AKINSOLA & ANOR v. EYINNAYA
(2022)LCN/16153(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/A/184/2018
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Muhammed Lawal Abubakar Justice of the Court of Appeal
Between
1. AKINWALE AKINSOLA 2. COLOSSIAN MEGA UNIVERSAL LIMITED APPELANT(S)
And
KINGSLEY EYINNAYA (Doing Business In The Name And Style Of Citadel Concept Ventures) RESPONDENT(S)
RATIO
CONDITIONS FOR COMMENCING AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
Now, in ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2009) LPELR-33 (SC), the Supreme Court Per CHUKWUMA-ENEH gave the conditions for commencing an action under the Undefended List Procedure. He held as follows:
“The foregoing provision is clearly unambiguous and it contemplates that in appropriate cases, where the suit is for a “debt or liquidated money demand” and is supported by an affidavit verifying the facts of the claim that so soon thereof on the application of the plaintiff, the Registrar has to enter the suit on the undefended list and I must add there has to be a deposition that the defendant has no defence to the claim. This is so as the procedure under the undefended list, even though designed to quicken the recovery of liquidated money demands clearly derogates from the rights of the parties in regard to the principle of Audi Alteram Partem, vis-a-vis fair hearing. In this wise, the plaintiff is obliged to meet strictly the conditions of bringing his claim on the undefended list. Anything short of strict compliance with the rules will not suffice nor sustain the claims under the rules. The three requirements that have arisen from the above provisions, which I shall deal with anon, must be strictly construed in their application to suits brought on the undefended list. They are firstly that the claim must be for a debt or liquidated money demand, including account stated to be cognizable under the undefended list procedure, thus excluding for example, unliquidated damages as in claims in torts and special damages arising, howbeit from any cause of action as they must be specially pleaded and strictly proved. Secondly, the claim for a debt or liquidated money demand must be supported by an affidavit verifying the claim and thirdly the affidavit must contain a deposition to the effect that in the belief of the plaintiff the defendant has no defence to the claim. Once these conditions are met the claim is otherwise qualified to be placed on the undefended list. It is settled that the competency of a claim on the undefended list must pass the test of the three conditions as outlined above; this is so as the provisions of Order 23 Rule 1 (ibid) must be strictly construed meaning that an application to place a suit on the undefended list ought to be refused ab initio where the three conditions have not been satisfied.”
In MASSKEN (NIG) LTD & ORS v. AMAKA & ANOR (2017) LPELR-42360 (SC), the Supreme Court Per Walter Onnoghen JSC held as follows:
“l need to re-emphasis the point that the Undefended List Procedure is fashioned to take care of cases relating to simple, uncontested debt or liquidated money demand or monetary claims. Where, however serious disputes arose in the affidavits on points of law relating to the claim(s), the trial Court ought to exercise caution in entering judgment under the Undefended List Procedure and should transfer the matter from the Undefended List to the General Cause List to be dealt with by pleadings etc.”
For a Claimant to commence an action under the Undefended List Procedure, three conditions must be met:
1. The Claim must be for a debt or liquidated money demand.
2. The Claim for debt or liquidated money demand must be supported by an Affidavit verifying the Claim.
3. The Affidavit must contain a deposition to the effect that in the belief of the Plaintiff, the Defendant does not have a Defence to the Claim.
These three conditions must co-exist before the Plaintiff can institute an action under the Undefended List Procedure.
From the foregoing, the Court will enter judgment in favour of the Plaintiff, if the Plaintiff is able to meet the three conditions and prove that the Defendant does not have a valid Defence to his claim. See also OBITUDE VS ONYESOM COMMUNITY BANK LTD (2014) LPELR-22693 (SC); BEN THOMAS HOTELS LTD VS SEBI FURNITURE CO LTD (1989) LPELR-769 (SC), IMONIYAME HOLDINGS LTD & ANOR VS SONEB ENTERPRISES LTD & ORS (2010) LPELR-1504 (SC).
However, a Defendant will be allowed to Defend if he can show that there are disputed facts or that there is a dispute between the Parties. See OBARO VS HASSAN (2013) LPELR-20089 (SC); IMONIYAME HOLDINGS LTD & ANOR VS SONEB ENTERPRISES LTD & ORS (2010) LPELR-1504 (SC); NKWO MARKET COMMUNITY BANK (NIG) LTD VS OBI (2010) LPELR-2051 (SC); G.M.O. NWORAH & SONS CO. LTD VS AKPUTA (2010) LPELR-1296(SC). PER BANJOKO, J.C.A.
THE POSITION OF LAW WHERE THERE IS AN ASSERTION OF FACT WITHOUT EVIDENCE
It is settled law that where there is an assertion of fact without evidence, the party making such assertion must go further to prove or establish that assertion. See MAIHAJA v. GAIDAM (2017) LPELR-42474 (SC), OLORUNFEMI & ORS VS ASHO & ORS (2000) LPELR-2592 (SC), OKON & ANOR VS OFFEIDEH (2013) LPELR-21189 (CA) AND IBRAHIM VS IBRAHIM (2006) LPELR-7670 (CA). PER BANJOKO, J.C.A.
