ALHAJI ALI MUKTAR SHESHE v. ALHAJI HASSAN IBRAHIM (2013)

ALHAJI ALI MUKTAR SHESHE v. ALHAJI HASSAN IBRAHIM

(2013)LCN/6354(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2013

CA/K/9/2011

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

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

Between

ALHAJI ALI MUKTAR SHESHE Appellant(s)

AND

ALHAJI HASSAN IBRAHIM Respondent(s)

RATIO

THE ESSENCE OF AN ISSUE FOR DETERMINATION IN AN APPEAL

This Court has had reasons recently to explain the essence of an issue for determination in an appeal and to advise parties on how not to formulate issues for determination. This Court is compelled by the nature of the issue for determination formulated by the Appellant in this appeal to reiterate the points. Now, an issue for determination in an appeal is a point which is so crucial that if it is decided one way or the other will affect the fate of the appeal. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal – Okoye V. Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt 199) 501 and G. Chitex Industries Ltd V. Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt 945) 392. Issues for determination are an important part of a brief of arguments and their purpose is to enable the parties narrow the issues in the grounds of appeal filed. The characteristics of a well drafted issue for determination in a brief of argument are precision, brevity, accuracy and clarity – Uwaifo V. Uwaifo (2005) 3 NWLR (Pt 913) 479, Iloabachie V. Iloabachie (2005) 13 NWLR (Pt 943) 695, Maishanu V. Manu (2007) 7 NWLR (pt 1032) 42. The issue for determination formulated by the Appellant is a perfect example of how not to formulate an issue for determination. It is a narrative. It is too verbose. It lacks clarity and the complaint of the Appellant in the issue for determination is not clear. Is he complaining that the claims of the Respondent before the lower Court were not suited for the undefended list procedure, or that by reason of the contending facts deposed to in the respective affidavits of the parties, he should have been granted leave by the lower Court to defend the action? It is trite that an issue for determination should not comprise of other issues; it should not be a composition of two different issues – Iloabuchi V. Ebigbo (2000) 8 NWLR (Pt 668) 197, Ehikhamwen V. Iluobe (2002) 2 NWLR (Pt 750) 151, Unokan Enterprises Ltd V. Omuvwie (2005) 1 NWLR (pt 907) 293, Ikare Community Bank (Nig) Ltd V. Ademuwagun (2005) 7 NWLR (pt 924) 275. PER ABIRU, J.C.A.

THE PURPOSE OF SUMMARY JUDGEMENT

The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc V. Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin V. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment in Appeal No CA/K/131,/2010 – Samabey International Communications Ltd V. Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th of April, 2013 stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd V. Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd V. Afam Akputa Esq. (2010) 9 NWLR (pt 1200) 443, Babale V. Eze (2011) 11 NWLR (pt 1257) 48, David V. Jolayemi (2011) 11 NWLR (Pt 1258) 320.” PER ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State in Suit No K/208/09 delivered by Honorable Justice Wada Abubakar Umar on the 30th of June, 2009. The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, under the Undefended List Procedure, with leave of Court, and he prayed for:
i. The sum of N20,450,000.00 (Twenty Million Four Hundred and Fifty Thousand Naira Only) as money had and received.
ii. 10% Court interest from date of judgment till satisfaction of same.
iii. The cost of this action.

The writ with particulars of claim was dated the 14th of May, 2009 and it was supported by an affidavit of facts deposed to on the 15th of May, 2009 with exhibits attached. The processes were served on the Appellant and he responded by filing a Notice of Intention to defend dated the 27th of May, 2009 and this was supported by an affidavit of facts deposed to on the 28th of May, 2009 with exhibits attached. The lower Court took arguments in the matter on the 8th of June, 2009 and in a considered Ruling delivered on the 30th of June, 2009, it entered judgment in favour of the Respondent in the sum of N20, 450,000.00 together with interest at the rate of 10% effective from the date of judgment until final and total liquidation and cost of N25,000.00. The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal dated the 1st of July, 2009 against it. The notice of appeal contained one ground of appeal.

In arguing the appeal before this Court, the Appellant filed an amended brief of arguments dated the 7th of January, 2013 and it consisted of nineteen pages. The Appellant’s brief of arguments was deemed proper on the 14th of January, 2013. The Respondent’s brief of arguments consisting of twenty pages was dated the 28th of February, 2011 and it was filed on the 1st of March, 2011. At the hearing of the appeal on the 30th of April, 2013, Counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.

