THE CITY WAITERS LIMITED v. JIMOH ADIO (2014)

THE CITY WAITERS LIMITED v. JIMOH ADIO

(2014)LCN/7591(CA)

In The Court of Appeal of Nigeria

On Thursday, the 4th day of December, 2014

CA/IL/44/2014

RATIO

PRACTICE AND PROCEDURE; UNDEFENDED LIST; HOW TO DETERMINE A SUIT UNDER THE UNDEFENDED LIST, THE DUTIES OF THE PARTIES
It is settled law that on the date fixed for hearing of the claim under undefended List procedure, the only business of the trial court is to see whether the defendant has filed a notice of intention to defend and an affidavit showing a defence on the merit. The determination of the suit under the undefended List, is based on the affidavit evidence. The appellant having failed to file any notice of intention to defend the suit together with an affidavit disclosing the defence on the merit, the trial Court, however, was left with no option than to hold that the appellant had no defence to the action and entered judgment pursuant to Order 23, Rule 4 of the said High Court (Civil Procedure) Rules.
It is crystal clear that once a defendant was served with a writ of summons on the Undefended List, he is duty bound to file a notice of intention to defend the action. In the case on appeal before us since the appellant was served with the writ of summons under the Undefended List but did not avail itself by filing a notice of intention to defend the action, the trial Court, in my view, was perfectly in order to have entered judgment for the respondent. SEE EPE L.G. vs. KESHINRO (2009) 4 NWLR (PT.1131) 405. per. MOHAMMED LADAN TSAMIYA, J.C.A.

LAND LAW: LEASE; THE BASIC REQUIREMENT IN A LEASE AGREEMENT

PRACTICE AND PROCEDURE: CLAIMS; WHAT AMOUNT TO LIQUIDATED SUM
The appellant in its brief gave an impression that the claim of the respondent is un-liquidated. There is nothing un-liquidated in the respondent’s claim to warrant refusal of granting same by the trial Court.
The issue of what amounts to liquidated sum and whether the claim of the respondent qualifies as one has been clearly stated by the Apex Court in the case of AKPAN VS. AKWA IBOM PROPERTY & INVEST. COMPANY LTD. (2013) 12 NWLR (PT.1368) 377 AT 400, PARAS, D – E, where it was held, per GALADIMA, J.S.C.
“what then is liquidated money demand? This has been held to be a debt or other specific sum of money usually due and payable which amount must have already been ascertained or capable of being ascertained as a mere matter of without any other further investigation. Therefore, whenever, the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale of charges or other positive date, it is said to be liquidated.”
Also by Black’s Law Dictionary, 8th, Edition, page 246, a liquidated money demand has been defined thus:-
“An amount previously agreed on by the parties or that can be precisely determined by operation of law.”
SEE also the case of JOHNNY VS. EDOJA (2007) ALL FWLR (PT.365) 527 AT P.544 PARAS A – C. per. MOHAMMED LADAN TSAMIYA, J.C.A.

COURT: POWER OF THE COURT; WHETHER EVERY COURT HAS POWER UNDER THE RULES TO ADJOURN THE HEARING OF A SUIT
It is important to note that every Court has power under the Rules to adjourn the hearing of a suit if it thinks it is expedient for the interest of justice do so or on being satisfied that the adjournment will conduce to the hearing and determination of the case on the merit and not made for purpose of mere delay. It is a matter within the discretion of the Court. SEE AFRICAN CONTINENTAL BANK LTD. VS. AGBONYIN (1960) 5 F.S.C. 19. That discretion must at all times be exercised not only judicially but also judiciously. SEE ILONA & ANOR VS. DEI & ANOR (1971) 1 ALL N.L.R. 8. In NWADIOGBU & 6 ORS VS. ANAMBRA & IMO RIVER BASIN DEVELOPMENT AUTHORITY & ANOR (2010) 19 NWLR (PT.1226) 364 AT 381 – 382 PARAS H – A. the Supreme Court held that:-
“When a case has been fixed for hearing, the trial court must ensure that the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned that is, by placing sufficient materials before the court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.” per. MOHAMMED LADAN TSAMIYA, J.C.A.

COURT: APPLICATION OF ADJOURNMENT; WHETHER A JUDGE IS NOT OBLIGED TO GRANT AN ADJOURNMENT SOLELY BECAUSE COUNSEL ON EACH SIDE ASKED AND AGREED ON IT
It is important to remember that a Judge is not obliged to grant an adjournment solely because Counsel on each side asked for it or agreed on it, the court must see that there is a justifiable reason for same. In NWADIOGBU & 6 ORS V. ANAMBRA IMO RIVER BASIN DEV. AUTHORITY & ORS (SUPRA) AT P.385 PARAS E – F, it was decided that:-
“… A Court should never encourage the act of holding it to ransom on flimsy excuses. We must always avoid the situation whereby the courts are perpetually blamed for delays in proceedings. The issue of adjournment of a case is a discretion of a Judge, and where a Judge sees no justifiable reason to adjourn the case, he can refuse such adjournment, and in so doing, he would be exercising his discretion judicially and judicially”
In the same vein, this Court, in MADU VS. OKEKE (1998) 5 NWLR (PT.548) 159 AT 164 PARA D, has also held thus:-
“Let me pause here and deal briefly with the application for adjournment. Courts of law have said it several times that Counsel should refrain from attending Court merely to ask for adjournment to enable a more senior colleague to do the matter. It is not a fashion for younger Counsel to ask for adjournment on the ground that a more senior colleague would like to do the matter “personally.” Frankly, I do not know what this is all about.” per. MOHAMMED LADAN TSAMIYA, J.C.A.

