NICHIM CONSTRUCTION NIGERIA LTD & ANOR v. E.E. OBOMANU
(2010)LCN/4048(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of November, 2010
CA/PH/194M/2007
RATIO
UNDEFENDED LIST PROCEDURE: WHEN CAN IT BE SAID THAT THE DEFENDANT HAS DEFENCE ON MERIT IN THE UNDEFENDED LIST PROCEDURE
What is a defence on merit? The Supreme Court F.M.G. v. SANI (1990) 4 NWLR (Pt.147) page 688 at 713 per Agbaje JSC answer this question citing notes 1413 – 413 Order 14 (L.K) in the Supreme Court Practice 1976 thus: “The defendant rely show cause against the plaintiff’s application…………. On the merits e.g. that he has a good defence to the claim on the merits or that a difficult point of law is involved on a dispute as to the facts which ought to be tried or a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a same side defence.” See also NMCB V. OBI (2010)14 NWLR (Pt. 1213) Page 169. It is not enough for the defendant to merely deny the claim or aver that same payments he made were not taken into account. He must set out the details and particulars of the defence. See NISHIZAWA V. JETHWARI (2001) 8 WRN 153, and JOHN HOLT CO. (LIVERPOOL) LTD. V. FAJEMIROKUN (1961) ALL NLR (Pt.4) at 492. In coming to the conclusion that defence has been disclosed on the merits, the Rules do not require oral address of the defences on the merits by counsel -See U.B.N. PLC V. EDANKWE (2004) 34 W.RN.50 at 75. PER T.O AWOTOYE, J.C.A.
INTERPRETATION OF STATUTE: THE INTERPRETATION OF ORDER 11 RULE 8-12 OF THE HIGH COURT OF RIVERS STATE (CIVIL PROCEDURE) RULES AS IT RELATES TO FILING A NOTICE OF INTENTION TO DEFEND ACTION BROUGHT UNDER THE UNDEFENDED LIST PROCEDURE
There is need to stress that Order 11 Rule 8-12 of the High Court of Rivers State (Civil Procedure) Rules does not provide for the filing of counter claim. All that is required from the defendant is a notice of intention to defend supported by affidavit disclosing defence on merits. Filing of counter claim presupposes that a statement of claim has already been filed. It is a response to a statement of claim filed. See Order 17 Rules 6-8 of the High Court Rivers State Civil Procedure Rules. Describing a defence as counter claim does not therefore necessitate its consideration as a counter claim by the court but as part of the defence of the defendant as disclosed in the defendant’s affidavit in support of notice of intention to defend. In S/C280/2002 NKWO MARKET COMMUNITY BANK NIG. LTD. V. OBI delivered on 30/4/2010 by the Supreme Court, Muntaka-Coomassie JSC said in his leading judgment thus: “It must also be stressed that in an action brought under the undefended list procedure the court is required to consider only the evidence contained in the affidavit filed by the defendant support of the Notice of Intention to Defend the suit.” A defendant who has no real defence to the action should not be allowed to dribble and frustrate the Plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See OKOL V. MORECAB FINANCE (NIG.) LTD (2007) ALL FWLR (Pt. 369) 1164 at 1181; See also G.M.O. NWOMH & SONA LTD VS AKPUTA (2010) 20 WRN.I. PER T.O AWOTOYE, J.C.A.
JUSTICES
MUSA DATTIJJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANU THOMAS Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. NICHIM CONSTRUCTION NIGERIA LTD
2. HON. N.J. IDEMETO Appellant(s)
AND
E.E. OBOMANU (Trading under the name and style of TAMUNO-ALA & ASSOCIATES) Respondent(s)
T.O AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Rivers State High court delivered on 11/12/2006. The Plaintiff in the trial court had filed an action claiming.
“1) N4,000,000 (Four Million Naira) only being and representing professional fees due and payable to the plaintiff vide the CONTINENTAL TRUST BANK LTD cheque issued to the plaintiff by the defendants.
2) 21% interest from December 2005 till judgment and thereafter 20% until liquidation.
3) N500,000 (Five Hundred Thousand Naira) only being and representing legal charges paid and or incurred by the plaintiff in the recovery of the above sum.”