WHETHER OR NOT EXTRINSIC EVIDENCE CAN ALTER THE EFFECT OF A WRITTEN CONTRACT
In IDUFUEKO VS PFIZER PRODUCTS LTD & ANOR (2014) LPELR-22999 (SC), the Supreme Court Per GALADIMA JSC held as follows:
“The basic principle of law is that extrinsic evidence will not be given to contradict, vary, and alter the effect of a Written Contract. This position of the law has been made clear in UDOGWU v. OKI (1990) 5 NWLR (PT. 153) 72 at 736, where the Court of Appeal followed the reasoning of this Court in DA ROCHA v. HUSSEIN (1958) SCNLR 280. The judicial pronouncements in the two cases have found statutory backing in Section 128 (1) (b) of the Evidence Act. That subsection, which permits the admissibility of oral evidence to prove the existence of documentary evidence, is one of the exceptions to the general principle of law expressed in Section 128 (1) of the Act. It therefore makes admissible, oral evidence relating to: “(b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.” Similarly, Section 128 (1) (d) makes admissible oral evidence pertaining to: “(d) The existence of any distinct, subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property. “I agree with the learned counsel for the respondents that the foregoing provision regarding admissibility of oral evidence, in the circumstance, should not be seen or understood to allow all kinds of oral evidence to supplant or supplement the express terms of a written contract not contemplated by the parties. See also ARIJE v. ARIJE & ORS (2018) LPELR-44193 (SC); AKINBILEJE & ORS VS OGUNTOBADE & ORS (2013) LPELR-21 965 (CA); GUDUSU VS ABUBAKAR (2017) LPELR-43007 (CA).” PER BANJOKO, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory delivered on the 22nd of February, 2018 by Hon Justice U.P Kekemeke in Suit Number FCT/HC/CV/0058/2017 as contained in Pages 38 – 44 of the Record of Appeal.
The Respondent who was the Claimant in the suit at the lower Court commenced the action against the Appellants who were the Defendants vide an Undefended List Procedure attaching an Affidavit in Support of the Application dated 6th November, 2017 at the lower Court claiming for the following:
(i) The sum of N8,000,000.00 (Eight Million Naira) only being money owed to the Plaintiff.
(ii) 10% Interest from the judgment sum from the date of judgment till the judgment sum is liquidated.
The Appellants in response to the Undefended List filed a Notice of Intention to Defend and an Affidavit in Support of the Application dated 21st February, 2018.
The Application was heard on the 22nd of February, 2018 and judgment was given that same day in favor of the Respondent. The Appellants, being dissatisfied with the judgment of the trial Court, filed this appeal through a Notice of Appeal dated 1st March, 2018 as seen on Pages 45 – 48 of the Record of Appeal. The two grounds contained in the Notice of Appeal are:
GROUND ONE
The learned trial Judge erred in law when he held that the Appellants did not raise a triable issue in their Affidavit in Support of their Notice to Intention to Defend and thus entered judgment in favor of the Respondent on the Undefended List Procedure. (Five (5) Particulars of Error were listed in this Ground)
GROUND TWO
The learned trial Judge erred in law when he entered judgment in favor of the Respondent, as a cause of action has not accrued, in that, there was no valid demand for the payment of the outstanding sum. (Two (2) Particulars of Error were listed in this Ground)
The Appellant seeks the following reliefs before this Court: –
(a) AN ORDER of this Honourable Court allowing this appeal and setting aside the decision of the lower Court delivered by Honourable Justice U.P Kekemeke of Court No 14, High Court of the Federal Capital Territory, APO, Abuja delivered on the 22nd day of February 2018.
(b) AN ORDER of this Honourable Court remitting this suit to the High Court of the Federal Capital Territory, Abuja to be re-assigned to another Court for hearing on the merits.
The Appellants filed their Brief of Argument on the 7th March, 2018 while the Respondent filed his brief on the 29th September, 2021 and same was deemed filed on the same day.
The Appellants in their Brief of Argument raised two (2) Issues for Determination as follows:
1. Whether the Appellant’s Affidavit in Support of their Notice of Intention to Defend Raised triable issues to warrant the suit being transferred to General Cause List for full trial.
2 Whether a Cause of Action has accrued in this case.
The Respondent in his Brief of Argument adopted the two (2) issues for determination raised by the Appellant in his Brief of Argument. Consequently, this Court will adopt the issues for determination formulated by the Appellant.
ISSUES FOR DETERMINATION:
1. Whether the Appellant’s Affidavit in support of their Notice of Intention to defend raised triable issues to warrant the Suit being transferred to general cause list for full trial.
2 Whether a Cause of Action has accrued in this case.
ARGUMENT OF THE PARTIES ON ISSUE 1
In arguing issue 1, the Learned Counsel to the Appellant submitted that Order 21 Rule 3 of the High Court of the Federal Capital Territory Civil Procedure Rules 2004 provides that if the Defendant wishes to Defend the suit, he should file a Notice of Intention to Defend together with an Affidavit disclosing a Defence on Merit. He stated that the Court has the discretion to grant the Leave to Defend provided the Affidavit of the Defendant discloses a Defence on Merit however this discretion must be exercised judiciously otherwise an Appellate Court can Interfere with such exercise of discretion. Reliance was placed on case law authority of JOHNBULL ADAMS (NIG) LTD VS ISOKO COMMUNITY BANK LTD (2013) 29 WRN 142 (Ratio 2) AT 144.
