REV YOUNG PETER ONOEYO v. UNION BANK OF NIGERIA PLC
(2014)LCN/7509(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of November, 2014
CA/C/66/2007
RATIO
PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; THE ESSENCE OF SUITS ON THE UNDEFENDED LIST
The essence of suits on the undefended list is for the quick dispensation of justice to the parties. Therefore upon service of a Writ of Summons in respect of a suit on the undefended suit on a defendant, the latter must deliver or file a Notice of Intention to Defend the suit and together with the said Notice, he must file an affidavit disclosing a defence on the merits and where the defendant fails to do so or act, then judgment may be entered against him as per the Writ of Summons without necessarily calling on the Plaintiff to formally prove his claim by calling witnesses to testify. See Ben Thomas Hotels Ltd, Sebi Furniture Co. Ltd (1989) 12 SCNJ 171, (1989) 5 NWLR (Pt. 123) page 523.
In Mat Holdings Ltd v. U.B.A. Plc (2003) 2 NWLR (Pt. 803) page 71 at 91, (2003) FWLR (Pt. 183) page 146 the law was succinctly stated with respect to suits on the undefended list inter alia:
“The rules of Court providing for cases to be placed on the undefended list proceeding are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceeding which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the Plaintiff of judgment he well deserved, a case should therefore not be translated to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” convenient as well as handy shegam”See Johnbull Adama Nig. Ltd v. Isoko Community Bank Ltd (2013) 29 WRN 142. per. PAUL OBI ELECHI, J.C.A.
PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; THE CONDITIONS A NOTICE OF INTENTION TO RAISE A DEFENSE ON THE MERIT UNDER THE UNDEFENDED LIST MUST SATISFY
For a Notice of Intention to raise a defence on the merit under the undefended list, such a Notice of Intention must satisfy the conditions outlined in the case of Lewis v. UBA (2006) 1 NWLR (Pt. 962) page 546 as follows:
a) Condescend upon particulars as far as possible, deal specifically with the Plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it.
b) Where the defence is that the defendant is not indebted to the Plaintiff, state the grounds on which the defendant relies as showing that he is not indebted and a mere general denial that the defendant is not indebted will not suffice.
c) Where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and so state the real nature of the defence relied on.
d) Where the defence relied on is of fraud, state clearly the particulars of the fraud and a mere general allegation of fraud is useless.
e) If a legal objection is raised state clearly the facts and the point of law arising thereon.
f) In all cases, give sufficient facts and particulars that there is bona fide defence.
g) Matters of hearsay are admissible provided that the sources and grounds of information and belief are disclosed.
h) A case of hardship that creates no enforceable right e.g. past promise by Plaintiff unsupported by valuable consideration, or a mere inability to pay or an allegation that the Plaintiff has given time for payment which of course constitute no defence unless there be consideration, will not constitute defence on the merit. See also Sanusi Books Nig. Ltd v. Cotia C.E.I.S.A. (2000) 11 NWLR (Pt. 679) 556, Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) page 83, Nishizawa v. Jethwani (1984) 12 SC 234. per. PAUL OBI ELECHI, J.C.A.
COURT: DETERMINING A TRIABLE ISSUE; WHAT THE COURT WOULD LOOK AT TO DETERMINE WHETHER THE DEFENDANT’S CASE DISCLOSES ANY REAL DEFENCE ON ITS MERIT
In order to determine whether the defendant’s case disclosed any real defence on its merit to be able to justify this appeal, this Court would look at the affidavit evidence and evaluate same as a necessary step in determining whether there is a triable issue. See Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) page 182. This can be done by placing the affidavit evidence of the parties on an imaginary scale within the vider principle in Mogaji v. Odofin (1978) 4 SC 91 at 93. per. PAUL OBI ELECHI, J.C.A.
APPEAL: ISSUES DETERMINATION; WHETHER AN ISSUE FOR DETERMINATION MUST FLOW FROM THE GROUND OF APPEAL FILED
It is trite that an issue for determination must flow from the ground of Appeal filed. Where an issue for determination in an appeal is not related to or based on ground of appeal filed, it is incompetent, valueless and must be ignored by the Court. See Akese v. Government Oyo State (2012) ALL FWLR (Pt. 634) Page 53, Madukolum v. Nkemdilim (1962) 2 SCNLR Page 34. Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) page 444. per. PAUL OBI ELECHI, J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria
Between
REV YOUNG PETER ONOEYO
(Trading under the name and style of Young Brothers Company) Appellant(s)
AND
UNION BANK OF NIGERIA PLC Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of his Lordship Hon. Justice Andrew Okon sitting at Eket High Court Akwa Ibom State, against the Ruling in suit No. HEK/UND.27/2005 delivered on the 7th November, 2005 in favour of the Respondent herein, who was the Plaintiff at the lower Court.
