MR. & MRS. PAULINUS NNECHI v. MRS. BLESSING OBIOHA
(2019)LCN/12659(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/J/1/2015
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“…the Court has the duty to examine and scrutinize the totality of the affidavit evidence, documentary evidence if any, forwarded by parties and determine whether or not the Defendant has disclosed any defence on the merit or raised any triable issue. Where the Court determine that the defendant has disclosed a defence or a triable issue, all the Court need do is to let in the defendant to defend the claim on the merit by transferring the matter to the general cause list order pleadings and set the matter down for hearing See:- DIO-GLOBAL CONCEPT (NIG) LTD V ACCESS BANK (NIG) PLC (2016) LPELR 40789, ROSE HILL LIMITED V AREWA METAL CONTAINERS (2010) LPELR-4904.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.
COURT AND PROCEDURE: TWO IMPORTANT DATES IN COURT
“In any decision of a Court, there are two important dates that validate it owing to their significance. The first is the date of delivery while the other is the date of signature on the decision. The date of delivery is crucial in a decision of a Court for it is that date the decision comes into force, or operation. See: BANK OF WEST AFRICA V. NATIONAL INVESTMENT & PROPERTY CO (1962) LLR 32, UBN V. ISHOLA (2000) 11 NWLR (678) 283. Accordingly, the date a decision was delivered is a vital date for all legal and practical purposes. For all intents and purposes, the delivery date of any decision as far as the parties to the case are concerned, is the date on which the Court finally determined the dispute, submitted to it by them for adjudication and until that date, the parties cannot claim that their rights have been pronounced upon by the Court. It is immaterial that a decision has been written, dated, signed and sealed, until it is delivered by the Court it remains not a decision of a Court and of no importance to parties. So before the delivery of a decision by the Court, such decision does not exist. It therefore means that, it is the date of delivery of decision that brings it to life, gives it legal existence and efficacy under both the Constitution and other relevant statutes, irrespective of the date it was actually signed. The date of delivery of a decision is the date of that decision and not any other date that might appear on the face or other part of the decision. OHUABUNWA V. DURU & ORS.(2008) LPELR – 4699 (CA).” PER UCHECHUKWU ONYEMENAM J.C.A.
COURT AND PROCEDURE: THE UNDEFENDED LIST PROCEDURE
“…Speaking on the essence of the Undefended list procedure, this Court in the case of Samabey International Communications Ltd Vs 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 defense 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 – lmoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010)4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs Ize (2011) 11 NWLR (Pt 1257) 48, David V Jolayemi (2011)11 NWLR (Pt 1258) 320.'” PER HABEEB ADEWALE OLUMUYIWA ABIRU J.C.A.
INTERPRETATION: WHETHER THE COURT CAN INTERPRET A DOCUMENT
“It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu(2007) 6 NWLR (Pt 1031) 431. Applying this principle to the above reproduced contents of Exhibit, it is clear chat the document does not support the claims of the Respondent.” PER HABEEB ADEWALE OLUMUYIWA ABIRU J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
MR.& MRS. PAULINUS NNECHI Appellant(s)
AND
MRS. BLESSING OBIOHA Respondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
The Respondent in this appeal as Plaintiff before the High Court of Plateau State Jos Judicial Division purchased the Writ of Summons under the undefended list identified as suit No PLD/J/236/2014 on the 9th day of May, 2014 against the Appellants as defendants seeking for the following reliefs endorsed in the said writ:
(1) The Sum of Two Million, One Hundred and Sixty Thousand Naira (N2,160,000) only being the money collected from the Plaintiff sometimes in 2013 despite repeated demands.
(2) 10% interest per annum on the said sum from the date judgment (sic) until final liquidation
(3) The cost of the action.
The summary of the fact leading to the suit by the Respondent before the trial Court is that the Respondent who is the managing director of champion Bakery situate at No. 25 Moses Anyansi Street Jos allegedly gave the appellants the Sum of N2,160,000.00 (Two Million, One Hundred and Sixty Thousand Naira) to build up their lives and business of buying and selling .
The transaction between the parties was allegedly reduced into writing and which document is christened Memorandum of cash Balance. The appellants were said to have collected the said money and pledged six shops at Jos North L.G.A. shopping Complex, Laranto as collateral.
The Shops at the time of the agreement were occupied by tenants of the Appellants. It was said to be their understanding that the Respondent would be collecting the Rent on the six shops until the total amount advanced is liquidated. The respondent said he approached the tenants in the said Shops with a view of collecting the rent but the tenants would not pay him because she was not introduced to them as their Land Lord. This predicament led to the institution of the suit by the respondent at the trial Court against the Appellants.
The matter being that under the undefended list came up for hearing on the 12th day of June, 2014 consequent upon service of the originating processes on the Appellants and the appellants filed their notice of intention to defend and Affidavit of Defence incompliance with Order 23 of the High Court (civil Procedure) Rules of Plateau State 1987. After listening to both counsel, the learned trial judge adjourned for ruling in the matter to 14th July, 2014. (See pages 52 -53 of the record).