The plaintiff sought and obtained leave to have the matter placed on the undefended list and that the Writ of Summon be marked accordingly on 6/11/2006.
By paragraph 1 – 9 of the affidavit in support of the motion for leave to defend the plaintiff deposed as follows:-
“1. That I am a legal practitioner managing the law firm of Tamuno-Ala Associates of 79 Ikwere Road Port Harcourt and by virtue of my position aforesaid I am very conversant with facts of this case.
2. That by a letter dated the 15th day of February 2003 I was engaged by the defendant jointly and severally to file a suit for the recovery of the sum of N414,654,868.00 being debt owed the defendants; by the Niger Delta Development Commission hereafter referred to as NDDC.
3. That consequent upon that instruction suit No. NHC/11/03 was filed and we proceeded from 24th day of February 2003 and following protracted legal argument and objection the matter was slated for judgment on the 10th December, 2003.
4. The court judgment was delivered in January 2004 to the effect that the plaintiff should give evidence as to the disparity in figure and the defendant to show further proof of their objection as to whether the job has not been completed.
5. That following the ruling of the court in a preliminary objection the Defendant (NDDC) in the suit went on appeal in Appeal No CA/PH/172M/2003, we defended the appeal and same was struck out in favour of the Defendants/Respondents in this suit based on the same fees as contained in the letter of 15th February 2003 same is hereto attached and marked exhibit A.
6. That when we returned the plaintiffs in the said suit informed me that he purchased this contract subject matter of that suit aforesaid form a Company called MUSHROCK INVESTMENT NIGERIA LIMITED and same was joined with the 1st defendant as co-plaintiff.
7. That this suit lasted from 24th February 2003 to 19th day of May 2005 and the plaintiff refused to rather give evidence directly or through any agent, or servant but rather instructed me by their letter of 7th October 2004 to discontinue the said suit, the said letter is hereto attached and marked as Exhibit B.
8. That consequent upon this instruction we filed a motion for discontinuance on the 21st day of June 2004 and the suit was accordingly discontinued, the said notice of discontinuance is hereto attached and marked as Exhibit C.
9. That the 2nd defendant acting on behalf of the 1st defendant issued me a CONTINENIAL TRUST BANK CHEQUE FOR THE SUM OF N4,000,000,00 (Four MILLION NAIRA) the same is hereto attached and marked as Exhibit D.”
The defendants were subsequently served. The defendant sought and obtained leave to file notice of intention to defend out of time on 11/12/2006. Their notice of intention to defend was supported by 14 paragraphs affidavit for clarity sake I shall quote paragraph 1 – 13.
‘1. That I am the chairman of NICHIM CONSTRUCTION (NIG) LTD of No 2A Abacha Road, G.R.A Phase 2, Port Harcourt, by virtue of which I am conversant with the facts of this case.
2. That I have the consent and authority of the first defendant to depose to this Affidavit.
3. That paragraph 1 and 2 of the affidavit in support of claim are true.
4. That paragraphs 3 and 4 of the affidavit in support of claim are all falsehoods, as judgment had been delivered in suit No: NHC/11/03 by any court of law.
5. That paragraph 5 of the affidavit in support of claim is true only to the extent that the Court of Appeal struck out the preliminary objection in Appeal No. CA/PH/172M/2003.
6. That paragraph 7 of the affidavit in support of claim is true only to the extent that the defendants instructed the claimant to discontinue the suit No. NHC/11/03 because of the claimant’s attitude and approach to the case, which led to the suit being stalled, not progressing, and causing disaffection, loss of business relationship with NDDC and total to recover the debt owed to the defendant by N.D.D.C. till date, in spite of the fact that the claimant agreed to recover the debt in issue from NDDC within 3 months from the date he was briefed to recover same. The letter we wrote to the claimant on this is hereto exhibited and marked Exhibit A.
7. That paragraphs 9 to 12 of the affidavit in support of claim are false. Furthermore, the CONTINENTAL TRUST BANK CHEQUE of N4,000.00 issued by the defendants in favour of the claimant, was post dated from the date of briefing claimant to 14/12/2005, by which date the claimant had agreed with us that he would have recovered the entire debt owed by N.D.D.C. to the defendants.
