ENGR. S. U. ADEJO & ANOR v. MR. WALTER N. UBESIE
(2012)LCN/5430(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of June, 2012
CA/J/288/2007
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. ENGR. S. U. ADEJO
2. COBWEB INTERNATIONALTD – Appellant(s)
AND
MR. WALTER N. UBESIE – Respondent(s)
RATIO
THE PRINCIPLE UNDER THE UNDEFENDED LIST PROCEDURE
The principle under the undefended list procedure is that the Defendant’s affidavit must as far as possible deal specifically with the Plaintiff’s claim and the affidavit must state clearly and concisely what the defence is and what facts and documents are relied on to support it. It must also throw some doubt on the case of the Plaintiff. See AGRO MILLERS LTD. VS. CMB (1997) 10 NWLR (PT. 535) 469 @ 477 – 478.
The law is clear that if a Defendant decides to go on stage to contest an application for summary judgment, he cannot rely on a sham defence. He must show a bona fide or good defence on the merits and not engage in manipulative and/or delay tactics. See MACAULAY V. NAL MERCHANT BANK LTD. (1990) 4 NWLR (PT.144) 283. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Plateau State High Court sitting in Jos delivered on the 11th day of June, 2007 in suit No.PLD/J/490/2006. The Appellants were the Defendants in the case while the Respondent was the Plaintiff in the case. The Plaintiff brought the matter under the undefended list and his claims were as follows:
1. The sum of N2,113,000.00 being the value of electrical items the plaintiff supplied to the defendants on credit at No.45 Church Street, Jos at various dates between May 2004 to June 2005 at the defendants’ request but which the defendants have failed to pay despite repeated demands.
2. 25% interest on the said sum of N2,113,000.00 from 20th November, 2005 until judgment.
3. 10th interest on the said sum from the date of judgment till final liquidation.
On the 29th day of November, 2006, and in compliance with the Rules of Court, the Defendants filed a notice of intention to defend the suit and same was accompanied by an affidavit as required by the Rules.
But on the 25th January, 2007, one Sylvester Uheine Adejo filed yet another affidavit in support of the same notice of intention to defend after the matter had been slated for hearing on the 29tn day of November, 2006 and further adjourned to the 15th day of December, 2006. After hearing the case under the undefended list, the learned trial Judge entered judgment for the Plaintiff in respect of relief I and Post judgment interest of 10%, as per relief 3 but declined to award the prejudgment interest of 25% on the judgment sum of N2,113,000.00. Being dissatisfied with the judgment, the Appellants filed a notice of appeal containing two grounds of appeal and thereafter by leave of Court amended the notice and grounds of appeal, thus filing 8 grounds of appeal in all.
When the case came up on the 10th day of April, 2011, Respondents Counsel urged the Court to dismiss the appeal in the absence of Counsel for the Appellant even though the brief had been filed.
In the circumstance the Court deemed the Appellants brief and reply brief as having been argued. The Appellant’s brief was however filed on the 29th day of June, 2011 and the reply brief was filed on the 20th day of December, 2011. The Respondent’s brief was filed on the 4th day of November, 2011 by order of this Court pursuant to a motion on notice on the 10th day of November, 2011.
The brief facts of this case are that the Plaintiff/Respondent is a dealer in electrical materials at No. 45 Church Street, Jos. That at various dates between 2004 and 2005, the Respondent on the request of the Appellant, supplied the Appellant with electrical materials to the tune of N2,113,000.00 on credit and the Appellants failed to defray the debts at the material tune. Subsequently the Appellants issued cheques to the Respondent in satisfaction of the debts but all the cheques were dishonored. Counsel to the Respondent then on Respondent’s instructions wrote a demand notice to the 1st Appellant to settle the debt but the Appellant instead made an undertaking in writing to the Respondent’s solicitors to pay same on or before the 31st day of September, 2006. The Appellants however failed to pay the debt hence the Respondent brought an action under the undefended list. The learned trial Judge upon consideration of the defence found in favour of the Plaintiff/Respondent and granted only reliefs one and three, which judgment culminated in this action by the Defendant/Appellant.
The appeal was duly entered in this Court vide the transmission of the record on the 4th day of May, 2009 and in compliance with the rules of Court parties exchanged their briefs of arguments.
The Appellant’s brief was dated the 4th day of June, 2011 while the Respondent’s brief was filed on the 4th day of November, 2011.
Both parties however formulated issues for determination. The Appellants issues for determination are thus:
1. WHETHER THIS MATTER WAS ONE THAT SHOULD HAVE BEEN PLACED ON THE UNDEFENDED LIST WHEN IT WAS NOT CLEAR BETWEEN THE 1ST AND SECOND APPELLANTS WHO THE RESPONDENT DEALT WTTH.
2. WHETHER IT WAS PROPER FOR THE COURT BELOW TO HAVE SEPARATED THE CLAIM.
3. WHETHER IT WAS PROPER FOR THE COURT BELOW TO HAVE ENTERED JUDGMENT AGAINST THE APPLICANTS WHEN THEIR AFFIDAVITS DISCLOSED A DEFENSE ON THE MERIT.
