DR. IGNATIUS O. OKPLEWU v. JAMES O. OKPLEWU & ANOR.
(2011)LCN/4522(CA)
In The Court of Appeal of Nigeria
On Monday, the 9th day of May, 2011
CA/C/101/2010
RATIO
DOCUMENTARY/ORAL EVIDENCE: DUTY PLACED ON A CREDITOR WHO CLAIMS A SUM OF MONEY ON THE BASIS OF AN OVERALL DEBIT BALANCE OF A STATEMENT OF ACCOUNT TO ADDUCE BOTH DOCUMENTARY AND ORAL EVIDENCE TO SHOW HOW THE OVERALL DEBIT BALANCE WAS ARRIVED AT
Any creditor who claims a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See HABIB NIGERIA BANK LTD. V. GIFTS UNIQUE NIGERIA LTD. (2004) 15 NWLR (PT.896) 408; YUSUF V. A.C.B. (1986) 1 – 2 SC. 49. PER KUMAI BAYANG AKAAHS, J.C.A.
STATUTORY PROVISION: PROVISION OF ORDER 10 RULES 1 AND 3(1) OF THE CROSS RIVER STATE HIGH COURT (CIVIL PROCEDURE) RULES 2008 AS TO WHEN A CLAIM TO RECOVER A DEBT OR LIQUIDATED MONEY DEMAND SHALL BE PLACED AND REMOVED FROM THE UNDEFENDED LIST
Order 10 Rules 1 and 3(1) of the Cross River State High Court (Civil Procedure) Rules 2008 provides – “10 – (1) Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s brief there is no defence thereto, 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. (3)(1) If the party served with the Writ of Summons and affidavit delivers to the Registrar 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.” PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
DR. IGNATIUS O. OKPLEWU Appellant(s)
AND
1. JAMES O. OKPLEWU
2. JADOPERA NIG. LTD Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): Mr. James Oriba Okplewu is the Managing Director of Jadopera Nigeria Limited, a registered money lender. On 31st January, 2006, 27th June 2008 and 28th July, 2008, the Defendant, Dr. Ignatius Ogabor Okplewu applied for and was granted the following sums of money respectively:
a. N387,000.00 (Three Hundred and Eighty-Seven Thousand Naira)
b. N46,000.00 (Fifty-Six Thousand Naira) and
c. N23,000.00 (Twenty-Three Thousand Naira)
The loans taken on 27th June, 2008 and 24th July, 2008 attracted an interest of 15% while the one given on 31st January, 2006 attracted 10% interest rate. When the loans were due for repayment and the Defendant did not discharge his obligation as agreed the matter was reported to the Divisional Police Station, Ogoja where the Defendant gave an undertaking to liquidate the loans by instalment and paid up to N201,655.00 (Two Hundred and One Thousand, Six Hundred and Fifty-five naira) only leaving a balance of N1,927,370.00 (One Million, Nine Hundred and Twenty-Seven Thousand, Three Hundred and Seventy Naira) yet to be paid. This amount represented the principal sum and interest that accrued as at 27th July, 2009. The claimants took out a Writ of Summons on 16/4/2010 claiming this amount.
The Defendant denied the claim and filed Notice of Intention to Defend the action. In the affidavit in support of his intention to defend, the defendant alleged that except for a single transaction, he sought financial assistance from the 1st Plaintiff who gave him a total of N110,000.00 in August 2007. When he sought another financial assistance in 2008 the 1st Claimant refused to oblige. It was then he collected N40,000.00 but was made to sign an agreement form for N46,000.00 and this the 1st claimant explained represented the principal sum plus the 15% interest chargeable on the loan. He said he had paid the loan he collected and the financial assistance the 1st Claimant gave him but denied ever applying or collecting a loan of N387,000.00 and another N23,000.00.
The learned trial judge considered the Notice of Intention to Defend vis-a-vis the documents attached which supported the application to place the suit in the Undefended List and proceeded to enter judgment for the sum of N1,927,370.00 in favour of the Claimants against the Defendant.
The defendant felt dissatisfied and appealed against the judgment on 27/5/2010 in his Notice of Appeal which contained two grounds of appeal from which he distilled the following issue for determination:
“Whether the right to fair hearing of the appellant was not breached when the trial judge proceeded to deciding the issue between the parties on the face of the apparent conflicts in the affidavits of both parties without calling oral evidence.”
The respondents also formulated a single issue for determination which is:
“Whether the Lower Court was right in entering judgment for the respondents in the light of the affidavit of defence filed by the appellant at the lower court.”
