ECO BANK PLC V. HON LUKPATA JOHN UDO
(2012)LCN/5283(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of March, 2012
CA/C/161/2010
RATIO
PROCEDURE: PROCEDURE FOR UNDEFENDED LIST
The procedure known as undefended list is provided for in order 10 Rules 1, 2 and 3 of the High court of cross River state (civil Procedure) Rules 2008. From those Rules the claimant under the Undefended list commences his suit by applying through a motion exparte that a writ of summons be issued for a claim for liquidated money; the application is to be accompanied by affidavit stating that the defendant has no defence to the claim and the grounds for so believing ; where the court is satisfied that the defendant does not have good defence based on the grounds set forth by the claimant, an Order will be made entering the Suit for hearing under the undefended list, and the Writ will be marked accordingly. Upon service of the processes, the defendant who intends to defend the claim will deliver a notice in writing to the registrar that he intends to defend the action, together with an affidavit disclosing a defence on the merit, and the court may give leave to defend on the strength of the affidavit of the defendant where leave to defend is granted, the undefended list proceedings will terminate and the suit is transferred to general cause list for parties to file pleadings, but where leave is refused, the Court delivers judgment without hearing the defendant, See Ekulo Farms Ltd V. U. B. N Plc (2006) All FWLR (Pt. 319) 895. PER ISAIAH OLUFEMI AKEJU, J.C.A
PROCEDURE: ESSENCE OF THE PROCEDURE OF UNDEFENDED LIST
The procedure of undefended list is designed for expeditious disposal of liquidated claims that are not disputed on facts and are not seriously arguable in law thereby rendering it unnecessary to allow a defence that only constitutes a delay tactics or a play to frustrate the claim. See Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt.144)283. PER ISAIAH OLUFEMI AKEJU, J.C.A
WORDS AND PHRASES: DEFINITION OF DEBT
A “debt” is defined as :… a specific sum of money due by agreement or otherwise.” See Black’s Law Dictionary, 8th edition p.432 where the learned authors referred to Benjamin J. Shipman Handbook of common-Law Pleading edited by Henry Winthrop Ballantine, 3rd edition 1923 paragraph 52 page 132 where the learned author wrote that:
“The action of debt lies where a party claims the recovery of a debt; that is, a liquidated or certain sum of money due him. The action is based upon contract, but the contract may be implied, either in fact or in law, as well as express; and it may be either a simple contract or a specialty. The most common instances of its use are for debts: (a) upon unilateral contracts express or implied in fact (b) upon quasi-contractual obligations having the force and effect of simple contracts (c) upon bonds and covenants under seal (d) upon judgment, or obligations of record (e) upon obligations imposed by statute. PER JOSEPH TINE TUR, J.C.A.
WORDS AND PHRASES: MEANING OF A LIQUIDATED AMOUNT OR LIQUIDATED CLAIM
a “liquidated amount” or “liquidated claim, defined by Blacks Law Dictionary supra p.264 and 949 thus:
“1. A claim for on amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties, agreement.
- A claim that was determined in a judicial proceeding – Also termed liquidated demand.” PER JOSEPH TINE TUR, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
ECO BANK PLCAppellant(s)
AND
HON LUKPATA JOHN UDORespondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Cross River State Holden at Ogoja contained in the Judgment delivered on 22nd June, 2010, in suit No. HJ/28/2011 commenced by the respondent herein as claimant by filing a motion exparte on 1st June, 2010 for the Order placing the suit for hearing under the undefended list. The High Court (hereinafter called the lower court) granted the application on 4th June, 2010 and leave was granted to the respondent that the suit be placed for hearing under the un-defendant list. The writ filed therein was accordingly marked and the processes were served on the appellant.
The claim of the respondent as endorsed on the writ of summons is for:
“a. The sum of four hundred and fifty thousand naira only N450,000.00 being the balance of the sum of N600, 00.00 claimant invested with defendant under its commercial paper investment which has become due since November, 16th 2009.
b. 14% agreed interest on the sum stated in paragraph a above from 16th November 2009 till judgment is delivered.
c. 10% post judgment interest from the date of judgment until the total amount is finally determined.
Upon service of the process, the appellant filed a Notice of intention to defend on 21st June, 2010 together with “Affidavit disclosing a defence on the Merit.”
