JOLABON INVESTMENT NIGERIA LIMITED & ORS v. OYUS INTERNATIONAL COMPANY NIGERIA LIMITED
(2015)LCN/7894(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of June, 2015
CA/A/406/2011
RATIO
PRACTICE AND PROCEDURE: UNDEFENDED LIST; THE ESSENCE OF THE UNDEFENDED LIST PROCEDURE
The essence of the undefended list procedure is to enable a plaintiff to obtain summary judgment without trial in cases where the plaintiff’s case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on the merits. See NISHIZAWA LTD v. JETHWANI (1984) 12 SC 254, SODIPO V. LEMMINKAINEN OY (1986) 1 SC 197, 207 and UTC V. PAMOTEI (1989) 2 NWLR (103) 244. per. JOSEPH E. EKANEM, J.C.A.
PRACTICE AND PROCEDURE: NOTICE OF INTENTION TO DEFEND; THE DUTY OF THE COURT WHERE THE DEFENDANT’S AFFIDAVIT OF HIS NOTICE OF INTENTION TO DEFEND SHOWS A DEFENCE ON MERIT
Where the defendant’s affidavit in support of his notice of intention to defend shows a defence on the merit, the trial court is obliged to let him in to defend. A defence on the merit is disclosed where there is a “triable issue”. In other words, where the defendant’s affidavit is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the depositions in the affidavit cast doubt on the plaintiff’s case. See FARO BOTTLING COMPANY LTD V. OSUJI (2002) 1 NWLR (748) 311 and NATIONAL INLAND WATERWAYS AUTHORITY v. STANDARD TRUST BANK PLC (2008) 2 NWLR (1072) 483. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
ABUBAKAR J. ABDULKADIR Justice of The Court of Appeal of Nigeria
ABUBAKAR D. YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
1. JOLABON INVESTMENT NIGERIA LIMITED
2. MRS ESTHER OLAYINKA
3. NATHAN UMANA Appellant(s)
AND
OYUS INTERNATIONAL COMPANY NIGERIA LIMITED Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Federal Capital Territory, Abuja (“the Trial Court” for short) in Suit No. CV/252/2010 delivered on 20/4/2011 in which the trial court entered judgment in favour of the respondent (qua plaintiff) in the sum of Five Million Naira (N5, 000,000:00) with interest at the rate of 20% per month from 15/11/2007 against the appellants (qua defendants).
The facts forming the background of this appeal are that the respondent entered into a consultancy agreement with the 1st appellant for the latter to assist the respondent to procure land facing Tafewa Balewa Road, Central Business District, Abuja. The respondent agreed to pay the consultant the sum of Twenty Seven Million Naira (N27, 000,000:00) with an initial deposit of Five Million Naira (N5, 000,000:00) paid by the respondent. The balance of Twenty Two Million Naira (N22, 000,000:00) was to be paid before the release to the respondent of original letter of allocation. The 1st appellant agreed to refund the deposit of Five Million Naira upon certain terms if it failed to get the allocation/letter of offer after four weeks of the payment of the deposit.
The 3rd appellant served as a guarantor for the deposit.
The transaction went sour and the respondent sued the appellants on the undefended list for;
“(i) The sum of N5, 000,000:00 being money paid the defendants without consideration.
(ii) 25% interest per month commencing from 15th of November, 2007 as per the Consultancy Agreement between the plaintiff and Defendants.
(iii) Cost of this action.”
Aggrieved by the judgment of the trial court, the appellants have appealed to this court by means of a notice of appeal bearing four (4) grounds of appeal, dated 20/4/2011 but filed on 21/4/2011.
In the appellant’s brief settled by Adekunle O. Otutoju, Esq; dated 29/4/2011 and filed on 4/8/2011 but deemed filed on 4/6/2014, four issues are formulated from the four grounds of appeal. The issues are:
“1. Whether the lower court was right to have entered judgment under undefended list action in the sum of 5 Million and 20% interest per month commencing from 15th of November, 2007 as per the provisions of Article 2(f) of the consultancy agreement.
2. Whether the lower court was right to have relied on the consultancy agreement upon the agreement being varied and breached by the respondent himself in arriving at his (sic) judgment without calling oral evidence.