Dissatisfied with the decision of the lower Court, the Appellant/Applicant has now filed a Notice of Appeal dated the 15th day of November, 2005 supported with seven Grounds of Appeal.
The facts of this case are that the Defendant/Appellant on the 9th day of May, 2002 applied for and was offered an overdraft facility of N6,500,000.00 (Six Million, Five Hundred Thousand Naira) for 12 months and a loan of N4,000,000.00 (Four Million Naira) for four months, all totalling N10,500,000.00 (Ten Million, Five Hundred Thousand) by the Plaintiff/Respondent, through its letter of offer/approval dated 25th June, 2002 and same was received by the Defendant/Respondent. The letter of offer was attached to the process filed at the lower Court and marked Exhibit A. The Appellant accepted the terms and conditions precedent to the draw-down of the said facility as expressly stated in the letter of offer. The overdraft and loan facility were applied for by the Appellant to enable him enhance the working capital of his business. To be able to service the facilities, the Appellant deposited his title documents i.e. Certificate of Occupancy of his landed properties and also entered into two legal mortgage agreements with the Plaintiff/Respondents over his landed properties located at Eket.
In the course of time, the facilities expired and yet the Appellant failed, neglected and/or refused to liquidate the outstanding debt plus the accrued interest despite requested demands for it by the Plaintiff/Respondent. The outstanding principal sum plus interest owed by the Appellant/Defendant stood at N15,078,922.83 (Fifteen Million, Seventy-Eight Thousand, Nine Hundred and Twenty Two Naira, Eighty Three Kobo) as at 28th February, 2005. The bank statement to that effect was attached to the Court process filed at the lower Court and marked Exhibit D.
Consequent upon the failure or inability or refusal to repay the credit facilities granted to the Appellant/Defendant, since June, 2002, the Plaintiff/Respondent on the 10th day of May, 2005 commenced an action at the lower Court under the undefended list procedure to recover same. The Learned trial Judge, his Lordship Hon. Justice Andrew E. Okon after considering the Notice of Intention to Defend of the Appellant/Defendant vis-a-vis the claim of the Plaintiff/Respondent entered judgment in favour of the Plaintiff in the sum of N15,078,922.83 and held that the Notice of Intention to Defend does not disclose any real defence.
In arguing this appeal, the Appellant/Defendant in his Brief of Argument formulated only two issues. Issue 1 was formulated from ground 1 while Issue 2 does not flow from any of the seven grounds of Appeal. No Issue or Issues were formulated or argued in respect of grounds 2-7 of his Notice of Appeal. A fortiori, the Appellant appears to have abandoned grounds 2-7 of his Notice of Appeal. In the same vein, Issue No. 2 is not tied to any ground of Appeal and therefore is of no moment. See Yadis Nigeria Ltd v. Great Nigeria Insurance Coy Ltd (2007) 30 NSQR (Pt. 1) page 495.
The two issues distilled for determination by the Appellant are:
I. Whether the learned trial judge was right to enter judgment for the Plaintiff without a consideration of the affidavit of the Defendant/Appellant disclosing a defence on the merit filed under the Rules of Court.
II. Whether the Court can validly interfere with the judgment of the lower Court.
On their own part, the Plaintiff/Respondent proposed two issues for determination as follows:
a) Whether the learned trial judge was right to have relied on Exhibit A attached to the Plaintiff’s/Respondent’s affidavit at the Lower Court in entering judgment in favour of the Respondent?
b) Whether the learned trial judge considered the Notice of Intention to
Defend filed by the Appellant and if he did, whether the Notice of Intention to Defend disclosed any defence on the merit?
In arguing Issue No. 1, Appellant Counsel submitted that the Learned trial Judge erred in Law when he held that the Appellant has no real defence as he failed to consider the evidence of both parties filed in Court. That inspite of the Defendant/Appellant’s depositions in paragraphs 4, 7, 8, 15, and 17 respectively as shown on pages 34-36 of the records, the Learned trial Judge gave undue consideration of the above paragraphs of the affidavit in support of their intention to defend and thereby came to a wrong conclusion by saying that the Defendant/Appellant has no real defence. The aim of the suit under the undefended list procedure is not meant to shut out a defendant who wants to defend the suit in the name of speedy trial at the expense of justice according to Counsel. See U.T.C. Nig Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) Page 244 Oloko v. Ube (2004) ALL FWLR (Pt. 227) Page 562, Ebong v. Ikpe (2002) FWLR (Pt. 135) Page 719. Appellants Counsel then urged the Court to resolve this issue in favour of the Appellant.
