ALH. SANUSI ALIYU MARADUN v. ALH. MALAMI TAMBUWAL (2015)

ALH. SANUSI ALIYU MARADUN v. ALH. MALAMI TAMBUWAL

(2015)LCN/7797(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 4th day of March, 2015

CA/S/141/2013

RATIO

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; THE PROVISION OF ORDER 22 OF THE CIVIL PROCEDURE RULES ON THE UNDEFENDED LIST

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; WHAT SHOULD THE COURT CONSIDER IN DETERMINING WHETHER OR NOT THE DEFENCE PUT UP BY THE DEFENDANT WAS STRONG ENOUGH TO CAUSE THE LEARNED TRIAL JUDGE TO TRANSFER THE SUIT
What should the court consider in determining whether or not the defence put up by the defendant was strong enough to cause the learned trial Judge to transfer the suit? This point was considered by the Supreme Court in ATAGUBA AND COMPANY V GURA NIGERIA LTD [2005] 8 NWLR [PT 927] 429. Tobi JSC. had this to say:
“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 the defence is and what facts and documents are relied on to support 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. A mere general denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiff’s claim.”
Edozie JSC, in his lordship leading judgment, stated thus;
“One of the main problems that often arise in the undefended suit procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit in this regard it has been held that it must disclose a prima facie defence: BENDEL CONSTRUCTION CO LTD V ANGLOCAN DEVELOPMENT CO [NIG] LTD (1972) 1 ALL NLR 153. The affidavit must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. See JOHN HOLT & CO (LIVERPOOL) LTD V FAJEMIROKUN (1961) ALL NLR 492”.
This question was further considered by Onnoghen JSC in IMONIYAME HOLDINGS LTD & ANOR Vs SONEB ENTERPRISES LTD & ORS [2010] 4 NWLR (PT 1185) 561. His Lordship had this to say:
“The facts to be stated in the affidavit of the defendant must be such that will require the plaintiff to offer explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff. Where such a situation arises, we say that the defendant has disclosed a defence on the merit to the claim of the plaintiff and the trial court is by the rules duty bound to allow or admit the defendant to defend the action by granting him leave to do so and consequently transfer the case from the undefended list to the General Cause List to be dealt wit by the filing of pleadings or the court may even order that the affidavits filed should serve as pleadings for the trial of the matter. The rule does not authorize the merit of the case by making findings of facts to arrive at any conclusion, as the appellants appeared to be arguing.” per. TUNDE O. AWOTOYE, J.C.A.

COURT: POWER OF THE COURT; THE POWER OF A COURT OF APPEAL TO LOOK AT ANYTHING CONTAINED IN THE RECORD OF APPEAL BEFORE IT TO ARRIVE AT A JUST DECISION

A Court of Appeal has the power to look at anything contained in the Record of Appeal before it to arrive at a just decision. See PAVEX INTERNATIONAL CO. NIG. LTD V IBWA (2000) 4 SC (PT II) 196; CHEVRON (NIG) LTD V ONWUGBELU (1996) 3 NWLR [PT 437] 404. per. TUNDE O. AWOTOYE, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OWOADE AWOTOYE Justice of The Court of Appeal of Nigeria

M. L. SHUAIBU Justice of The Court of Appeal of Nigeria

Between

ALH. SANUSI ALIYU MARADUN Appellant(s)

AND

ALH. MALAMI TAMBUWAL Respondent(s)

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by the appellant on 12/07/2013 against the judgment of M.U. Dogondaji J. delivered on 17/6/2015 in suit No. SS/17/2013.

The plaintiff’s claim against the defendant at the court below as per the writ of summons issued on 20/3/2013 read thus

“a. The sum of N70,500,000.00 (Seventy Million, Five Hundred Thousand Naira) being debt owed to the plaintiff by the defendant on account of loans granted and consideration for goods sold and delivered by the plaintiff to the defendant.

b. Interest at the rate of 21% on the sum of N70,500,000.00 (Seventy Million, Five Hundred Thousand Naira) from 21/3/2011 until judgment and thereafter at court rate of 10% until satisfaction thereof.

c. Cost

d. And such orders as this honourable court may deem fit to make in the circumstances”

The plaintiff sought and obtained leave to mark the writ “undefended list” The motion and the exhibits attached therewith were later served on the defendant paragraphs 6 – 25 of the supporting affidavit which were very pertinent to the plaintiff’s claims read as follows

“6. That taking advantage of the cordial relationship between us, on several occasions between the year 2010 and 2011 the defendant/respondent approached me with proposal to either grant him a friendly loan or sell some of my landed properties to him on credit.