JUSTICES

MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

THE CITY WAITERS LIMITED Appellant(s)

AND

JIMOH ADIO Respondent(s)

MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the decision of the Kwara State High Court (the trial court) sitting in Ilorin Judicial Division. The judgment appealed against was delivered on 10/4/2013 when the trial Court granted the reliefs of the plaintiff (respondent) under the Undefended List procedure.
The Respondent (as plaintiff) instituted an action against the appellant (as defendant). The claim was for:
1. A sum of six Hundred and Forty Thousand Naira (N640,000.00) only being the balance of the total rent of the lease commencing from 16th December, 2010 and terminates on the 15th December, 2011 owed by the defendant.
2. A sum of one Million, Nine Hundred and Twenty Thousand Naira (N1,920,000.00) only being the total sum of arrears of rent of the claimant’s business premises for the period of 16th December, 2011 to 15th December, 2012.
The respondent filed an 18 paragraph affidavit along with the writ.
The particulars of claim together with the affidavit in support was placed on the Undefended List pursuant to Order 23, Rule 1 of the Kwara State High Court (Civil Procedure) Rules 2005. The facts relied on are set out in the affidavit in support of the claim.
The crux of the plaintiffs/respondent’s case in the trial Court was to be found in paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the affidavit in support of the particulars of claim, that is to say:
“4. That I know as a fact that the Claimant is the owner of the business premises known and called Destiny Deluxe villa, situate at Tipper Garage Road, off University of Ilorin Road, Tanke, Ilorin, Kwara State.
5. That I know as a fact that sometimes in December, 2010, the defendant approached the claimant with an offer to lease the said claimant’s business premises with its fittings and facilities.
6. That sequel to the above paragraph, the claimant leased the said business premises together with its fittings and facilities to the defendant for a period of one year commencing from 16th December, 2010 and terminating on the 15th December, 2011 to the tune of one Million, Nine Hundred and Twenty Thousand Naira N1,920,000.00) only.
7. That the yearly rent of N1,920,000.00 only was agreed upon by the parties having agreed that the sum of one Hundred and sixty Thousand Naira (N160,000.00) only shall be the agreed monthly rent for the use of claimant’s business premises.
8. That I also know as a fact that the defendant made an advance payment of one Million, Two Hundred and Eighty Thousand Naira (N1,280,000.00) only to the claimant with the covenant to pay the balance of six Hundred and Forty Thousand Naira (N640,000.00) only within 3 months of being in occupation of the said business premises.
9. That as a result of the covenant above, the claimant let use of the said business premises by the defendant as a yearly tenant.
10. That contract to the agreement between the parties, the defendant failed and or refused to pay the balance of the rent of the lease as agreed despite the claimant’s repeated demand of same.
11. That sequel to the above paragraph, the claimant through the office of his counsel, John Olusola Baiyeshea & Co, wrote a letter to the defendant dated 10th July, 2012, demanding for the said balance and also giving the defendant Notice to quit and deliver up possession, but the defendant refused to accept the letter. The said letter is herewith attached and marked as EXHIBIT A.
12. That the office of the counsel to the claimant consequently re-sent the letter to the defendant through “DHL Express” (a registered post) and the defendant took delivery of same in its office on 31st July, 2012. Copy of the shipment delivery record acknowledging the receipt of the said letter is herewith attached and marked as EXIIIBIT B.
13. That the defendant failed and or refused to reply the caimant’s letter despite the receipt of same and the defendant is still in default of rent to the sum of Six Hundred and Forty Thousand Naira (N640,000.00) only being the balance of the one year lease from 16th December, 2010 and terminating on the 15th December, 2011.
14. That I also know that to date, the defendant is still in possession of the said business premises and is still in arrears of rent to the sum of one Million, Nine Hundred and twenty Thousand Naira (N1,920,000.00) only for the lease of the claimant’s business premises up to the period of 16th December, 2011 to 1st December, 2012.
15. That I know as a fact that the defendant has no defence to this action.
The above are the essential facts placed before the trial Court on the 5/11/2012. The processes have been served on appellant through its Counsel on 20/2/2012 and were fixed for hearing on 10/4/2013. On the 10/4/2013 when the case came up for hearing, the appellant and his Counsel were present in the Court, but did not file notice to defend. The trial Court thereafter, entered judgment in favour of the respondent on that same day of 10/4/2013 and granted ail the reliefs sought.
Unhappy with, the judgment of the trial court, the appellant appealed to this court with the leave of this court granted on 15/1/2014. The appeal was filed on 5 grounds. From the 5 grounds of appeal, the appellant distilled two (21 issues for determination in the appellant’s brief dated 9/5/2014 and filed same day. The issues are as follows:-
1. Whether, having regards to the facts and circumstances of this case, the trial court was right in granting the reliefs of the respondent under the undefended List when the money claimed was un-liquidated and when the claim was pre-mature and incompetent.
2. Whether, given the facts and circumstances of this case, the trial court ought not to have adjourned the proceedings in the suit till another date instead of proceeding to deliver judgment on 10/4/2013 against the appellant when the court did not sit in the morning and parties to this case have agreed among themselves and took a new date.