In his own Brief of Argument as per issue No. 2 which is akin to Appellant’s issue No. 1 the Learned Respondent Counsel submitted that the Learned trial Judge considered the affidavit/evidence of the Appellant before coming to the conclusion that it did not disclose any defence on merit under the Rules of Court. And what is more also is that the Appellant Counsel failed to disclose these salient facts allegedly raised in the affidavit in support of the Notice of Intention to Defend which the lower Court failed to appreciate or consider in line with Section 135 (1) of the Evidence Act (Cap) Laws of the Federation of Nigeria 2004. See Edeani Nwaua & Ors v. Chief Partrick Okoye & Ors (2009) 37 NSQR page 230 at 268.
Learned Counsel contended that as a matter of fact, the Learned trial Judge considered in his judgment the merit of the averments in paragraphs 7 and 8 of the Appellant’s affidavit to the effect that Mobil paid N10,554,017.50 on 8th January, 2001; N2,932,812.50 on 23rd April, 2002 and N1,884,375.00 on the 9th May, 2002; wherein the lower Court noted that the three dates i.e. 8th January, 2001, 23rd April, 2002 and 9th May, 2002 preceded 25th June, 2002 when the transaction contained in Exhibit A in respect of which this action is brought at the lower Court was made. Even the lower Court discovered that the Appellant failed to exhibit any evidence or document to show that he made payment into the account of the Plaintiff/Respondent on the 2nd September, 2004 or any other date as alleged by the Appellant in paragraph 15 of the affidavit in support of his intention to defend. On the basis of that, Learned Respondent’s Counsel submitted that since the lower Court has painstakingly considered the case based on the facts on available materials before it and therefrom arrived at a decision, such a decision ought not to be disturbed unless it is found to be perverse which is not the case here. See Osolu v. Osolu & 6 Ors (2003) 8 ALL N.L.R. 525 at 537.
On whether the Appellant’s Notice of Intention to Defend raised any defence on the merit, Learned Respondent’s Counsel referred to Exhibit A. According to him, the said exhibit A is the fulcrum around which the Respondent’s claim oscilates and which the Appellant/Defendant failed to address in his Notice of Intention to Defend as required by the rules governing actions brought under the undefended list procedure. See Lewis v. UBA (2006) 1 NWLR (Pt. 962) page 546.
In view of the inability of the Appellant to address the issue raised in Exhibit A being the fulcrum of this claim by the Respondent at the lower Court, Learned Counsel submitted that the Notice of Intention to Defend failed woefully to disclose any real defence and the Court should resolve this issue against the Appellant and dismiss the appeal.
The essence of suits on the undefended list is for the quick dispensation of justice to the parties. Therefore upon service of a Writ of Summons in respect of a suit on the undefended suit on a defendant, the latter must deliver or file a Notice of Intention to Defend the suit and together with the said Notice, he must file an affidavit disclosing a defence on the merits and where the defendant fails to do so or act, then judgment may be entered against him as per the Writ of Summons without necessarily calling on the Plaintiff to formally prove his claim by calling witnesses to testify. See Ben Thomas Hotels Ltd, Sebi Furniture Co. Ltd (1989) 12 SCNJ 171, (1989) 5 NWLR (Pt. 123) page 523.
In Mat Holdings Ltd v. U.B.A. Plc (2003) 2 NWLR (Pt. 803) page 71 at 91, (2003) FWLR (Pt. 183) page 146 the law was succinctly stated with respect to suits on the undefended list inter alia:
“The rules of Court providing for cases to be placed on the undefended list proceeding are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceeding which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the Plaintiff of judgment he well deserved, a case should therefore not be translated to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” convenient as well as handy shegam”
See Johnbull Adama Nig. Ltd v. Isoko Community Bank Ltd (2013) 29 WRN 142.