The cheque was therefore issued to the claimant as collateral and assurance that fees would be paid, if he recovers the debt owed to us by N.D.D.C. He is yet to recover this debt.
8. That up till this moment of filing this document, the claimant has not recovered any dime or amount out of the debt the N.D.D.C. is owing the defendants.
9. That the claim of the claimant is premature, unmerited and not craned at all because, the payment of the fees of the claimant, as stated in the said cheque above mentioned, is dependent upon the discharge of this duties fully, to recover the debt, which he has failed to totally recover till date.
10. That N.D.D.C. has not paid any money to us to liquidate the debt they are owing us for which the claimant was retained.
11. That clue to the attitude of the claimant, who went to N.D.D.C.’s office at Aba Road, Port Harcourt and sensitized the relevant officers on this debt in issue, in a negative way, the N.D.D.C. has not paid this debt to us till date.
12. That we shall testify orally with witnesses from N.D.D.C. on whether or not the debt has been paid to us.
13. That We hereby this suit counter claim against the claimant to pay us the sum of N5,000,000.00 as damages for the loss we have incurred while we retained him to recover this debt.”
On that same day, Mr. Okpala counsel for the defendant was called upon to address the court as to whether the notice of intention to defend filed disclosed a defence on merit to warrant his being permitted to defend the suit.
Learned counsel for defendant did and judgment was subsequently entered in favour of the plaintiff as the court held that the notice of intention to defend did not disclose any defence on merit.
The defendants being dissatisfied with the said judgment filed a Notice of Appeal containing 4 grounds of appeal.
The parties to the appeal later filed and exchanged their respective briefs of argument which were later adopted.
In the Appellant’s brief of argument counsel formulated three issues for determination as follow:-
“1.Whether the learned trial judge was right in delivering judgment in favour of the Respondent without considering the counter claim of the Appellants in the said suit?
2. Whether the learned trial judge was right in entering judgment in favour of the Respondent against the Appellants in this suit under the undefended list?
3. Whether there is fair hearing of the case of the Appellant by the trial court?
On issue (1) learned counsel submitted that the law was that the substantive claim and the counter claim must be tried together. He cited GENERAL YAKUBU GOWON VS MRS EDITH IKE-OKONGWU & ORS (2003) 104 LRCN 10 at 11. He contended that the trial court failed to consider and pronounce upon the counter claim and this occasioned great miscarriage of justice.
He cited MOBIL PRODUCING NIG. LTD V. CHIEF SIMION MONOHPO & ORS (2004) 115 LRCN 3016 at 3022; SEVEN -UP BOTTLING CO. V. ABIOLA (2001 ) 88 LRCN 2214 at 2220; AFOLARIN ADENLE V. FOLARIN OLUDE (2002) 102 LRCN 1988 at 1989. He urged the court to resolve issue No. 1 in the negative.
On issue 2 learned counsels submitted that the defendants had shown prime facie defence and learned trial judge ought to have transferred same to the general cause list for trial on merits. He cited ATAGUBA & CO. V. GURA NIG. LTD. (2005) 8 NWLR (part 927) at 429 and FALOBI V. FALOBI (1976) 9-10 SC. 1.
He submitted that the trial judge glassed over the issue of whether the said principal debt had seen recovered.
He urged the court to answer issue No. 2 in the negative and to hold that the learned trial judge was not right in entering judgment in favour of the Respondent.
On issue No. 3 he submitted that:
(i) the learned trial judge did not make any pronouncement one way or the other on the counter claim of the defendants.
(ii) the learned trial judge did not strike out the name of the second defendant/Appellant who was an agent of a disclosed principal.
He cited ATAGUBA & CO. V. GURA NIG. LTD (supra) VOLCAN GASES LTD VS G.I.V. (2001) 5 SC (Part 1) Page 11.
(iii) the learned trial judge did not grant an adjournment to enable counsel for Appellants to prepare his legal argument and present it to the trial court. He cited PRINCE ADETAYO SOSANYE V. ENGINEER ADEBAYO ONEDEHO & 5 ORS (2005) 126 LRCN Page 933 at 941; SOLAMAN OGBOR & ANOTHER v. F.R.N. (2002) 97 LRCN 946 AT 947; OBOMHENSE V. ERHATAN (1993) 7 NWLR (pt. 303) 22 at 45.