He further submitted that the discretion conferred by the rules is to determine whether the Defendant’s Affidavit discloses a Defence on the Merit or not. Once the Defendant’s Affidavit raises triable issues, the trial Court has no discretion as to whether to transfer to the Ordinary Cause List or not, he is bound to transfer and hear the Suit in full. He relied on SANYAOLU VS ABDULWAHAB (2005) 45 WLR (RATIO 3) AT 76.
Learned Counsel contended that the Respondent deposed in his Affidavit at Paragraphs 4 – 10 as seen in Pages 3 and 7 of the Records of Appeal that 1st Appellant approached him to source and secure a buildable land for estate development for him. The Respondent was able to find land and took the 1st Appellant to the landowner. After the negotiation, the Appellant and the Landowner reached an Agreement to develop the land. The Respondent and the 1st Appellant had earlier agreed to an Agency Fee of 5% which translates to N10,000,000 (Ten Million Naira). The Respondent at trial stated that N2,000,000 (Two Million Naira) was paid to him by the Appellants. The Respondent in his Affidavit did not disclose the name of Mr. Augustine Egbulefu nor state the fact that Mr. Egbulefu was entitled to the 55% of the Agency Fee that he was claiming.
Learned Counsel further submitted that upon being served the Writ, the Appellants filed a Notice of Intention to Defend together with an Affidavit in support, denying the depositions of the Respondent’s Affidavit. The Appellants in their Affidavit stated that they did not approach the Respondent for any transaction rather it was Mr. Augustine Ebulefu that they approached to assist them in securing a piece of land for them for estate development. Mr. Egbulefu found the land and took them to the Landlord for discussion and not the Respondent. It was at the point of signing that Mr. Egbulefu suggested the Agreement should be signed using their Companies rather than individuals. It was at this point that Mr. Egbulefu brought the name of Citadel Ventures and a Written Agreement was signed between Citadel Ventures and the 2nd Appellant. The Appellants stated in their Affidavit that at the time of signing the Agreement, they never knew that Citadel Ventures did not belong to Mr. Egbulefu. This fact was corroborated by Mr. Egbulefu, who claimed that he was prevailed upon by the Respondent, not to use his personal name in the formal agreement. He had told the Respondent that he did not have a Registered Company to be used and then the Respondent offered him his own Business Name (Citadel Ventures) to be used for the written agreement. Learned Counsel claimed that there was a written agreement between the Respondent’s Business Name and the 2nd Appellant but this agreement was withheld by the Respondent from the trial Court to conceal some of the terms and conditions in the agreement.
Learned Counsel further contended that Mr. Egbulefu, showing how the Agency Fee was to be shared, exhibited a copy of an agreement between himself and the Respondent. The agreed ratio of 55% to 45% was arrived at. The 55% portion was to be taken by Mr. Egbulefu while the Respondent was entitled to 45%. This Agreement by the argument of the learned Counsel to the Appellant, was evidence that it was indeed Mr. Egbulefu who was contracted to source for estate land and link the Appellants to the Landowner. He also referred to the Appellant’s Affidavit at the trial Court where the Appellants claimed in their disposition that there was a subsequent agreement between the parties to suspend payment of the Agency Fee pending when the Appellants return to work, as work at site has been stalled due to lack of funds. This averment was also corroborated by Mr. Egbulefu Reliance was then placed on Section 128 of the Evidence Act 2011 to argue that Oral Evidence is Admissible to prove the existence of any distinct or subsequent Oral Agreement, or to rescind or modify such Contract/ Grant or Disposition of Property.” He argued that there was a Written Agreement between the Parties but it was withheld by the Respondent from the Court. Consequently, there was no reason why the Appellant could not adduce oral evidence of subsequent modification of the original agreement. He referred to the case law authority of IDUFUEKO VS PFIZER PRODUCT LTD (2014) 41 WRN (RATIO 4) AT PAGE 8.
Further, he argued that the trial Court ought not to have glossed over the Appellant’s deposition that there was a subsequent agreement to suspend payment, which was corroborated by Mr. Egbulefu. He made reference to SANYAOLU VS ABDULWAHAB (SUPRA) that once a party on the service of a Counter-Affidavit fails to file a Further Affidavit, he has admitted all the facts alleged in the Counter-Affidavit. Thus, since the Respondent did not deny the existence of a subsequent agreement, the Respondent is bound to sue for his own share of the balance of the Agency Fees, if he can show that the Appellants have returned to site or that the landowner has sold the site to another person and the person has quantified the amount of work done and refunded the money to the Appellants.
