ALH. GARBA ABUBAKAR BAGOBIRI v. UNITY BANK PLC (2016)

ALH. GARBA ABUBAKAR BAGOBIRI v. UNITY BANK PLC

(2016)LCN/8486(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of April, 2016

CA/K/50/2011

RATIO

EVIDENCE: WHETHER ADMITTED FACTS NEED FURTHER PROOF
It is beyond any doubt that the above letter constitutes an admission or acknowledgement of indebtedness to the Respondent in the sum of N15,114,113.90 which is the amount now claimed by the Respondent; and by the provision of Section 123 of the Evidence Act, 2011 a fact already admitted does not require further proof such a fact is deemed established. See NDAYAKO v. DANTORO (2004) 13 NWLR (Pt. 889) 187; MOZIE & ORS. v. MBAMALU & ORS. (2006) ALL FWLR (Pt. 341) 1200; BALOGUN v. LABIRAN (1988) 3 NWLR (Pt. 80) 65; ASAFA FOODS FACTORY v. ALRAINE (NIG.) LTD. (2002) 5 SC (Pt. 1) 1; DANIEL v. IROERI (1985) 1 NWLR (Pt. 3) 541. PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: WHAT IS THE STANDARD OF PROOF IN RELATION TO AN IMPUTATION OF CRIME IN A CIVIL PROCEEDING
There is no doubt that an allegation of fraud is an imputation of commission of crime, and it is elementary law that a party who alleges the commission of crime by another party even in civil proceedings must prove that allegation beyond reasonable doubt. It is specifically provided in Section 135 (1) of Evidence Act 2011, that if the commission of crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See the judgment of this Court in AGWASIM v. BEAUTY EJIVUMERWERHAYE (2001) FWLR (Pt. 1077). PER ISAIAH OLUFEMI AKEJU, J.C.A.
EVIDENCE: ADMITTED FACTS; DOES FAILURE OF PARTY TO RESPOND TO A BUSINESS LETTER WHICH CONTENTS REQUIRES A RESPONSE AMOUNTS TO AN ADMISSION
It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter – Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201, Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158 and Zenon Petrol & Gas v. Idrissiya Ltd (2006) 8 NWLR (Pt. 982) 221. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: ADMITTED FACTS; DOES FAILURE TO QUERY AN AMOUNT OF DEBT IN A LETTER WRITTEN BY A BANK AMOUNTS TO ADMISSION
The Courts have held that where a bank makes a demand for settlement of a debt by a letter and the amount of the debt is contained in the letter and the debtor does not query the figure written in the letter as the overall debt due but rather writes a letter explaining the reasons for non-payment of the debt, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due – I.O.M. Nwoye & Sons Company Ltd v. Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt. 310) 210 and Nagebu Company (Nig) Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

ALH. GARBA ABUBAKAR BAGOBIRI Appellant(s)

AND

UNITY BANK PLC Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State, sitting at Kano delivered on 9th May, 2009 in suit No. K/15/2009, wherein the Respondent as the plaintiff had by the writ of Summons dated 9th January, 2009 claimed against the Appellant as the defendant as follows:-
1. The sum of N15,114,113.90 (Fifteen Million, One Hundred and Fourteen Thousand, One Hundred and Thirteen Naira and Ninety Kobo) being outstanding balance of the credit facility as at 24th September, 2008 obtained by the defendant from the plaintiff which said credit facility has been enjoyed, utilized and made use of by the defendant but failed, refused and/or neglected to repay despite repeated demand.
2. 21% interest thereon from 24th September 2009 till date of judgment and 10% Court interest thereafter, till liquidation.

?Upon the Respondent’s motion exparte filed on 9/1/2009 seeking that the writ be placed for hearing under the undefended list and same supported by affidavit of five paragraphs deposed to by one Miss Gloria Samson, the trial Court placed the suit for

hearing under the undefended list. The Appellant filed a Notice of Intention to defend the suit but the action was heard under the undefended list and the learned trial judge entered judgment in favour of the plaintiff against the defendant in the sum of N15,114,113.90 plus interest at 10% from the date of judgment till full and final liquidation of the judgment debt.

The defendant who was dissatisfied with the judgment filed a Notice of Appeal with three grounds of appeal, and before this Court the parties filed and exchanged their Briefs of Argument.