Counsel to the Appellant distilled one issue for determination in his brief of arguments and this was:
Whether the claim of the Respondent before the lower Court for refund of money had and received as a consideration for a concluded land transaction where possession to the said land and original documents were given, and whether money had and received under a contract for supplies of goods which was unilaterally rescinded before the maturity date and without a breach by the Appellant can be heard and determined under the undefended list procedure provided by Order 23 of Kano State High Court Civil Procedure Rules 1988 in the face of conflicts contradictions and allegation of misrepresentation contained in the affidavits and further and better affidavits filed by both parties.

Counsel to the Respondent did not fare much better. In his own brief of argument, Respondent agreed that there was only one issue for determination in the matter and he formulated the issue thus:
Whether having regard to the number of reasons relied upon by the trial Court based on all the documentary and affidavit evidence before it, it can be said that the judgment delivered in favour of the Respondent under the undefended list occasioned any miscarriage of justice to warrant this Honorable Court make an order of retrial.

Ordinarily, this Court should disregard the issue for determination formulated by the parties and consequently strike out this appeal. This Court will, however, not do so but it will reformulate the issue and consider the appeal in order to fulfill its duty of doing substantial justice to the parties – Fasanya V. Adekoya (2000) 15 NWLR (Pt 689) 22 and Adeyemi V. State (2011) 5 NWLR (pt 1239) 1. Counsel must, however, always bear in mind that one of the invaluable assets they must possess is good drafting skills. Drafting is an important tool in advocacy. A Counsel who cannot present his client’s case clearly in a brief of argument cannot adequately represent the interest of his clients. An otherwise good case can be destroyed and lost by bad drafting. Counsel should pay more attention to drafting as no counsel could be good and make marks in advocacy if he is poor in drafting mechanism. The need for a Counsel to display proper legal training in the preparation of court processes was emphasized by Aderemi, JCA (later JSC) in MV Arabella V. Nigerian Agricultural Insurance Corporation (2002) 15 NWLR (Pt 791) 570. The learned Justice stated thus at page 582:
“To say the least, the above five issues raised by the cross-appellant are very horrible.
They do not indicate that a person with legal training has drafted them. It seems to me that an ordinary prose writer who has no learning in the profession of law will produce far better and knowledgeable issues than the above five issues. If the profession of law will not be subjected to ridicule, I think Counsel of the type holding himself out as representing the cross-appellant in this matter will do well to seek the assistance of able and well learned senior members of the Bar (and they are legion in Nigeria) to always help in vetting whatever Processes he prepares before filing same in the Registry of any court.”

Reading through the records of appeal and the respective briefs of arguments of the parties in this matter, it is the view of this Court that the sole issue for determination in this appeal is – whether the lower Court was correct, in the circumstances of this case, in refusing to grant the Appellant leave to defend this matter.

Before proceeding to consider the arguments of the parties in this appeal, this Court considers it pertinent to lay out the respective cases of the parties as made out before the lower Court and the deliberations of the lower Court thereon. The case of the Respondent in his affidavit deposed to on the 15th of May, 2009 and further affidavit deposed to on the 4th of June, 2009 in support of his case under the undefended list was that sometime in May, 2008 he was approached by one of his neighbours, Alhaji Bashir Umar with a request to purchase a piece of land situate at Sharada behind Zone One Quarters in Kano belonging to the Appellant, whom the neighbour described as a friend, and that he was assured by the said neighbour and the Appellant that the parcel of land belonged to the Appellant. It was his case that he was shown the parcel of land and that he purchased the land from the Appellant for the sum of N6.4 Million in the presence of a number of witnesses, including his neighbour, and that he did so based on the trust and assurances of the genuineness of the Appellant’s ownership of the land given by his neighbour, who knew the Appellant very well; the purchase receipt was attached as Exhibit H1. It was his case that to his dismay, a Dr. Mukhtari Alhassan, a senior lecturer with Bayero University, Kano, came claiming ownership of the land a few days after the purchase and that he immediately summoned his neighbour and they both went to inform the Appellant of the development and that the Appellant further assured them of his ownership of the land and stated that he would have collected the certificate of occupancy but for the fact that he did not have the sum of N150,000.00 needed to complete the process and that he gave the Appellant the N150,000.00.