7. That particularly on 20/9/2010 I, at the instance or request of the defendant/respondent, granted a loan of N5,200,000.00 (Five Million, Two Hundred Thousand Naira) only to the defendant. This debt was acknowledged by the defendant in writing. The said written acknowledgment dated 20/9/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT A and A1, respectively.

8. That since collecting the loan from me the defendant/respondent only made a part payment of Two Hundred Thousand Naira to me, leaving, a balance of N5,000,000.00 unpaid despite repeated demands.

9. That furthermore on 21/9/2010 I, at the instance/request of the defendant/respondent, sold an engine/machine for the molding/manufacturing of interlocking blocks to the defendant/respondent at the price of N2,000,000.00 (Two Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in written in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment which is Hausa Language and its English translation are attached here and marked as EXHIBIT DEBT B and B1, respectively.

10. That again on 22/9/2010 I, at the instance/request of the defendant/respondent, sold my plot of land lying being and situate at the Eastern bye-pass road Sokoto, within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N6,000,000.00 (Six Million Naira only). The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledge in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgement dated 22/9/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT C and C1, respectively.

11. That also on 17/10/2010 I, at the instance/request of the defendant/respondent, sold my plot of land lying being and situate at Arkilla area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N13,000,000.00 (Thirteen Million Naira) only. The fact of this sale and of indebtedness to me on account of same by the defendant was acknowledged in writing in Hausa language under the hand of the defendant/respondent. The said written acknowledgement dated 17/10/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT D and D1 respectively.

12. That similarly on 12/11/2010 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate as Gwiwa area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N2,000,000.00 (Two Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment dated 12/11/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT E and E1, respectively.

13. That again on 19/11/2010 I, at the instance/request of the defendant/respondent, sold my house having being and situate at Sokoto within the jurisdiction of this honourable court to the defendant at the cost/price of N10,000,000.00 (Ten Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgment 19/11/2010 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT F and Fl, respectively.

14. That also on 17/12/2010 I, at the instance/request of the defendant/respondent, sold four of my houses adjoining each other at Sokoto within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N15,000,000.00 (Fifteen Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa language under the hand of the defendant/respondent. The said written acknowledgment dated 17/12/2010 which is in Hausa language and its English translation are attached here and marked as Exhibit Debt G and G1, respectively.

15. That is similarly on 25/2/2011 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate at Low-Cost area of Wamakko Local Government area within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N7,000,000.00 (Seven Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa Language under the hand of the defendant/respondent. The said written acknowledgement dated 25/2/2011 which is in Hausa Language and its English translation are attached here and marked as EXHIBIT DEBT H and H1, respectively.

16. That on 5/3/2011 I, at the instance or request of the defendant, granted a loan of N500,000.00 (Five Hundred Thousand Naira) only to the defendant/respondent. This debt was acknowledged by the defendant/respondent in writing. The said written acknowledgement dated 5/3/2011 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT I and II, respectively.

17. That similarly on 21/3/2011 I, at the instance/request of the defendant/respondent, sold my piece or plot of land lying being and situate at Sokoto within the jurisdiction of this honourable court to the defendant/respondent at the cost/price of N10,000,000.00 (Ten Million Naira) only. The fact of this sale and of the indebtedness to me on account of same by the defendant/respondent was acknowledged in writing in Hausa language under the hand of the defendant. The said written acknowledgment dated 21/3/2011 which is in Hausa language and its English translation are attached here and marked as EXHIBIT DEBT J and J1, respectively.

18. That the defendant/respondent has since taken delivery of all the properties sold to him by me and dealt with same at his absolute discretion.

19. That on account of all these transactions the defendant/respondent is indebted to me in the sum of N70,500,000.00 which yet remains unpaid to date.

20. That ever since the 21/3/2011 when the last transaction was made the defendant/respondent has failed, refused or neglected to seek me to either raise or make any reasonable proposal for payment or settlement of the debts or pay same and has continued to avoid contact with me, including receiving or returning my phone calls.