He therefore urged the court to answer issue No. 3 in the affirmative.
He finally urged the court to allow the appeal.
The Respondent on the other hand pursuant to the Preliminary objection filed along with the brief raised Preliminary objection to the effect that:
“(1) Grounds; 1, 2 and 3 of the grounds of appeal dated 19th day of December 2006 are incompetent grounds of appeal as they failed to flow from the judgment appealed against.
(2) Issue 1 and 3 are also incompetent being fresh issues without the leave of court and being issues arising from incompetent ground of appeal.”
Learned counsel for the Respondent contended that the following issues were never part of the judgment.
(a) The counter claim, according to Respondent’s counsel was never brought to the knowledge of the learned trial judge.
(b) The issue of bias of the trial judge was not raised.
He urged the court to hold that grounds 1, 2 and 3 were incompetent and accordingly issues 1 and 3 founded on those grounds should be struck out. He cited NDIC V. OHEM LTD (2004) 18 NSCQR 42 at 98 – 99; OMEGA BANK V. OBC LTD (2005) 21 NSSCQR 77 at 798; NWANKWO v. EDCS (2007) page 73 at 88 and 106.
He submitted further that the above issues were fresh issues which could only be raised with leave of court. He cited ONEI v. IAIWI (2005) 22 NSCQR 207, 226 of 230 – 231 OGBA V. ONWOZO (2005) 22 NSCQR 888 at 989 -999 AIC LTD v. NNPC LTD (2005) 22 NSCQR 903 at 920
He urged the court to strike out grounds 1, 2 and 3 of the grounds of appeal and issues 1 and 3 founded thereon.
On the main appeal learned counsel for Respondent formulated one issue for determination to wit:
“Whether the affidavit of the defendant Appellant in support of their notice of intention to defend this suit at the court below disclosed a defence on the merit as prescribed by order 11 Rules 10 (1) and 11 rules of the High Court of Rivers State 2006 to justify an order transferring the suit from the undefended list to the general cause list.”
Learned counsel for the Respondent contended that there was nothing to show that the Appellants drew the attention of the trial court to the alleged counter claim or urged on the court to consider their counter claim. He submitted that this issue should be considered abandoned by the Appellants. He cited EHOLAR V. OSAYANDE (1992) 6 NWLR (Pt.249) 524 at 534; IKPUTU V. IKPUTU (1991) NWLR (pt 193) 571;
BUHARI VS OBASANJO (2003) 16 NSCQR 1 at 39 counsel counter claim was a separate independent action and not merely a defence to the plaintiff’s claim. He cited GOWON V. EDITH (2003) 104 LRCN 10.
He submitted that under order 11 Rule 10(1) of the Rules of the High court of Rivers state the defendant was expected to the file notice of intention to defend and not counter claim.
He submitted that the defence of the defendant was not meritorious. He cited ATAGURA V. GURA (2005)128 LRCN 982 at 1013 THAR v. FCMB (2005) 128 LRCN 14 at 45.
He submitted further that the mere fact that a defendant at the trial court had a counter claim did not necessarily entitled the defendant the leave to defend where he had no real defence. He cited THAR v. FCM, (supra) He submitted that where the parties had agreed to admit by writing under their hands or by the rules of pleading, there was no need for further proof.
He cited IGWE v. ACB Plc (1999) 6 NWLR (Pt. 605) 1 at 11; CARDOSO V. DANIEL (1986) 2 NWLR (Pt. 20 page 1 at 43.
He cited some authorities on what the court required as defence on merits. He cited
(i) BENT THOMAS HOTELS LTD V. SEDI FURNITURE COMPANY LTD (1989) 5 NWLR (pt. 123) 523;
(ii) OKOLI V. MORECAP (supra)
(iii) PLAN WELL V. OGALA (2003) 113 LRCN 2436 at 2442
He submitted that fair hearing had no place under the undefended list once there was non-compliance with the requirement of the rules under which such action was brought. He cited AGUEJE V. PAB PTD (supra) and MMS LTD V. OTEGU 128 LRCR 1497 at 1521 – 1522.