For a Notice of Intention to raise a defence on the merit under the undefended list, such a Notice of Intention must satisfy the conditions outlined in the case of Lewis v. UBA (2006) 1 NWLR (Pt. 962) page 546 as follows:
a) Condescend upon particulars as far as possible, deal specifically with the Plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it.
b) Where the defence is that the defendant is not indebted to the Plaintiff, state the grounds on which the defendant relies as showing that he is not indebted and a mere general denial that the defendant is not indebted will not suffice.
c) Where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and so state the real nature of the defence relied on.
d) Where the defence relied on is of fraud, state clearly the particulars of the fraud and a mere general allegation of fraud is useless.
e) If a legal objection is raised state clearly the facts and the point of law arising thereon.
f) In all cases, give sufficient facts and particulars that there is bona fide defence.
g) Matters of hearsay are admissible provided that the sources and grounds of information and belief are disclosed.
h) A case of hardship that creates no enforceable right e.g. past promise by Plaintiff unsupported by valuable consideration, or a mere inability to pay or an allegation that the Plaintiff has given time for payment which of course constitute no defence unless there be consideration, will not constitute defence on the merit. See also Sanusi Books Nig. Ltd v. Cotia C.E.I.S.A. (2000) 11 NWLR (Pt. 679) 556, Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) page 83, Nishizawa v. Jethwani (1984) 12 SC 234.
In order to determine whether the defendant’s case disclosed any real defence on its merit to be able to justify this appeal, this Court would look at the affidavit evidence and evaluate same as a necessary step in determining whether there is a triable issue. See Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) page 182. This can be done by placing the affidavit evidence of the parties on an imaginary scale within the vider principle in Mogaji v. Odofin (1978) 4 SC 91 at 93.
The crux of the Respondent’s case is that it granted an overdraft facility of N6,500,000.00 and a loan of N4,000,000.00 respectively to the present Appellant. The grant was evidenced on a letter dated 25th June, 2002 and addressed to the Appellant’s Managing Director Young Brothers Company and acknowledged same through an endorsement as shown in Exhibit A. Though the Appellant filed a 26 paragraph affidavit in support of his intention to defend the present suit, no mention was made either by way of denial or contest in respect of the contents of Exhibit A. Rather than admit or contest the claim of the Respondent, the Appellant was busy on a frolic of his own dwelling on a transaction that took place and matured before 2002 when the present cause of action arose. By so doing, the Appellant has not satisfied any of the conditions specified in the authority of Lewis v. U.B.A. (Supra). Therefore, the Appellant has not addressed the cause of action in this matter and the likely presumption is to say that he has not disclosed any triable issue as per his affidavit in the Notice of Intention to Defend this claim. The contents of Exhibit A is clear and what is more is that parties are bound by the content of Exhibit A which was signed by them and remain binding by the clear terms of same. See Joseph Ifeta v. Shell Petroleum Dev. Company of Nigeria Ltd. (2006) 7 MJSC page 121 at 134.
The Appellant has therefore not disclosed in his affidavit evidence, any triable issue and therefore he has no defence to the claim. Accordingly, I resolve this issue in favour of the Respondent in this suit.
As well, the Learned trial Judge at the lower Court was right to have relied on Exhibit A attached to the Plaintiff at the lower Court in entering judgment in favour of the Respondent. Exhibit A reads as follows:
“We refer to your letter of 9th May, 2002 and are pleased to advise the approval of the under mentioned facility in the name of your company for the purpose of enhancing your working capital. Overdraft of N6,500,000.00 (Six Million Five Hundred Thousand Naira only) loan. N4,000,000.00 (Four Million Naira) only repayable at one Million Naira a month to enable you pay off your disengaged Mobil staff.
Kindly signify your Agreement/Acceptance of the foregoing terms and conditions by signing and returning the attached copy of this letter.”
From Exhibit A attached to the Respondent’s affidavit in support of his application to place the suit on the undefended list the Appellant duly stamped, signed and returned the attached copy to the Respondent in compliance with the terms of the last paragraph of Exhibit A thereby acknowledging acceptance and execution of the offer as stated in Exhibit A. Therefore I hold the simple opinion that the Learned trial Judge was absolutely right when he relied on the contents and terms of the contract in Exhibit A in giving judgment to the Plaintiff/Respondent. Based on that also, I see no reason to disturb the findings of the lower Court in relying on Exhibit A to give judgment to the plaintiff/Respondent. This is so because cases under the undefended list procedure are determined on documentary evidence. On that note therefore, I have no hesitation in resolving this second issue against the Appellant and in favour of the Respondent in this appeal.