21. That the April 2011 general election has since taken place.

22. That I have waited patiently and in vain hoping that the defendant would come to settle his debts with me.

23. That on 2/7/2012 I caused my solicitors to write and serve upon the defendant/respondent a letter of demand which letter the defendant/respondent failed refused to neglected yet to acknowledge or respond positively to. A copy of the said solicitor’s letter dated 2/7/2012 is attached here and marked as EXHIBIT DEBT K.

24. That I have virtually exhausted all avenues in ensuring that the defendant/respondent becomes forthcoming in paying his debts to me hence the need for recourse to instituting this action.

25. That I verily believe that the defendant/respondent has no defence to my claim and further to that resolved to institute action against the defendant/respondent under the undefended list cause, subject to leave of this honourable court.”

In line with the Rules of Sokoto High Court Civil Procedure Rules, the defendant in response filed Defendant’s Notice of Intention to defend on the merits on 24/4/13 and 4 paragraph affidavit disclosing a defence on the merits on the same day.

It is necessary to quote the relevant paragraphs of the affidavit filed by the defendant paragraphs 3 of the affidavit read thus;

“3. That on the 22nd of April, 2013, at the chambers, at about 4:30pm, the Defendant informed Ibrahim Abdullahi of counsel in my presence of the following facts, the truth of which I verily believed to be true as follows:

a. That paragraphs 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 & 25 of the supporting affidavit o the Plaintiff are false to the knowledge of the plaintiff and in furtherance of the denials, the Defendants states the true position as follows:

i. That in the year 2011, he contested for the position of Member, House of Representatives to represent Bakura/Maradun Federal Constituency.

ii. That during the campaigns, owing to the fact that he was not having sufficient monies to sponsor his campaigns, the plaintiff called upon him and sold the idea that he will assist him (the Defendant) financially to sponsor his campaign ambition by giving the Defendant landed properties to sell and then use the monies realized to sponsor his campaigns.

iii. That the said monies were to be paid back if and only the Plaintiff succeeds and becomes a member, House of Representatives representing Bakura/Maradun Federal Constituency.

iv. That the Defendant agreed to this parole arrangement and which explains why between the Plaintiff and the Defendant, all agreed to write down “Exhibits Debt A, AI, B, BI, C, CI, D, DI, E, EI, F, FI, G, GI, H, HI, I, II, J & JI respectively in disguise but the actual facts” and circumstances were only meant to fulfill what was agreed upon as per the preceding paragraph above.

v. That all the documents (i.e. Exhibits debt A, AI, B, BI, C, CI, D, DI, E, EI, F, FI, G, GI, H, HI, I, II, J & JI annexed to the supporting affidavit were in the form of assistance not “friendly loan or sale parse” but which monies were to be paid if and only the Defendant have succeeded and becomes member, House of Representatives representing Bakura/Maradun Federal Constituency.

vi. That further to the above, the nature of the transaction was for the plaintiff to give him (the Defendant) a House to sell at any amount and the monies for his campaigns.

vii. That at no time did, he purchase any of the developed landed property stated in the supporting affidavit of the Plaintiff nor was any time for payment specified aside from the parole undertaking he (the Defendant) had with the Plaintiff that whatever financial assistance was rendered to him (the Defendant) shall upon him (the Defendant) securing victory as a member, House of Representatives representing Bakura/Maradun, be paid back to the Plaintiff.

viii. That all the landed properties claimed to have been given to him by the Plaintiff were sold at great loss and were not up to the monetary value ascribed to them by the Plaintiff and this was based strictly on the parole understanding that he (the Defendant) had with the Plaintiff who was then sure of the defendant chances of winning the elections and to be compensated later by him (the Defendant) beyond the Plaintiff’s imagination.

ix. That unfortunately, he (the Defendant) failed at the said election and consequently failed to secure a place as a member to represent Bakura/Maradun Federal Constituency.

x. That all the exhibits annexed to the supporting affidavit were written down to further conceal the fact that the Plaintiff had such enormous properties that he can assist other people in case the Economic and Financial Crime Commission wades in to investigate since the plaintiff is just a cashier with the cabinet office Sokoto.

xi. That the agreement he had with the Plaintiff has been “Frustrated” by an act of God owing to the loss at the General Elections.

xii. That he indeed, has a good defence to this action relating to the defence of “Frustration of Contract” which he intends to raise at the hearing of the substantive suit if this case is transferred to the general course list.

xiii. That he equally intends to raise a preliminary objection to the competency of this suit as the claims of the Plaintiff as presently constituted does not pass for a liquidated money demand for which suits under the undefended list are meant for.

xiv. That he verily believes he has a good defence to the Plaintiffs action.

xv. That it would be in the best interest of justice to transfer this case to the general course list for the hearing on the merits.

xvi. That if this suit is not transferred to the general cause list, he would be greatly prejudiced as the plaintiff would have succeeded in using this suit as a fencing game.

xvii. That the suit of the plaintiff is incompetent for non-compliance with the provisions of the law and hence he intends to challenge the competence of this court to hear and determine this action.”