The Appellant’s Brief of Argument prepared by A. C. Agu, Esq. of Counsel was filed on 13/2/15 while the Respondent’s Brief of Argument was settled by P. A. Daffi, Esq. learned Counsel and was filed on 18/3/15. The brief facts are that the plaintiff, a banking concern registered in Nigeria with branches all over Nigeria including Bello Road, Kano had sought the sum claimed as the money due from the Respondent, as at 24/9/08 out of the credit facility granted to the Respondent, its customer and which the Respondent failed to pay despite demand letters to that effect.

?The issues identified by the

Appellant for determination in this appeal are three:
1. Whether the affidavit in support of notice of intention to defend in this case disclosed no defence on the merit to warrant the transfer of the suit to general cause list.
2. Whether the trial judge who relied on Exhibit IX or IV to enter judgment in favour of the Plaintiff/Respondent was right in law.
3. Whether the judgment in this case was not tainted by fraud.

According to the Respondent, the issues for determination are:
1. Whether the trial Court properly evaluated the evidence before it, before judgment was entered in favour of the Respondent as contained on the face of the writ.
2. Whether the judgment in this case was not tainted by fraud.

The appeal will be considered and determined on the basis of the three issues raised by the Appellant as compressed into two by the Respondent. The Appellant’s 1st and 2nd issues are within the 1st issue raised by the Respondent.

The Appellant’s learned Counsel contended on the 1st issue that the affidavit in support of the Notice of intention to defend the action disclosed a defence on the merit and the holding of the

trial Court does not represent the true position of the law under Order 23 Rule 3 (1) of Kano State High Court (Civil Procedure) Rules, 1988, which requires that once the affidavit discloses a defence on merit, the Court may give leave to defend, and it was not the duty of the Court to say that the defendant did not show that he never withdrew from the account, that issue was a matter for trial.

The learned Counsel submitted that the Appellant had, by the affidavit in support of the Notice of intention to defend the action, shown defence on the merit to warrant the granting of leave to defend in the circumstances of the case being a bank to customer matter; OKOLI v. MORECAB FINANCE NIG. LTD. (2007) ALL FWLR (Pt. 369) 1164. It was contended that the Appellant in the instant appeal had by the bank Tellers attached to his affidavit as Exhibits 2-7 shown that he had paid much more than the amount of N2,000,000.00 obtained as loan from the Respondent and the burden ought to have shifted to the Respondent to disprove by showing the statement of account. The learned Counsel submitted that the evidence of the Appellant remained unchallenged and a Court has a duty

to accept and act on unchallenged evidence; CHABASAYA v. ANWASI (2010) ALL FWLR (Pt. 528) 839.

On issue number two, the Appellant contended that the trial Court was not right to have relied on Exhibit 9 and base the judgment thereon when the document was written by a lawyer and in the language not understood by the Appellant who had deposed that he was an illiterate. It was contended by Appellant’s Counsel that the deposition by the Appellant raised a triable issue that should have made the Court to grant leave to defend the action so as to ascertain by evidence or cross examination the originality of Exhibit IX and the claim that the Appellant was an illiterate because the question of whether a person is an illiterate or not is one of fact to be determined by evidence before the Court; AYARU v. MANDILAS LTD. (2007) ALL FWLR (Pt. 382) 1847.

Order 23 of Kano State High Court (Civil Procedure) Rules provides for the undefended list the relevant part of which is as follows:-
“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 circumstances of the particular case.
3(1) If the party served with this writ of Summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.”
The procedure under the undefended list was stated by the Supreme Court in the case of EKULO FARMS LTD & ANOR v. UNION BANK OF NIGERIA PLC (2006) ALL FWLR (Pt. 319) 895 at pages 920-921 PER ONNOGHEN, JSC as follows:-
“The procedure under the undefended list starts with the plaintiff’s application for the issue of a writ of summons for a claim for liquidated money demand which application is to be