It was the case of the Respondent that when the Appellant failed to deliver the certificate of occupancy several months thereafter, he became apprehensive and pleaded with the Appellant to refund his monies and that after several of such demands, the Appellant promised to refund the money and requested for time to do so; one of the letters of demand was attached as Exhibit H2. It was his case that the only document given to him by the Appellant upon the payment of the purchase price was a letter of grant dated the 25th of December, 2001 which the Appellant claimed was issued to him by the Ministry of Land and Physical Planning, Kano on the 26th of December, 2001 and that the authorities in the Ministry confirmed that the letter was a fake as the 26th of December every year was a public holiday and that he was given a copy a letter addressed by the Ministry to Dr. Mukhtari Alhassan confirming the title of one AbdulMalik Mahmoud to the parcel of land in question and denying the title of the Appellant thereto. Copy of the said letter of grant of the Appellant and copy of the letter of the Ministry of Land and Physical Planning to Dr. Mukhtari Alhassan were attached as Exhibits H4 and H5 to the further affidavit of the Respondent.

It was the case of the Respondent that the Appellant subsequently came to plead with him for a loan of N13.9 Million which the Appellant said was needed to clear his goods with Nigerian Customs and failing which his entire business would crumble and he would be unable to pay his debts and the Appellant promised to repay the loan and the other debt after two weeks. It was his case that he granted the loan of N13.9 Million to the Appellant and that the Appellant thereafter disappeared into thin air and that he and his neighbour, Alhaji Bashir, went to the house of the Appellant several times to demand for his monies. It was his case that when they eventually saw the Appellant after several weeks, the Appellant invited him to his shop and showed him the samples of the goods cleared from the Nigerian Customs and requested him to make a choice between collecting physical cash or the money equivalent in goods and that he chose to collect the monies in goods and the Appellant asked him to come back after a few days. It was his case that the agreement was documented in the presence of witnesses and it was attached as Exhibit H3 in English and Hausa versions.

It was the case of the Respondent that he could not find the Appellant thereafter to collect the goods and that rather than refunding his monies, the Appellant started threatening him that if he reported the matter to anyone or commenced a court action, he stood the risk of not getting back one dime of his money. It was his case that his own business collapsed because of the refusal of the Appellant to refund his monies and that when the pressure from his business debtors became much, he reported the matter to Alhaji Tijjani Hashim, the Galadima of Kano, who summoned the Appellant and the Appellant requested the Galadima for two weeks to offset the indebtedness. It was his case that before the expiration of the two weeks, the Appellant approached the Galadima to request for an extension of time by three more weeks to pay up the money and that when the additional three weeks elapsed without any payment by the Appellant, he instructed his lawyers to commence this action for the recovery of his monies.

The case of the Appellant in the affidavit of facts in support of the notice of intention to defend before the lower Court was that it was the Respondent that approached him to purchase the parcel of land at Sharada Quarters and that he gave the Respondent photocopies of his documents to conduct a search at the Ministry of Land and Physical Planning Kano and that the Respondent conducted the search and that it was after the Respondent had satisfied himself on the genuineness of the documents that negotiations for the purchase of the land took place. It was his case that he transferred title to the land and the original documents to the Respondent upon the payment of the purchase price and that he put the Respondent into immediate possession of the land and he only received the complaints of the Respondent through the Solicitor’s letter, Exhibit H2 to the Respondent’s affidavit. It was his case that it was the Respondent who approached him to assist in processing the certificate of occupancy for the land and he agreed and promised to use his connections to do the processing and that he had long processed and obtained the certificate of occupancy dated the 24th of March, 2009; copy of the certificate of occupancy was attached as Exhibit M2.
It was his case that he did not at anytime agree to refund the money paid by the Respondent for the land and that the Respondent purchased the land without any encumbrance and he attached the response of his Solicitor to the letter of the Respondent’s Solicitor as Exhibit M3.

The Appellant denied taking a loan of N13.9 Million from the Respondent and it was his case that he and the Respondent were both traders in Kwori Market in Kano and that the Respondent was aware that he was an importer of fabrics and that he had placed an order for fabrics which were coming in and would be cleared at the Nigerian Customs and that it was agreed, in accordance with the general practice of Kwon traders, that the Respondent make advance payment for the fabrics and which would be supplied upon the clearing of fabrics by the Appellant. It was his case that the N13.9 Million paid by the Respondent was advance payment for the fabrics and that it was to the knowledge of the Respondent that there was a delay and bottleneck at the clearing point and that he was yet to clear the goods up till date and that as such he was not in breach of the terms of the agreement. It was his case that the English interpretation of the agreement between the parties on the N13.9 Million attached by the Respondent as Exhibit H3 was incorrect and that the correct interpretation was that attached as Exhibit M4 to his affidavit. It was his case that he was not indebted to the Respondent in any sum whatsoever and that he had a defence on the merits in this matter.