In his considered ruling delivered on 24th day of September 2014, the learned trial judge entered judgment against the Appellants and in favour of the Respondent in the following terms: (See pages 65 – 66).
Judgment is hereby entered for the Plaintiff in the sum of N2,160,000.00 only being the money collected from the Plaintiff sometimes in 2013 despite repeated demands.
I also award 10% interest per annum on the said sum from the date of judgment until final liquidation.
The Plaintiff is also entitled to the cost of this action.
Against the outcome of the action hence this appeal which is predicated on the amended Notice of Appeal filed vide the order of this Court granted on the 8th day of May 2018 and deemed as properly filed and served on the same date.
Briefs of argument were filed and exchanged. The appellant’s brief of argument authored by C. O. Ekeaklogbe Esq., was filed on 18th May 2018 and deemed as properly filed and served on 20th June, 2018 vide the order of this Court.
In the same vein, S.O. Ohaja Esq., authored the Respondent’s brief of argument filed on 20th July, 2018.
In response to the Respondent’s brief, the appellant filed a reply brief on the 7th August 2018. Respondent counsel adopted their brief. In the Appellants brief of argument he submitted the following issues for determination of the appeal.
APPELLANTS’ ISSUES FOR DETERMINATION
(1) Whether the ruling (decision) of the lower Court signed on the 22-09-2014 but delivered on the 24-09-2014 is not a nullity (Ground 5)
(2) Whether the lower Court was right in its ruling delivered on the 24-09-2014 when it failed to transfer the Suit (Suit No. PLD.J236/14) to the general cause list. (Grounds) one, two, three four and six).
The Respondent adopted the issues formulated by the appellant hence they did not distill any issue for determination. Accordingly the Court will adopt the two issues formulated by the appellants for the determination of this appeal.
Having read all the processes in this appeal, the adopted brief of argument by respective counsel, I will proceed from here to consider the two issues here in before reproduced.
I will consider issue two which is challenging the decision of the Court rejecting the Defence of the appellant to the Suit and entering judgment against the appellants before considering issue number one which is challenging the validity of the ruling of the trial Court which is said to have been delivered on the 24th of September 2014 but signed by the learned trial judge on the 22nd day of September 2014. It is my view that the appropriateness of the procedure adopted in entering the judgment should be considered first before considering the validity of the said Ruling.
ISSUE TWO
Whether the lower Court was right in its ruling delivered on the 24-09-2014 when it failed to transfer the Suit (Suit No. PLD/J236/14) to the general cause list.
It is the submission of the appellant that this issue should be resolved in favour of the Appellants. To buttress this, he argued that the lower Court was wrong in its ruling delivered on the 24th of September 2014 when it failed to transfer the suit to the general cause list. He submitted that it is trite that Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987 deals with the undefended list procedure pertaining to the claim of Plaintiff to recover a debt or liquidated money demand. He relied on Order 23 Rules 1, 2, 3 (1) and (2), 4 and 5 of the said rules and the following cases:-
(1) PLANWELL WATERSHED LTD VS OGALA (2003) 18 NWLR (PART. 852) PAGE 478 at 487-488. PARAGRAPH F-A, PAGES 488-489 PARAGRAPH G-D.
(2) USI ENTERPRISE LTD V KOGI STATE GOVERNMENT & 2 ORS (2005) 17 NWLR (PART 908) PAGE 494 AT 513-514 PARAGRAPH B-C.
(3) UNITY BANK PLC (formerly known as Bank of the North Ltd) V. KAYODE OLATUNJI ESQ (Carrying on business in the name and style of kayoed Olatunji & Co; legal practitioners) (2013) 15 NWLR (part 1378 PAGE 503 AT 546-547 PARAGRAPH H-B.
(4) TAHIR V KAPITAL (2006) 13 NWLR PART 997 PAGE 452.
On the dictate of Order 23 Rule 2 (1) & 3 (1) of the Plateau State (Civil Procedure) rules he relied on the following cases.
(1) UNITY BANK PLC (formerly known as Bank of the North Ltd) V. KAYODE OLATUNJI ESQ (Carrying on business in the name and style of kayoed Olatunji & Co; legal practitioners) (Supra).
(2) TAHIR VS KAPITAL (2006) (Supra)
Further he argued that the claim of the Respondent is fundamentally ambiguous considering the following facts. The claim of the Plaintiff as stated in pages 2 of the record of appeal is for the sum of two Million one hundred and sixty thousand naira (N2,160,000.00) and 10% interest per annum.
In addition, he referred to paragraphs 5 & 6 of the affidavit in support of the claim which is contained on pages 3-4 of the record. In support of this claim the Respondent put in Exhibit ‘A’ and ‘B’. He contended that it is very clear that the said exhibit A was not properly signed. Therefore if paragraphs 5 and 6 of the affidavit in support of the claim in the suit are true and correct, Exhibit ‘A’ would have shown the signatures of both Defendants/Appellants but what can only be seen on the said exhibit is the purported signature of Mr and Mrs Paulinus Nnechi with the date 31-7-2013 inserted thereon. Based on these he submitted that it is not possible for that singular Signature to belong to both Appellants who are alleged to have been parties to the said Exhibit A. If both Appellants were parties to Exhibit A as alleged in paragraphs 5 and 6 of the affidavit in support of the claims (s) in the action, Exhibit A would have contained separate signatures of the Appellant.