accompanied by an affidavit setting the grounds upon which the claim is based, and stating that in the belief of the deponent there is no defence to the claim. The Court to which the application is made then considers same exparte and if it is satisfied that there are good grounds for believing that there is really no defence to the claim enters the suit for hearing in a list which is called the undefended list and marks the writ of Summons accordingly and enters therein a date for hearing. The processes are thereafter served on the defendant who if he desires to defend the action has to deliver to the registrar, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit.
The Court may, on the basis of the affidavit by the defendant give the defendant leave to defend the action upon such terms as it may think fit. It is not provided that before the Court decides to let in the defendant to defend the action, the plaintiff or his Counsel must first be heard. Where leave to defend is given by the Court, the action is automatically removed from the undefended list to the general cause list or ordinary

cause list thereby bringing an end to the procedure for Summary judgment.
On the other hand, where the Court comes to the conclusion that the affidavit disclosed no defence on the merit, it proceeds immediately thereafter to enter judgment for the plaintiff without the plaintiff calling evidence. Where a defendant who has been served with the processes filed no notice of intention to defend together with an affidavit disclosing such a defence is present in Court, he or his Counsel cannot be heard before judgment is entered on the date of hearing.
It has become well established that the aim or purpose of the undefended list procedure is for a plaintiff whose claim for a liquidated money or debt is unarguable or undisputed to obtain judgment without proceeding to trial thereby avoiding a situation of allowing the defendant who really has no defence on the merit of the case to delay the delivery of judgment.”
See MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 144) 283; CHIEF S. S. OBIARO v. ALHAJI SALE HASSAN (2013) VOL. 2-3 MJSC (Pt. 111) 28.

In CHIEF PETER AMADI NWANKWO & ANOR v. ECUMENICAL DEVELPOMENT CO-OPERATIVE SOCIETY (EDCS) U.A.

(2007) ALL FWLR (Pt. 360) 1448 it was held at 1478-1479 Per OGBUAGU, JSC that “It need be stressed and this is also settled that the object of the Rules under the undefended list is to ensure quick dispatch of certain types of cases such as cases involving debt or liquidated money claims? In other words, the object is to enable a plaintiff whose claim is unarguable in law and where the facts are undisputable and it is inexpedient to allow a defendant to defend for mere purpose of delay to enter judgment in respect of the amount claimed?”

In the instant case where the Respondent as plaintiff claimed an amount of N15,114,113.00 as outstanding balance of the credit facility and interest thereon, it was deposed in paragraph 3 of the affidavit in support of claim as follows:-
“a. That the defendant is a customer of the plaintiff at its Bello Road branch, Kano (formerly known as tropical Commercial Bank Plc before the Federal Government’s policy on merger of commercial banks in Nigeria).
b. That Alh. Garba Abubakar Isa Bagobiri is the alter ego of the business name IRO BAWA JAN GWARZO CONSTRUCTION/GENERAL ENTERPRISES.
c. That the

defendant through his business name, operate an account no. 058093/001/002/000 with the plaintiff bank at its Bello Road Branch Kano.
d. That sometimes in 2001, the defendant approached the plaintiff for a working capital loan facility of N2 million which the plaintiff granted. A copy of the acceptance and terms thereof has been shown to me and is attached to this affidavit as annexture PAD I.
e. That in fulfillment of annexture PAD I supra, the defendant executed a tripartite legal mortgage over the property with certificate of occupancy No. LKN/CON/RES/95/485 and the perfected deed is attached as annexture PAD II”.

By paragraph 3 (f, g, h, I, j) of the affidavit the Respondent deposed that the appellant failed, refused or neglected to service the account and interest began to accrue. The Appellant applied for a renewal of the facility in 2003 which request was granted in terms agreed by both parties but the account was thereafter abandoned by the appellant who also abandoned his contractual obligation and the renewed facility continued to attract interest as the plaintiff failed to service the account. It was deposed that several demand

notices were written to the Appellant but there was no positive response, while the statement of account forwarded to the Appellant was not disputed.

In paragraph 3 (k and l) the Respondent deposed as follows:-
“K. Four months after, the plaintiff instructed its solicitors who wrote the defendant a demand notice and personally discussed several times with him and his lawyer, Mr. H. D. Tsamiya. The defendant pleaded for time to pay. A copy of the plaintiff’s solicitors’ demand letter to the defendant is attached as annexture PAD VIII.
L. It is a fact that one month after paragraph 3K supra, the defendant wrote to the plaintiff a letter dated 6th November, 2008. A copy of the letter is attached as annexture PAD IX and the defendant kept telephoning the plaintiff’s Solicitors for time and not to auction his house.”