It will be recalled that the Respondent was the plaintiff before the lower Court while the Appellant was the defendant. After considering the cases made out by the parties on the affidavits, the lower Court stated thus:
“… From the facts of this case, the Defendant did not sell the piece of land in issue to the plaintiff with a valid title which he could validly transfer to the plaintiff. With construction exercise in progress in the disputed land, the plaintiff is not in possession of the same. This is a case of failed contract pursuant to which the defendant collected the plaintiff money without any consideration from him (defendant). I am of the opinion that the defendant has to disgorge the amount he had collected from the plaintiff. However, the plaintiff gave the defendant the sum of N13.9 Million …as per exhibit M4 and M5 of the defendant’s affidavit in support of his notice of intention to defend, as well as exhibit H3 and its English version of the plaintiff’s affidavit in support. It was agreed that within a week of the receipt of the amount, the defendant would give the money to Custom and collect his goods which he would give to the plaintiff equal to the sum of N13, 900,000.00 the defendant had collected from the plaintiff. Since 9th of October, 2008, the Defendant failed to deliver any goods to the plaintiff worth the sum of N13.9 Million and failed to refund this amount despite repeated demands. In the affidavit in support of the Notice of Intention to defend, the defendant’s defence is that the goods were yet to be cleared by the Customs. This is a sham defence, taking into consideration the agreement between the parties that the goods were to be delivered within a week. There is no documentary evidence to show that the defendant imported any goods that are awaiting Customs clearance. There is equally nothing to show that the defendant paid any amount to the Customs at all.
Finally, I am quite satisfied that the Defendant has got no defence on the merit to this action at all. Consequently, the plaintiff is entitled to judgment under Order 23 Rule 4 of this court’s Civil Procedure Rules…”

In arguing the issue for determination, Counsel to the Appellant stated that it was an immutable principle of the rules relating to an undefended list as provided for under Order 23 of the Kano State High Court Civil Procedure Rules 1988 that only claims for a liquidated money demand, and where the defendant has no good defence, can be entertained under the Undefended List procedure. Counsel referred to the definition of liquidated money demand in the case of Alhaji Ahmed Fan V. City Security Ltd (2003) FWLR (pt 165) 501 that “a liquidated money demand means a definite sum, which the defendant cannot deny” and he thereafter traversed through the respective cases made out by the parties and submitted that the claim of the Respondent before the lower Court cannot be referred to as a liquidated money demand to be entertained under the Undefended List procedure. Additionally, Counsel submitted that the Appellant raised serious issues in his notice of intention to defend and there were material conflicts in the facts presented by the parties on the affidavits which necessitated that the lower Court called for oral evidence by transferring the matter to the general cause list rather than entering judgment under the undefended list.
Counsel referred to several cases including Ofomata V. Onwuzuligbo (2002) All FWLR (Pt 89) 1248, Oloko V. Ube (2004) All FWLR (pt 227) 562. Counsel submitted that once a further and better affidavit is filed by a plaintiff in a matter under the undefended list, it is an admission that there are triable issues in the matter and he referred to the case of Odu V. Agbor (2004) All FWLR (Pt 188) 935. Counsel urged this Court to resolve the issue in favour of the Appellant.

In response, Counsel to the Respondent stated that the provisions of Order 23 of High Court of Kano State Civil Procedure Rules dealing with undefended list were made to assist and protect litigants, such as the Respondent, with clear cases related to a liquidated money demand from unnecessary delay and prolongation of trial. Counsel referred to the definition of “liquidated money demand” in the case of Johnny V. Edoja (2007) All FWLR (Pt 365) 527 and submitted that from the case of the parties on the affidavits the sums of N6.4 Million paid by the Respondent to the Appellant for the purchase of land and the N150, 000.00 given for the processing of the certificate of occupancy were liquidated money demands as the amounts were certain and clear and the Appellant never denied collecting the sums. Counsel stated that by a letter issued by the Ministry of Lands and Physical Planning, Exhibit H5, the Ministry affirmed that the parcel of land alleged sold by the Appellant to the Respondent belonged to one Abdul Malik Mahmoud and not to the Appellant and that as such there was no valid contract of sale of land. With regards to the N13.9 Million, Counsel stated that it was clear from Exhibit H3 of the Respondent and Exhibits M4 and M5 of the Appellant that the money was collected by the Appellant with an undertaking to repay after one week and that this was not denied by the Appellant. Counsel submitted that the claims of the Respondent were liquidated money demands and were duly suited for the Order 23 procedure. Counsel further stated that all that the Appellant did in his affidavit of facts on the notice of intention to defend was to generally deny the claims of the Respondent and he submitted that this was not sufficient in a case under the undefended list procedure and he referred to the case of Nwankwo V. EDCS (2007) All FWLR (Pt 360) 1448.