4. WHETHER IT WAS PROPER FOR THE COURT TO HAVE DISCOUNTENANCED THE AFFIDAVIT FILED ON BEHALF OF THE 2ND DEFENDANT.
The Respondents also formulated issues for determination to wit:
1. Whether the appellants’ affidavit disclosed a defence on the merit in the case.
2. Whether it was proper for the High Court to enter judgment in the claim as he did and refuse the pre judgment interest.
3. Whether this matter was one that should have been heard under the undefended list.
4. Whether it was proper for the Court to have discountenanced the affidavit of Sylvester Uheine Adejo which was filed after the matter was slated for hearing and who is shown not to be a party in the case.
I have noted herein that the parties formulated the same issues for determination though couched differently. I shall however adopt the issues couched by the Respondent in his brief of argument.
ISSUE NO. 1
Whether the Appellant’s affidavit disclosed a defence on the merit in the case.
Learned Counsel for the Appellant argued that the procedure known as undefended list is not a quick fix procedure to give judgment in a matter as quickly as possible. That it is designed to shorten the time of trial in the most glaring of cases and is not designed to shut out a defendant who shows an irresistible intent to defend a suit. He then cited the case of SPD (Nig) Ltd. v. Arho – Joe Nig. Ltd (2006) 3 NWLR (Pt.966) 172 @ 187 – 188 where Augie JCA said:
“In other words, the plaintiff will not just be given judgment on a platter of gold because he asked for it, because the defendant did not file a notice of intention to defendant or even because there was no defence on the merit shown in the notice that is filed. As I stated earlier, the object of the undefended list procedure is to shorten the hearing of a suit where the claim is for a liquidated demand, and it is designed to eliminate the technicalities entailed in a normal hearing in Court.”
Counsel for the Appellant further submitted that the Court must approach all matters with a large measure of liberality in considering the defendant’s affidavit in support of the notice of intention to defend. He again cited the case of Ebong v. Ikpe (2002) 17 NWLR (Pt.797) 504 @ 529 – 530.
Where the Court held thus:
“It is also settled that it is desirable that it must call into play a measure of liberalism when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed.”
That a party desirous of a hearing should not be shut out just because the Court wants to hear the suit as undefended. In the same vein, learned Appellants Counsel further referred to the case of Intercity Bank Plc v. FTA Ltd (2006) 4 NWLR (Pt.971) pg.504 @ 534 where Alogoa JCA stated thus:
“If the defendant files a notice of intention to defend in good time together with an affidavit in support of same the Court should as a matter of duty subject the affidavit to close scrutiny and if it discloses even the slightest defence on the merits, the judge is duty bound to have the suit transferred from the undefended list to the ordinary cause list for a full trial to take place.”
He then concluded on that point that the Court failed to follow the Court’s wise Counsel in the case at hand but veered off the course of justice and then urged the Court to decide this issue in favour of the Appellant. In his response to that issue, learned counsel for the Respondent submitted that by the notice of intention to defend filed by the Defendant/Appellant on the 29th day of November, 2006, the Defendants attached an affidavit in support which stated that the cheques issued to the Plaintiff/Respondent were issued to defray a debt owed by the 1st Appellant’s younger brother. The affidavit merely denied the transactions contained in the Respondent’s affidavit in support. That the affidavit did not deny issuing Exhibits A, B, C and D and did not deny receiving Exhibit F. He further stated that by provisions of Order 23 Rule 3 (1) of the High Court Rules of Plateau State (Civil Procedure) Rules 1987, the affidavit in support of a notice of intention to defend ought to disclose a defence on the merit. He then cited the said Rule which provides thus:
“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof 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.”
Learned Respondent’s counsel further stated that the Appellant’s affidavit in support of the notice of intention to defend did not in any way satisfy the requirements of the said order 23 Rule (1) High Court of Plateau State (Civil Procedure) Rules 1987. That the said affidavit did not answer in anyway the issues raised in the Plaintiff/Respondent’s claim. Counsel again stated that the affidavit in support of the claim clearly stated the transactions between the parties. He further submitted that two of the cheques issued to the Plaintiff/Respondent are the 2nd Defendant/Appellant’s cheques signed by the 1st Defendant/Appellant who stated that he is a director of the 2nd Defendant/Appellant. That these cheques were meant for payment on different dates of 1st June, 2004, 2nd July, 2004, and a 3rd cheque which was also signed by the 1st Defendant/Appellant meant for payment on the 20th January, 2005. (See pages 16 – 18 of the record).
Learned counsel for the Respondent in a further submission stated that the letter of demand (page 19 of the record) was written to the 1st Defendant in person before he undertook to pay the money. (See page 21 of the record). That the assertion of the Defendants as contained in the affidavit in support of the notice of intention to defend is only meant to dribble and cheat the Plaintiff/Respondent out of the judgment he is legitimately entitled to. That the said affidavit falls short of the requirement of the law to sustain the transfer of the matter to the general cause list. That a court of law, cannot rely on such an affidavit to transfer a matter to the general cause list. He then referred to the case of Agro Millers Ltd. v. Continental Merchant Bank Plc (1997) 10 NWLR (pt.535) pg. 469 @ 477 – 478.