As deposed in paragraph 5, the deponent believed that the defendant now appellant had no good defence to the action of the plaintiff.

The Appellant filed a notice of intention to defend the action together with affidavit of four paragraphs to which one Bedemi Glory Dangena deposed. The Appellant admitted obtaining the alleged

loan from the Respondent but stated that he had paid more than the amount of N2 million he took. The Appellant however did not deny the fact that he wrote a letter for extension of time to pay the debt he owed as alleged by the Respondent. The Appellant said in paragraph 3K of the affidavit supporting the notice of intention to defend:
“That when he was served with the 1st demand letter he went to the plaintiff’s Solicitors to find out the true figure he was indebted to the plaintiff of which the plaintiff lawyer told him that it is N15,114,113.90 there and then he disputed the amount because he felt that all the payment he was making since 2000 to date has not been reflected”.

It is trite law that a defendant who seeks that an action under the undefended list be heard under the general cause list must by the affidavit in support of his notice of intention to defend the action raise a defence on the merit. See ATAGUBA & CO. v. GURA NIG. LTD. (2005) ALL FWLR (Pt. 256) 1219.

In the instant case the learned trial judge reviewed and evaluated the affidavit evidence of the parties and arrived at the conclusion that the defendant did not disclose

any defence on the merit to warrant the transfer of the case to the general cause list.

Indeed the letter of the Appellant cited and exhibited by the Respondent is on page 46 of the record of appeal. It is dated 6/11/2008 with the heading RE: EXTENTION OF TIME TO ENABLE ME REPAY THE N15,114,113.90 DEBT I OWE AND IS DUE ON ACCOUNT No. 0580930/001/0002/000 BELLO ROAD BRANCH KANO. The content goes thus:
“Kindly give me 14 days from today to enable me repay my debt. I have placed my piece of land in the market and my sets of machines for the purpose of settling this debt.
I assure you that by the 2nd of this month I will repay the debt because the subject of the mortgage is the only house I have and my family and I are living inside. I hope you will consider my state”.

It is beyond any doubt that the above letter constitutes an admission or acknowledgement of indebtedness to the Respondent in the sum of N15,114,113.90 which is the amount now claimed by the Respondent; and by the provision of Section 123 of the Evidence Act, 2011 a fact already admitted does not require further proof such a fact is deemed established. See NDAYAKO v. DANTORO

(2004) 13 NWLR (Pt. 889) 187; MOZIE & ORS. v. MBAMALU & ORS. (2006) ALL FWLR (Pt. 341) 1200; BALOGUN v. LABIRAN (1988) 3 NWLR (Pt. 80) 65; ASAFA FOODS FACTORY v. ALRAINE (NIG.) LTD. (2002) 5 SC (Pt. 1) 1; DANIEL v. IROERI (1985) 1 NWLR (Pt. 3) 541.

In the light of this admission it is clear that the Appellant failed to raise any defence on the merit, and the arguments before this Court as to the Appellant being an illiterate or that he was not adequately supplied with statement of account are mere after thought and do not constitute defences on the merit. They are at best calculated to prevent or delay the Respondent from the judgment and justice to which he is entitled or even frustrate the Respondent from such entitlement, thereby defeating the aim or purpose of the undefended list procedure.

Since the Appellant failed to raise a defence on the merit, I hold that the learned trial judge rightly gave judgment to the Respondent against the Appellant. I therefore resolve issues 1 and 2 against the Appellant.

?The third issue by the Appellant which is the Respondent’s third issue is that the Respondent had committed fraud so as to obtain

the judgment at the trial Court. There is no doubt that an allegation of fraud is an imputation of commission of crime, and it is elementary law that a party who alleges the commission of crime by another party even in civil proceedings must prove that allegation beyond reasonable doubt. It is specifically provided in Section 135 (1) of Evidence Act 2011, that if the commission of crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See the judgment of this Court in AGWASIM v. BEAUTY EJIVUMERWERHAYE (2001) FWLR (Pt. 1077). Any doubt in the case will be resolved in favour of the party alleged of crime. See AGIRI v. OGUNDELE (2005) ALL FWLR (Pt. 250) 81 cited by learned Counsel for the Respondent.