3. Whether the Appellant (sic) right to fair hearing have (sic) not been breached by the lower court for not transferring the matter to the general cause list to enable the Appellant tender documents and call witness in the matter.
4. Whether it will be right to call for documentary evidence at this stage of determining whether the Appellant (sic) have a defence on the merit or not under the undefended list action, when the lower court held that the Appellant did not attach the cheques to his Notice on (sic) intention to defend the suit without proper recourse to the provisions of Order 21 of the High Court of the Federal Capital Territory Civil Procedures (sic) Rules.”
On his part, Godwin S. Ogboji Esq; of counsel, for the respondent in his brief of argument dated and filed on 19/1/2012 but deemed filed on 4/6/2014, decocted one issue for the court’s determination of the appeal.
The issue is:
“Whether upon a consideration of the affidavit evidence presented by the parties at the lower court particularly by the respondent, the respondent was not entitled to the judgment in their (sic) favour.”
It appears to me that what is in issue in this appeal is as to propriety of the trial court refusing to give the appellants leave to defend the suit and thus proceeding to enter judgment in favour of the respondent. Thus the four issues formulated by the appellants proliferate. I will therefore be guided by the only issue formulated by the respondent in the determination of this appeal.
Arguing his issue one, appellants counsel submitted that the trial court erred by not transferring the matter to the general cause list. He was of the position that the appellants’ affidavit in support of the notice of intention to defend raised a strong defence having regard to the depositions as to payment of a cheque of One Million Naira to respondent’s director, a further One Million Naira to a Solicitor for drawing up the consultancy agreement and purchase of two different properties for the respondent which he said were not controverted by a further and better affidavit. He cited and relied on several cases including FALOBI V. FALOBI (1976) 1 NMLR 169 and FARO BOTTLING CO. LTD V. OSUJI (2002) 1 NWLR (748) 311 in support of his position.
On his issue two, appellants’ counsel submitted that the consultancy agreement was varied and breached by the respondent by accepting an alternative plot. It was his further submission that without calling for oral evidence on the veracity of the consultancy agreement the trial court could not make good finding on the agreement.
As regards issue three, counsel argued that the trial court’s refusal to transfer the matter to the general cause list hampered fair hearing to the appellants. This, he said, is because the appellants had evidence of the cheque issued to the respondent and other documents from the respondent discharging the appellants from the consultancy agreement to tender. The appellants also would have called witnesses at the trial, he added. He called in aid Section 36 (6) of the Constitution of Nigeria (as amended).
With regard to issue four, counsel submitted that the duty of the court under the undefended list procedure is to see if the defendant in his affidavit has raised any triable issue and that it would be wrong to expect a defendant at that stage to prove his case. He was of the position that the trial court was on a voyage of discovery in holding that the sums of Five Million Naira and Twenty Two Million Naira were for consultancy services rather than for payment for the plot of land.
It was his view that this was not the stage for calling for evidence but to consider whether the appellants have a defence on the merit.
He finally urged the court to allow the appeal.
In his argument of the single issue formulated by him, respondent’s counsel referred to the case of NISHIZAWA LTD v. JETHWANI (1984) 12 SC 254 as to the object of the undefended list procedure. He submitted that parties are bound by their contract voluntarily entered into. He referred to the agreement and noted that the appellants did not deny executing the same nor did they deny receiving the sum of Five Million Naira. He submitted that the defence set up was a sham defence. He observed that copies of the cheques alleged to have been paid by the appellants as well as documents showing the alternative land allegedly provided by them were not brought to the court’s attention. He further submitted that the affidavit in support of the notice of intention to defend was devoid of particulars.
It was his contention that the undefended list procedure does not give room for a reply to the defence of the appellant. He cited and relied on OKORO V. OKORO (2009) ALL FWLR (489) 487 in support of his contention.
He finally prayed the court to dismiss the appeal.
Appellants’ counsel filed a reply brief which in the main amounted to a re-argument and prettification of the arguments in his brief of argument. This is not the function of a reply brief which is designed to answer new points of law arising from the respondent’s brief. See MUSACONI LIMITED V. ASPINALL (2013) 14 NWLR (1375) 435, 457. I therefore discountenance the reply brief.