Counsel further emphasized the fact that there are no material allegations contained in the affidavit in support of the notice of intention to defend that would require further investigation and necessitating a transfer of the case to the general cause list and that where a Defendant in a case fails to establish material allegations that would warrant further investigation, such a case cannot be transferred to the general cause list. That this principle is in keeping with the decision of the court in the case of Sebastine C. Udemba v. Morecab Finance Nig. Ltd. (2003) 1 NWLR (Pt.800) p.96 @107 – 108.
Learned Counsel therefore submitted that the depositions of the Defendant/Appellants in their affidavit in support of their notice of intention to defend is only framed to ensure that the Plaintiff/Respondent is denied judgment under the undefended list. Counsel placed reliance on the fact that it was alleged in the said affidavit that the cheques were issued when the Plaintiff/Respondent informed the 1st Defendant/Appellant that his younger brother was owing him some money. Learned Counsel wondered how and why the 1st Defendant/Appellant could issue cheques to the tune of N2,113,000.00 to settle a debt without confirmation from his younger brother. He then dismissed the said deposition as a cock and bull story which failed to convince or sway the court to transfer the matter to the general cause list. Counsel further stated that 1st Defendant/Appellant did not deny receiving the letter of demand which was annexed to the claim as Exhibit E which clearly stated the transactions between the parties. That there was no response from the Appellants to the said letter of demand except the undertaking to pay the debt which letter was annexed as Exhibit F. Learned counsel concluded that the Defendant/Appellant did not raise any triable issue to warrant a transfer of the case to the general cause list and that the learned trial Judge was right in entering judgment for the Plaintiff/Respondent.
In the Appellant’s reply brief learned counsel submitted that before a court can enter judgment for a Plaintiff he must make out a case which copiously pleads his position. That he must satisfy the court and the law before he can have judgment or expect to have judgment. He also cited the case of Nipost v. I. E. Co. Ltd (2006) 8 NWLR (Pt. 983) @ 435 where the Court stated thus:
“The failure by the Defendant/Appellant to defend did not relieve the Plaintiff/Respondent of the obligation to show beyond its mere IPSE dixit, that it was indeed entitled to every amount claimed. It still had the obligation of showing by evidence, albeit prima facie, that it is entitled to the claim alleged.”
Learned Counsel further submitted that the trial Court did not resolve the fundamental duty of showing that the 2 (two) Appellants were jointly indebted to him and that the cheques issued to the Respondent came from two different entities while the claim is joint.
By the provisions of Order 23 Rule 3(1) of the High Court of Plateau State (Civil Procedure) Rules 1987, the affidavit in support of a notice of intention to defend ought to clearly and unequivocally disclose a defence on the merit. The said rule provides thus:
“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof 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 pertinent question here is: Did the affidavit in support of the notice of intention to defend disclose any defence on the merit? It will therefore be worthwhile to make a careful perusal of the defendants affidavit which accompanied the notice of intention to defend. This will enable the Court to determine whether the affidavit has disclosed a defence on the merit enough to wanant the transfer of the suit to the general cause list.
The essential paragraphs of the said affidavit are hereby reproduced as follows:
“Para 1 That I am the 1st defendant and a Director in the 2nd Defendants company.
Para 2 That I do not owe the plaintiff the sum of N2,113,000.00 or any sum at all as a person.
Para 3 That the Managing Director of the 2nd defendant is my younger brother.
Para 4 That plaintiff came and reported to me that my younger brother was owing him money on various electrical materials which he brought from him to execute projects.
Para 5 That my said younger brother had issued him with two cheques which had been dishonoured and that he was going to report him to the Police.
Para 6 That he pleaded with him not to take the matter to the police but that I wanted rather to pay him all the money my said younger brother was owing him.
Para 7 That he then informed me that the total indebtedness was N1,450,000 and issued him with a cheque for the said amount but told not to present the cheque until I confirmed the position from my brother.
Para 8 That when I met my brother he told me that he was only indebted to the plaintiff the sum of N278,000.00 having paid in the sum of N107,000 out of the sum of N380,000 he was owing him before.
Para 9 That I then instructed my bankers not to honour the cheque for N1,450,000.00 if presented.
Para 10 That I have never seen Exhibit F in my entire life and I did not issue same I have one house in Jos and do not know what I will be doing with electricity materials with (sic) N2,113,000.00.”
I have gone to great lengths to set out the entire affidavit evidence in support of the notice of intention to defend in order to determine whether there was actually a defence on the merit or triable issues raised by the Defendants, to be allowed to defend the suit. The principle under the undefended list procedure is that the Defendant’s affidavit must as far as possible deal specifically with the Plaintiff’s claim and the affidavit must state clearly and concisely what the defence is and what facts and documents are relied on to support it. It must also throw some doubt on the case of the Plaintiff. See AGRO MILLERS LTD. VS. CMB (1997) 10 NWLR (PT. 535) 469 @ 477 – 478.