I am of the strong view that the Appellant failed to establish the allegation of crime in this case beyond reasonable doubt and I so hold. Consequently issue 3 is resolved against the Appellant.

?The effect of the resolution of all the issues against the Appellant is that the appeal is hollow and devoid of any substance. It fails and it is dismissed with costs of N50,000.00 to

the Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Isaac Olufemi Akeju, J.C.A. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree that there is no merit in this appeal.

The claim of the Respondent against the Appellant in the lower Court was for the liquidated sum of N15,114,113.90 being the outstanding balance due on the credit facility extended to the Appellant by the Respondent. The action was commenced under the undefended list procedure. The Appellant filed a notice of intention to defend, supported by an affidavit. The lower Court found that the affidavit of the Appellant did not disclose a defence on the merit to warrant the transfer of the case to the general cause list and it entered judgment in favour of the Respondent under the undefended list.

?Now the provisions of the High Court of Kano State Rules relating to the Undefended List provide a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a

plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the Court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 247, University of Benin v. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt. 1055) 441. Speaking on the essence of the Undefended List procedure, this Court in Samabey International Communications Ltd v. Celtel Nigeria Ltd (Trading as Zain) (2013) LPELR-20758(CA) stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of Court touching on the administration of justice and the

procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of Court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd v. Soneb Enterprises Ltd (2010) 4 NWLR (Pt. 1185) 561, G. M. O. Nworah & Sons Co. Ltd v. Afam Akputa, Esq. (2010) 9 NWLR (Pt. 1200) 443, Babale v. Eze (2011) 11 NWLR (Pt. 1257) 48, David v. Jolayemi (2011) 11 NWLR (Pt. 1258) 320.”

The contention of the Appellant on this appeal is that the lower Court was wrong when it found that his affidavit did not disclose a defence on the merits. The law is that for an affidavit

to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo v. Okogbo Community Bank Ltd (2006) 15 NWLR (Pt. 1002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs 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 – Ataguba & Co. v. Gura (Nig) Ltd (2005) 8 NWLR (Pt. 927) 429, Tahir v. Kapital Insurance Ltd (2006) 13 NWLR (Pt. 997) 452, David v. Jolayemi (2011) 11 NWLR (Pt. 1258) 320.<br< p=””

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In S.P.D. (Nig) Ltd v. Arho-Joe (Nig) Ltd (2006) 3 NWLR (Pt. 966) 173, the Court of Appeal stated that “a triable issue or a defence on the merit under the undefended list procedure is where a defendant’s affidavit in support of the notice of intention to defend is such that requires the plaintiff to explain certain matters with regard to his claim, or throws some doubt on the plaintiffs claim.” A triable issue is an uncontroverted material allegation contained in the defendant’s affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the Court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a far probability of a bona fide defence – Ataguba & Co. v. Gura (Nig) Ltd supra, G.M.O. Nworah & Sons Co Ltd v. Afam Akputa, Esq. (2010) 9 NWLR (Pt. 1200) 443, Babington-Ashaye v. E.M.A. General Enterprises Ltd

(2011) 10 NWLR (Pt. 1256) 479.

The case of the Appellant in the affidavit in support of the notice of intention to defend was that the sum of N15,114,113.90 claimed by the Respondent was not the true state of his account with the Respondent as at 24th of September, 2008 as he had made several payments over and beyond the amount of the credit facility that he obtained from the Respondent. The records of appeal show that the Respondent wrote letters of demand to the Appellant dated the 7th of November, 2006 and 19th of May, 2008 wherein it informed the Appellant that the outstanding balances in his account on the credit facility stood at N8,506,059.74 as at 31st of October, 2006 and N13,219,996.80 as at 19th of May, 2008. The Appellant did not deny the receipt of these letters and he did not respond to either of them. It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter – Gwani v. Ebule (1990) 5 NWLR (Pt. 149) 201, Trade Bank Plc v. Chami (2003) 13 NWLR (Pt. 836) 158 and Zenon Petrol

& Gas v. Idrissiya Ltd (2006) 8 NWLR (Pt. 982) 221.