I noticed that the Appellant filed a Reply Brief of Argument dated 10th October, 2011. I have perused the argument raised thereon. I find as a fact that it was merely an adumbration of the Appellant’s Brief of Argument filed on the 1st June, 2010. As a result therefore I would rather than consider the said argument so moved, adopt my earlier consideration as formulated by the Appellant in his Appellant’s Brief of Argument filed on the 1st June, 2010 is:
“Whether this Court can validly interfere with the judgment of the Low Court”
As rightly submitted by the Respondent’s Learned Counsel this 2nd issue is not tied to any ground of Appeal and as a result, it is of no moment and ought to be struck out and it is hereby struck-out. See Yadis Nig Ltd v. Great Nig. Insurance Coy. Ltd (2007) 30 NSQR (Pt. 1) page 495 at 508.
Actually, one is at sea where this issue was lifted or distilled from as it does not have any relationship with any of the grounds of Appeal. It is trite that an issue for determination must flow from the ground of Appeal filed. Where an issue for determination in an appeal is not related to or based on ground of appeal filed, it is incompetent, valueless and must be ignored by the Court. See Akese v. Government Oyo State (2012) ALL FWLR (Pt. 634) Page 53, Madukolum v. Nkemdilim (1962) 2 SCNLR Page 34. Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) page 444.
In view of the above, I shall and hereby strike-out this issue as being incompetent and of no consequence. While resolving all the two issues canvassed in this appeal against the Appellants. I hereby hold that the Appellant in his Notice of Intention to Defend this suit placed on the undefended list failed to disclose any triable issue and therefore fell short of the requirements of the Law in this regard. In consequence therefore, I hereby hold the view that the appeal here lacks merit, it is not proved, it is accordingly dismissed as this Court has not found any basis to disturb the judgment of the lower Court. Judgment of the lower Court is hereby affirmed. Cost assessed and fixed at N50,000.00 against the Appellants.
ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity of reading in advance, in draft form the Judgment, just delivered by my learned brother, Paul Obi Elechi, JCA, dismissing this appeal. I completely agree with the reasoning and the conclusions reached. I will only add these brief comments for emphasis.
Under the Undefended List procedure, a defendant that intends to defend the action has a duty to file a Notice of Intention to Defend, supported by an affidavit, which must disclose a defence on the merit. It is settled law that the defendant’s affidavit in support of the Notice of Intention to Defend, must set out clearly the grounds of defence. It is not sufficient for the affidavit to allege generally that the defendant has a good defence to the action, if such a general averment is unsupported by particulars, which if proved would constitute such a defence. Similarly, a mere general denial that the defendant is indebted will not suffice unless the ground on which the defendant relies as showing that he is not indebted is stated.
The defendant’s affidavit is expected to and must condescend upon particulars. It should as far as possible, deal specifically with the plaintiff’s claim and affidavit stating clearly and concisely what the defence is and what facts are relied on to support it. If the defence goes to the whole or part of the claim, the affidavit should so specify. When the defence is in respect of part of the claim, the defendant’s affidavit should specify the part; Ataguba v. Gura (Nig.) Ltd (2005) 6 MJSC 156; Peter Tiwell (Nig.) v. Inland Bank (1997) CLR 4 (l)
If the court is satisfied that a defence on the merit has been disclosed, the defendant is granted leave to defend the matter. Okunriboye v. Skye Bank (2009) 2-3 MJSC 42.
Where leave to defend is given under this procedure, the suit shall be transferred to the General Cause List. The court may order then pleadings or proceed to hearing without further pleadings; G. C. & Oil Mills v. AS-Ahel Int. Mart (2000) 4 NWLR (Pt. 652) 310.
However, once the trial court comes to the conclusion that the affidavit does not disclose a defence on the merit or a triable issue, the court would proceed with the hearing of the suit as an undefended suit and enter judgment accordingly.
I agree that the Appellant in his affidavit in support of the Notice of Intention to Defend, failed to disclose a defence on the merit as required. The appeal is therefore without merit and is also dismissed by me. The judgment of the lower court is hereby affirmed.
I abide by all the orders made in the lead Judgment including the order as to costs.
JOSEPH JUDE JELLA, J.C.A.: My learned Brother PAUL OBI ELECHI, J.C.A. made available to me a draft copy of the Judgment just delivered. I am in agreement with his reasoning and conclusion.
I abide by the orders made.
Appearances
F. A. Iteshi Esq.For Appellant
AND
J. E. UdehFor Respondent