The law is clear that if a Defendant decides to go on stage to contest an application for summary judgment, he cannot rely on a sham defence. He must show a bona fide or good defence on the merits and not engage in manipulative and/or delay tactics. See MACAULAY V. NAL MERCHANT BANK LTD. (1990) 4 NWLR (PT.144) 283.
In the present case, what in my view can be gleaned from the Defendants affidavit is not enough to disclose a defence on the merits. What it contains is mere general denial which is not a ground for transferring the matter to the general cause list. The Defendant/Appellant could not categorically convince the Court that the electrical materials were not supplied by the Plaintiff/Respondent. There was also no evidence disclosed in his affidavit that he paid any money to the Respondent to defray the debt owed. What was in evidence is various attempts through dud cheques as Exhibits A, B, C and D to stall the process of getting the money owed to the Respondent. There was indeed no real disclosure of facts from which the Court could easily and readily discern a good defence from the affidavit of the Defendant/Appellant.
On this note, I will resolve issue one in favour of the Respondent.
Issue No. 2, whether it was proper for the High Court to enter judgment in the claim as he did and refuse the pre judgment interest.
Learned Counsel for the Appellant submitted that there is no provision in Order 23 Rule 1 of the High Court (Civil Procedure) Rules of Plateau State for the Court to hear a part of the writ as undefended while another part is transferred to the general cause list. He placed reliance on the case of MOHAMMED V. ALLIED BANK OF NIGERTA PLC (1996) 7 MAC 205 AT PG 213 where the Court of Appeal held thus:
“…there is no room for separation of reliefs being claimed by a plaintiff in an undefended suit. It is either the whole suit is heard as an undefended suit under the rule or the whole suit where it has some features barring it from being heard as an undefended suit should be transferred to the general cause list for hearing after the exchange of pleadings. This is because the undefended list procedure as can be seen is a truncated form of the ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried to necessitate such a hearing. Agwuneme v Eze (1990) 3 NWLR (pt. 137) 242.”
Learned Counsel further cited the case of A.B. Ltd. v. Packo Plast (Nig) Ltd (2003) 1 NWLR (Pt. 802) pg 502 @ 527 where Salami JCA in his judgment stated thus:
“The plaintiff apart from the averments did not exhibit any document, whether in relation to the supply to show that 25% interest was to be paid on the accrued sum nor show by any means that the issue of interest was agreed upon by the parties or anticipated at all at the time of the transaction. It is not enough that he unilaterally averred that he makes 25% interest on his capital per annum and to be applied to all list transactions without letting the other contracting party be aware of the position before or during the transaction.
There is nothing in the supporting affidavit apart from the averments indicate above or any where on the record to show indicate by what authority, the plaintiff claimed to be entitled to the prejudgment interest and how its rate is arrived at. For the above reason, I decline to award to prejudgment interest of 25% on the sum claimed. The plaintiff if he feels he has sufficient evidence to prove the claim, then it is up to him to have it transferred to the general cause list for determination.”
Learned Counsel further submitted that a suit is heard as undefended where there is no feature in it that requires elucidation. That where there is any feature in the matter that requires elucidation, then the case must automatically be transferred for hearing in the general cause list. That it is not for the Court to make a case for any party who brings his complaint to Court. He again stated that the Court has no business at the stage of undefended list to fish through the affidavit to decide which part of the case can be said to be undefended and which is not. He then further quoted Salami JCA in the case supra at page 257 thus:
“It is either the whole claim is qualified to be heard under the undefended list or the whole suit where it suffers some defects such as in the instant appeal where part of the claim does not qualify as a debt no liquidated money demand, preventing it from being heard on the undefended list should be transferred to the general cause list.”
Learned Counsel also faulted the judgment of the Court below where the trial Judge thus stated in his judgment.
“The Plaintiff if he feels he has sufficient evidence to prove the claim, then it is up to him to have it transferred to the general cause list for determination.”
Counsel stated that this type of decision has no place under Order 23 of the Rule of Court. That the Plaintiff does not have any role to play in “Getting the Claim transferred to the General Cause List” as directed by the Court. Counsel further submitted that it is only when there is a part admission and there is an application for judgment for that portion of the claim admitted that the Court will be permitted to enter judgment for the admitted part. Learned Counsel for the Appellant concluded that there was no application by the Respondent that judgment should be entered for him for part of the claim. That the Respondent argued his case as one and that by the Rules it is either the entire matter is heard as undefended or it is transferred to the general cause list. He then urged the Court to resolve this issue in favour of the Appellants.
In his reply learned Counsel for the Respondent found it expedient to restate herein the Plaintiff/Respondents claim before the lower Court:
1. The sum of N2,113,000.00 being the value of electrical items the plaintiff supplied to the defendants on credit at No.45 Church Street, Jos at various dates between May 2004 to June 2005 at the defendants’ request but which the defendants have failed to pay despite repeated demands.
2. 25% interest on the said sum of N2,113,000.00 from 20th November, 2005 until judgment.