More importantly, the records of appeal show that the Respondent caused its Counsel to write a letter of demand dated in October 2008 to the Appellant stating that the balance in his account stood at N15,114,113.90 as at 24th of September, 2008 and requesting him to liquidate same within fourteen days. The Appellant responded to the letter of demand by a letter a letter dated the 6th of November, 2008 which read thus:
“RE: EXTENSION OF TIME TO ENABLE ME REPAY THE N15,114,113.90 DEBT OWED AND IS DUE ON ACCOUNT NO 0580930/001/0002/000 BELLO ROAD BRANCH KANO
Kindly give me 14 days from today to enable me repay my debt. I have placed my piece of land in the market and my set of machines for the purpose of settling the debt.
I assure you that by the 20th of this month, I will repay the debt because the subject of the mortgage is the only house I have and my family and I are living inside. I hope you will consider my state.
Thank you.”

?The Courts have held that where a bank makes a demand for settlement of a debt by a letter and the amount of the debt is contained in the letter and

the debtor does not query the figure written in the letter as the overall debt due but rather writes a letter explaining the reasons for non-payment of the debt, the debtor will be deemed to have impliedly admitted the quoted figure as the amount of debt due – I.O.M. Nwoye & Sons Company Ltd v. Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt. 310) 210 and Nagebu Company (Nig) Ltd v. Unity Bank Plc (2014) 7 NWLR (Pt. 1405) 42. The action in the lower Court was commenced to claim the exact said figure of N15,114,113.90 which the Appellant impliedly admitted as due on his account as at 24th of September, 2008. The contents of the affidavit of the Appellant to show cause seeking to challenge the correctness of the state of his indebtedness were merely afterthoughts and cannot constitute a defence on the merit to warrant the matter being transferred to the general cause list. The lower Court was thus on firm ground when it rejected the sham defence.

It is for these reasons, and fuller exposition contained in the lead judgment, that I agree that this appeal is devoid of merit and I hereby dismiss the appeal. I too affirm the judgment of the High

Court of Kano State in Suit No. K/15/2009 delivered by Honorable Justice P. A. Mahmud on the 9th of May, 2009. I abide by the order on costs in the lead judgment.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead Judgment of my learned brother, ISAIAH OLUFEMI AKEJU, JCA. I endorse his reasoning and conclusion that the Appellant did not disclose any good defence on merit to the Respondent’s claim on the undefended list procedure to warrant the removal of the suit from the undefended list to the General Cause List.

The affidavit in support of the Notice of Intention to defend the suit filed by the Appellant together with the letter of 6/11/2008 (attached to the affidavit) written by the Appellant to the Respondent for extension of time to repay the loan is nothing but an admission of indebtedness of N15,114,113.90 claimed by the Respondent. The facts deposed in the affidavit and the annexure thereto attached do not disclose any justifiable defence on merit. Rather, they clearly show that the Respondent’s claim is unassailable and the Notice was calculated to delay Judgment for the Respondent.

?The Notice of Intention to

defend though not designed to shutout a defendant who has a genuine defence, it is aimed at securing quick justice and avoiding the injustice likely to occur when as in this instance, there is no genuine defence on merit to the Plaintiff’s claim.
In N.M.C.B. (NIG. LTD) v. OBI (2010) (Pt. 1213) 169 SC, the Supreme Court succinctly stated the purpose as follows:-
“The purpose of the procedure under the undefended list, is to enable the Plaintiff obtain summary Judgment without trial, where his case, is patently clear and unavailable. See the case of COUD v. CASSEY (1949) IKB 481 and SODIPO v. LEMINA KEINEN & ORS (1986) NWLR (Pt. 15) 220. It is however not designed to shut out a Defendant who can show that there is triable issue…” Per I. F. Ogbuagbu, JSC
The procedure is intended to preclude Defendants like the Appellant from defending the suit merely for the purpose of delaying or frustrating the Respondent out of Judgment. The learned trial Judge was therefore right in entering Judgment for the Respondent under the undefended list procedure.

?There is no reason to interfere with that decision of the Lower Court. Resultantly, there is

no merit in the appeal and it is hereby dismissed by me.

Appearances

A. C. Agu, Esq.For Appellant

AND

P. A. Daffi, Esq.For Respondent