Learned Counsel submitted that the purpose of this, is that the common practice in Abuja Estate Development Business, is that the developer secures a buildable land, he will prepare a design of the property to be built and begin to advertise the estate. It is when the prospective buyers see the design that they approach the developer and if they are able to strike an agreement, they will begin to pay for the property by installments, normally at the different levels of development. It is from these instalmental payments made by the buyers, who are referred to as off-takers that the developers continue the construction work and pay agency fee. Where as in this case, there are no off-takers to subscribe to the buildings, work is bound to stall and it is on this basis that a subsequent agreement was reached to suspend agency fees until the Appellants returned to site. He made reference to SPDC NIGERIA LTD VS ARHO-JOE NIG LTD (2005) 44 WRN 120 (RATIO 13) AT 31 to argue that a complete Defence needs not to be shown. It will only suffice if the Defence set up shows that there is a triable issue or question, or that for some reasons there ought to be a trial.”
Learned Counsel contended further that the mere fact that the partners in the agency agreement, who both stood to benefit from the agency fee are disagreeing as to whether the payment of the balance of agency fee has become due or not is enough reasons why the trial Judge should transfer the suit to the General Cause List for full trial. Furthermore, there is a clear dispute on whom the Appellant approached to secure the land. In absence of a written agreement being exhibited, this fact is vital and ought to be resolved through oral evidence.
Finally, learned Counsel further contended that assuming the outstanding balance is N8,000,000 (Eight Million Naira) as claimed, the amount claimed did not belong entirely to the Respondent, who was entitled to only 45%, with Mr. Egbulefu, being entitled to the Sum of N4,400,000 (Four Million, Four Hundred Thousand Naira). He however pointed out that Mr. Egbulefu was not in support of the recovery of the balance. In addition, there is a dispute to the outstanding balance. The Respondent had deposed that they have paid N3,900,000 (Three Million, Nine Hundred Thousand Naira). The Respondent did not deny this and the learned trial Judge had no business denying it for them as he merely relied on the Respondent’s Exhibit B without considering the fact that it was written in Year 2016. Between Years 2016 and 2018, other things could have happened. He urged this Court to hold that the Appellants have raised Triable Issues to warrant the suit being transferred to the Ordinary Cause List.
Conversely, learned Counsel to the Respondent contended that the Appellant in their Notice to Defend did not raise any triable issue warranting the case being transferred to the General Cause List. Reference was made to INTERCONTINENTAL BANK LTD VS BRIFINA LTD (2012) 13 NWLR (PART 13) 1 AT PAGE 7, RATIO 6. He further submitted that there was no discrepancy whatsoever as to the amount being owed the Respondent by the Appellants. Thus the lower Court was right to have held that Exhibit B, which is very clear and unambiguous, confirmed the Appellants’ acknowledgment of their indebtedness to the Respondent. He submitted that the Undefended List Procedure is a Special Procedure usually employed by the Plaintiff/Claimant to recover Liquidated Money Demand from the defendant in the shortest possible time. Reference was made to ED-OF (NIG) LTD (2013) 9 NWLR (PART 1359) 276 RATIO 1 and FORTUNE INTERNATIONAL BANK PLC VS CITY EXPRESS BANK LIMITED (2012) 14 NWLR (PART 1319) PAGE 86 AT 92 RATIO 4.
Learned Counsel further submitted that there was nowhere in the Appellants’ Affidavit that the claims of the Respondent was contradicted. He made reference to Exhibit B (as seen in Page 11 of the Record of Appeal) annexed by the Respondent.
He submitted further that the contract for which the Appellants have failed, refused and ignored to pay the Respondent full agency as agreed, resulting in the indebtedness, was exclusively between the Appellants and the Respondent and no other person. The Appellants only made part payment of N2,000,000 (Two Million Naira only) to the Respondent without more despite repeated demands.
Finally, learned Counsel submitted that in an Undefended List Proceedings, the Court is duty bound to consider the Affidavit filed by the Defendant to determine whether same by any means discloses the slightest defence on merit.
He relied on HAIDO VS USMAN (2004) NWLR (PART 859) PAGE 65. He contended that nothing whatsoever was placed before the lower Court to substantiate the spurious claim by the Appellant to show that there was an agreement to suspend the earlier agreement for which the contract was consummated.
He urged this Court to resolve this issue in favour of the Respondent.
ARGUMENT OF THE PARTIES ON ISSUE 2
On issue 2, the learned Counsel to the Appellants submitted that for a Cause of Action to arise in respect of recovery of a simple debt, there must be a valid demand for payment. He relied on KOLO VS FBN (2003) FWLR (PART 179) 1303 RATIO 4. He stated that in the Demand Letter, there was no Seal and Stamp approved by the Nigerian Bar Association affixed to the Letter contrary to the Provisions of Rule 10 of the Rules of Professional Conduct 2007. He submitted that failure to affix the Stamp and Seal on any legal document listed in 10 (2) renders such document incompetent and of no effect. He relied on YAKI VS BAGUDU (2017) 24 WRN (RATIO 11B) AT 14. He further submitted that a demand letter is a condition precedent to bringing an action for recovery of debt and once the demand letter is void, a Cause of Action has not accrued to confer Jurisdiction on the Court to determine the suit. He relied on OYENEYIN VS AKINKUGBE (2010) 20 WRN 41 (RATIO 5) AT 50.