The defendant also filed a 4 ground Notice of preliminary objection. The grounds in support of the preliminary objection stated as follows:

“1. The claims of the plaintiff are not suitable for trial under the undefended list procedure as laid out in Order 22 Rule 1 of the High Court Civil Procedure Rules as it demands the payment of interest on the sums claimed.

2. The quantity of interest on the demanded sums is not known and therefore not liquidated as to cause under the provisions of Order 22 Rule 1 of the Rules of this Honourable Court.

3. That the placing of Suit No. SS/17/2013 involving a claim of interest under the undefended list by the court amounts to expanding the jurisdiction of this Honourable Court.

4. That this court has no jurisdiction to entertain Suit No. SS/17/2013 as a case under the undefended list.”

The learned trial Judge after hearing the parties gave judgment inter alia thus;

“In the final analysis having made a finding that the defence put forward by the defendant in his affidavit does not amount to a defence on the merit, this court will proceed to treat the plaintiff case as a case under the undefended list. The learned counsel to the plaintiff in this case had earlier moved this court to enter judgment for the plaintiff per his writ of summons. I’m now prepared to do just that.

Judgment is hereby entered for the plaintiff Alh. Malami Tambuwal in the sum of N70,500,000.00 (Seventy Million, Five Hundred Thousand Naira being debts owed to the plaintiff by the defendant on account of loans granted and consideration for goods sold and delivered to the defendant by the plaintiff.

Interest at the rate of 10% from the date of this judgment until satisfaction of the judgment sum thereof. The defendant should also pay the sum of N50,000. as the cost of this action.

I deliberately declined to award the 21% interest claimed by the plaintiff per his writ of summons as it is a prejudgment interest, but if the plaintiff so desires he can apply to have that claim transferred to the general cause list for it to be determined on the merits. On this see the case of ADEJO & ANOR VS WALYAR NURESIE (2012) LPELR 9281 (CA)”

Miffed by the judgment the defendant/appellant filed 4 grounds of appeal via his Notice of appeal filed on 2/7/2013.

The ground of appeal excluding the particulars read as follows:

“Ground 1

The court below erred in law when in entering judgment for the Respondent in the suit under the undefended list procedure it held as follows:

“…It is the view of this court that defence of frustration of contract put forward by the Defendant in his affidavit in support of Notice of intention to defend cannot be said to be a defence on the merit because such a defence is not stated in Exhibits Debt A to J1…” And this has occasioned a miscarriage of justice.

Ground 2

The court below erred in law and breached the constitutional right of fair hearing of the Appellant as enshrined under section 36 (1) if the Constitution of the Federal Republic of Nigeria 1999 when it refused to give the Appellant the opportunity to prove the parole agreement between the Appellant and the Respondent leading to exhibits Debt A – J1 and this has occasioned a miscarriage of justice.

Ground 3

The court below erred in law when in entering judgment in favor of the Respondent, it held that the defence put forward by the Appellant in his affidavit in support of his Notice of intention to defend cannot be said to be a defence on the merit but a sham defence and this has occasioned a miscarriage of justice.

Ground 4

The court below erred in law and acted without jurisdiction when in holding that the Appellant notice of intention to defend did not disclose a defence on the merits, it considered the case of the Respondent before the consideration of the Appellant Notice of Intention to defend and which comparism weighted heavily on the mind of the court in entering judgment for the Respondent and this has occasioned a miscarriage of justice.”

The record of appeal in this appeal was deemed duly compiled and transmitted on 25/6/2014. Parties later filed and exchanged briefs of argument.

The appellant’s brief of argument was deemed filed on 25/6/2014. it was settled by Ibrahim Abdullahi appellant’s solicitor.

The Respondent’s brief filed deemed filed on 26/11/2014 was settled by E.I. Ogiza, Respondent’s counsel.