3. 10% interest on the said sum from the date of judgment till final liquidation.
That the substantive claim before the Court is the sum of N2,113,000.00 being the value of electrical items supplied by the Plaintiff/Respondent to the Defendant/Appellant on credit at No. 45 Church Street, Jos at various dates between May 2004 and June 2005 at the Appellant’s request but which the Appellant failed to pay despite repeated demands. That the claim for interest is ancillary to the main claim and that it is at the discretion of the Court to either grant or refuse same.
Learned Appellant’s Counsel further submitted that the substantive claim of N2,113,000.00 is a liquidated money demand. That the trial Court refused the 25% pre judgment interest on the ground that there was no sufficient evidence to prove it. That where a substantive claim is joined with a claim for pre-judgment interest, the trial Court has the right and power to consider the claims and to enter judgment either as claimed or to refuse only the pre-judgment interest. He then referred to the case of NIGERIAN POSTAL SERVICES V. IRBOK NIG. LTD (2006) 8 NWLR (PT.982) PG. 323 @ 341 -343 where the Court held thus:
“In the appeal before us, there is no doubt in my mind that the plaintiff/respondent’s claim for pre judgment interest is for the recovery of an unliquidated money demand. It is, therefore outside the purview of Order III, Rule 9. The judge was, therefore, wrong to have placed it on the undefended list. He should have transferred it to the general cause list for hearing in the normal way.”
At page 343 paragraph D of the same judgment, Ikongbeh J.C.A. continued:
“The only thing that requires to be done now is to modify the judgment of the court below to conform to the law and to the justice of the matter, having regard to what the affidavit evidence before the court shows the plaintiff/respondent to be entitled to. Accordingly, I make the following consequential orders:
1. The judgment of the lower court awarding plaintiff/respondent N75,000.00 against the defendants/appellants is affirmed.
2. Affirmed also is the judgment awarding interests on this sum from the date of the judgment till the judgment debt is fully liquidated. The rate is, however, in accordance with the provisions of Order XLV, Rule 7, of the Federal High Court Rules, reduced from 10% to 5%.
3. The judgment awarding pre judgment interests in favour of the plaintiff/respondent is set aside. Subject to the plaintiffs/respondent shall, if it still wishes to pursue the matter, within 90 days from the date of this judgment, move the lower court to transfer the issue of the pre judgment interest to the general cause list for hearing and determination. Should it fail to so move the court, that claim shall be deemed abandoned and shall accordingly stand struck out.”
Learned Counsel reiterated the fact that the entire judgment (supra) was not set aside even though the trial Court erroneously awarded a pre-judgment interest. That the judgment as it relates to the claim of N75,000.00 and post interest were affirmed but that only the pre-judgment interest was set aside by the Court of Appeal. Counsel further stated that in the present case the learned trial Judge did not award the pre-judgment interest to necessitate the setting aside of it. That what was awarded was both the claim of N2,113,000.00 and post judgment interest. That it was proper for the trial Court to have acted in likewise. Counsel again cited the case of NIGERIAN POSTAL SERVICES V. INSIGHT ENGINEERING CO. LTD (2006) 8 NWLR (PT.983) Pg.435 @ 458 – 460 – 462 where the trial Court awarded the claims of the Plaintiff including the pre-judgment interest but on appeal, the Court of Appeal affirmed the award of the judgment sum and post judgment interest but only set aside the award of the pre-judgment interest.
Learned Counsel concluded that the trial Judge was right in entering judgment for the Plaintiff/Respondent in the sum of N2,113,000.00 as claimed and post judgment interest and refusing the pre-judgment interest while ordering that the matter be transferred to the general cause list if the Plaintiff feels he had sufficient evidence to prove his claim. Learned Counsel in support of that principle again referred to the case of NIPOST V. IRBOK (NIG) LTD. (SUPRA) @ Pg.343 where the Court of Appeal made the following consequential order.
Counsel further concluded that since every case is treated on its peculiar circumstance, based on the facts therein, the learned trial Judge was right in entering judgment for the sum claimed and refusing the pre-judgment interest. He then urged the Court to dismiss grounds 2 and 3 of the amended grounds of appeal from which this issue is distilled.
In his reply brief learned counsel for the Appellant submitted that the Court cannot have two judgments in one matter. That once there is an issue which cannot be resolved with other issues then the entire matter ought to be transferred to the general cause list for determination on the merit. He then cited the following cases to buttress his argument:
1. AIB Ltd. v. Packo Plast Nig. Ltd. (2006) 1 NWLR (Pt.802) 502 @ 526.
2. Mosheshe General Merchant Ltd. V. Nigerian Steel Products Ltd. (1987) ALL NLR 309 @319.
3. Mohammed v. Allied Bank of Nigeria PLC (1996)7 AAC 205 @ 213.
4. Kabiru v. Ibrahim (2004) 2 NWLR (Pt.857) 326 @ 351.
The Plaintiff in his writ of summons claimed 25% interest on the said sum of N2,113,000.00 with effect from the 20th day of November, 2005 until judgment.