The provisions of the High Court of Kano State Rules relating to the Undefended List provide a summary judgment procedure. The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent sham defence from defeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, the summary judgment rules are specially made to help the court achieve their primary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied – United Bank for Africa Plc V. Jargaba (2007) 11 NWLR (Pt 1045) 247, University of Benin V. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441. Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment in Appeal No CA/K/131,/2010 – Samabey International Communications Ltd V. Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th of April, 2013 stated thus:
“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case. The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd V. Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd V. Afam Akputa Esq. (2010) 9 NWLR (pt 1200) 443, Babale V. Eze (2011) 11 NWLR (pt 1257) 48, David V. Jolayemi (2011) 11 NWLR (Pt 1258) 320.”

The first complaint of the Appellant in this appeal is that the claims of the Respondent were not properly suited for the Undefended List Procedure. A reading of the provisions of Order 23 of the High Court of Kano State Civil Procedure Rules shows that it is suited only for claims to recover a debt or for a liquidated money demand. If an action is not to recover a debt and is not for a liquidated money demand, it cannot be entertained under the Undefended List Procedure. Now, the learned authors of the Black’s Law Dictionary defined a liquidated money demand claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by the terms of the parties’ agreement.” In Alhaji Muktari Uba & Sons Ltd V. Lion Bank of Nigeria Plc (2006) 2 NWLR (Pt 964) 288, a liquidated money demand was defined ‘as a claim or demand in which the amount is fixed, or has been agreed upon or is capable of ascertainment by mathematical computation or operation of law’.
In Maja V. Samouris (2002) 7 NWLR (Pt 765) 78 at page 102, Iguh, JSC explained the distinction between the terms “liquidated demand” and “unliquidated demand” thus:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute…..
But in every other case, where the court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated. So, too, when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or estimate or what may be judged reasonable, the damages are said to be ‘unliquidated’….. Accordingly, the amount ultimately recoverable in a claim for unliquidated damages is incapable of prior ascertainment and may only be known at the end of the trial as same is based on the estimate or opinion of the trial court…”

The claim of the Respondent in the instant case before the lower court was for the sum of N20,450,000.00 made up of (i) the sum of N6.4 Million paid to the Appellant for purchase of a parcel of land, (ii) N150,000.00 paid to the Appellant for processing of certificate of occupancy and (iii) the sum of N13.9 Million given to the Appellant to clear goods from the Nigerian Customs. The Appellant did not deny or contest receiving these specific sums of money from the Respondent and he, in fact, issued documents acknowledging the receipt of the sums of N6.4 Million and N13.9 Million. Applying the above definitions to the claim of the Respondent, it is clear that it was for a liquidated money demand and was thus properly suited for the Undefended List procedure under the provisions of Order 23 of the High Court of Kano State Civil Procedure Rules.

The second complaint of the Appellant in this appeal is that he raised serious issues in his notice of intention to defend and there were material conflicts in the facts presented by the parties on the affidavits and that he ought to have been granted leave to defend the suit. It must be stated that it is not 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 V. 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 defendant 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.

The question that necessarily arises is – whether the Appellant disclosed a defence on the merit in the affidavit in support of his notice of intention to defend? Now, for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo V. Okogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiffs claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A mere general denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiffs claim – Ataguba & Co V. Gura (Nig) Ltd (2005) 8 NWLR (pt 927) 429, Tahir V. Kapital Insurance Ltd (2006) 13 NWLR (Pt 997) 452, David V. Jolayemi (2011) 11 NWLR (pt 1258) 320.

A triable issue or a defence on the merit under the undefended list procedure is where a defendant’s affidavit in support of the notice of intention to defend is such that requires the plaintiff to explain certain matters with regard to his claim, or throws some doubt on the plaintiffs claim – S.P.D (Nig) Ltd V. Arho-Joe (Nig) Ltd (2006) 3 NWLR (Pt 966) 173. A triable issue is an uncontroverted material allegation contained in the defendant’s affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a fair probability of a bona fide defence – Ataguba & Co V. Gura (Nig) Ltd supra, G. M. O. Nworah & Sons Co Ltd V. Afam Akputa Esq. (2010) 9 NWLR (pt 1200) 443, Babington-Ashaye Vs E. M. A. General Enterprises Ltd (2011) 10 NWLR (pt 1256) 479.