The respondent on the 13/6/2013, in his brief which was dated 13/6/2014 filed its distilled, 2 issues for determination, and they are:-
1. Whether the learned trial Chief Judge erred in law by entering judgment in favour of the respondent in view of the appellant’s failure to file it’s intention to defend an affidavit disclosing defence as required by order 23, Rule 3(1) on the return date when the respondent’s writ had established a prima-facie case against the appellant. (Grounds 1, 2, 3, 4 and 5 of the grounds of appeal).
2. Whether the learned trial Chief Judge was in order to have entered judgment in favour of the respondent on the date fixed for hearing, when the Court could not sit on the matter in the morning, but later sat at 11.00am and the appellant and it’s counsel were present at the proceedings (Ground 4 of the grounds of appeal).
The appellant, in arguing issue No. 1, submitted that the trial court was wrong in granting the reliefs sought by the respondent. His reason is that in granting the reliefs the learned trial Judge did not consider whether or not, from the affidavit evidence of the respondent, the claim was for a liquidated sum demand and/or that the respondent was entitled to the claim. That the trial court did not assess the respondent’s evidence relied upon as the foundation of the claim before the proceeding to judgment. That the affidavit evidence which accompanied the respondent’s claim is not only porous and directionless but vague and thematic which is not enough and do not support the claim of the respondent. This is because the claims of N640,00.00 and that of N1,920,000.00 based on a purported lease agreement in respect of a property described as Destiny Deluxe Villa, Tanke, Ilorin, that document was not produced/tendered before the trial Court to convince the trial Court that the appellant was a lesee in the property and that both parties agreed to the amount claimed by the respondent. It was further submitted that since a claim premised on a lease agreement can only be determined by the Court based on the content of the lease, therefore, failure to produce, before the trial Court, the purported lease agreement alluded to in paragraph 6, 7, and 10 of the respondent’s affidavit in this case, rendered the claim unconvincing, weak and unestablished, for the trial Court to enter judgment for the respondent.
On the sum claimed, the appellant submitted that it was uncertain and un-liquidated and pre-mature. His reason is that since the purported lease agreement was said to have terminated on the 16/12/2011, then there should be no more lease agreement relationship between the parties after 16/12/2011 and therefore no agreement for another lease for the period of 16/12/2011-16/12/2012- It further submitted that throughout the entire evidence for the respondent, there is no evidence of any subsequent agreement to pay a specific amount of money for the purported occupation of the premises after 16/12/2011 in the form of mesne profit for over a property.
That the rent arrears for the period of 16/12/2011 to 15/12/2012 was a pre-mature claim of rent because the claim was filed on 5/11/2012, i.e. forty (40) days to the day when the cause of action would arise. In support of this submission, some legal authorities were referred to us. He finally urged this Court to resolve this issue in favour of the appellant.
On Issue No.2, (i.e. whether, given the facts and circumstances of this case, the trial Court ought not to have adjourned the proceeding in the suit till another date instead of proceeding to deliver judgment on the 10/4/2013 against the appellant when the Court did not sit in the morning and the parties have taken a new date) the appellant submitted that the trial court ought to have adjourned the hearing of the matter to another date. His reasons are that, Courts should not sacrifice justice on the altar of expediency, and at the same time, should not sacrifice justice for the sake of unduly speedy trial. It therefore urged this Court to resolve this issue in favour of the appellant. A number of legal authorities were referred to us in support of this submission.
The respondent on his part, submitted on his issue No.1, that the appellant has not shown in its brief, any tangible or logical reason why the judgment of the trial Court should be set aside or disturbed. That the appellant’s submission on this issue merely scratched the issue of what transpired at the trial Court on the surface and nothing. The respondent further strongly submitted that it take more than such cosmetic treatment of such a fundamental issue to swing the pendulum of justice to the appellant’s side. The respondent also submitted that contrary to the appellant’s submission, the learned trial Judge was not wrong and was never in a hurry in entering judgment in favour of the respondent having carefully considered the affidavit evidence and other documents attached by the respondent and came to the conclusion that the claim was for liquidated sum demand and that the respondent was righty entitled to the claim. Hence, the respondent submitted that the appellant’s submission that the case was determined in a hurry, does not hold water in this case.
With regards to the issue of non-attachment of the lease agreement between the parties, which failure the appellant alleged to have put in doubt its existence, the respondent submitted that such contention amounts to giving evidence from the bar, which the law frowns at. That non-attachment of such document, cannot in circumstance make the respondent not to be entitled to the judgment.
On the contention of the appellant that the claim of the respondent is un-liquidated, the respondent submitted that there is nothing unliquidated in the respondent’s claim to warrant refusal of granting same by the trial Court.