The learned trial Judge assessed the entire claim and stated thus in his judgment:
“The Plaintiff apart from the averments did not exhibit any document whether in relation to the supply to show that 25% interest was to be paid on the accrued sum or show by any means that the issue of interest was agreed upon by the parties…”
The learned trial Judge however refused to award the pre judgment interest and stated thus:
“I decline to award the pre judgment interest of 25% on the sum claimed. The Plaintiff if he feels he has sufficient evidence to prove his claim then it is up to him to have it transferred to the general cause list for determination.”
The trial Judge in his well considered judgment went ahead to separate the wheat from the chaff by granting the judgment sum and post judgment interest thus refusing the pre judgment interest of 25%. He considered that the Plaintiff/Respondent had an obligation to show beyond its mere IPSE DIXT, that it was indeed entitled to every amount claimed.
In the case at hand, it behoves the trial Court to quantify or assess the damages or loss, whether pecuniary or not and such damages are tagged as unliquidated. Consequently, when the amount to be recovered depends on all the circumstances of the case, the damages are therefore said to be unliquidated and apparently subjective in nature. The law is that it is only in respect of claims to recover a debt or liquidated money demand that the Court is permitted and empowered to entertain applications for placement of a writ of summons on the undefended list. If such action is not for recovery of a debt or liquidated money demand, then no application for placement of the matter on the undefended list can be entertained by the Court. See the case of NIPOST v. I. E. CO. LTD. (SUPRA) where the Court had this to say:
“The failure by the Defend ant/Appellant to defend did not relieve the Plaintiff/Respondent of the obligation to show beyond its mere IPSE dixit, that it was indeed entitled to every amount claimed. It shall have the obligation of showing by evidence, albeit prima facie, that it is entitled to the claim alleged.”
As in the case before us, a claim for pre-judgment interest is for the recovery of an unliquidated money demand. It is therefore outside the provision of the undefended list procedure and it would be wrong for the trial Court to consider it under the undefended list. The trial Judge was therefore right in entering judgment for the Plaintiff/Respondent in the sum claimed and post judgment interest and also refusing the pre judgment interest.
The trial Judge was also right in ordering that the pre-judgment interest be transferred to the general cause list if the Plaintiff so desires. The law gives the Court the discretion to award the judgment sum and the post judgment interest and to refuse the pre judgment interest which has to be transferred to the general cause list if the party applies to the Court to do so. I therefore throw my weight behind the reasoning of the trial Judge in refusing the pre-judgment interest and that if the Plaintiff felt he had sufficient evidence to prove the claim, then it was up to him to have that claim transferred to the general cause list for determination. Issue No. two is therefore resolved in favour of the Respondent against the Appellant.
I shall merge Issues 3 and 4 and have them argued together as the Appellant has done in his brief of argument.
Issue 3 whether this matter was one that should have been heard under the undefended list.
Issue 4 whether it was proper for the court to have discountenanced the affidavit of Sylvester Uheine Adejo which was filed after the matter was slated for hearing and who is shown not to be a party in the case.
Learned Counsel for the Appellant in his brief of argument stated that a Defendant who is served with a writ of summons marked as undefended is enjoined by the rules to file a notice of intention to defend together with an affidavit stating what his defence to the Plaintiff’s case is if he has any. The Defendant is expected to make out a defence on the merits and not in totality. On the meaning of a defence on the merit, learned counsel cited the case of N.I.W.A. v. S.T.B. PLC (2008) 2 NWLR (PT. 1072) 483 @ 502- 503 where the Court said:
“A “triable issue” is disclosed where a defendant’s affidavit in support of the notice of intention to defend is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the averments in the affidavit cast doubt on the plaintiffs claim.”
And again in Amede v. U.B.A. (2008) 8 NWLR (Pt.1090) 623 @ 662 where the Court of Appeal stated as follows:
“When it is said that a defendant who intends to defend the action must disclose that he has triable issues or a bona fide issue or a defence on the merit, it means no more than that he must raise a genuine issue which will preclude the trial judge from entering a summary judgment even for reason of creating the slightest doubt as to facts.”
Counsel further submitted that raising a triable issue, defence on the merits, or bona fide defence, means no more than raising any issues that will require an explanation from the Plaintiff. That the issues could be law or fact and that the onus is to cast just a doubt on the case of the Plaintiff. He again referred to the case of SPDC (NIG) LTD. v. ARHO-JOES NIG. LTD (2006) 3 NWLR (PT.966) 172 @ 190 – 191 where the Court of Appeal clearly stated thus:
“The grounds of defence must satisfy the court that there is a triable issue, and a “triable issue or defence on the merit” is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the affidavit throws some doubt on the plaintiff’s claim. In other words, a complete defence need not be shown, it will suffice if the defence set up shows that there is a triable issue or question, or that for some reason there ought to be a trial.”