Learned Counsel submitted that the Demand Letter did not comply with the condition with the Provisions of the Rules of Professional Conduct and as such that Demand Letter is incompetent and has no legal effect as to confer a Cause of Action on the Respondent to sue. He finally urged this Court to resolve the issue in favour of the Appellant.
Conversely, the learned Counsel to the Respondent submitted that it is settled that for a Cause of Action to arise in an Undefended List Procedure, the Plaintiff/Claimant must have made a formal Demand for Payment of debt in writing. He relied on the case law authority of WEMA BANK VS OWOSHO (2018) LPELR – 43857 (CA). He contended that the condition precedent for commencing a suit under the Undefended List Procedure was duly complied with and as such the Cause of Action had accrued before the commencement of the suit at the Court below. He relied on the cases of KOLO VS FBN (2002) LPELR – 7106 (CA) AT 21; HUNG VS E.C INVESTMENT COMPANY LIMITED (2016) LPELR – 42125 (CA).
Learned Counsel argued that the Appellants acknowledged the that the Respondent through his Lawyer served the Appellants a demand notice and then raised a question as to whether the absence of stamp and seal of Legal Practitioner who wrote the Demand Letter vitiate the indebtedness of the Appellants to the Respondents? He contended that at the time when the Demand Notice was made, the requirement for legal stamp and seal to be affixed on Legal Documents by the NBA was not in force and that it was never contemplated that the Appellants would renege on the agreement reached with the Respondent to warrant a legal battle in Court. He urged this Court to discountenance the argument of the Appellants regarding the absence of Stamp and Seal of a Legal Practitioner in the Demand Notice as the era of technicality is now gone. He urged this Court to dismiss the argument of the Appellant and resolve this issue against the Appellant and in favour of the Respondent.
RESOLUTION OF ISSUES
ISSUE 1
Whether the Appellants’ Affidavit in support of their Notice of Intention to Defend raised triable issues to warrant the suit being transferred to General Cause List for full trial.
RESOLUTION OF ISSUE 1
Now, in ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2009) LPELR-33 (SC), the Supreme Court Per CHUKWUMA-ENEH gave the conditions for commencing an action under the Undefended List Procedure. He held as follows:
“The foregoing provision is clearly unambiguous and it contemplates that in appropriate cases, where the suit is for a “debt or liquidated money demand” and is supported by an affidavit verifying the facts of the claim that so soon thereof on the application of the plaintiff, the Registrar has to enter the suit on the undefended list and I must add there has to be a deposition that the defendant has no defence to the claim. This is so as the procedure under the undefended list, even though designed to quicken the recovery of liquidated money demands clearly derogates from the rights of the parties in regard to the principle of Audi Alteram Partem, vis-a-vis fair hearing. In this wise, the plaintiff is obliged to meet strictly the conditions of bringing his claim on the undefended list. Anything short of strict compliance with the rules will not suffice nor sustain the claims under the rules. The three requirements that have arisen from the above provisions, which I shall deal with anon, must be strictly construed in their application to suits brought on the undefended list. They are firstly that the claim must be for a debt or liquidated money demand, including account stated to be cognizable under the undefended list procedure, thus excluding for example, unliquidated damages as in claims in torts and special damages arising, howbeit from any cause of action as they must be specially pleaded and strictly proved. Secondly, the claim for a debt or liquidated money demand must be supported by an affidavit verifying the claim and thirdly the affidavit must contain a deposition to the effect that in the belief of the plaintiff the defendant has no defence to the claim. Once these conditions are met the claim is otherwise qualified to be placed on the undefended list. It is settled that the competency of a claim on the undefended list must pass the test of the three conditions as outlined above; this is so as the provisions of Order 23 Rule 1 (ibid) must be strictly construed meaning that an application to place a suit on the undefended list ought to be refused ab initio where the three conditions have not been satisfied.”
In MASSKEN (NIG) LTD & ORS v. AMAKA & ANOR (2017) LPELR-42360 (SC), the Supreme Court Per Walter Onnoghen JSC held as follows:
“l need to re-emphasis the point that the Undefended List Procedure is fashioned to take care of cases relating to simple, uncontested debt or liquidated money demand or monetary claims. Where, however serious disputes arose in the affidavits on points of law relating to the claim(s), the trial Court ought to exercise caution in entering judgment under the Undefended List Procedure and should transfer the matter from the Undefended List to the General Cause List to be dealt with by pleadings etc.”
For a Claimant to commence an action under the Undefended List Procedure, three conditions must be met:
1. The Claim must be for a debt or liquidated money demand.
2. The Claim for debt or liquidated money demand must be supported by an Affidavit verifying the Claim.
3. The Affidavit must contain a deposition to the effect that in the belief of the Plaintiff, the Defendant does not have a Defence to the Claim.
These three conditions must co-exist before the Plaintiff can institute an action under the Undefended List Procedure.
From the foregoing, the Court will enter judgment in favour of the Plaintiff, if the Plaintiff is able to meet the three conditions and prove that the Defendant does not have a valid Defence to his claim. See also OBITUDE VS ONYESOM COMMUNITY BANK LTD (2014) LPELR-22693 (SC); BEN THOMAS HOTELS LTD VS SEBI FURNITURE CO LTD (1989) LPELR-769 (SC), IMONIYAME HOLDINGS LTD & ANOR VS SONEB ENTERPRISES LTD & ORS (2010) LPELR-1504 (SC).