He finally urged the court to resolve the issue in favour of the Respondent and affirm the judgment of the court below, and dismiss the appeal.
I have carefully considered all the submissions of learned counsel as well as various Processes filed.
I shall first consider the preliminary objection of the Respondent which is to the effect that Grounds 1 and 3 of the grounds of appeal are incompetent.
For clarity’s sake I shall quote the grounds of appeal as stated in the Notice of Appeal filed on 15/12/2006 thus.
“3.1. GROUND 1
The learned trial judge erred in law by failing to make: pronouncement on the counter claim of the Appellant in his judgment delivered on the 11th day of December 2006.
PARTICULARS OF ERROR
(a) The learned trial judge in his judgment of December 11th, 2006 had before him, the notice of intention to defend the suit, which contained the counter claim of the defendant/Appellant and Exhibit A.
(b) The learned trial judge failed to make pronouncement or take decision one way or the other, on the said counter claim in his said judgment of 11/12/2006.
3.2 The learned trial judge erred in law by not considering the contents of Exhibit A attached to the defendants/Appellants’ notice of intention to defend, as being the basis to transfer the suit to the general cause list where oral evidence will be called to clarify the assertions made therein.
PARTICULARS OF ERROR
(a) The learned trial judge in his judgment held that Exhibit A attached to the Defendants/Appellants’ notice of intention to defend emanated from .the Appellant but failed to consider the letter of the Claimant/Respondent which is what Exhibit A replied to.
(b) The learned trial judge in his judgment held that the recovery of the money from NDDC was not made a condition precedent to the payment of fee to the Claimant/Respondent, but failed to transfer the suit to the general cause list, where oral evidence will be called to ascertain the true position of the facts of the matter.
3.3 The learned trial judge exhibited serious bias and lack of fair hearing in the entire proceedings and judgment; he (the judge) is from the same community with the Respondent/Applicant.
PARTICULARS OF ERROR
(a) The learned trial judge failed to disqualify himself from hearing the suit in view of the fact that the judge and the Respondent are kinsmen from the same Opobo Community with the Respondent, being a close associate and kinsman of the claimant right from the time of practice of the judge as a legal practitioner and now as a judge, raising serious issue of real likelihood of bias on the part of the trial judge.
(b) A motion for extension of time to defend and notice of intention to defend with counter claim were filed on the same 11/12/06. The learned trial judge refused to grant adjournment upon counsel’s application, to enable the defendant/Applicant time to address the court; but instead the court delivered judgment here and then.
(c) The learned trial judge, during the trial failed to hear and make pronouncement one way or the other on the counter claim…..by the Appellant/Respondent.
3.4: The learned trial judge, with all due respect, erroneously awarded the judgment Sum to the Respondent against the appellants without regard to the fact that the respondent had not concluded the job for which he was retained, and in total disregard to the counter claim of the appellants.
PARTICULARS OF ERROR
(a) The appellants retained the respondent to recover the total debt owed to the appellants by the Niger Delta Development Commission (NDDC), but which the respondent failed to recover till date.
(b) The fees (entered as judgment sum) has not accrued and or become due for payment to the respondent because the debt owed by NDDC to the appellants had not been paid to them because it is from this payment that the said fees would be paid.
(c) In his ruling the learned trial judge failed to consider Exhibit D (a cheque issued without any date in 2003, which the Respondent dated himself in 2006), as a mere assurance that when the Respondent recovers the indebtedness and the Appellants are paid directly, the cheque can then be dated and cashed.
(d) In his ruling the trial judge failed to consider that the issues involved therein require oral evidence and failed to transfer the suit to general cause list.
(e) The learned trial judge failed to strike out the name of the second defendant/appellant who is an agent of a disclosed principal, namely, the first defendant/Appellant that actually issued the cheque in issue.”
Ground 1 of the grounds of appeal attacks the silence of the learned trial judge on the counter claim as put in the Notice of Intention to Defect. The ground state complains of error in law, states the particulars of the errors and is specific. I am unable to see any incompetence in Ground 1 of the appeal. It complies with Order 6 Rules 2 and 3 of the Court of Appeal Rules.