In the appellant’s brief of argument, learned appellant’s counsel formulated 4 issues for determination.
The issues are:

“i. Was the Court below correct in law to have held in refusing to order a transfer to the general cause list that the defence of frustration of contract put forward by the Appellant was not a defence on the merit simply because it was not stated in Exhibits Debt A- J1? (This is decoded from ground 1 of the grounds of Appeal).

ii. Was the Appellant right to fair hearing not prejudiced when the Appellant was not given opportunity to prove the Parole agreement between him and the Respondent leading to Exhibits debt A -JI? (This is decoded from ground 2 of the grounds of Appeal).

iii. Were the defence put forward by the Appellant in his affidavit in support of his intention to defend a sham? (Decoded from ground 3 of the grounds of appeal)

iv. Was the Court below right and or reserve jurisdiction to consider the case of the Respondent first before considering the Appellant notice of intention to defend in a case under the undefended list? (Decoded from ground 4 of the grounds of appeal)”

On issue No.1, learned appellant’s counsel submitted that where a defendant filed a notice of intention to defend which was supported by an affidavit of defence to the plaintiff’s claim the trial court ought to transfer the claims for trial under the general cause list.
He relied on NAIC V WEMA SECURITY & FINANCE PLC [2007] ALL FWLR (Pt.345) pg 366 at 376 – 372.

He submitted that the appellant put up several defences in his affidavit disclosing defence on the merit. He asserted that the court could not determine the defences without placing the plaintiff’s claims on the general cause list. He contended that opportunity ought to be given to the appellant to give oral evidence on the defence of frustration of contract.

He urged the court to resolve the issue in favour of the appellant.

On issue No.2 learned appellant’s counsel submitted that the court below did not allow the appellant opportunity to prove the existence of an oral agreement but held that the appellant put forward an entirely different case from that of the respondent in Exhibits A to J1. he relied on UDE CHUKWU V NGENE (1992) 8 NWLR (Pt. 261) At 383 to contend that it was trite law that where evidence would throw light on a document such oral document was admissible in law. He argued further that the affidavit of the parties were steeped in controversy and as such the undefended list procedure was not suitable in determining the facts. He contended further that what the court below did amended to shutting out the appellant.

He urged the court to resolve the issue in favour of the appellant.

On Issue No.3 learned counsel referred to the defences of candidates contract, concealment and frustration of contract raised by the appellant but which ought to have put the trial court on ground as to the need to transfer the case under the undefended list to the general cause list. He referred to VSS LTD V GOVERNMENT OF ANAMBRA STATE [2001] FWLR (PT 66) Page 697 at 706 and other cases.

He submitted that the leaned trial judge erred by describing the defence as a sham. He urged the court to resolve the issue in favour of the appellant.

Issue No.4

On this issue, learned counsel submitted the court below erred by analyzing the Respondent’s case first before the defence of the appellant. He referred to the decision in UBA PLC V TARABA (2007) 11NWLR (Pt 1045) 247 and some other cases.

He submitted further, after referring to pages 150-157, that the procedure adopted by the court below was unknown to law and therefore occasioned a miscarriage of justice. He urged the court to resolve the issues in favour of the appellant and allow the appeal.
Learned Respondent’s counsel E. I. Ogiza adopted the four issues formulated by the appellant’s counsel.

On Issue No.3; learned counsel submitted that what to consider first and what to consider last in the evaluation of facts before the lower court was entirely a matter of style. He stated that the appellant did not show how his case was prejudiced by the style or approach of the lower court.

On issue 1 learned counsel submitted that it was trite law that when parties negotiated a contract orally and subsequently agreed to reduce the terms into writing neither of the parties would be allowed to insist on the terms of the contract which were not included in the written contract. He cited SUBERU V ATIBU IYALAMU [2008] 5 WRN 151 at 172-173. He further submitted that the court below did not need the Respondent to proffer any explanation on the appellant’s admission that he knowingly and willingly entered into the liabilities in the Exhibits.

He urged the court to resolve this issue in favour of the Respondents.

Issue No.2 Learned Respondent’s counsel submitted that the court below considered the case of the contending parties and properly evaluated the affidavit evidence before concluding that the defence put up was a sham. He urged the court to resolve this issue in favour of the Respondent.

I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.

I have also deeply considered the issues formulated for determination by both counsel. I am however of the respectful view that the issues are condensable into one sole issue for the proper determination of this appeal.