Learned counsel again submitted that a Defendant served with a writ of summons placed on the undefended list is expected to raise a genuine defence and not a sham or fanciful defence. That it does not have to be iron clad or a complete defence and thus must therefore condescend on the particulars. He then cited the case of Motel Kaduna Ltd. v. Adeyemo (2006) 7 NWLR (Pt. 978) 87 @ 122 – 123 where the Court stated thus:
“The law is that in an action under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what defence and what facts are relied on as supporting it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff.”
Counsel stated further that upon being served with the Plaintiff’s claim, the 2 Defendants filed a notice of intention to defend and each Defendant also filed an affidavit showing a defence to the Plaintiff’s action. That curiously the trial Judge at the hearing decided to discountenance the affidavit of the 2nd Defendant upon the prompting of the Plaintiff’s Counsel.
That by Order 23 Rule 3 (1) of the Plateau State Civil Procedure Rules a party served with a writ of summons placed in the undefended list is expected to:
1. Deliver to the Registrar a notice of intention to defend.
And
2. The party shall also deliver to the Registrar an affidavit disclosing a defence on the merits.
Counsel further submitted that the trial Court was wrong when it discountenanced the affidavit of the 2nd Defendant. That since affidavit is evidence, there is no delimitation of people who a party can call to come and testify on its behalf provided that the person called has knowledge of the facts in dispute which would then make him a competent and compellable witness in the proceedings.
Learned Counsel cited Section 155 of the Evidence Act to state that all persons are competent to testify unless so disqualified by the Court in accordance with the law. That the 2nd Defendant did not fall in the category of the said Section 155 of the Evidence Act. He then cited the cases of
1. NOVARTIS PHARMA SERVICES INC. V. SWISSCO (NIG) LTD. (2004) 2 NWLR (PT. 856) 28 @ 49.
2. DAPIAMOING v. DARIYE (2007) 8 NWLR (PT.1036) 239 @ 293.
3. ODOGWU v. ILOMBU (2007) 8 NWLR (PT.1037) 488 @ 511.
4. KADZI INT. LTD. V. KANO TENNERY CO. LTD. (2004) 4 NWLR (PT.809) 545 @ 573 – 574.
Counsel further submitted that in the affidavit filed on behalf of the 2nd Defendant and which was discountenanced by the Court, the deponent stated that he is the Managing Director (M.D.) of the 2nd Defendant and that he was swearing the oath on behalf of the 2nd Defendant and with his authority. He stated further that the 2nd Defendant was denied fail hearing. He then cited the case of IKA L.G.A. v. MBA (2007) 12 NWLR (PT.1049) 676 @ 705.
Learned Counsel again stated that there is a tincture of truth in the affidavit of the 1st Defendant and that the Court ought to have considered it and transferred it to the general cause list for hearing and determination. Again that the Court ought not to have concerned itself with only the affidavit of the 1st Defendant. That the procedure known as undefended list is not a quick fix procedure designed to give judgment in a matter as quickly as possible. That it is designed to shorten the time of trial in the most glaring of cases and not to shut out a Defendant who shows an intent to defend a suit. He then concluded that the Court must approach all matters with a large measure of liberality in considering the Defendant’s affidavit in support of the notice of intention to defend. He then urged the Court to decide these two issues in favour of the Appellant and set aside the judgment of the lower Court and send back the case to the High Court for hearing on the general cause list.
In reply, learned Counsel for the Respondent submitted reproducing Order 23 Rule 3 (1) of the Plateau State High Court (Civil Procedure) Rules, that a liquidated demand is a debt due and payment and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic calculation without any further or other investigation. He then referred to the case of MAYA v. SAMOWUS (2001) 7 NWLR (PT.765) Pg.78 @ 102. He further submitted that the substantive claim of N2,113,000.00 made by the Plaintiff/Respondent against the Defendants/Appellants is a liquidated money demand which could be tried under the undefended list and that the issue of the pre judgment interest does not vitiate the judgment on the said judgment sum.
On the issue of whether it was proper for the lower Court to have discountenanced the affidavit of Sylvester Uheine Adejo, learned counsel reiterated the fact that the said affidavit was filed after the matter had been slated for hearing and who is shown not to be a party in the case. He further stated that from the provision of Order 23 Rule 3 (1) of the Plataeu State (Civil Procedure) Rules 1987, a notice of intention to defend has to be filed together with an affidavit, and that if the said notice is not filed together with an affidavit, the Court cannot give such a Defendant leave to defend the case. That from the records, the Defendant’s notice of intention to defend this action was filed on the 29th day of November, 2006 together with an accompanying affidavit in accordance with the requirements of Order 23 Rule 3. He then urged the Court to note that after filing the notice of intention to defend together with an affidavit on the 29th November, 2006, one Sylvester Uheine Adejo filed yet another affidavit on 25th January, 2007. See pages 25 – 26 of the records. That the said affidavit was filed after the matter had been slated for hearing. Learned Counsel then concluded that the said affidavit even if looked at does not raise any triable issue that would have required the transfer of the matter to the general cause list. That non-reliance on the said affidavit of Sylvester Uheine Adejo did not occasion any miscarriage of justice in the case, since same did not condescend on particulars and did not disclose any defence on the merit.