In the Judgment of 22nd June 2010, the lower court reached a conclusion that the content of appellant’s affidavit did not amount to a defence and proceeded to give judgment in favour of the respondent interms of the reliefs on the writ of summons.
Aggrieved by the decision of the lower Court the appellant filed a Notice of Appeal on 22nd July, 2010 with three grounds of appeal and in the appellants’ Brief of Argument filed on 8th March 2011 but deemed as properly filed on 18th May, 2011, the following lone issue was formulate.
“Whether, having regard to the affidavits evidence before the Court judgment can be entered for the respondent under the undefended list.”
Also in the respondents’ brief of Argument filed on 6th April, 2011 but deemed as properly filed on 18h May 2011, one issue was also formulated as follows:
“Whether the judgment of the lower court is against the weight of evidence in the light of the affidavit as defence filed by the Appellant in the lower court.”
On the issue raised by the appellant Samson Onah Esq. learned counsel who prepared the brief contended that the lower court should not have entered judgment for the respondent under the undefended list since the respondent’s affidavit raised triable issues and disclosed a defence to the action which should have necessitated the suit being transferred to the general cause list. The learned counsel submitted further that the appellant was only expected to raised a triable issue in the Notice of intention to defend, citing Amede V. UBA (2009) All FWLR (Pt.459) 479. On the guidelines for granting leave to defend an action under the undefended list, he cited True Grace Engr. Ltd. Vs Lead Bank Plc (2008) All FWLR (Pt. 409) 451.
According to the learned counsel, serious issues of law and fact were raised by the appellant but were ignored by the lower court. He submitted that a defendant is not expected to provide an air -tight defence to be allowed to defend the action and where there is conflict in affidavit evidence of the parties, the suit must be heard under the general cause list, citing Ebong V Ikpe (2002) 17 NWLR (pt. 797) 529.
For the respondent the learned counsel P. I. Obiem Esq. who prepared the Brief contended that the lower court was right to have given judgment for the respondent under the undefended list procedure since the affidavit filed by the appellant did not disclose any defence on the merit, and under Order 10 Rule 3 (1) of the High Court of Cross River State (Civil Procedure) Rules it is the judge that has the discretion to determine whether an affidavit has disclosed a defence on the merit.
Counsel further argued that the defence of the appellant that document relating to the transaction with the respondent was illegally issued is not a defence that can avail the appellant who at all times was a disclosed principal of those that signed the document on its own behalf for which appellant must be vicariously liable; Akalonu v. Omokaro (2003) FWLR (Pt. 175) 493. He submitted further that the document upon which appellant has based its defence speaks for itself and can no longer be varied or altered, citing Agbareh v. Mimra (2oog) All FWIR (pt. 409) 559; Umoru v. Zibriri (2003) 14 NSC QLR 781.
He submitted that the appellant has not shown that the lower court did not exercise its discretion properly and the issue of fair hearing now raised on appeal is a vain attempt to cure the appellants’ inadequacies at the lower court; H. R. H. Umeaudu v. Attorney General of Anambra state (2008) 34 NSCQR 1, Babatunde v. pan Atlantic slipping Ltd (2007) 30 NSCQR 714, Magaji V. Nigerian Army (2008) 34 NSCQR 108.
At the hearing of the appeal on 15th March, 2012, Samson Onah Esq. learned counsel appeared for the appellant while the respondent was not represented by counsel. Appellant’s counsel adopted and relied on the Appellant’s Brief of Argument while the Respondents, case was deemed as argued on the Brief already filed.
The record of appeal and the facts relating to this appeal show unequivocally that the proceedings at the lower court ended at the judgment of the lower court which was delivered under the undefended list procedure without the appellant giving evidence. Indeed the substance of this appeal is the decision of the lower court to refuse the appellant leave to defend the action. The issue as formulated by the appellant is to me, more apposite and the determination of this appeal will be based on the issue formulated in the Appellant’s Brief.