He added that the Respondent failed to state the reasons why Exhibit A bears a singular signature instead of two separate signatures of the Appellants. Also and while Exhibit ‘A’ shows amount of Two Million, One Hundred and Sixty Thousand Naira (N2,160 000.00) Exhibit ‘B’ shows a notice demanding the sum of Eighty Thousand Naira (N80,000.00) and Thirty Thousand Naira (N30,000.00) total One hundred and Ten Thousand Naira (110,000.00). He referred the Court to the last 3 line of page 9 of the record of appeal. He submitted further that the Respondent failed to state the reasons for the discrepancy between Exhibit B and A. He contended that the Appellants filed their notice of intention to defend and defence. Therein they denied the claim of the Respondent. He relied on paragraphs 3 (b) to (d) and 4 (a), (b) and (c) 5 (a), (b), (c) and (d) and 6 of the affidavit in support of their intention to defend the Suit. He referred to pages 17-18 of the Record. In the said affidavit, the appellants denied the averments in paragraphs 3, 4, 5, 6,7, 8, 9, 10 and 11. By these averments in the affidavit of the Appellants they denied the claim of the Respondent. By the foregoing it will not be correct to say that the Appellants have not challenged Exhibit A.
He submitted that in considering whether a Defendant has made out a defence on the merit, a trial Court must never loose sight of the fact that is not its duty at that stage to determine whether the defence has been established. All the Court need do is to look at the facts deposed to and determine if prima facie, there is a defence and not necessarily a complete defence but one which shows a triable issue. At that state, the Court need not consider whether the defence will succeed or which of the parties will eventually succeed. He cited the cases of UNITY BANK PLC V KAYODE (SUPRA) and TAHIR V KAPITAL (2006) (SUPRA). Based on the foregoing, he submitted that the entire affidavit in support of notice of intention to defend the suit and in particular paragraphs 3 (b), (c) and (d) constitutes a defence on merit. That not withstanding, the trial Court stated in its ruling that the appellants had not challenged Exhibit A. He argued that if the Court had perused Exhibit A, it would have observed that the said Exhibit cannot support the claims (s) of the Plaintiff/Respondent same haven not been signed by both the Appellants and the Respondent.
In addition, the Court would have seen that Exhibit B cannot be a demand notice for the payment of the amount contained in Exhibit ‘A’. It is ovious that Exhibit ‘B’ is a notice of demand for the payment of One Hundred and Ten Thousand Naira (N110,000.00) while Exhibit A is the subject of Two Millione, One Hundred and Sixty Thousand naira (N2,160,000.00).
He contended that there is no reason given by the Respondent why Exhibit B is demanding the payment of One Hundred and Ten Thousand Naira (N110,000.00) instead of Two Million, One Hundred and Sixty Thousand Naira (N2,160,000.00). Despite the foregoing contradictions between Exhibit A and B, the lower Court still concluded that Exhibit B is a demand notice written by the Respondents counsel for the sum contained in Exhibit A. He submitted that the trial Court failed in its duty to properly evaluate the entire affidavit evidence placed before it. Had the Court properly evaluated the entire affidavit together with the Exhibits thereto, it would have concluded that Exhibit A has no probative and or evidential value same having not contain the signature of both Mr. and Mrs Paulinus Nnechi and also the Court would have discover the discrepancies between Exhibit A and B in the amount of money i.e. (N2,160,000.00) and (N110,000.00) respectively. And that paragraphs 3 (b), (c), and (d), 4 (a), and (b) and (c) 5 (a), (b), (c) and (d) and 6 of the affidavit in support of the notice of intention to defendant the suit sufficiently challenged Exhibit A and B attached by the Respondent.
He contended further that if the trial Court had properly evaluated the entire affidavit evidence adduced together with the Exhibits, it would have found as follows.
(1) That the claim of the Plaintiff/Respondents as hinged on Exhibits A and B is ambiguous and/or contradictory and therefore liable to be transferred to the general cause list.
(2) That paragraphs 3 (b) (c) and (d), 4 (a) (b) and (c), 5 (a), (b), (c) and (d) 6 and 7 of the affidavit in support of notice of intention to defend the suit vis–vis the affidavit in support of claim together with Exhibit A and B, affidavit thereto disclose a defence on the merit warranting the suit to be transferred to the general cause list.