Reason is that the amount claimed by the respondent to be recovered is certain and is neither based on circumstances nor fixed by opinion or estimate since there was a previous agreed rent paid (though in part) by the appellant under the expired tenancy, and in the absence of an agreement by the parties to either increase or reduce the rent payable, in the previous rent would be the actual rent to be paid by the appellant. Therefore, the issue of unliquidated sum should not have arisen at all.
On the issue of pre-mature of the 2nd claim, (i.e. the claim before the trial Court for the period of 16/12/20111 – 15/12/2012), the respondent submitted that the assertion is not only incorrect hut also totally misleading, as same does not justify the true position of the law. Reason is that the cause of action arose immediately the appellant was in arrears of rent and not when appellant has been allowed to complete the remaining forty (40) days. That the respondent needs not wait till the expiration of the 40 days before approaching the appellant for payment. In support of the submission above the respondent cited in its brief, a number of legal authorities.
On Issue No. 2 of the respondent’s issues for determination (which is whether the learned trial Chief Judge was in order to have entered judgment in favour of the respondent on the date fixed for hearing, when the trial Court could not sit on the matter in the morning, but later sat at 11.00a.m. and the appellant and its Counsel were present at the proceedings) the respondent submitted that the trial Court could not have done otherwise than to proceed to hearing.
On the argument of the appellant that an adjournment would have been appropriate by the trial Court, the respondent submitted that the grant of adjournment in the case, to the appellant would have amounted to not being fair in the circumstance, because there is justifiable reason for same. In other words, the appellant neither prayed the trial Court for an adjournment nor took any reasonable, acceptable and progressive steps by filing either notice of intention to defend or a supporting affidavit showing any defence (if any). In support of this submission legal authorities were cited in the brief, this Court was urged to resolve this issue in favour of the respondent and dismiss the appeal for lacking merit and affirm the judgment of the trial Court.
A careful examination of the issues for determination formulated by the parties, the grounds of appeal and the judgment delivered by the trial Court, reveal that the issues formulated by both parties are similar even though drafted in different words. Therefore, I have chosen the issues formulated by the respondent for the determination on this appeal because they are more comprehensive and derivable from the grounds of appeal. Issues Nos. 1, of the appellant’s issues, and 1, of the respondent’s issue as well as 2 of the appellant’s issue and 2 of the respondent’s issue are interwoven and overlap in the circumstances.
From the record of this case, the respondent’s suit was brought under the Undefended List procedure, which is regulated 1 by Order 23 of the High Court (Civil Procedure) Rules of Kwara State 2005. The Order 23 provides as follows:-
1. Where the claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by affidavit setting forth the grounds up on which the cause of action is based and stating that in the deponent’s belief there is no defence to the action, the Judge 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 cause the writ of summons to be marked accordingly, and enter thereon a date for hearing.
3(1) If the party served with the writ of summons and affidavit delivers to the Registrar, not less than live (5) days before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may gave him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List, and the Court may order pleading or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and the judgment given thereon, without calling upon the claimant to summon witnesses before the Court to prove his case formally. (Underline mine for emphasis).
The requirement of the above Order 23 is exemplified in the case of A. C. B. VS. EMEDO (2003) 10 NWLR (PT.828) 244 AT 266 – 267 as follows:-
1. There must be an application made to the Court praying the issuance of a writ of summons.
2. The claim of the applicant must relate to and be in respect of recovery of debt or liquidated money demand or any other claim related to the above.
3. The application shall be supported by an affidavit setting forth the grounds upon which the claim is based and specifically deposing to the belief that there is no defence to the action.
4. The court, if satisfied that there are good grounds for believing that there is no defence to the action, enter the suit in the undefended list.
5. The court shall then make the writ as “Undefended List” and adjourn same to date for hearing.
In the instant appeal, the respondent, duly filed its application in the trial Court praying for the issuance of the writ of summons under the Undefended List on 5/11/2012. The motion was fixed and argued on 13/11/2012. The respondent’s application was supported by a-18 paragraph affidavit with two Exhibits. See pages 1 – 6 of the record. From the averment in the supporting affidavit, it is clear that the claim of the respondent is for a recovery of debt or liquidated money demand. In paragraph 15 of the supporting affidavit, the respondent expressly and specifically stated thus:-
“That I (the plaintiff/respondent) know as a fact that the defendant (appellant) has no defence to this action.
After considering the averments in the supporting affidavit the trial Judge entered the suit under the undefended List on 13/11/2012 and order that the case be adjourned to 13/12/2012 for hearing. Thus the return date was fixed for 13/12/2012. The trial Court did not sit until 25/1/2013 when it was told that the order and the writ of summons were no yet served on the appellant. Consequently, the trial Court re-adjourned the matter to 20/2/2013 and again, when the trial court did sat when the appellant’s Counsel denied being served with the writ of summons and Court Order and as there was no proof, the case was adjourned to 10/4/2013 for hearing provided there was proof of service of Court processes on the appellant.