For openers and for purposes of clarification I shall hereby reproduce Order 23 Rule 3 (1) which provides as follows:
“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 or any other claim and such an 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 “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.”
A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained. The substantive claim of N2,113,000.00 is indeed a liquidated money demand and the Defendant in the lower Court never refuted the fact that electrical items were supplied to him on various dates between 2004 and 2005. The Defendants also never denied the fact that cheques were issued to the Plaintiff to defray the said debt owed to him. It was however later learnt that those cheques were dud cheques meant merely to stall any further action by the Plaintiff/Respondent at the time.
The Appellants claim that, there is no scintilla of evidence showing that the Respondent supplied anything to the Appellants. The question is; why did the Appellants issue cheques and write promissory notes to the Respondents if no such transaction occurred between the parties. It is also noted that these electrical items were supplied to the Plaintiff/Respondent on credit and were never paid for hence the letter of the Respondent’s counsel to the Appellants demanding same. Reference is again made to Order 23 Rule 3(1) and that provision is quite clear and concise, giving no room for any doubt whatsoever.
The said notice of intention to defend must be filed TOGETHER (emphasis mine) with an affidavit in support of same. The Plaintiff/Respondent no doubt filed an affidavit in support while a second affidavit was filed at a later date. The Rule is that the Defendant is allowed to file an affidavit and even a further affidavit if he so desires but the said second affidavit filed by one Sylvester Uheine Adejo was never attached to the notice of intention to defend nor was it tagged a further affidavit as required by the Rules.
In this case, the 2nd affidavit was filed after the return date had been fixed and even further adjourned to a later date. Moreover the said affidavit was filed alone and was not attached to any notice of intention to defend. In that case did the Defendant intend to replace the former affidavit which was already evidence before the Court? It is to be noted that one cannot withdraw such evidence once filed in Court and the 2nd affidavit was neither tagged a further affidavit nor was it meant to replace the 1st affidavit. That piece of evidence therefore stands alone and I would hasten to add that the affidavit stands on clay feet.
The trial Judge in his decision copiously stated thus:
“There is another affidavit filed by a person not a party to this suit claiming to be the Managing Director of the 2nd defendant. I have been urged by the learned counsel for the plaintiff to discountenance this affidavit because the deponent is not party to this suit. I whole heartedly accept this submission and accordingly discountenance the 2nd affidavit.
This is because of the clear provision of Order 23 R 3 (1) which states that if the party served with the writ of summons… The deponent to the 2nd affidavit is not a party served with the writ of summons. The 2nd affidavit cannot be said to be a further and better affidavit of the defendants it therefore has no place in law as far as the undefended list procedure is concerned.”
No doubt a party cannot be limited on the number of people to testify on its behalf but the same does not apply to cases in undefended list. This procedure is meant to be a short cut to justice and there is therefore no room for an unlimited number of witnesses outside the Rules. The Defendant’s notice of intention to defend must be accompanied by an affidavit disclosing a defence and a further affidavit if he so desires. The 2nd affidavit filed by Mr. Adejo was not a further affidavit and did not accompany the notice of intention to defend. In my view, I would regard such an affidavit as merely an afterthought of the Defendant and the trial Judge was right to have discountenanced it as such Learned Counsel to the Plaintiff/Applicant has cited a plethora of cases in his brief of argument which I do not consider relevant or appropriate in this case. One of such cases is that of Uloko v. Ube (2004) 17 NWLR (Pt. 901) 647 @ 659 where the Appellant claimed he was misled into signing a loan believing he was only a witness to the borrower and his affidavit was in clear conflict with that of the Respondent. In this case Exhibit D signed by the 1st Appellant was meant to defray the debt owned and not under any mistaken belief.
From all of the above, I also resolve both issues in favour of the Respondent.
Finally I cannot agree more with the decision of the learned trial Judge in refusing to rely on the affidavit of Sylvester Uheine Adejo who was not a party to the case but claimed to be the Managing Director of the 2nd Defendant. I further agree that the said affidavit ought to have been filed with the notice of intention to defend. I therefore hold that the learned trial Judge was right when he held that the 2nd affidavit cannot be said to be a further and better affidavit of the Defendants and therefore has no place in law as far as the undefended list procedure is concerned.
In the final analysis, I hold that this appeal is devoid of merit and it is hereby dismissed. The judgment of the trial Court is hereby upheld. Reliefs one and three are upheld while relief two is refused.
I make no order as to cost as each party is to bear their own cost of this suit.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the lead judgment just delivered by my brother Philomena Mbua Ekpe JCA. I agree with the reasonings and conclusions arrived thereat that the appeal is devoid of any merit. I also dismiss same in the same terms as the lead judgment inclusive of the order made as to costs.
JUMMAI HANNATU SANKEY, J.C.A.: I have read before now the draft Judgment of my learned brother, Ekpe, J.C.A. just delivered. I entirely agree with it and have nothing to add.
Appearances
Oba Maduabuchi Esq. For Appellant
AND
C. D. Omeke Esq. holds brief for I. E. Asogwa Esq. For Respondent