He argued that it is the duty of the trial Court to properly evaluate the entire evidence adduced before arriving at a conclusion. He relied on the case of LAFIA LOCAL GOVERNMENT VS EXECUTIVE GOVERNOR OF NASARAWA STATE AND 35 ORS (2017) 17 NWLR (PART 1328) PAGE 94-95 AT PAGE 129 PARAGRAPH H. He added that where the trial Court fails in its duty to properly evaluate the entire evidence adduced, it is bound to arrive at a wrong decision and the appellate Court can evaluate the evidence. He cited in aid the case of MILITARY GOVERNOR OF LAGOS STATE & 4 ORS V ADESAYO ADEYIGA & 6 ORS (2012) 5 NWLR PART. 1293 PAGE 201, 33, PARAGRAPH C-E. He urged the Court to evaluate the evidence before the trial Court and resolve the issue in favour of the Appellants and against the Respondent. Allow the appeal and set aside the ruling of the trial Court delivered on 24th of September 2014.
In his own reaction to this issue number 2, the learned counsel representing the Respondent after referring to Order 23 Rule 3 (1) of the High Court Civil (procedure) Rules of Plateau State 1987 and after answering the question posed in the issue in the negative submitted that the transfer of a matter to the general cause list is not a matter of course but can only be granted where the defendant has made a defence on the merit, and not just on flimsy defence but a triable one to warrant the trial judge to transfer the matter to the general cause list. He relied on the case of GLOBAL BANK LTD V S.A INSURANCE (2010)3 NWLR (PT. 1210).
He argued that the appellant did not in his notice of intention to defend the suit attack the facts raised in the Respondent?s affidavit more particularly Exhibit A. He referred to pages 6-8 of the Record. He cited the case of N.M.C.B. (NIG) LTD V OBI (2010)14 NWLR (PT. 1213) where the Supreme Court held thus:
‘In an action under the undefended list in order for the defendant’s affidavit in support of notice of intention to defend to disclose a defence on the merit the affidavit must not merely contain a general statement that the defendant has a good defence to the action. Such general statement must be supported by particulars, which if proved, would constitute a defence. It is sufficient if the affidavit discloses:
(a) A triable issue or that a difficult part of the law is involved;
(b) That there is a dispute as to the facts which ought to be tried;
(c) That there is a real dispute as the amount due which requires the taking of an amount to determine or any other circumstances showing reasonable grounds of a bonafide defence.
He argued that all the Court need do in a case of this nature is to consider only the evidence contained in the affidavit of the defendant in support of the notice of the intention to defend the suit and the affidavit in support of the claim. Once the Court comes to the conclusion that the affidavit in support of the notice of intention to defend does not disclose a defence on the merit or a triable issue, them the Court is to proceed with the hearing of the suit and enter judgment accordingly.
On the complaint of the appellant that both parties did not sign Exhibit A, he submitted that both parties duly signed same and appended their signatures. The appellants have not denied the existence of the said Exhibit A but only denied that the Exhibit is not signed properly. He cited the case of DASPAN V MANGU LOCAL GOVERNMENT COUNCIL (2013)2 NWLR (PT. 1338) 203. He argued further that by the content of the Exhibit A, the appellant have not disprove the content of the agreement titled ‘Memorandum of cash Balance’ but are only saying that the Respondent has been collecting rent and owes them a balance. A after reproducing the content of the agreement and the argument that it is not the duty of Court to rewrite an agreement, he cited the case of BALIOL NIGERIAL LTD V NAVCON NIGERIA LTD (2010) 16 NWLR (PT. 1220) PG. 630 PARA D-E. 630 PARA D-E. He urge the Court to discountenance the assertion of the appellant counsel and rule in favour of the Respondent.
On the contention of the appellant in paragraphs 4. 22 – 4.23 he submitted that there are plethora of authorities to the effect that there must be triable issues and a prima facie defence which shall be deposed to in the affidavit evidence in urging the Court to transfer the matter to the general cause list. The appellants have not been seen to do that, but instead have formulated a new issue and did not respond to the statement of claim of the Respondent. He submitted that it is trite law that where a party does not deny a fact, it is deemed admitted in evidence, and the Court should rely on same. He relied on the case of UGBU VS ORSAL (2014) 11 NWLR (PT. 1417) PP. 66 PARA A-B.
In conclusion, he urged the Court to dismiss the appeal and affirm the judgment of the lower Court with substantial cost in favour of the Respondent.
Considering the foregoing the question that I consider germane is whether or not the affidavit of defence by the Appellant raises a defence on merit to warrant the trial Court transfer the suit by the Respondent to the general cause list for trial.
Before going into this, let me have a look at Order 23 of the High Court (Civil Procedure) Rules of Plateau State so as to bring to lime light what the Rules says should be done when a Court is confronted with a case of this nature. i.e. a claim for a liquidated money demand. I herein under reproduce the provision:
Order 23 rule 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 or any other claim 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 there to, enter suit for hearing in what be called the ‘undefendent list’ and mark the write 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 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 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 terms as the case may think just.
(2) Where leave to defend is given under this rules, 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 this 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 Rules 4.”