The procedure known as undefended list is provided for in order 10 Rules 1, 2 and 3 of the High court of cross River state (civil Procedure) Rules 2008. From those Rules the claimant under the Undefended list commences his suit by applying through a motion exparte that a writ of summons be issued for a claim for liquidated money; the application is to be accompanied by affidavit stating that the defendant has no defence to the claim and the grounds for so believing ; where the court is satisfied that the defendant does not have good defence based on the grounds set forth by the claimant, an Order will be made entering the Suit for hearing under the undefended list, and the Writ will be marked accordingly. Upon service of the processes, the defendant who intends to defend the claim will deliver a notice in writing to the registrar that he intends to defend the action, together with an affidavit disclosing a defence on the merit, and the court may give leave to defend on the strength of the affidavit of the defendant where leave to defend is granted, the undefended list proceedings will terminate and the suit is transferred to general cause list for parties to file pleadings, but where leave is refused, the Court delivers judgment without hearing the defendant, See Ekulo Farms Ltd V. U. B. N Plc (2006) All FWLR (Pt. 319) 895.
The procedure of undefended list is designed for expeditious disposal of liquidated claims that are not disputed on facts and are not seriously arguable in law thereby rendering it unnecessary to allow a defence that only constitutes a delay tactics or a play to frustrate the claim. See Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt.144)283.
In the instant case the appellant filed a Notice of Intention to defend the action and filed an affidavit therewith, the lower court after considering the affidavit refused leave to defend and entered judgment for the respondent.
The respondent founded his claim upon the fact that he invested the amount of N500,000,00 in an investment tagged commercial paper by the appellant out of which he said N150,000.00 had been paid. He attached exhibits A, B, C, D, E, and F to his affidavit in support of his application for hearing of the Suit under the Undefended list, and exhibit A is a copy of the certificate allegedly issued to him on 18th August, 2009 when he made the investment, through the Ogoja Branch Manager of the Appellant. A close perusal of exhibit A shows that it was signed by two officials of the appellant who affixed their names as Anne Ushie Manager) and Michael Takim (Branch Manager).
The gravamen of the defence of the appellant in the affidavit of 16 paragraphs filed with the Notice of Intention to defend is that the amount allegedly paid by the respondent was not recorded in his favour
while the commercial paper, exhibit A is not in the defendant’s file; the defendant did not issue it and did not authorize its agent to issue it to the respondent, and more importantly that it was M. Takim that paid N150, 000.00 into the account of the respondent which the respondent called part payment, it was not paid by the appellant.
Let me state that I have painstakingly perused all the exhibits filed by the parties in my quest to ensure that justice is done in this case. Although Exhibit A is held by the respondent, it is not reflected in any of the exhibits that the sum of N500,000.00 “investment” by the respondent was paid into any account of the appellant, not even in the respondent’s own exhibit F (or Q by the appellant) reflects any such payment.
I think it was not quite right for the respondent to have even secured the placement of the Suit for hearing on the undefended list in view of his own exhibit E, a letter of the appellant dated 14th April, 2010 which emphatically informed the respondent that he did not deposit any money into appellants’ account.
At the Stage of the Notice of Intention to defend an action under the undefended list, it is not expected that the defendant will show that his defence will succeed. It is sufficient for him to show by his affidavit that he has triable issues which the Court ought to hear in the case. A triable issue exists where by the affidavit in support of intention to defend the defendant raises an issue or issues which may necessitate some explanation from the plaintiff or which cast(s) doubt on the legitimacy of the plaintiff’s claim. When a defendant has raised a triable issue it is incumbent on the Court to transfer the case to the general cause list. See G. M. O. Nworah & Sons Co Ltd V. Akpata (2010) All FWLR (Pt. 524) 85. In lmoniyame V. Sonneb Enterprises Ltd (2010) Vol. 1 MJSC 1, the Supreme Court, per Onnoghen JSC at page 14 said that
“The procedure is not intended to be adopted in proceedings where the facts or issues are contentious and will throw doubt on the claim of the plaintiff. In such a circumstance, the proper procedure is by ordinary writ of summons followed by pleadings that is why such a matter, though commenced under the undefended list must be transferred to the General cause list, to be dealt with appropriately…”
In the instant case where the foundation of the respondent’s action has been seriously disputed and contested through the affidavit of the appellant it was not proper for the lower court to have denied the appellant the right to defend the action. I believe that the end of justice will be served better if the parties are allowed to fully contest this action under the general cause list.
I resolve the lone issue in favour of the appellant. I hold that the appeal has merit and I allow it. Consequently the judgment of the lower court is set aside, while the Suit (HJ/28/2010) shall be heard on the pleadings of the parties under the general cause list by another Judge. Case is accordingly remitted to the chief Judge of Cross River State High Court for assignment to another judge.