In Fresco Nig. Ltd V. NASCO Rice & Cereal Processing Co Ltd (1998) 11 NWLR (Pt 573) 227, R. D. Muhammad, JCA stated at page 233 that:
“…….leave to defend will only be given where the defendant raises substantial question of fact or law which ought to be tried or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit.”

Therefore, where a defendant has deposed to enough facts which entitle him to interrogate the plaintiff and indeed show that he has a fair case for defence; reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given the opportunity or leave to join issues with the plaintiff by the court transferring the case to General Cause List for hearing on the merits. On the other hand, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness – Kenfrank (Nig) Ltd V. Union Bank of Nigeria Plc (2002) 15 NWLR (Pt 789) 46, Sanyaolu V. Adekunle (2006) 7 NWLR (Pt 980) 551.

As stated earlier, the case of the Respondent on the claim for the sums of N6.4 Million and N150,000.00 was that sometime in May, 2008 he purchased a piece of land situate at Sharada behind Zone One Quarters in Kano from the Appellant for the sum of N6.4 Million and that the only document given to him by the Appellant upon the payment of the purchase price was a letter of grant dated the 25th of December, 2001 which the Appellant claimed was issued to him by the Ministry of Land and Physical Planning, Kano on the 26th of December, 2001; the purchase receipt was Exhibit H1 while the letter of grant of the Appellant was Exhibit H4 and the reference number was RES/2001/5113. It was his case that he subsequently gave the Appellant an additional sum of N150, 000.00 to Process the certificate of occupancy for the land. It was his case that a few days after the purchase, one Dr. Mukhtari Alhassan, a senior lecturer with Bayero University, Kano, came claiming ownership of the land and that the issue of the true ownership of the parcel was referred to the Ministry of Land and Physical Planning, Kano and the authorities in the Ministry confirmed that the Appellant’s letter of grant was a fake as the 26th of December every year was a public holiday and he was given a copy a letter addressed by the Ministry to Dr. Mukhtari Alhassan confirming the title of one Abdul Malik Mahmoud to the parcel of land in question and denying the title of the Appellant thereto; copy of the letter of the Ministry of Land and Physical Planning to Dr. Mukhtari Alhassan was Exhibit H5.

The Appellant admitted collecting the sums of N6.4 Million and N150,000.00 from the Respondent for purchase of a parcel of land and for processing a certificate of occupancy over the said parcel of land respectively. The case of the Appellant in response was that he transferred title to the land and the original documents to the Respondent upon the payment of the purchase price and that he put the Respondent into immediate possession of the land and that he had long processed and obtained the certificate of occupancy dated the 24th of March, 2009; copy of the certificate of occupancy was attached as Exhibit M2.

It is trite that the underlying basis for the effectiveness of a contract for sale of land is that the vendor is the owner of the land. Where the vendor is not the owner of the land, the purported contract will be void ab initio. The buyer will not acquire even an equitable interest. Such a contract is defeated by the doctrine of nemo dat quod non habet, a person cannot give what he does not have or possess – City Property Development Ltd V. Attorney General, Lagos State (1976) NSCC 43, Ajuwon V. Akanni (1993) 9 NWLR (pt 316) 182, Okelola V. Adeleke (2004) 13 NWLR (pt 890) 307, Egbuta V. Onuna (2007) 10 NWLR @t 1042) 298. In Mohammed V. Klargester (Nig) Ltd (2002) 14 NWLR (Pt 787) 335, Uwaifo, JSC at page 368 explained the point thus:
“The respondent knew that the property was not solely owned by the appellant or that, in any case, it did not originally belong to him. He knew and testified to the fact that the original certificate of occupancy was in the name of the appellant’s late father. From the respondent’s pleading his real case is that the appellant claimed that the property was his personal property or that he was the sole beneficial owner of it, and on that basis sold to the respondent. The appellant is the eldest son of his father, Alhaji Mamman Tella. Even though he is the eldest son, having sold as the sole owner when he is not, and without any evidence that his position as the eldest son confers right of sole ownership on him, the sale is void ab initio on the basis that he sold what he did not own – nemo dat quod non habet.”