From the foregoing, it is clear that when a Court is faced with a matter for liquidated money demand, the trial judge is faced with the decision whether to hear the case under the undefended list or to transfer the matter to the general cause list. In doing this, he has to determine consequent upon a proper scrutiny of the claim of the Plaintiff and be satisfied that the action is not contentious and one that can be conveniently placed on the undefended list. See OBI V N.M COMMUNITY BANK LTD (2001) 2 NWLR (PT. 696) 113. At this stage, the defendant is not invited before the Court will determine whether or not the matter would be place under the undefended list but after. See OWOADE V OMITOLA (1988) 19 NSCC. (PT.) 802 at 808. After the foregoing stages, then the defended is invited and required by law to file a notice of intention to defend together with a supporting affidavit disclosing a defence on the merit. See INTERCONTINENTAL BANK LTD V BRIFINA LIMITED (2012) LPELR-9717.
Let me quickly add that at the hearing of the suit under the undefended list, the Court has the duty to examine and scrutinize the totality of the affidavit evidence, documentary evidence if any, forwarded by parties and determine whether or not the Defendant has disclosed any defence on the merit or raised any triable issue. Where the Court determine that the defendant has disclosed a defence or a triable issue, all the Court need do is to let in the defendant to defend the claim on the merit by transferring the matter to the general cause list order pleadings and set the matter down for hearing See:- DIO-GLOBAL CONCEPT (NIG) LTD V ACCESS BANK (NIG) PLC (2016) LPELR 40789, ROSE HILL LIMITED V AREWA METAL CONTAINERS (2010) LPELR-4904.
Finally, let me also add that a defence on the merit for the purposes of the undefended list procedure may encompass a defence in law as well as on fact. The Defendant must put forward some facts which cast doubt on the claim of the Plaintiff. A defence on the merit is not the some as success of the defence at the trial. All that is required is to lay the foundation for the existence of a triable issue or issues. See:- NORTEX (NIGERIA) LIMITED V. FRANC TOOLS CO. LTD. (1997) 4 NWLR (PT. 501) 603, JIPREZE V OKONKWO (1987) 3 NWLR (PT. 62) 737. ATAGUBA V GURA NIG. LTD (2005) ALLFWLR (PT. 256) 1219 at 1237.
Having said these what is next is to determine whether or not the learned trial judge has properly considered the defence put forward by the Appellants to the claim of the Respondent. Somewhere before now in this judgment, I said what the Court need consider is the affidavit of evidence of both parties and annexures there to if any. It is therefore apt at this stage to consider the defence put forward by the Appellants to the claim of the Respondent. I have decided to do this based on the fact that there is no contest to the fact that the claim of the Respondent before the trial Court is for a liquidated money demand. What is in con is the amounts the Appellants are owing the Respondent. I will herein under reproduce the Affidavit in support of the Notice of intention to defend the Suit filed on 11th June 2014. (See pages 17 – 18 of the Record.)
AFFIDAVIT IN SUPPORT OF NOTICE OF INTENTION TO DEFEND THIS SUIT BROUGHT ON THE UNDEFENDED LIST.
I AGNES OKEWU, Female Christian citizen of the Federal Republic of Nigeria residing in Jos, do make Oath and State as follows:-
(1) That I am the litigation secretary in the office of E.O. Chris & CO, and I was with the defendants as well as their Counsel, C.O. Ekeakhagbe Esq. in Chambers during a discussion in respect of this application by virtue of which position I am familiar with the facts herein depose
(2) That I have the consent of the Defendants/Respondents as well as my employers to depose to this affidavit.
(3) That the defendants/Respondents informed me the truth of which I verily believe as follows.
(a) That I was with the Defendant/Respondent, their counsel C. O. Ekeakhgbe Esq., in Chambers on that 9th of June 2014 during preparation of this case.
(b) That the Defendants/Respondents denied every allegation of facts as contained in the Plaintiff affidavit in paragraphs 3,4,5,6,7,8,9,10 and 11 of her motion
(c) That the Defendant/Respondent did not borrow the sum of N2,160,000.00 from the Plaintiff/Applicant on the 31/7/2013 or any date at all.
(d)That the Defendant/Respondents did not do any business transaction monetarily with the Plaintiff on the 31/7/2013
(4) That the Defendant/Respondents further informed me the truth of which I verily belief as follows:-
(a) That sometimes in 2005, 2006, 2007, 2008 MRS PAULINUS NNECH is a friend and a Church member of the Plaintiff/Appellant collected some money totally (sic) N25,000, from her.
(b) That the Defendants/Respondents gave two shops at Jos North L.G.A. Shopping complex Laranto since 2012 to the Plaintiff/Applicant and she has been collecting rents of more than N1.5 Million from the tenants of the Defendants/Respondents, on the Shop.
(c) That the Plaintiff/Applicant has been collecting rent from six Shops of the Defendants/Respondents which was not part of the Shops in the same Complex given to the Plaintiff.
(d) That the Defendants/Respondents further informed me the truth that I verily belief as follows:-
(a) That the Plaintiff/Applicant has collected more than N3.5 Million from the tenants in the Shops without the consent of the Defendants/Respondents since 2012.
(b) That the Defendants/Respondents have a counter claim against the Plaintiff/Applicant up to the sum of N4,000,000.00.
(c) That the Defendants/Respondents are not owing the Plaintiff/Applicant.
