure completely and effectually. There being nothing I see in the horizon to interfere with the judgment of the Court below, just like my learned brother did, I too dismiss this appeal for lacking in merit and affirm the decision and orders of the Court below.
I make no order as to costs.
JIMI OLUKAYODE BADA, J.C.A: I read before now, the lead Judgment of my learned brother ABDU ABOKI, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
The appeal lacks merit and it is also dismissed by me. I abide by the consequential orders made in the said lead Judgment.
Appearances
Ibrahim Idris with F. E. Iselewa For Appellant
AND
N. A. Obinna For Respondent