However, a Defendant will be allowed to Defend if he can show that there are disputed facts or that there is a dispute between the Parties. See OBARO VS HASSAN (2013) LPELR-20089 (SC); IMONIYAME HOLDINGS LTD & ANOR VS SONEB ENTERPRISES LTD & ORS (2010) LPELR-1504 (SC); NKWO MARKET COMMUNITY BANK (NIG) LTD VS OBI (2010) LPELR-2051 (SC); G.M.O. NWORAH & SONS CO. LTD VS AKPUTA (2010) LPELR-1296(SC).
In this instant case, the Appellants filed a Notice to Defend in other to dispute the claims of the Respondent. In their Affidavit in support of the Notice to Defend, the Appellants did not deny the Demand Letter written to the 1st Appellant by the Respondent’s Counsel demanding for the balance of N8,000,000 (Eight Million Naira) dated 20th June, 2016 and marked as Exhibit A. In his reply to the Respondent’s Demand Letter via letter dated 28th June 2016 and marked as Exhibit B as seen in page 11 of the Record of Appeal, he acknowledged the indebtedness and claimed to have contacted the Respondent for a meeting on settling the said Debt. This was not controverted in the Appellants’ Supporting Affidavit in Support of the Notice to Defend. Furthermore, the Respondent in his Affidavit stated that he was issued Seven (7) cheques in the total sum of N4,500,000 (Four Million, Five Hundred Thousand Naira) leaving a balance of N3,500,000 (Three Million, Five Hundred Thousand Naira). He attempted to present the first Cheque at the Bank but the said Cheque was returned unpaid, as the account was not funded. This was not also controverted in the Appellants’ Affidavit in support of the Notice to Defend. The Appellants in their supporting Affidavit only claimed to have issued cheques in the Sum of N4,500,000 (Four Million, Five Hundred Thousand Naira). As a matter of fact, the Cheques endorsed with different amount of monies, as seen in Exhibits C to J, all bore the Name Citadel Concept Ventures; a Venture operated by the Respondent and if there was a Separate Agreement as claimed by the Appellants, this ought to have been exhibited. Further, the Appellants’ relationship with the said Mr. Austin Mark ought to have been drawn out more positively by the Appellant. The absence of proof of his assertions and his apparent silence some allegations means that the evidence as led by the Respondent before the lower Court was not disproved.
It is trite that where facts are not controverted in an Affidavit, such facts are deemed to be admitted as true. See OBUMSELI & ANOR VS UWAKWE (2019) LPELR 46937 SC, TUKUR VS UBA & ORS (2012) LPRELR – 9337 SC, OWURU ORS VS ADIGWU & ANOR AND BUHARI & ORS VS OBASANJO & ORS (2003) LPELR – 813 (SC).
The Appellants also claimed to have entered into an agreement with the Respondent to suspend payment pending the resumption of work at site. No evidence of such agreement was tendered before the trial Judge. In addition, they claimed that the Respondent withheld the agreement.
It is settled law that where there is an assertion of fact without evidence, the party making such assertion must go further to prove or establish that assertion. See MAIHAJA v. GAIDAM (2017) LPELR-42474 (SC), OLORUNFEMI & ORS VS ASHO & ORS (2000) LPELR-2592 (SC), OKON & ANOR VS OFFEIDEH (2013) LPELR-21189 (CA) AND IBRAHIM VS IBRAHIM (2006) LPELR-7670 (CA).
The Appellants in this case have failed to establish the existence of the said agreement at the trial Court. Rather they claimed that the Respondent withheld the said agreement. They also failed to serve the Respondent with a Notice to Produce the said agreement. Even if they had served the Respondent with the Notice to Produce, the Respondent is not under any obligation to produce the said Agreement. It is presumed that the party asking for the document knows the contents of the document and has a copy of that document. If the party that is asked to produce that document fails to produce the document, the party asking for the document can rely on the secondary copies of that document.
See BUHARI & ANOR VS OBASANJO & ORS (2005) LPELR-815 (SC); NWEKE v. STATE (2017) LPELR-42103 (SC); AINOKO VS YUNUSA & ORS (2008) LPELR-3663 (CA); MADUKAEGBU & ORS VS STATE (2015) LPELR-40691 (CA); CPC VS INEC & ORS (2011) LPELR-9085 (CA).
In this instant case, the Appellants failed to provide copies of the said agreement where the Appellants and the Respondent agreed to suspend payment pending the resumption of work at site. Thus, where a party asserts but fails to prove his contention, the assertion does not carry weight. The agreement between the Respondent and Mr. Augustine Egbulefu where both parties agreed to share Agency Fees does not in any way prove the denial of indebtedness or show that there was an agreement to suspend payment.