(d) That the Plaintiff/Applicant is not entitled to one kobo from the Defendants/Respondents and it is the Plaintiff/Applicant that is indebted to the defendants.
(6) That it is in the interest of justice to refuse this application.
(7) That I swear to this affidavit in good faith and in accordance with the Oath Act 2011.
DEPONENT.
A careful reading of the averment in the reproduced affidavit suggest that, though the appellant took some money from the Respondent but not to the tune of what is claimed by the Respondent.
Further to this is the fact that the Respondent has recovered the indebtedness of the Appellants by collecting Rent from the tenants of the 2 shops of the Appellants at Jos North L.G.A. Shopping Complex Laranto and 4 other Shops of the Appellant. It is also avered that, the Appellant is no longer indebted to the Respondent, but rather the Respondent is indebted to the Appellant to the tune of about N4,000,000.00. Agree there is a gentleman agreement of a loan between the parties. Question is raised as to what is the exact amount, whether or not the Appellants has completely liquidated the loan, whether the Respondent has collected more than the amount owed from the proceed of Rent from tenants occupying six Shops of the Appellants at Jos North L.G.A. Shopping Complex Laranto and whether as contended by the Respondent in his supporting affidavit that he could not collect the rent because the tenants refused to pay him because they do not recognize him as their Landlord nor authorized to collect Rent.
Put all these question together, it stands to reason that there are some Knotty questions that are yearning for answer. In my humbly view such answers can not be accessed by the affidavits of the parties but by oral evidence i.e. by hearing the tenant of the appellants. Further to this the issue of what is the exact amount loaned to the Appellant must be determined. Therefore I am of the ardent view that the Court should have allowed the parties to ventilate their respective stand with a view of placing all the facts at their disposal before the trial Court. What I am saying is that the Court would have in the circumstance of the affidavit evidence before the Court transfer the suit by the Respondent against the Appellants from the undefended list to the general cause list and hear both parties on the issue or issues that might be joined. Failures to do that in the instant appeal suggest an infraction and or noncompliance with the provision of the Rules.
Haven said these much, I have no hesitation in answering the question in the negative and hence resolved this issue against the Respondent.
In the light of the foregoing, it therefore mean that the learned trial judge ought not enter judgment as he did but transfer the suit to the general cause list for full trial. The consequence of this is that it therefore become needless in this circumstance to examine and consider issue one which is questioning the validity of the judgment entered vide the Ruling of Court delivered on the 24th of September, 2014 but signed on 22nd September, 2014 haven concluded that judgment ought not to be entered at that stage. The consideration of issue one is hereby declined.
In conclusion therefore, this appeal is meritorious and accordingly allowed.
The Ruling of the High Court of Justice Plateau State delivered on 24th day of September, 2014 in Suit No PLD/J236/2014 Coram Hon. Justice S.P. Gang is hereby set aside.
Order is accordingly made in consequence transferring suit no. PLD/J236/2014 from the undefended list to the general cause list.
The Suit is hereby remitted to the Hon. Chief Judge of Plateau State for reassignment to another Judge other than Hon Justice S.P. Gang and who will order pleading and expeditiously hear and determine the Suit.
Parties to bear their cost.
UCHECHUKWU ONYEMENAM, J.C.A.: In the Appellant’s brief settled by C. O. Ekeakhogbe, he distilled 2 issues for the determination of the appeal.
The said issues were adopted by both the Respondent’s counsel Mr. S. O. Ohaja, and the Court in the determination of the appeal. The 2 issues are:
1. Whether the ruling (decision) of the lower Court signed on the 22-09-2014 but delivered on the 24-09-2014 is not a nullity.
2. Whether the lower Court was right in its ruling delivered on the 24-09-2014 when it failed to transfer the suit (Suit No. PLD/J236/14) to the general cause list.
In the lead judgment delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, JCA, he determined the appeal on issue 2 alone. Notwithstanding the decision reached therein, I believe it is vital to make comments on issue
1, at least to put straight the position of the law.
I will start by saying it is not commendable for a decision to bear two dates to wit: a different date it was delivered and a different date it was signed. The ruling under attack speaks that it was delivered on 24th September, 2014 but signed on 22 September, 2014. Importantly though, the parties are not in contention of the decision that was appealed against. However, the Appellant wants the Court to declare the ruling a nullity for the two different dates it bears.
In any decision of a Court, there are two important dates that validate it owing to their significance. The first is the date of delivery while the other is the date of signature on the decision. The date of delivery is crucial in a decision of a Court for it is that date the decision comes into force, or operation. See: BANK OF WEST AFRICA V. NATIONAL INVESTMENT & PROPERTY CO (1962) LLR 32, UBN V. ISHOLA (2000) 11 NWLR (678) 283. Accordingly, the date a decision was delivered is a vital date for all legal and practical purposes. For all intents and purposes, the delivery date of any decision as far as the parties to the case are concerned, is the date on which the Court finally determined the dispute, submitted to it by them for adjudication and until that date, the parties cannot claim that their rights have been pronounced upon by the Court. It is immaterial that a decision has been written, dated, signed and sealed, until it is delivered by the Court it remains not a decision of a Court and of no importance to parties. So before the delivery of a decision by the Court, such decision does not exist.