On 10/4/2013, the trial Court sat in the afternoon instead of morning’ When the case was called for hearing, the appellant’s Managing Consultant and Chief Principal Officer representing the appellant, was present, so also, the appellant’s counsel, one Mr. Ikebunbu Esq. represented the appellant.
When the respondent informs the Court that the appellant was served with the Court processes on 20/2/2012 and the case was for hearing and he is ready to go on, the appellant’s Counsel who was present replied:-
“Ikebunbu – we came to Court in the morning when the Court did not sit. (Bolaji, Edun, Esq.) my Principal has travelled to Lagos after we took date and that we were not served.”
But the Registrar of the Court produced the affidavit of service on the appellant on 20/2/2013 and the Court confirms the service effected on the same Counsel, who denied being served, and he again stated:-
“Ikebunbu: – My Principal is in a position to say something on this document. I have just joined the Law Firm.”
The respondent, thereafter informs the court that the appellant’s counsel has filed a memo of appearance since 19/2/2013 and up till then no Notice of intention to defend and affidavit in support have been filed against the action and the respondent urged the Court to enter judgment for the respondent as provided for under Order 23, Rule 4 of the High Court (Civil Procedure) Rules (Supra). The trial Court then grants the request and enters judgment for the respondent and grants all the two claims for the respondent by virtue of Order 23 of the High Court Rules 2005 of Kwara State. See pages 15 – 20 of the record.
From the above, it is not in dispute:
1. That there is proof of service showing that the appellant was served with Writ of Summons marked Undefended List and other Court processes on 20/2/2013.
2.That on 10/4/2013 when the case came up for hearing, the appellant and its Counsel were in Court.
3. That no Notice of intention to defend supported with an affidavit disclosing defence on the merits was filed.
4. That based on the above, the learned trial Chief Judge entered judgment for the respondent under the provision of Order 23, Rule 4 of the High Court (Civil Procedure) Rules of Kwara State.
In the instance case on appeal, it is evident that despite serving the appellant with the court’s processes and the Court Order relating to the case on 20/2/2013, the appellant refused or neglected to file any notice of intention to defend and an affidavit, disclosing a defence on the merit.
It is settled law that on the date fixed for hearing of the claim under undefended List procedure, the only business of the trial court is to see whether the defendant has filed a notice of intention to defend and an affidavit showing a defence on the merit. The determination of the suit under the undefended List, is based on the affidavit evidence. The appellant having failed to file any notice of intention to defend the suit together with an affidavit disclosing the defence on the merit, the trial Court, however, was left with no option than to hold that the appellant had no defence to the action and entered judgment pursuant to Order 23, Rule 4 of the said High Court (Civil Procedure) Rules.
It is crystal clear that once a defendant was served with a writ of summons on the Undefended List, he is duty bound to file a notice of intention to defend the action. In the case on appeal before us since the appellant was served with the writ of summons under the Undefended List but did not avail itself by filing a notice of intention to defend the action, the trial Court, in my view, was perfectly in order to have entered judgment for the respondent. SEE EPE L.G. vs. KESHINRO (2009) 4 NWLR (PT.1131) 405.
The appellant not having filed a notice of intention to defend together with an affidavit disclosing the defence on the merit, the averments in the affidavit of the respondent, in my view, were uncontroverted, unchallenged and uncontradicted and the Court acted on them. SEE EGBUNNA vs. EGBUNNA (1989) 2 NWLR (Pt.106) 773.
The appellant in its brief submitted that the trial Court failed to perform its fundamental duty of ascertaining whether prima-facie case has been established against the appellant by the respondent before entering judgment. I wish to point out that on the date fixed for hearing of the suit under Undefended List, the primary duty of the trial Court is to see whether there is a reasonable defence on the merit. The issue of establishing a prima-facie case does not arise because the respondent’s claim already been scrutinized by the trial court before marking and placing same under undefended List. (see p.7 of the record).
The appellant also made a heavy whether on the issue of respondent’s non-attachment of the lease agreement between the parties and submitted in its brief that, failure to attach same puts in doubt the existence of any lease agreement and that both parties never agree on the amount in dispute. Non-attachment of a tenancy or lease agreement cannot in this circumstance make the 1st respondent not to be entitled to the judgment. This is because, the respondent by its writ, had placed before the trial Court sufficient facts supporting its case in establishing the existence of such agreement between the respondent and the appellant, and the fact of letting use of the respondent’s business premises by the appellant was neither denied nor contested by the appellant at the trial Court or before this appellate Court. In the case of ODUTOLA vs. PAPERSACK NIG. LTD. (2007) ALL F.W.L.R. (PT.350) 1214 AT 1233, PAR. B – D,the Supreme Court held as follows:-
“….Accordingly, where a party alleges the existence of an oral agreement, which is a unique method and procedure he must give credible evidence as to the modalities of such agreement. In other words, a party alleging oral agreement is duty bound to prove such an agreement to the hilt.