Learned Counsel to the Appellant relied on Section 128 (1) of the Evidence Act to argue that Oral Evidence will be admissible to “prove the existence of any distinct or subsequent oral agreement to rescind or modify any of such contract or grant or disposition of the property.” He further argued that even though that there is evidence of an existence of a Written Agreement, as can be gleaned from the Demand Letter of the Respondent marked as Exhibit A, the Appellant is allowed to provide oral evidence of such modification. The Argument of the learned Counsel to the Appellant is inapposite to this case.
In IDUFUEKO VS PFIZER PRODUCTS LTD & ANOR (2014) LPELR-22999 (SC), the Supreme Court Per GALADIMA JSC held as follows:
“The basic principle of law is that extrinsic evidence will not be given to contradict, vary, and alter the effect of a Written Contract. This position of the law has been made clear in UDOGWU v. OKI (1990) 5 NWLR (PT. 153) 72 at 736, where the Court of Appeal followed the reasoning of this Court in DA ROCHA v. HUSSEIN (1958) SCNLR 280. The judicial pronouncements in the two cases have found statutory backing in Section 128 (1) (b) of the Evidence Act. That subsection, which permits the admissibility of oral evidence to prove the existence of documentary evidence, is one of the exceptions to the general principle of law expressed in Section 128 (1) of the Act. It therefore makes admissible, oral evidence relating to: “(b) The existence of any separate oral agreement as to any matter on which a document is silent and which is not inconsistent with its terms if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them.” Similarly, Section 128 (1) (d) makes admissible oral evidence pertaining to: “(d) The existence of any distinct, subsequent oral agreement to rescind or modify any such contract, grant, or disposition of property. “I agree with the learned counsel for the respondents that the foregoing provision regarding admissibility of oral evidence, in the circumstance, should not be seen or understood to allow all kinds of oral evidence to supplant or supplement the express terms of a written contract not contemplated by the parties. See also ARIJE v. ARIJE & ORS (2018) LPELR-44193 (SC); AKINBILEJE & ORS VS OGUNTOBADE & ORS (2013) LPELR-21 965 (CA); GUDUSU VS ABUBAKAR (2017) LPELR-43007 (CA).”
The Appellants in this case, have failed to prove the existence of any Documentary Evidence wherein it was agreed that payments should be suspended pending the start of work on site. Thus the Provision of Section 128 of the Evidence Act 2011 does not apply to this case. Furthermore, the trial Court is duty bound to consider the Affidavit filed by the Defendant to determine if there is a slight defence on merit.
Therefore, from the foregoing analysis, there is nothing to show in the Appellants’ Affidavit that there is a Defence in this case. I agree with the Learned Counsel to the Respondent that there is no evidence before this Court to substantiate the claim by the Appellants that there was an agreement to suspend payment. Even if there was an agreement to suspend payment, it does not change the fact that the Appellants have admitted their indebtedness to the Respondent and as such their indebtedness is not in dispute. Thus, the trial Court was right to have dismissed the Appellants’ Application for Notice to Defend, as there is no Defence on Merit or Triable Issues. The Appellant did not provide any evidence before the trial Court to show that he had paid the said sum of N3,900,000 (Three Million, Nine Hundred Thousand Naira).
In the light of this circumstance, issue 1 is resolved in favour of the Respondent and against the Appellant. The judgment of the trial Court on this question is hereby upheld.
ISSUE 2
Whether a Cause of Action has accrued in this case.
RESOLUTION OF ISSUE 2
It is settled that in a suit for recovery of debt, a Cause of Action will accrue when a debtor fails to pay his debt after a demand to pay the debt has been made. See the case of UNION BANK OF NIGERIA LTD VS OKI (1999) 8 NWLR (PT 614) 255, AMEDE VS UNITED BANK FOR AFRICA PLC (2008) 8 NWLR (PT.1090) 623, AKAT (NIG) LTD & ANOR v. UNITY BANK (2016) LPELR-40198 (CA).
Thus, in order to commence action under the Undefended List Procedure, a Demand Letter must be served on the Debtor.
In this instant case, the Respondent had served the Appellants a Demand Letter for the sum of N8,000,000 (Eight Million Naira). This letter was acknowledged by the Appellants in their letter to the Respondent where they did not deny their indebtedness but rather claimed to have a meeting with the Respondent to resolve their indebtedness. The law is settled that where the Defendant fails to query the Debt stated in the Demand Letter, then the debtor will be deemed to have admitted his indebtedness in respect of the quoted figures.
In BEVERLY DEVELOPMENT & REALTIES LTD VS TEC ENGINEERING CO. (NIG) LTD (2020) LPELR-52023 (CA), this Court Per ABIRU JCA held as follows:
“It is settled law that where a creditor writes letters of demand to a debtor requesting settlement of debt and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due.” See also O.M. NWOYE & SONS COMPANY LTD VS CO-OPERATIVE AND COMMERCE BANK (NIG) PLC (1993) 8 NWLR (PT 310) 210, NAGEBU CO (NIG) LTD VS UNITY BANK PLC (2014) 7 NWLR (PT 1405) 42, TILLEY GYADO & CO (NIG) LTD VS ACCESS BANK PLC (2019) 6 NWLR (PT 1669) 399.
In this instant case, the Appellants has admitted in his reply to the Demand Letter dated 20th June, 2016, his indebtedness to the sum of N8,000,000 (Eight Million Naira) as demanded by the Respondent. The indebtedness was not in dispute.