It therefore means that, it is the date of delivery of decision that brings it to life, gives it legal existence and efficacy under both the Constitution and other relevant statutes, irrespective of the date it was actually signed. The date of delivery of a decision is the date of that decision and not any other date that might appear on the face or other part of the decision. OHUABUNWA V. DURU & ORS.(2008) LPELR – 4699 (CA).
This position is strengthened by Section 294 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended); which provides thus:
‘Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.’
With the date of delivery of a judgment, the parties and the appellate Courts are in the know whether the decision was delivered within the constitutional time frame in view of appeal or rehearing of appeal.
On the essence of date and signature of a judge on his decision, the section of the Constitution reproduced above requires a decision of a Court to be in writing. Equally settled in law is that any document which is not signed is a worthless document as the same has no legal effect. See: OMEGA BANK (NIG.) PLC. V. O. B. C. LTD. (2005) LPELR – 2636 (SC). Therefore a judge’s signature on his decision validates the same and gives it legal efficacy.
From the foregoing, prima facie, the ruling delivered on September, 2014 is not a nullity siice it bears the delivery date and the signature date of the learned trial Judge that made the decision. This does not appear to be the problem herein. The Appellant’s contention is that the ruling is a nullity because the date of delivery is different from the date it was signed. There is a common practice of Courts that decisions are usually, dated and signed on the date of delivery. Such practice is elegant and commendable, but there is no known Rule of Court which categorically provided that a decision must be signed and delivered on the same date so long as it was delivered within the period prescribed by the Constitution.
There being no such rule, what is important for the validity of a judgment is that it was signed and dated by the learned Judge who made it and delivered in accordance with the provisions of the Constitution reproduced above. I mean there is no rule that says a decision of a Court cannot be delivered on a later date than it was actually signed.
Accordingly, I view that even where two dates appear on a judgment, in that the decision was signed on a date different from the date it was delivered and there is no contention that it was not delivered the date it bears and signed by the Judge who heard and tried the matter, the decision cannot by the difference in dates be declared a nullity.
I therefore do not agree with the learned counsel for the Appellant that the ruling delivered on 24th September, 2014 but signed on 22nd September, 2014 is a nullity. I hereby resolve issue 1 in favour of the Respondent.
Notwithstanding my resolution of issue 1, I agree with the conclusion of my learned brother MUDASHIRU NASIRU ONIYANGI, JCA, that the trial Court erred when it failed to transfer Suit No. PLD/J236/2014; from the undefended list to the general cause list.
I also set aside the ruling of the High Court of Plateau State delivered on 24th September, 2014 by S.P. Gang, J. in Suit No. PLD/J236/2014.
I abide by the consequential orders made in the leading judgment including the order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Mudasiru Nasiru Oniyangi. JCA. His Lordship has considered and resolved the issues in contention in this appeal. I agree with and abide by the conclusion reached therein.
The Respondent commenced the action in the lower Court against the Appellants under the Undefended List Procedure and her claim was for the sum of N2,160,000.00 being money the Appellants collected horn her sometime in 2013 and which they have refused to repay despite repeated demands, together with interest at the rate of 10% per annum until final liquidation. The lower Court placed the matter under the Undefended List and it eventually found, upon reading the affidavit of the Appellants on their notice of intention to defend, for the Respondent and entered judgment in her favour in the terms of her claims.
Now the Undefended list Procedure is a special procedure which is sui gneris and has its own provisions within the Rules of Court. It is a summary judgment procedure and its whole purpose 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 Pic Vs Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. Speaking on the essence of the Undefended list procedure, this Court in the case of Samabey International Communications Ltd Vs 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 defense 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 – lmoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010)4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs Ize (2011) 11 NWLR (Pt 1257) 48, David V Jolayemi (2011)11 NWLR (Pt 1258) 320.”
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice – Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax Petroleum Development (Nig) Ltd V Duke (2010)8 NWLR (Pt 1196) 278. Thus, Order 23 Rule 3(1) of the High Court of Kano State (Civil Procedure) Rules gives a deviant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the Court will grant him leave to defend.
Also in Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37 at page 70 paragraph C, the Supreme Court stated:
“… the rules as regards matters placed under the undefended list is designed to enable a plaintiff to obtain summary judgment without trial in those cases where the plaintiff s case is unassailable (as in the instant case) see Cow Vs Casey (1949) 1 KB 474 and the defendant cannot show a defence which will lead to a trial on its merits.”
It is obvious from the above statements that there are two steps to the applicability of the Undefended list procedure and these are (i) there must be no reasonable doubt as to the efficacy of the claims of a plaintiff and (ii) the defendant must not have a plausible defence to the claim of the plaintiff. The first step must be present before the second step can be inquired into and where either of them is not present, then the undefended List procedure cannot be used. In other words, before the defendant can be called upon to depose to an affidavit which must condescend upon particulars and deal specifically with the plaintiff’s claim, the plaintiff has a concomitant duty to first of all satisfy the Court with an affidavit disclosing credible and reliable facts backed up with authentic and credible documents which would warrant the Court to give him judgment where the defendant’s affidavit does not disclose facts which would at least throw some doubt on the plaintiff’s case.