And what is more, a lease is an exact legal transaction affecting en estate and the law requires some basic requirements. They are:-
1. The word of demise,
2. The agreement must be complete.
3. The lessor and the lessee must be clearly identified.
4. The premises and dimension of the property to be leased must be stated clearly.
5. The commencement and duration of the term of the lease must also be clearly stated.”
The respondent had, by his affidavit before the trial Court, established the existence of a lease agreement before the respondent and the appellant, in paragraph 4 – 14 of the affidavit in support of the writ of summons same was confirmed through Exhibit “A” (respondent’s Solicitor’s letter), (See Pages I – 6 of the record) and none was ever denied by the appellant. The trial Court, therefore, was right not to have made non-attachment of the lease agreement as basis to refuse entering judgment in favour of the respondent.
The appellant in its brief gave an impression that the claim of the respondent is un-liquidated. There is nothing un-liquidated in the respondent’s claim to warrant refusal of granting same by the trial Court.
The issue of what amounts to liquidated sum and whether the claim of the respondent qualifies as one has been clearly stated by the Apex Court in the case of AKPAN VS. AKWA IBOM PROPERTY & INVEST. COMPANY LTD. (2013) 12 NWLR (PT.1368) 377 AT 400, PARAS, D – E, where it was held, per GALADIMA, J.S.C.
“what then is liquidated money demand? This has been held to be a debt or other specific sum of money usually due and payable which amount must have already been ascertained or capable of being ascertained as a mere matter of without any other further investigation. Therefore, whenever, the amount being claimed by a plaintiff can be ascertained by calculation or fixed by any scale of charges or other positive date, it is said to be liquidated.”
Also by Black’s Law Dictionary, 8th, Edition, page 246, a liquidated money demand has been defined thus:-
“An amount previously agreed on by the parties or that can be precisely determined by operation of law.”
SEE also the case of JOHNNY VS. EDOJA (2007) ALL FWLR (PT.365) 527 AT P.544 PARAS A – C.
From the affidavit evidence, the appellant entered into the respondent’s premises as a yearly tenant having paid the sum of N1,280,000.00 out of the total sum of N1,920,000.00 with the promise to pay the balance of N640,000.00 within three months of being in the occupation. The appellant reneged its promise as a result of its failure, refusal and or neglect to pay the said balance. At the time of instituting this action on 5/11/2012 the appellant had about 40 days left in the respondent’s premises to complete another one yea having spent almost eleven (11) months, commencing 16/12/2011 and terminates on 15/12/2012, but also failed, refused or neglected to pay, despite respondent’s counsel’s letter of demand and notice to quit dated 10/7/2012 (Exhibit A). Contrary to the submission of the appellant, the respondent’s claim, in my view, is capable of being ascertained and is therefore liquidated but not unliquidated. Reason is that, where there is previous agreement to the rent paid, the appellant as Tenant of the respondent, is expected to pay the actual rent paid under the unexpired tenancy. That from record), it is clear that the type of the agreement between the parties is that of yearly tenancy. This tenancy finally becomes a tenant at will by operation of law. SEE ODUTOLA VS. PAPERSACK (Supra) AT P.1235 PARAS G – H. Hence the question of no further agreement to rent payable as raised by the appellant, cannot avail the appellant in this circumstance, in that the sum is ascertainable, certain and capable of being arithmetically calculated.
In determining rent to be paid by tenant by operation of law, as in this appeal, since there was previous agreed rent paid (though in part) by the appellant under the unexpired tenancy and in the absence of agreement by the parties to either increase or reduction, the rent payable, i.e., the previous rent, would be the actual rent to be paid by the appellant. In Section 104 of the Kwara State Land Lord and Tenant Law 2007, Cap. 14, it is provided thus:-
“(1) Where the owner of a property used or occupied by another person is entitled to payment for such use or occupation, then in the absence of an agreed rent the owner shall be entitled to an amount equal to what he would obtained as rent for the same property over the same period of time, or where it is not possible to assess such rent a reasonable amount, as compensation for his loss of use and occupation.” (Underline mine for emphasis).”
The appellant also argued that the second claim of the respondent i.e. N1,920,000.00, being the total sum of arrears of rent of the claimant’s business premises for the period of 16/12/2011 to 15/12/2012, was claimed 40 days to the day when the cause of action would arise and as such, it was a premature claim.
On this argument, I wish to state that cause of action in the circumstances of this case, arose immediately the appellant was in arrears of rent and not when appellant has been allowed to complete the remaining 40 days. The respondent needs not wait till the expiration of the 40 days before approaching the appellant for payment. The second claim, in my view, is not a premature claim. In view of what I said above this issue No. 1, is resolved in favour of the respondent and against the appellant.
On Issue No. 2, (which is whether the learned trial Chief Judge was in order to have entered judgment in favour of the respondent on the date fixed for hearing when the Court could not sit on the matter in the morning, but later sat at 11.00a.m. and the appellant and its Counsel were present at the proceedings).