However on Ground 3 of the grounds of appeal I hold that the objection of the Respondent is well taken. Ground 3 complains that the learned trial judge exhibited serious bias and lack of fair hearing. The allegation of the Respondent as per Ground 3 of the Grounds of Appeal is alien to the record of appeal. It does not flow from the record of appeal at all. See METAL CONSTRUCTION W.A. LTD V. MIGLIORE V. RE OGUNDARE (1990) 1 NWLR (Pt. 126) page 299; EGBE V. ALHAJI (1990) 1 NWLR (Pt. 128) 548.This ground is incompetent it is hereby struck out.
See BEREYIN V. GBOBO (1989) 1 NWLR (Pt. 97) 372.
On Ground 2 of the appeal which complains about error in law on the part of the trial judge by not considering the contents of Exhibit A attached to defendant’s Notice of intention to defend. I hold that this ground of appeal relates to the ratio decidendi of the case, is competent and is in compliance with Order 6 Rules 2 and 3 of the Court of Appeal Rules.
Having struck out ground 3 of the ground, of appeal, issue 3 is also accordingly struck out. See IDIKA V. ERISI (1988) 2 NWLR (Pt. 78)
563; ONIFADE v. OLAYIWOLA (1990) 7 NWLR (Pt. 161) 130. See also VICTINO FIXED ODDS LTD V. OJO (2010) 21 WRN 1.
Now to the main appeal.
Issue 1 and (ii) of formulated by the Appellants can be concisely put this way whether the trial court was right in entering judgment for the Plaintiff in spite of the notice of intention to defend and the counter claim therein?
I shall proceed to consider the two issues together in the above light.
Order 11 Rules 8 – 12 of the High Court of Rivers State (Civil Procedure) Rules of 2006 provide for undefended list procedure. Rule 8 – 12 of the Order read thus:-
“8 (1) Where a claimant in respect of a claim to recover a debt or liquidated money demand believe that there is no defence to his claim, he shall make an application to a court for the issue of a writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence.
(2) The court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.
(9) There shall be delivered by the claimant to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
(10)(1) If the party served with the writ of summons and affidavit delivered to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the Court may think just..
(2)Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the claimant shall then comply with Order 3 Rule 2 and the case shall proceed in the normal way.
(11) Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the claimant to prove his case formally.
(12) Nothing herein shall preclude the Court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under Rule 11.”
The plaintiff pursuant to the provision of Rule 8 of Order 16 applied for the issue of a writ of summons in respect of liquidated sum of money and supported it with an affidavit to the effect that there was no defence thereto.
In line with Rule 8(2) of the same Order the Court having been satisfied that there were good grounds for being so entered the suit for hearing in Undefended List.
The defendants filed notice of intention to defend with leave of court out of time with an affidavit disclosing a defence. Did the affidavit filed by the defendant disclose defence on merits as required by Order 16 Rules 10 of the Rules?
What is a defence on merit? The Supreme Court F.M.G. v. SANI (1990) 4 NWLR (Pt.147) page 688 at 713 per Agbaje JSC answer this question citing notes 1413 – 413 Order 14 (L.K) in the Supreme Court Practice 1976 thus:
“The defendant rely show cause against the plaintiff’s application………….
On the merits e.g. that he has a good defence to the claim on the merits or that a difficult point of law is involved on a dispute as to the facts which ought to be tried or a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a same side defence.” See also NMCB V. OBI (2010)14 NWLR (Pt. 1213) Page 169.
It is not enough for the defendant to merely deny the claim or aver that same payments he made were not taken into account. He must set out the details and particulars of the defence. See NISHIZAWA V. JETHWARI (2001) 8 WRN 153, and JOHN HOLT CO. (LIVERPOOL) LTD. V. FAJEMIROKUN (1961) ALL NLR (Pt.4) at 492.
In coming to the conclusion that defence has been disclosed on the merits, the Rules do not require oral address of the defences on the merits by counsel -See U.B.N. PLC V. EDANKWE (2004) 34 W.RN.50 at 75.
I shall proceed to answer the question whether the defendants Notice of Intention to Defend disclosed defence on merits in the above light.