This is in keeping with the principle of burden of proof that says that in civil suits, a plaintiff ought to succeed on the strength of his case and not on the weakness of the defendant’s case – Aubergine Collections Ltd Vs Habib Nigeria Bank Ltd (2002) 4 NWLR (Pt 757), S.P.D (Nig) Ltd Vs Arho-Joe (Nig) Ltd (2006) 3 NWLR (Pt 966) 173 and David Vs Jolayemi (2011) 11 NWLR (Pt. 1258) 320. Where the case of a plaintiff under the undefended list is not unassailable, the question of whether or not the defendant disclosed a defence on the merits does not arise – AIhaji Muktari Uba & Sons Ltd Vs Lion Bank of Nigeria Plc (2006) 2 NWLR (Pt.964) 288, Nigerian Postal Services Vs Insight Engineering Company Ltd (2006) 8 NWLR (Pt 983) 435, Intercontinental Bank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt 1316)1, Torno Internazionale Nigeria Ltd Vs FSB International Bank Plc (2013) LPELR 22616(CA).
In the instant case, the foundation upon which the Respondent placed her case before the lower Court was the document dated 31st of July, 2013 which she said that the Appellants executed in her favour in acknowledgement of the receipt of the said sum of N2,160,000.00.
The document was attached as Exhibit A to the affidavit in support of her claim before the lower Court and it was her case that it was the document that entitled her to demand for the refund of the sum of N2,160.000.00. The document is a Memorandum of Understanding and it described the Respondent as business financier and the Appellants as cash recipient. The operative part of the document read thus:
I . The cash recipient has released their two shops at Jus North Local Government Shopping Plaza located at Our Lady of Fatima Catholic Cathedral Jos North Plateau State with ever documents concerning those shops, down shop and up shops (a) down shop 2, (b) up shop 4.
2. That the financial commitment of business financier under this MOU shall be that the cash recipient has paid the business financier with the said shops, the capital sum of (N2,160,000.00) Two Million One Hundred and Sixty Thousand Naira only. As such the cash recipient, their heirs, successor can never lay hands on the said shops again or ans claim, any more forever and ever from today 30th, July, 2013.
3. The business financier has become the real customary/rightful owners of those shops in the balancing of the principal sum of (N2.160.000.00 only. Therefore the business financier and her heir, successors can never lay claims of any kind of cash recipient from today being 30th July 2013 of this business transacted of this principal sum ON THIS MEMORANDUM OF UNDERSTANDING. THIS BUSINESS TRANSACTED BETWEEN MRS BLESSING OBIOIIA AND MR & MRS PAULINUS NNECHI IS HEREBY CLOSED. (Underlining mine for emphasis)
It is a settled principle of interpretation of documents that where the language used by parties in couching the terms or provisions of a document are clear and unambiguous, the Court must give the operative words in the document their simple, ordinary and actual grammatical meaning – Union Bank of Nigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt 937) 631, Egwunewu Vs Ejeagwu(2007) 6 NWLR (Pt 1031) 431. Applying this principle to the above reproduced contents of Exhibit, it is clear chat the document does not support the claims of the Respondent. The document, in fact, forbade the Respondent and her heirs and successors from making any demand or claim against the Appellants for the sum of N2,160,000.00.
Section 128 of the Evidence Act provides that where the terms of an agreement between parties has been reduced into writing, the written agreement itself shall constitute evidence of the terms of the agreement and no secondary evidence can be admitted to contradict, alter or vary the written agreement. The section recognise some exceptions and one of which is that secondary evidence or oral evidence may be allowed to prove the existence of any distinct subsequent oral agreement to rescind or modify any such agreement. It is pure common sense that for the Respondent to maintain the action for a claim for the sum of N2,160,000.00 against the Appellants there must exist a subsequent oral agreement that rescinded or modified the contents of Exhibit A. The Respondent did not allege the existence of such oral agreement in the affidavit in support of her claims. The proof of the existence of any such oral agreement will require very cogent and credible evidence and it is not something that can be accommodated under the Undefended List Procedure. The claim of the Respondent was thus not one suited for the Undefended list Procedure and the lower Court ought not to have entered judgment for the Respondent.
It is for the above reason and the fuller exposition of the law in the lead judgment that I agree that there is merit in the appeal. I too allow the appeal and set aside the Ruling of the High Court of Plateau State delivered by Honorable Justice S. P. Gang in Suit No PLD/J236/2014 delivered on the 24th of September, 2014. I abide by the consequential orders transferring the matter to the general cause list and remitting the matter to the Chief Judge of Plateau State for re-assignment to another Judge for hearing on the merits. I abide by the order on costs in the lead judgment.
Appearances:
C.O. Ekeakhogbe, Esq.For Appellant(s)
S.O. Ohaja, Esq.For Respondent(s)