Order 21 Rule 3 (1) of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004 provides that;
“Where a party served with the writ delivers to a Registrar, within 5 days to 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.”
The essence of the undefended list procedure is to enable a plaintiff to obtain summary judgment without trial in cases where the plaintiff’s case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on the merits. See NISHIZAWA LTD v. JETHWANI (1984) 12 SC 254, SODIPO V. LEMMINKAINEN OY (1986) 1 SC 197, 207 and UTC V. PAMOTEI (1989) 2 NWLR (103) 244.
Where the defendant’s affidavit in support of his notice of intention to defend shows a defence on the merit, the trial court is obliged to let him in to defend. A defence on the merit is disclosed where there is a “triable issue”. In other words, where the defendant’s affidavit is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the depositions in the affidavit cast doubt on the plaintiff’s case. See FARO BOTTLING COMPANY LTD V. OSUJI (2002) 1 NWLR (748) 311 and NATIONAL INLAND WATERWAYS AUTHORITY v. STANDARD TRUST BANK PLC (2008) 2 NWLR (1072) 483.
It is not disputed that the 1st appellant was paid Five Million Naira as initial deposit pursuant to Exhibit A in the affidavit of the respondent vide Exhibit B thereof. In the affidavit in support of the notice of intention to defend, it is deposed that the owner of 1st appellant issued a cheque of One Million Naira (N1, 000,000:00) to the chairman of the respondent. It is also stated that she also paid the respondent’s lawyer a cheque of One Million Naira (N1, 000,000:00) as professional fee for drawing up Exhibit A. See paragraphs 14, 15 and 16 of the said affidavit.
What is remarkable about those depositions is that they are bereft of particulars as to when the payments were made and copies of the cheques relating thereto were not exhibited. I agree with the appellants, counsel that the appellants were not expected to establish their defence at that stage but they were required by the law to set out the details and particulars of such payments. See OKOLI V. MORECAB FINANCE (NIG) LTD (2007) 14 NWLR (1053) 37, 43. In the case of ABDULLAHI V. BUHARI (2004) 17 NWLR (902) 278, 305, it was held that it is not enough for a defendant to depose that he paid the sum claimed but that he must show proof of such payment. Again in the case of GENERAL OIL LTD V. FSH INTERNATIONAL BANK PLC (2005) 5 NWLR (919) 579, 590, it was held that where a debt is established the mere ipse dixit of a defendant should not be allowed to frustrate the recovery of the same.
It is noteworthy that in respect of the sum of One Million Naira said to have been paid to respondent’s lawyer, it was not deposed that this was with the respondent’s knowledge or agreement nor was it said to be agreed that it be taken out of the deposit.
In paragraphs 13, 17, 18 and 23 of the appellants’ affidavit in support of the notice of intention to defend, it was deposed that the 1st appellant’s owner got two alternative plots of land for the respondent which unknown to her were double allocation. It follows therefore that being double allocation, the 1st appellant purchased nothing for the respondent.
Furthermore, no document was exhibited to evince such transactions.
I also agree with the trial court that the assertions in paragraphs 7 – 11 of the appellants’ affidavit do not tine up with Exhibit A which is binding on the parties thereto.
What has emerged from the affidavit of the appellants is nothing but a sham defence aimed at dribbling and frustrating the respondent and cheating it out of the judgment it was entitled to. This the law would not be a party to. See UTC V. PAMOTEI supra; and OKOLI V. MORECAB FINANCE (NIG) LTD. supra.
It is of no moment contrary to the argument of appellants’ counsel that the respondent did not file a further and better affidavit to controvert facts deposed to in the appellants’ affidavit. This is because;
(i) What a trial court in an undefended list matter is required to do is simply to consider the affidavits and decide whether the defence discloses a defence on the merit and in this case there is no defence on the merit. See IMONIYAME HOLDINGS LTD V. SONEB ENTERPRISES LTD (2010) 4 NWLR (1185) 561,574; and
(ii) It is only where conflict exists on fundamental facts that the defendant is to be let in to defend and the case transferred to the ordinary cause list. See AFRICAN CONTINENTAL BANK PLC V. EMEDO (2003) 10 NWLR (828) 244, 262. In this case it is common ground that the sum of Five Million Naira was paid to the 1st appellant and the land deal for which it was paid did not materialise.