The complaint of the appellant under this issue is that the Court was wrong when it proceeded to enter judgment against the appellant when it ought to have adjourned the matter till another date in view of the fact that the Counsel for the appellant was in the Court in the morning and both parties took another date for hearing of the suit because the trial Court did not sit in the morning, but later in the day the trial Court sat and proceeded with the case leading to entering judgment for the respondent. The Counsel for the respondent on his part, argued that the trial Court was perfectly right.
From the record of this appeal, it is shown that this case suffered 2 adjournments namely 25/1/2013 and 20/2/2013 and it was in the latter date, i.e,.20/2/2014 that the case was adjourned to 10/4/2013 for hearing. On 10/4/2013, the trial court sat and both parties’ counsel were present and it was only respondent who was absent while the appellant was represented by one Prince Sonny Ajayi, the appellant’s Managing Consultant and Chief Principal Officer.
The appellant and one of its counsel (Mr. Ikebunbu Esq.) in the chambers of the Principal appellant’s counsel (Bolaji Edun, Esq.) came to the trial Court for hearing of this case, who denied being served (See P. 16 of the record) but was proved wrong upon the production of proof of service by the Court’s Registrar, sworn to by the Bailiff of the trial Court. Then the appellant’s Counsel present, Mr. Ikebunbu, informed the learned trial Chief Judge that his Principal travelled to Lagos after taking date when the Court did not sit in the morning. He also told the trial Court that it was only his Principal who left to Lagos that was in a position to say something on this case as he (Mr. Ikebunbu Esq.) has just joined the Law Firm.
The respondent’s Counsel on his part told the Court that no notice of intention to defend and affidavit of the defence on merits have been filed, but the appellant filed and served the respondent with a memorandum of appearance since 19/2/2013. The counsel prayed the court that, in the absence of such important documents being filed, the judgment in favour of the respondent should be entered. He told the trial court he adopted and relied on their affidavit in support of the writ of summons and the exhibits as their evidence in proof of their claim.
The trial court consequently entered judgment pursuant to Order 23 of the Kwara State High Court (civil Procedure) Rules (Supra). But the learned Counsel for the appellant contended that the trial Court ought to have adjourned to another date since he took another date and left the Court’s premises for Lagos.
It is important to note that every Court has power under the Rules to adjourn the hearing of a suit if it thinks it is expedient for the interest of justice do so or on being satisfied that the adjournment will conduce to the hearing and determination of the case on the merit and not made for purpose of mere delay. It is a matter within the discretion of the Court. SEE AFRICAN CONTINENTAL BANK LTD. VS. AGBONYIN (1960) 5 F.S.C. 19. That discretion must at all times be exercised not only judicially but also judiciously. SEE ILONA & ANOR VS. DEI & ANOR (1971) 1 ALL N.L.R. 8. In NWADIOGBU & 6 ORS VS. ANAMBRA & IMO RIVER BASIN DEVELOPMENT AUTHORITY & ANOR (2010) 19 NWLR (PT.1226) 364 AT 381 – 382 PARAS H – A. the Supreme Court held that:-
“When a case has been fixed for hearing, the trial court must ensure that the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned that is, by placing sufficient materials before the court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.”
From pages 16 and 17 of the record, it shows clearly that the appellant’s Counsel who was present on 10/4/2013, the date of the hearing, failed to put application or put any reasonable tenable and justifiable reason'(s) before the trial court for adjournment. He only kept saying his principal who was also present in the morning but left, had travelled to Lagos. And he never said anything as to their failure to file notice of intention to defend and affidavit disclosing defence. Under this circumstance, therefore, the trial court did not sacrifice justice on the alter of expediency, as wrongly asserted by the appellant, but rather the trial Court had only done what was required, having given the appellant ample opportunities to defend itself but failed to do so and rather kept delay tactics by way of excuses.
Similarly, in the case of FALOWU VS. BAMIGBE (1998) 6 SCNJ 42 AT 64 PARA 34, the Apex Court held thus:-
“It seems to me necessary at this stage to stress that once counsel announces his appearance in Court, whether he is holding brief for another counsel or not, the court takes it that he fully mandated and or authorized, to conduct the case on behalf of his principal or his client. If, however, he is not in the position for any reason to do so, it is his duty to apply for an adjournment, stating his reasons to the Court for the application where upon the Court, upon a consideration of such reasons shall decide whether or not the case should in the interest of justice, he adjourned, otherwise, the Court would proceed with the hearing of the cause or matter. In the absence of such an application the Court is entitled to assumed that Counsel is fully instructed and/or mandated to get on with the case”
It is important to remember that a Judge is not obliged to grant an adjournment solely because Counsel on each side asked for it or agreed on it, the court must see that there is a justifiable reason for same. In NWADIOGBU & 6 ORS V. ANAMBRA IMO RIVER BASIN DEV. AUTHORITY & ORS (SUPRA) AT P.385 PARAS E – F, it was decided that:-
“… A Court should never encourage the act of holding it to ransom on flimsy excuses. We must always avoid the situation whereby the courts are perpetually blamed for delays in proceedings. The issue of adjournment of a case is a discretion of a Judge, and where a Judge sees no justifiable reason to adjourn the case, he can refuse such adjournment, and in so doing, he would be exercising his discretion judicially and judicially”