I prefer the issue framed by the respondent because the case was decided based on the Undefended List Procedure. Learned counsel for the appellant conceded to the fact that it is the learned trial judge’s discretion to say whether or not a triable issue has been disclosed in an affidavit in support of the Notice of Intention to Defend. Learned counsel argued that a defendant who has taken due and timely steps to defend must be given opportunity and be allowed to contest the action and must not be deprived of the chances of ventilating his grievances in response to the claim. He said anything to the contrary would amount to being shut out from justice which is tantamount to denial of fair hearing and therefore against the audi alteram partem rule and placed reliance on IBETO METRO TRADE LTD. V. GULF BANK OF NIG. PLC (2008) ALL FWLR (PT.402) 1092 AT 1107 AND KOLO V. TAIBU (2001) 4 NWLR (PT.702) 200. He said the appellant had alleged that his signature was forged and this was a basis for transferring the suit to the general cause list.
For the respondent it was submitted that merely filing an affidavit of defence is not the sole ground upon which a court will transfer an undefended cause list to the general cause list. learned counsel also argued that a mere denial by the appellant that he is owing the Respondents in the light of clear evidence of his indebtedness cannot transmute to a defence on the merit. On the issue of the disputed signature, it is the submission of learned counsel that it is within the power of the trial court to compare disputed document with other documents in order to form an opinion on the signature.
Although the appellant filed a reply, I am unable to decipher what legal issues were raised in the respondent’s brief that needed to be addressed in the reply.
In paragraphs 5, 6, 8, 9 and 14 of the affidavit in support of the Writ of Summons, the 1st Respondent deposed to the following facts:-
“5. That sometimes on the 31st day of January, 2006, 7th June 2008 and 24th July, 2008 and 24th July, 2008, the defendant applied for and was granted a loan of N387,000.00 (Three hundred and Eight-Seven Thousand Naira) N46,000.00 (Forty-Six Thousand Naira) and N23,000.00 (Thirty-Three Thousand naira) respectively by the Defendant with an agreed interest rate of 15%. But the interest rate agreed for the loand granted on 24th July, 2008 was 10%.
6. That the said loan was guaranteed by comrade David O. Okplewu and Okwobu Augustine. Copy of the agreement is attached herewith as Exh. B1, B2 and B3 respectively.
8. That the Defendant had admitted at Divisional Police Station, Ogoja that he is indebted to Claimant. Defendant Statement to the Police is marked Exh. “C”.
9. That the Defendant had undertaken at the Divisional Police Station, Ogoja to be paying his accumulated debt in instalment for which he paid a paltry sum of two hundred and one thousand, six hundred and fifty-five naira (N201,655.00) but has failed, refused and neglected to honour his word by paying the balance of N1,927,370.00 (One Million, Nine hundred and twenty-seven thousand, Three Hundred and Seventy Naira). Copy of the letter evidencing the above fact is attached as Exh. ‘D’.
12. That the principal sum and interest as at 27th July, 2009 is N1,927,370.00 (One Million, Nine Hundred and Twenty-Seven Thousand, Three Hundred and Seventy Naira) which the Defendant has failed and/or refused to pay despite repeated demands.
14. That to the best of my knowledge the defendant has no defence to this action.”
While denying paragraphs 5 to 7 of the affidavit in support, the Defendant deposed to the following facts in paragraphs 3, 4, and 5 of the affidavit in support of his Notice to Defend as follows:-
“3. Paragrpah 5 to 7 of the affidavit in support of the Claimants’ Writ of Summons are blatant and brazen falsehood. The true positions are state below:
a) Early in August 2007, when I had some very pressing personal problems with my son at Zone 6, Calabar, I approached my brother, the 1st Claimant requested for financial assistance of N60,000.00 from him. There was no agreement as it was purely financial assistance from one brother to another.
b) The sum of N60,000.00 was not enough to solve the problem I had, and I informed my younger brother, the 1st Claimant who again in August gave me another financial assistance of N50,000.00 bring the total financial assistance he gave me in August 2007 to N110,000.00.
c) There was no agreement on my repaying him the amount he assisted me with just as he never asked me, this was because I had assisted to see him through school and his small daughter started leaving (sic) with me since when she was 6 months of age and I have been responsible for her education, medical and general upbringing until she is now 13 years old and she is still staying with me.
d) It was under these conditions and a very good relationship with younger brother the 1st Claimant that I sought for the assistance of the 1st Claimant and obtained the sum of N110,000.00 in two instalments in August 2007. I had no dealing with the 2nd claimant.
e) Without the 1st claimant ever demanding from the sum of N110,000.00 he assisted me in August, 2007, I again had some personal financial problems in June, 2008, and I approached my younger brother to help me out but this time he insisted on giving the money to me as a loan.