The issue is:

Whether or not the learned trial Judge erred in law to have proceeded to enter judgment in favour of the Respondent in spite of the Notice of Intention to Defend and the Affidavit disclosing a Defence on the merits
filed on 24/4/2013.

I shall proceed to determine the above sole issue.

Now, the Respondent (who was the plaintiff at the lower court) commenced the action pursuant to Order 8 Rules 1 – 3 and Order 22 of the High Court Civil Procedure Rules of Sokoto State.

Order 22 of the Civil Procedure Rules is on the Undefended List.
For clarity’s sake I shall quote Order 22 of the Rules in extenso:
“THE UNDEFENDED LIST
1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
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 not less than 5 days before the date 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.
(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 pleadings 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 judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.
5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”
What is in contention in this appeal is whether or not the defence put up by the defendant (now appellant) justified the transfer of the suit from the undefended list to the general cause list under Order 22(3) of the Rules.
What should the court consider in determining whether or not the defence put up by the defendant was strong enough to cause the learned trial Judge to transfer the suit? This point was considered by the Supreme Court in ATAGUBA AND COMPANY V GURA NIGERIA LTD [2005] 8 NWLR [PT 927] 429. Tobi JSC. had this to say:
“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 the defence is and what facts and documents are relied on to support 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. A mere general denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiff’s claim.”
Edozie JSC, in his lordship leading judgment, stated thus;
“One of the main problems that often arise in the undefended suit procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit in this regard it has been held that it must disclose a prima facie defence: BENDEL CONSTRUCTION CO LTD V ANGLOCAN DEVELOPMENT CO [NIG] LTD (1972) 1 ALL NLR 153. The affidavit must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. See JOHN HOLT & CO (LIVERPOOL) LTD V FAJEMIROKUN (1961) ALL NLR 492”.
This question was further considered by Onnoghen JSC in IMONIYAME HOLDINGS LTD & ANOR Vs SONEB ENTERPRISES LTD & ORS [2010] 4 NWLR (PT 1185) 561. His Lordship had this to say:
“The facts to be stated in the affidavit of the defendant must be such that will require the plaintiff to offer explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff. Where such a situation arises, we say that the defendant has disclosed a defence on the merit to the claim of the plaintiff and the trial court is by the rules duty bound to allow or admit the defendant to defend the action by granting him leave to do so and consequently transfer the case from the undefended list to the General Cause List to be dealt wit by the filing of pleadings or the court may even order that the affidavits filed should serve as pleadings for the trial of the matter. The rule does not authorize the merit of the case by making findings of facts to arrive at any conclusion, as the appellants appeared to be arguing.”

I shall view the facts of the case now on appeal in the light of the above exposition of the law.

What was the case put up by the plaintiff at the lower court?

They are as averred to in paragraphs 7, 9, 10, 11, 12, 13, 14, 15 – 19 & 23 of the affidavit in support of writ of summon of the plaintiff.
What was the response of the defendant? This was contained in paragraph 3 of the affidavit disclosing a defence on the merits.
The plaintiff caused his lawyer to write the defendant on his indebtedness to the tune of N70,500,000 on 2/7/2012. This was not denied by the defendant in his affidavit disclosing defence on merits. Yet he never wrote to controvert or challenge the contents of the letter. In fact the defendant was strangely silent on the letter in his affidavit. There is need to refer to the contents of the letter dated 2/7/2012 written by Barrister Abdulhameed Zubairu on behalf of the plaintiff to the defendant. It read thus:

“DEMAND FOR PAYMENT OF SEVENTY MILLION, FIVE HUNDRED THOUSAND NAIRA (N70,500,000.00) ONLY BELONGING TO ALHAJI MALAMI TAMBUWAL

We act as solicitors to Alhaji Malami Tambuwal herein after referred to as our client and on whose behalf and instructions we are mandated to write this demand letter.

We have been informed by our client that you had on several occasions engaged our client in different transactions upon which you are indebted to him to the sum of Seventy Million, Five Hundred Thousand Naira (N70,500,000.00) only with the promise that you will liquidate your indebtedness within possible shortest time, but to the surprise of our client, you refused, neglected and ignored to pay him his money despite several demands put to you.

However, after several demands to get his money from you, you were unable to fulfill your obligations to our client or put the necessary action in motion to ensure he gets his money back. We need not to remind you that by the law you are duty bound to settle our client.

Base on this premise sir, it is however our brief to demand the immediate payment and settlement of the debt from you which is Seventy Million, Five Hundred Thousand Naira only (N70,500,000.00).