It was not in contest that the Appellant based his assertion of owning the parcel of the land he sold to the Respondent on the allocation of same to him by the Ministry of Land and Physical Planning, Kano State. The Appellant did not contest the fact that after the sale of the parcel of land, the Respondent was confronted thereon by a third party, one Dr. Mukhtari Alhassan, and that the dispute was referred to the Ministry of Land and Physical Planning, Kano State for resolution, The Appellant did not contest that the Ministry of Land and Physical Planning, Kano State investigated and resolved the matter by its letter, Exhibit H5. The letter was addressed to Dr. Mukthari Alhassan and it read thus:
“PETITION AGAINST ATTEMPT BY ONE NURA ALI TO PREVENT ME TO TAKE PHYSICAL POSSESSION OF MY PLOT AT SHARADA RDKN 38 PLOT 6 RES/2000/1957
I am directed to refer to your letter of complaint dated 1st April, 2009 in respect of the above and inform you that the Ministry having fully investigated the matter has come up with the following:
i. That allocation on RES/2000/1957 to ABDULMALIK MAHMOUD should be upheld and allowed to proceed to final title, while
ii. The title granted in RES/2001/5113 (NURA ALI) should be revoked…”

The letter was signed for and on behalf of the Honorable Commissioner and it showed on its face that it was copied to the Appellant. The Appellant did not deny the receipt of the letter and it was not his case before the lower Court that he did anything to challenge the decision of the Ministry revoking his tide to the land. The lower Court found that the Respondent was not in possession of the property and that construction works were on going on the land by another person. The Appellant did not challenge this finding on this appeal. It is correct that the Appellant obtained a certificate of occupancy in respect of the said parcel of land in March 2009 issued by the Honorable Commissioner, Ministry of Land and Physical Planning, Kano State, Exhibit M2, but it is settled law that a certificate of occupancy by itself does not confer an indefeasible title to land. It should be based on an existing title to land acquired whether by conveyance made in the past, or sale under native law and custom or by inheritance. A certificate of occupancy obtained in respect of land which the holder cannot prove to be his is not worth the paper on which it is – Dzungwe V. Gbishe (1985) 2 NWLR (Pt 8) 528, Madu V. Madu (2008) 6 NWLR (Pt 1083) 296, Okunowo V. Molajo (2011) 3 NWLR (pt 1235) 434. Further, a certificate of occupancy subsists until it is revoked by the court or the issuing authority – Jija V. Shande (2005) 9 NWLR (Pt 931) 543.

The revocation of the title of the Appellant rendered the contract of the sale of the parcel of land between the Appellant and the Respondent void and the Respondent is entitled, without more, to recover the monies paid to the Appellant for purchase of land as money had and received for a consideration that has failed. The law is that where a party pays money to another under an ineffective contract, the party who pays is entitled to recover in quasi contract as money had and received for a consideration that has failed and the objective is to eliminate the concept of unjust enrichment – Ukuta V. Alliance International (Nig) Ltd (1992) 8 NWLR (Pt 259) 374, First Bank of Nigeria Ltd V. African Petroleum Ltd (1996) 4 NWLR (Pt 443) 438 and First Bank of Nigeria Plc V. Ozokwere (2006) 4 NWLR (Pt 970) 422. There was nothing in the affidavit of the Appellant contesting the entitlement of the Respondent to the repayment of the monies paid for the purchase of the said parcel of land and the processing of the certificate of occupancy.

On the N13.9 Million, it was the case of the Respondent that the Appellant approached him for a loan in that sum for the purpose of clearing his goods with Nigerian Customs and that the Appellant promised to repay the loan and the other debt after two weeks. It was his case that he granted the loan of N13.9 Million to the Appellant and after which he had difficulty in locating the Appellant and that when he eventually saw the Appellant after several weeks, the Appellant invited him to his shop and showed him the samples of the goods cleared from the Nigerian Customs and requested him to make a choice between collecting physical cash or the money equivalent in goods. It was his case that he chose to collect the monies in goods and the Appellant asked him to come back after a few days but that the Appellant became elusive thereafter. It was his case that the agreement was documented in the presence of witnesses and the English and Hausa versions of the agreement were attached as Exhibit H3.

The Appellant, in response, denied taking a loan of N13.9 Million from the Respondent and it was his case that he and the Respondent were both traders in Kwori Market in Kano and that the Respondent paid him the said sum as an advance payment for supply of part of the fabrics he had imported and which would be cleared at the Nigerian Customs. It was his case that it was to the knowledge of the Respondent that there was a delay and bottleneck at the clearing point and that he was yet to clear the goods up till date and that as such he was not in breach of the terms of the agreement. It was his case that the English interpretation of the agreement between the parties on the N13.9 Million attached by the Respondent as Exhibit H3 was incorrect and that the correct interpretation was that attached as Exhibit M5 to his affidavit.