f) For the first time on the 27th day of June, 2008 I then collected the sum of N40,000 from him which he insisted must be a loan, and I had no option so agreed and so he brought out a form we completed it and the agreed interest was 15%.
g) When he completed the form, he wrote that I had obtained the sum of N46,000.00 from him, and I immediately asked him why, but he explained that he had added the 15% interest of N6,000.00 to the N40,000.00 I collected and that I was to return the sum of N46,000.00 to him. I agreed and I signed the document. Exh. “B2” looks like that document only that it has been seriously mutilated and several things not on the document when we signed it, now added both on the face of the document, the side and behind it, that I know nothing about, which has changed the character of the document form the on (sic) that we endorsed on the 27th June, 2008 hence I am objecting to the validity and genuiness of Exh. ‘B2’ by reasons of the said mutilation and addition.
h) The total money I had collected from the 1st Claimant is the sum of N110,000.00 as brotherly financial assistance and N40,000.00 as a loan making a total of N150,000.00
i) During the course of time family problems ensued between the 1st claimant and David Okplewu on one side and my children on the other side. It led to my son Denis arrested and beaten up, I came to Ogoja and pleaded with the Police that it was a family matter, and our family had been one I cause Denis to be released on bail and I asked for family meeting as the senior brother to settle the matter, but this did not go down well with the 1st Claimant and David Okplewu, who felt that I had taken sides with my children.
j) Shortly after the 1st claimant went to the police and alleged that I was owing him and for the first time he began to insist that I pay him the financial assistance of N110,000.00 he gave me in August 2007.
k) The 1st claimant then calculated his money to be the sum of N110,000.00 plus N40,000.00 making a total of N150,000.00 with interest of N51,000.00 on the loan of N40,000.00 I had obtained.
l) In the interest of family peace I decided to pay the money including the financial assistance of N110,000.00.
m) I have completely repaid the money in 6 instalments commencing from 30th January, 2009 and made a total of N201,000.00 to him in the interest of peace to keep our family together, as shown on the 6 bank tellers or pay in slips attached and marked Exh. ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’ respectively.
n) I neither applied for nor got a loan of N387,000.00 from the claimants on 31/01/2006 or any date at all, just as I did not and never obtain (sic) a loan of N23,000.00 from the claimants on 27/7/2008.
o) Exhibit ‘B1′ is unknown to me and was not signed by me as can be seen from the said Exhibit “B1” attached by the claimants themselves. I had nothing to do with it, as it was not made by me or for me.
p) On the 31st January, 2006 I was very sick and was hospitalized and was voiding urine through abdominal catheter, and could not have been at Ogoja to enter into Exhibit “B1”, indeed, I was still very sick and was preparing for operation on that date, and operated upon on the 2nd day of February 2006 when the situation grew worst and the operation resulted to internal bleeding and I was re-operated upon that same 2nd February, 2006 and so I knew nothing about Exh.’B1’, nor the amount stated thereon. Little wonder it was never signed by me or anybody on my behalf.
q) Exhibit ‘B3’ is unknown to me, and I never collected or signed for the amount stated thereon, my signature was clearly forged on Exhibit ‘B3’ as the claimants realized their mistake in Exh. ‘B1’. The person purported to be my guarantor on the said Exh, ‘B3’ was the same David Okplewu, who along with the 1st Claimant became angry with me when I bailed my son David from the Police cell, locked there by them and I have never used him as a guarantor for anything all my life.
4. I am not owing the claimants. The only money I collected from him was N110,000.00 as brotherly financial assistance in August, 2007 and a loan of N40,000.00 on 27th June, 2008 making a total of N150,000.00 and after a petty family crisis he now insisted that I should pay him even the amount given to me as assistance, and I have accordingly cleared or paid him as shown by Exhibit “A” ‘F’ to this affidavit.
5. Paragraph 9 of the affidavit in support is false and categorically denied. The Police are not a debt recovery agency of the claimants and also it is not one of the functions of the police to recover debts for people. Whatever I did at the police is to keep the family together, since my brother was insisting that the goodwill money he gave me should be repaid with interests. I did not admit directly or indirectly that I was owing the claimants the sum of N1,927,370. We had a discussion and understanding without prejudice to pay the claimants the money I have already paid him. The police were going beyond their scope of authority to attempt to be agent of the claimants to recover his purported debt, and I was detained and only released after Exhibit ‘C’ was extracted from me. I intend to challenge the validity of the Exh. ‘C’ in my intended defence if I am giving the opportunity to defend this action.
9. I have a very good defence to this case as made out above, added with the fact that I intend to raise an objection as to the enforceability of the transactions stated in the fake and forged Exhs. ‘B1’, ‘B2’ and ‘B3’ in view of the fact that the claimants claims (sic) to be a licensed money lender by Exh. ‘A’ & ‘A1’ and this I can do if this Honourable Court grants me leave to defend this matter.”