I make no Order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH TINE TUR, J.C.A.: I had the advantage of reading the judgment delivered by my Lord, Isaiah Olufemi Akeju, JCA and I concur that the suit be remitted for retrial before another judge of the High Court of Justice, cross state for hearing and determination.
Order 10 rule 1 of the High Court of Cross River State (Civil Procedure) Rules, 2008 sets out the circumstances when a suit could be heard and determined under the Undefended List procedure by providing as follows:
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover o debt or liquiduted 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 belief 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 dote for hearing suitable to the circumstances of the particular case. ”
The Supreme Court held in Bank of the North Ltd. vs Intra Bank S.A. (1969) 1 All NLR 91 at 94 per Ademola C.J.N. that:
“Now, it is not in dispute that the Rules of Court in force in the Northern States are the Rules of Court contained in vol. x of the Laws of Nigeria, 1948. There is therefore no dispute about the regularity of taking out a writ of summons under what is known as the Undefended List. This is provided for under Order 111, rule 9 to 14 of these Rules. The object of these rules is for a quick dispatch of certain types of cases, e.g. debt or liquidated money demand. ”
Order 10 rule 1 of the High court (civil Procedure) Rules, 2008 applicable to cross River State also shows that the undefended List procedure is to be invoked if the claimant’s writ of summons verified by affidavit is for a “debt” or “liquidated money demand.” A “debt” is defined as :… a specific sum of money due by agreement or otherwise.” See Black’s Law Dictionary, 8th edition p.432 where the learned authors referred to Benjamin J. Shipman Handbook of common-Law Pleading edited by Henry Winthrop Ballantine, 3rd edition 1923 paragraph 52 page 132 where the learned author wrote that:
“The action of debt lies where a party claims the recovery of a debt; that is, a liquidated or certain sum of money due him. The action is based upon contract, but the contract may be implied, either in fact or in law, as well as express; and it may be either a simple contract or a specialty. The most common instances of its use are for debts: (a) upon unilateral contracts express or implied in fact (b) upon quasi-contractual obligations having the force and effect of simple contracts (c) upon bonds and covenants under seal (d) upon judgment, or obligations of record (e) upon obligations imposed by statute.”Furthermore, where the plaintiff and the defendant might have settled or determined for instance by prior agreement, the amount due, and payable on demand but upon demand, the defendant was unwilling to fulfill the terms of the agreement this may be a “liquidated amount” or “liquidated claim, defined by Blacks Law Dictionary supra p.264 and 949 thus:
“1. A claim for on amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties, agreement.
2. A claim that was determined in a judicial proceeding – Also termed liquidated demand.”
Where the claim is not for a “debt”’ or “liquidated money demand” or where there are material conflicts in the affidavit that can be resolved only by oral evidence, it behoves the learned trial judge to transfer the application to the general Cause List for hearing and determination. This is because evidence has to be taken to resolve material conflicts in the affidavit evidence. See Eboh vs Oki (1974) 1 SC 179 at 189-190; Falobi vs Falobi (1976) 9 & 10 SC 1 at 15; Govt. of Ashanti vs Korkor 4 WACA 83. The material conflicts highlighted by my Lord in the lead judgment need not be reproduced for fear of duplication. They can only be resolved by oral evidence.
Ordinarily, the Undefended List Procedure is not meant to resolve conflicts in the supporting affidavit by oral hearing as it would lead to great expense and prolongation of the trial except it cannot be otherwise. See Milland vs Baddeley (1884) W.N. 96; Sullivan vs Henderson (1973) 1 All E.R. 48. Where there is dispute as to the facts and applicable law, leave to defend the suit should be granted to the defendant. See Jones vs Stone (1894) A.C. 123; Crawford vs. Gilmore 30 L.R. at 238 and Electric and General Contract Corporation vs Thomson-Houston etc., Co. (1895) 10 T.L.R. 103. But however difficult the point of law is, once it is understood and the Court is satisfied that it is really unarguable, it will give judgment in favour of the claimant. See Cow vs Casey (1949) 1 K.B. 474 at 481; Verrall vs Great Yarmouth Borough Council (1980) 1 All E.R. 839.For these and the fuller reasons given by my Lord, I too shall allow this appeal and abide by the orders made therein.
Appearances
Samson Onah Esq.For Appellant
AND
P. I. Obiem EsqFor Respondent