It is however constructive to say here that if we do not receive any positive response from you within one week from the date of the receipt of this demand letter, we may be forced to take all necessary legal actions to recover the said money. We believe that a reasonable and responsible person like you will rather pay out his obligations than face the wrath of the law which may include the rigours of police investigation, arraignment and subsequent litigation, which at the end of the day will expose you to untold hardship and embarrassment.

Attached to this notice are photocopies of evidences of the aforesaid transactions for your referral.

Thank you.

Yours faithfully,
Barr. Abdulhameed Zubairu
PP: Abdulhameed Zubairu & Co
08033224457”

The failure of the defendant to react to the contents of the letter written to him by the plaintiff’s lawyer even in his affidavit to disclose intention to defend action on merits coupled with the various documents signed by him and exhibited to the plaintiff’s affidavit totally obviated the need for the lower court to transfer the suit to the general cause list. The silence of the defendant on the letter of the plaintiff’s lawyer leads to presumption of admission of its contents by conduct by the defendant. See JOE IGA V CHIEF AMAKRI [1976] 11 SC 1. GWANI V EBULE [1990] 5 NWLR (PT.149) 201 VASWANI V JOHNSON [2000] 11 NWLR [PT.679] 582
The defendant did not show a prima facie defence on merits or reasonable defence. See BENDEL CONSTRUCTION CO LTD V ANGLOCAN DEVELOPMENT CO [NIG] LTD [1972] 1 ALL NLR 153.

The learned trial Judge considered the defence of the defendant/appellant and rightly concluded that it was a sham. I agree. It was a ploy to buy time.

The learned trial Judge in my respectful view rightly evaluated the facts as revealed in the affidavit filed and came to the correct conclusion. In my view the decision of the learned trial Judge is unimpeachable. It is in line with Order 22 of the Sokoto High Court Civil Procedure Rules.

I resolve the sole issue in favour of the Respondent.
This appeal fails in it’s entirety. It lacks merit.
It is accordingly dismissed with N200,000.00 cost in favour of the Respondent.

PAUL ADAMU GALINJE, J.C.A.: I have read before now the draft of the judgment just delivered by my learned brother Awotoye JCA and I agree with the reasoning contained therein and the conclusion arrived threat.

The agreement between the parties were reduced into exhibits Debt A, A1, B, B1, C, C1, D, D1, E, E1, F, F1, G, G1, H, H1, I, I1, J and J1. There is nowhere in any of the exhibits and any other documents elsewhere that the parties agreed that payment of the monies listed on these exhibits was dependent on the Appellant’s success at the election which he contested. In UBN Plc v Ajabule (2011) 18 NWLR (Pt. 1278) 152 at 163 paragraph 13, The Supreme Court said:-
“In the law of Contract, a written contract agreement entered into by parties in binding on them. Where there is any disagreement between the parties to such written agreement on any particular point, the only reliable evidence to the claim is the written contract of the parties. The reason being that where the intention of the parties to a contract are clearly expressed in a document, the court cannot go outside the document in search of other document not forming part of the intention of the parties.”

In the instant case, the claim of the Respondent is based on the document listed as exhibits A – J. The Appellant has not produced any document in contradiction of the ones admitted by the lower Court. Indeed the Appellant admitted that he executed them. This Court can therefore not go out of the documents executed by the parties as representing their agreement. My Lord has dealt with the issues raised with great admiration that I do not intend to go further than this short comment.

I therefore find the appeal lacking in merit and it is accordingly dismissed by me. I abide by the consequential order made with Respondent to cost.

MUHAMMED L. SHUAIBU, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Awotoye, JCA. I completely agree with his reasons leading to the conclusion that this appeal is nothing but a ploy to buy time.

It is settled that the object of the undefended list procedure is to enable plaintiff whose claim is unarguable in law and where the facts are undisputed and it is in expedient to allow a defendant to defend for mere purpose of delay to enter judgment in respect of the amount claimed.

In the instant case, the appellant having failed to disclose facts which will at least throw some doubt on the case of the plaintiff, the lower Court was right in not transferring the suit to the general cause list. I too dismiss the appeal and abide by the consequential orders made including the order as to costs.

Appearances

I. Abdullahi Esq, A. B. Liman Esq with Shamsu A. Dauda Esq.For Appellant

AND

E. I. Ogiza Esq.For Respondent