Before entering judgment on behalf of the plaintiffs, the learned trial judged compared the signature on Exh. ‘B2’ with that on Exh. ‘B3’ and found that the two signatures were similar. Exhibit ‘C’ is the statement made by the appellant under caution on 19/1/2009 at the Divisional Police Station, Ogoja in which he admitted owing the sum of N931,655.00. The learned trial judge did not base his judgment on Exhibit ‘C’ but rather on Exhibit ‘B2’ and ‘B3’. The N46,000.00 and N23,000.00 advanced on 27/6/2008 and 24/7/2008 respectively attracted an interest of 15% and contrary to the averment in paragraph 5 of the affidavit in support that the loan of N387,000.00 attracted an interest rate of 15%, Exh. ‘B1’ showed that the interest on the loan was 10%. Although the appellant admitted signing a loan form of N46,000.00 at an interest rate of 15%, he denied that the calculations shown in Exh. ‘B2’ were there when he appended his signature on Exh. ‘B2’. The calculations contained in Exhibits ‘B2’ and ‘B3’ do not qualify as Statements of Account and even if they do, this not sufficient explanation of debit as to charge the appellant with liability for the overall debit balance shown in the statement of account. Any creditor who claims a sum of money on the basis of the overall debit balance of a statement of account must adduce both documentary and oral evidence to show how the overall debit balance was arrived at. See HABIB NIGERIA BANK LTD. V. GIFTS UNIQUE NIGERIA LTD. (2004) 15 NWLR (PT.896) 408; YUSUF V. A.C.B. (1986) 1 – 2 SC. 49.
Order 10 Rules 1 and 3(1) of the Cross River State High Court (Civil Procedure) Rules 2008 provides –
“10 – (1) Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s brief there is no defence thereto, 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.
(3)(1) If the party served with the Writ of Summons and affidavit delivers to the Registrar 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.”
The appellant as defendant when served with the writ filed a Notice of Intention to defend and copiously denied being indebted to the Claimants/Respondents. He admitted approaching the 1st respondent for financial assistance and the latter obliged by giving him a total of N110,000.00. He stoutly denied ever applying or collecting a loan of N387,200.00. The respondents annexed Exh. ‘B1’ but the appellant denied the claim and the loan for N23,000.00. In the absence of a receipt showing he collected the loan of N387,200.00 which attracted an interest of 10% the learned trial judge in the absence of a receipt showing the collected the loan of N387,20000 which attracted an interest of 10% the learned trial judge in exercising the discretion on whether to let in the appellant to defend the claim, ought to exercise the discretion judicially and judiciously taking into consideration the fact that the appellant denied collecting the money. The only clincher the respondents had were Exhs. ‘C’ and ‘D’ which the appellant wrote at the Divisional Police Officer, Ogoja. As learned counsel for the appellant pointed out in his brief since the appellant alleged his signature was forged in Exh. ‘B2’ coupled with the fact that the Police Force is not vested with power to collect debts and consequently the undertakings in Exhs. ‘C’ and ‘D’ given by the appellant at the Divisional Police station, Ogoja to repay the debt by instalments could not be a basis for entering judgment in favour of the claimants under the Undefended List. The learned trial Judge had a duty to determine whether the money given to the appellant was actually a loan as claimed by the Respondents or it was a gift as stated by the appellant. I am therefore of the firm view that the learned trial Judge ought to have transferred the matter to the General Cause List since the Appellant disclosed in his affidavit a defence on the merit.
In the circumstances I find that there is merit in the appeal and it is hereby allowed. The judgment of the lower court entered in favour of the Respondents on 10/5/2010 is hereby set aside. The suit is remitted to the Cross River State High Court, Ogoja, to be heard by another judge other than Ita, J.
I make no order on costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A: I have read before now, the lead judgment written and delivered by my learned brother, Kumai Bayang Akaahs, JCA. I agree entirely with his reasoning and conclusion reached therein, that the appeal has merit and it should be allowed. Accordingly, the appeal succeeds and it is allowed by me. The decision of the lower court given on 10th May, 2010 in Suit No. HJ/L7/2010 and in favour of the respondent herein is hereby set aside. I abide by the consequential orders made in the said lead judgment inclusive of the order regarding costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had been privileged to read in advance the judgment of my learned brother, Akaahs, JCA. I agree with the reasoning and conclusion therein that the appeal is meritorious. I allow the appeal and abide by the consequential orders including that regarding costs.
Appearances
Mba E. Ukweni with P. A. Akpoke, A. J. Arong and Clarkson OtuFor Appellant
AND
P. I. ObiemFor Respondent