In the same vein, this Court, in MADU VS. OKEKE (1998) 5 NWLR (PT.548) 159 AT 164 PARA D, has also held thus:-
“Let me pause here and deal briefly with the application for adjournment. Courts of law have said it several times that Counsel should refrain from attending Court merely to ask for adjournment to enable a more senior colleague to do the matter. It is not a fashion for younger Counsel to ask for adjournment on the ground that a more senior colleague would like to do the matter “personally.” Frankly, I do not know what this is all about.”
In the instance case, it could be seen that from pages 16 and 17 of the record, the counsel for the appellant neither prayed the trial court for an adjournment nor took any reasonable, acceptable and progressive steps by filing either notice of intention to defend and a supporting affidavit showing any defence (if any) on the merit. Hence, for the trial court proposing and granting an adjournment in the circumstances will amount to the court becoming a Father Christmas, the position which the courts are being enjoined to desist from. Even the presence of the principal counsel who represented the appellant in court in the morning could not have held back the hands of the trial court from proceeding to hearing on the date of 10/4/2013 as a result of failure to file necessary process.
Reason is that, the Supreme Court in the case of ABIA STATE TRANSPORT CORPORATION VS. QUORUM CONSORTIUM LTD (2009) 9 NWLR 1 AT 34 PARAS E – G. has laid down conditions which the defendant (appellant in this case) must show before he can be heard in an action under Undefended List procedure, when it held that:-
“…Mere deposit of memorandum of appearance in the registry is not enough, a defendant (like appellant in this appeal) in an undefended suit who would like to be heard by the trial court must show through the process filed, that he has a defence on merit. There was no such process before the Court.”…”
Finally, and for what I said above, the trial court was right to have entered the judgment for the respondent on the date fixed for hearing of this case on appeal. For it is settled law that on the date fixed for hearing of the claim under undefended List procedure, the only business of the trial court is to see whether the defendant (appellant) has filed a notice of intention to defend and an affidavit showing a defence on the merit. The appellant having failed to file such necessary processes, the trial court was left with no option than proceed to hearing and hold that the defendant (appellant) had no defence to the action and entered judgment for the respondent pursuant to Order 23, Rule 4 of the High Court (Civil Procedure) Rules (supra). Having reached this view, this issue No. 2 is also resolved in favour of the respondent and against the appellant.
Finally, having resolved the two (2) issues in favour of the respondent and against the appellant, the appeal, in my view, lacks merit and is hereby dismissed. The judgment of the trial court dated 10/4/2013 in Suit No. KWS/285/2013 is affirmed.
I award a total sum of One Hundred Thousand Naira (N100,000.00) favour of the respondent.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the draft of the judgment of my learned brother Mohammed Ladan Tsamiya, JCA.
I would only add that the undefended list procedure in Kwara State is governed by Order 23 of the High Court (Civil Procedure) Rules of Kwara State, 2005. Order 23 Rule 3(1) provides as follows:
“(1) If the party served with the writ of summons and affidavit derivers to the Registrar, not less than five (5) days before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the court may think just.
While sub rule (4) provides thus:
“Where any defendant neglects to deriver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit and the judgment given thereon, without calling upon the claimant to summon witnesses before the court to prove his case formally.”
In the present case, the learned counsel to the appellant in the Lower Court did not file any Notice of intention to defend the suit and an affidavit in support against the action. The learned trial judge was right to have invoked the provisions under sub-rule (4) to have heard the case under the undefended list and judgment given thereafter. Worse still, there was proof of service on the appellant and his counsel was present during the proceedings even though he had not filed any processes to indicate his willingness to defend and that he had a defence to the suit. In my humble but, considered view the learned trial judge was right to enter judgment in accordance with Order 23 (4) of the Kwara State High Court (Civil Procedure) Rules as he did. See, ABIA STATE TRANSPORT CORPORATION AND ORS VS. QUORUM CONSORTIUM (2009) 3 – 4 S.C. 1887, 9 NWLR (PT.1145) 1, ADEWUMI VS. ADEBEST TELECOMMUNICATION NIGERIA LIMITED (2011) LPELR – 9087 (CA). GRONYO VS. U.B.A. PLC (2000) FWLR (PT.23) 1294 AT 1308 – 1309, IKPONG VS. UDOBONG (2007) 2 NWLR (PT.1017) 184 AT 204 – 205 PARAGRAPHS, D – C, BEN THOMAS HOTELS LTD VS. SEBI FURNITURE CO. LTD (1989) 12 SCNJ 171 AT 174 – 175 AND JIM DANIELS AND INSIGHT ENGINEERING CO. LTD (2002) FWLR (PT. 99) 1113 AT 1125.
In the present case therefore, the appellant was not entitled to be heard. The judgment of the trial court cannot be faulted, I affirm same and dismiss the appeal for lacking in merit.
I abide by the order made as to costs.

MUSA HASSAN ALKALI, J.C.A.: I had the privilege in reading the advance judgment of my learned brother, Mohammed Ladan Tsamiya, JCA (PJ) with which I entirely agree.
For the reasons so eloquently and comprehensively set out by my learned brother, Justice Mohammed Ladan Tsamiya, I too hold that the judgment of the trial court dated 10/4/2013 in Suit No.KWS/285/2013 is affirmed. N100,000.00 cost awarded to the respondent.

Appearances

Wahab Ismail with him Lanre BadmusFor Appellant

AND

Y. A. Dikko with him A. S. Asonibare and Oluseyi AkintoroyeFor Respondent