The Plaintiff in his affidavit filed on 19/10/2006 stated that:
(1) He was a legal Practitioner
(2)The defendants engaged him to file a suit for the recovery of N41,4,654,868 for being debt owed them by the Niger Delta Development Commission.
(3) That consequent upon the above suit No NHC/11/03 was filed.
(4)That the suit lasted from 24/2/2003 to 19/5/2003.
(5) That the defendant instructed that the action be discontinued.
(6) That the 2nd defendant………..of 1st defendant issued Continental Trust Bank Cheque for the sum of Four Million Naira which was dishonoured when presented at the bank.
(7)That the defendants wrote Exhibits A and C.
The defendants in their 14 paragraphs affidavit did not deny the above. The defendant averred in paragraph 7 that the cheque issued was collateral. They further averred that the fee was to be paid from the recovered debt owed by NDDC.
It is important to note that the defendants admitted in paragraph 3 of their affidavit that they engaged the plaintiff to file the suit NO. NHC/11/03. They also agreed that they instructed the claimant/Respondent to discontinue the suit.
The defendants did not deny making Exhibits A, B and D attached to the claimant supporting affidavit. The defendant did not allege giving the claimant any other instruction.
I therefore do not have any difficulty in holding that the defence of the defendants as presented in the affidavit supporting their notice of intention to defend lacks merit. It does not disclose defence on merit.
But should the trial judge not have considered the counter claim filed along with the notice of intention to defend?
Learned counsel for the Respondent in his brief of argument posited that the mere fact that a defendant at the court below had a counter claim did not necessarily either the defendant/Appellant to leave to defend in an undefended list proceeding where he had no real defence to the claim. He cited THOR V. FCMB (supra). I agrees with him.
There is need to stress that Order 11 Rule 8-12 of the High Court of Rivers State (Civil Procedure) Rules does not provide for the filing of counter claim. All that is required from the defendant is a notice of intention to defend supported by affidavit disclosing defence on merits.
Filing of counter claim presupposes that a statement of claim has already been filed. It is a response to a statement of claim filed. See Order 17 Rules 6-8 of the High Court Rivers State Civil Procedure Rules.
Describing a defence as counter claim does not therefore necessitate its consideration as a counter claim by the court but as part of the defence of the defendant as disclosed in the defendant’s affidavit in support of notice of intention to defend.
In S/C280/2002 NKWO MARKET COMMUNITY BANK NIG. LTD. V. OBI delivered on 30/4/2010 by the Supreme Court, Muntaka-Coomassie JSC said in his leading judgment thus:
“It must also be stressed that in an action brought under the undefended list procedure the court is required to consider only the evidence contained in the affidavit filed by the defendant support of the Notice of Intention to Defend the suit.”
A defendant who has no real defence to the action should not be allowed to dribble and frustrate the Plaintiff and cheat him out of judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.
See OKOL V. MORECAB FINANCE (NIG.) LTD (2007) ALL FWLR (Pt. 369) 1164 at 1181; See also G.M.O. NWOMH & SONA LTD VS AKPUTA (2010) 20 WRN. I
The defendants gave the claimant instruction to file an action. They issued a cheque of Four Million Naira (post dated) as fees to him. They also instructed him to discontinue the action after the action had been in court for more than a year though a letter reminding him that his fee of Four Million was unaffected. The post dated cheque on maturity was dishonoured hence this action. I see no merit in this appeal I resolve all the issues in favour of the respondent.
This appeal fails in its entirety. It is accordingly dismissed with cost assessed N50,000.00 in favour of the Respondent.
M.D. MUHAMMAD, J.C.A (OFR): Having read before now the lead judgment prepared by my learned brother Awotoye JCA, I agree with his conclusion that the appeal lacks merit.
I dismiss the appeal on the basis of the reasoning advanced in the read judgment and in terms of the consequential orders decreed.
ISTIFANU THOMAS, J.C.A: I have had the privilege of reading in advance, the lead judgment of my learned brother, Awotoye, JCA just delivered. His Lordship resolved all the issues raised for determination and I have nothing more to add. I dismiss the appeal as it has no merit whatsoever.
I abide with consequential orders including costs.
Appearances
E. N. OkpalaFor Appellant
AND
Anthony NwabuezeFor Respondent