Now, it is obvious from the cases of parties that it was not in dispute that the Appellant collected the sum of N13.9 Million from the Respondent for the purpose of clearing his goods with the Nigerian Customs Service and neither was it in dispute that the Appellant was obligated to repay the sum to the Respondent either in cash or by giving an equivalent amount in goods. It was not in dispute that the transaction was evidenced in writing by a document dated the 9th of October, 2008 and it was in Hausa language; the document was attached by the Respondent as part of Exhibit H3 and by the Appellant as Exhibit M4. The Respondent attached the English interpretation of the document as the other part of Exhibit H3, while the Appellant attached his English interpretation as Exhibit M5. Reading the two English interpretations of the agreement, Exhibit H3 and Exhibit M5, a common denominator between them was that the Appellant admitted that he had collected the money from the Respondent for a while and he undertook to repay the money by giving goods in the equivalent sum within one week of the agreement. The agreement was made on the 9th of October, 2008. The Appellant failed to abide by the agreement and there is no evidence that up till date, almost five years thereafter, the Appellant has made good his part of the agreement. There was no conflict in the affidavits of the parties on these facts. There was no answer in the affidavit of the Appellant to the claim of the Respondent for the N 13.9 Million.

This Court must say that it is appalled at the attitude of the Appellant in this case. It is elementary that the survival and thriving of the economic life of any community is dependent on the trust that exists amongst its players and trust can only be built by the honesty and integrity displayed in economic dealings. The refusal of the Appellant to honour his due obligations to the Respondent was dishonest and reprehensible and his further action of contesting the obligations in court was an open display of shameless irresponsibility. It was part of the case of the Respondent that he dealt with the Appellant in good faith on the strength of the fact that they were both Muslims.
At the core of the religion of Islam is the promotion of excellent moral character and it postulates that a good Muslim must be honest, have integrity, be trustworthy, be reliable, be responsible, etc. The Appellant did not display any of these qualities in his dealings with the Respondent and it is a lesson on how far people are willing to go to mortgage their conscience for a ‘mess of pottage’.

But perhaps even more shocking was the approach of the Counsel to the Appellant to this case. The belief of any right thinking member of society is that a decent Counsel would not, and should not, use the administration of justice system to perpetuate unfairness, injustice and oppression. Being aware of the facts of this case, the reasonable expectation is that the Counsel to the Appellant would have taken steps to have the matter resolved amicably and not go to Court to canvass baseless arguments all in a bid to delay the Appellant fulfilling his obligations and to oppress the Respondent. Counsel to the Appellant acted contrary to reasonable expectation. This attitude is not right and it is unexplainable to the common man on the street. It cannot engender public confidence in our justice system. Speaking on such attitude of Counsel, this Court in its unreported judgment in Suit No CA/K/319/2007 – Mbas Motel Ltd V. Wema Bank Plc delivered on the 22nd of March 2013 stated thus:
“We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.
Lawyers as operators of the administration of justice system owe a duty, to the society that nurtured them and made them what they are, to ensure that they conduct their activities in a manner that edifies and brings honour, respect and belief to the justice system. They should not allow themselves to be used by litigants to bring the justice system into disrepute. It is pertinent that this Court reminds Counsel of the eternal words of a great jurist J Wesley McWilliams who writing in an American Bar Association Journal in January 1955 (41 ABA 18) wrote in an article he titled “The Law as a Dynamic Profession” thus:
‘We belong to an ancient, to a great, to an honored profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbors whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.”

It is hoped that Counsel will learn to rise above the primordial impulse of doing whatever is their clients’ bidding without having regard to what the effect of their actions will be on the entire administration of justice system and the larger society.
This is how not to become a pitiable mockery and it is the only way to practice law the way it should be practiced.

In conclusion this Court finds and holds that this appeal lacks merit and is totally misconceived. The appeal is hereby dismissed and the decision of the High Court of Kano State in Suit No K/208/09 delivered by Honorable Justice Wada Abubakar Umar on the 30th of June, 2009 is affirmed. The Respondent is awarded the costs of this appeal assessed at N75,000.00. These shall be the orders of the Court.

ABDU ABOKI, J.C.A.: I have the privilege of reading in daft the judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, just delivered. I agree with his reasons and conclusion that this appeal lacks merit and should be dismissed and also affirm the decision of the Kano State High Court delivered on 30th June, 2009.

I abide by the consequential order as to costs contained therein.

THERESA NGOLIKA ORJI-ABADUA J.C.A.: I have read in advance the leading judgment delivered by my learned brother, Abiru, J.C.A., and I agree with him that this appeal lacks merit and should be dismissed. The same is hereby dismissed by me and I abide by the consequential orders made in the leading judgment.

Appearances

P. A. AttaborFor Appellant

AND

Magaji Mato IbrahimFor Respondent