However, the learned Counsel to the Appellants is claiming that the Demand Letter served on the Appellants did not comply with the rules of Professional Conduct as the letter did not have the Seal and Stamp of the Nigerian Bar Association affixed to the Letter and as such the letter is incompetent and no Cause of Action has accrued.
The question is does the failure to attach Seal and Stamp of the Nigerian Bar Association render the Demand Letter served on the Appellants incompetent?
The fact that NBA Seal and Stamp was not affixed on the Demand Letter does not render the Demand Letter served on the Appellants incompetent, null and void. See SENATOR BELLO SARAKIN YAKI & ANOR VS SENATOR ATIKU BAGUDU & 2 ORS (2015) 18 NWLR (PART 1491) PAGE 288; TANIMU VS RABIU(2018) 4 NWLR (PART 1610) PAGE 505.
The Appellants acknowledged the receipt of the Demand Letter by responding to the letter vide his letter dated 28th June, 2016 acknowledging their indebtedness and now are trying to use technicalities to discountenance that said Demand Letter.
In NNEJI & OR’s VS CHUKWU & ORS (1988) LPELR-2058 (SC), the Supreme Court, Per Oputa JSC defined technicality as follows:
‘What is a technicality? A technical error is one committed in the course of a trial, but without prejudice to a party. It is an error, which is purely abstract and harmless for practical purposes. “Technical” relates to details rather than principle.”
Also in YUSUF v. ADEGOKE & ANOR (2007) LPELR-3534 (SC), the Supreme Court Per Niki Tobi JCA defined technicality as follows:
“What is technicality? In Adeniji VS The State (1992) 4 NWLR (Pt. 234) 248, I said at page 265: “I realize that Courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a Court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much so that it has become not only a cliché but also an enigma in our jurisprudence. In most cases when the Courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drum drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the lost letters without much ado, and with little or no regard to the injustice that will be caused the opponent.”
From the foregoing Judicial Authorities, technicality does not harm other party. It goes to the details rather than the Principle. The learned Counsel to the Appellants is attempting to use abstract or inordinate legalism to becloud the merit of this appeal with little or no regard for the Cause of Justice.
In AERONAUTICAL ENGINEERING & TECH. SERVICES LTD v. NORTHWALES MILITARY AVIATION SERVICES LTD (2020) LPELR-52267 (CA), this Court Per Dongbam-Mensem JCA held as follows:
“The Courts have long moved away from the era of technicalities to a regime of justice. I crave indulgence to quote extensively the dictum of my Lord, Bage, JSC in the case of HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD) & ORS V. HON. TIMOTHY OWOEYE & ANOR. (2017) LPELR – 4 1903 (SC) thus; “Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) V. JOHNSON (2007) 49 W.R.N. pages 169-170 where Per Odili JCA (as he then was) opined as follows: The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to not pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT. 766) at 476-417. The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.” See also AJAKAIYE V. IDEHIA (1991) 8 NWLR (PT. 364) 504, ARTRA IND. LTD. V. NBC (1997) 1 NWLR (Pt. 483) 574, DAKAT V. DASHE (1997) 12 NWLR (PT. 531) 46, BENSON v. NIGERIA AGIP CO. LTD (1982) 5 S.C. 1. The Courts are constantly enjoined to do justice and not sacrifice justice on the altar of technicalities. To accede to the submissions of the Appellants is to mete out injustice on the Respondent as the claim of the Appellants is hinged on a mere technicality which should not be allowed to stand. See also ATAOBE & ANOR VS ITIVEH (2017) LPELR-43323 (CA), NEPA VS AUWAL (2010) LPELR-4577 (CA), KARIMAT GLOBAL TRADE LINKS LTD & ANOR VS UNITY BANK PLC (2014) LPELR-23986 (CA), MTN NIGERIA COMMUNICATIONS LTD. VS ALUKO & ANOR (2013) LPELR-20473 (CA).
Thus, from the foregoing Judicial Authorities, the Courts are enjoined to do Justice and not sacrifice Justice on the altar of technicalities. To accede to the submissions of the Appellants is to mete out injustice on the Respondent as the claim of the Appellants in this issue is hinged on a mere technicality, which should not be allowed to stand.
Thus, from the foregoing analysis, issue 2 is hereby resolved in favour of the Respondent and against the Appellants. The judgment of the trial Court is hereby upheld and this appeal lacks merit and is hereby dismissed accordingly.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Adebukunola A. I. Banjoko, JCA, and I am in agreement with the reasoning and conclusion reached therein.
I therefore also find the appeal lacking in merit and it is hereby dismissed, the judgment of the Court below is hereby affirmed.
I make no order as to costs.
MUHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment just delivered by my learned brother, ADEBUKOLA ADEOTI BANJOKO JCA in the matter. I entirely agree with the analysis and conclusion that the appeal lacks merit and is hereby dismiss. I have nothing to add.
Appearances:
HENRY A. IYANYA, ESQ. For Appellant(s)
IFEANYI NRIALIKE, ESQ. For Respondent(s)