It was argued that the appellants were denied fair hearing by the refusal to let them in to defend the suit as they had a cheque and other documents to tender. They ought to have exhibited them to their affidavit to assure the trial court that their defence was not a sham defence.
Where a trial court considered the affidavits of parties and heard submission from both counsel before delivering judgment in an undefended list matter as in this case, it cannot be said that the defendant was denied fair hearing.
The appellants were simply fishing for fanciful defences to frustrate, dribble and cheat the respondent out of its entitlement and also postpone the day of reckoning. The trial court was therefore right in holding that the facts deposed to by the appellants did not disclose a defence and in entering judgment for the respondent.
I therefore answer the only issue for determination of the appeal in the affirmative.
The appeal therefore lacks merit and I accordingly dismiss it and affirm the judgment of the trial court.
I assess the costs of this appeal at One Hundred Thousand Naira (N100, 000:00) in favour of the respondent.
ABUBAKAR JEGA ABDULKADIR, J.C.A. CON.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, JOSEPH EKANEM, JCA. I agree with all the reasons and conclusions ably set out in the judgment of my learned brother. I adopt them as mine in dismissing the appeal for being highly unmeritorious.
I abide by all the consequential orders, including the order for costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead judgment of my Lord Ekanem J.C.A. just delivered. The duty of a defendant in any undefended list procedure, is to file a Notice of an intention to defend the suit, together with an affidavit disclosing a defence on the merit. If he is able to establish a defence on the merit, the matter will be transferred to the general cause list for hearing and pleadings ordered. If he fails, the judgment will be entered for the plaintiff, as per the writ.
The action is determined on the status of the documents filed by the two parties. A trial judge has no obligation, nor is he empowered to transfer the action to the general cause list for hearing on the supposition that a defendant has some documents to present to the court at the trial. He ought to produce the documents to enable the court to transfer the case and he fails, if he does not do so.
In the instant appeal, the appellant has argued that his right to fair hearing had been denied by the court when it refused to transfer the case to the general cause list for hearing, as he had evidence of the cheque issued to the respondent, and would present them at the trial.
Fair hearing as far as a trial is concerned, connotes the necessity to afford the parties, equal opportunity to put their case to the court, before the said court determines it – PAN Vs MOHAMMED (2008) 16 NWLR (PT.1112). It is therefore a question of fact, to be determined by looking at the totality of the record of proceedings, whether the parties had been given equal opportunity to present their cases before the court, or not.
Once an opportunity is given to a party to present his case, it is entirely up to him to seize the opportunity and adequately state his side of the story. Should he fail to take the advantage afforded to him, he cannot complain of breach of fair hearing. See INAKOJU Vs ADELEKE (2007) 4 NWLR (Pt.1025) 423; and MAIKYAU Vs. ITODO (2007) 7 NWLR (Pt.1034) 443.
In the instant appeal, the respondent instituted the action at the trial court on the undefended list. The appellant was given the opportunity to file a Notice of Intention to defend and disclose a defence on the merit. The trial court considered the processes filed, including the affidavit in support of the Notice of Intention to defend, before arriving at the conclusion that a defence on the merit had not been made out. The failure to exhibit the cheque said to have been paid to the respondent, in the affidavit in support of the Notice of Intention to defend, is what sunk the appellant. The intention he evinced, to tender it at a trial, is of no moment since the requirement is to exhibit them at the time of hearing the suit on the undefended list. It was the appellant that failed to take full advantage of the opportunity given to him, to establish a defence on the merit that is the problem, and not a denial of fair hearing which he had a duty to prove and which he has failed to prove.
For this and the fuller reasons well articulated in the lead judgment, I too find this appeal without any merit and I dismiss it. I affirm the judgment of the trial court delivered on the 20/4/11. I abide by the order as to costs.
Appearances
A. O. Otitoju, Esq;For Appellant
AND
Godwin S. Ogbuji, Esq;For Respondent
