ALHAJI M. K. ALIYU v. ALHAJI AL-HASSAN MOHAMMED (2014)

ALHAJI M. K. ALIYU v. ALHAJI AL-HASSAN MOHAMMED

(2014)LCN/7345(CA)

In The Court of Appeal of Nigeria

On Thursday, the 3rd day of July, 2014

CA/K/246/2002

RATIO

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; THE PURPOSE OF THE UNDEFENDED LIST

It is now clear that the concept of the undefended list is to ensure quick dispensation of justice to a plaintiff without the rigours of hearing of witnesses in a situation where the claimant satisfies the court by affidavit evidence that the defendant does not have a defence to a claim for debt or liquidated money demand. See BANK OF THE NORTH VS. INTRA BANK S.A. (1969) 1 ALL NLR 91; MACAULAY VS. NAL MERCHANT BANK LTD (1990) 4 NWLR (Pt. 1144) 283; IMONIYAME HOLDINGS LTD. vs. SONEB ENTERPRISES LTD. (2010) 4 NWLR (Pt. 1185) 56. per. ISAIAH O. AKEJU, J.C.A.

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; WHAT IS EXPECTED OF , a DEFENDANT WHO IS SERVED WITH WRIT OF SUMMONS AND AFFIDAVIT UNDER THE UNDEFENDED LIST AND WHO INTENDS TO DEFEND THE ACTION

By the provisions of Rule 3 (1 and 2 of the same Order 22 of the High Court Civil Procedure) Rules, a defendant who is served with writ of summons and affidavit under the undefended list and who intends to defend the action is to deliver to the Registrar a Notice in writing that he intends to defend the action and accompany the notice with affidavit disclosing a defence on the merit, and where the court grants leave to defend, the action shall be transferred to the general or ordinary cause list for hearing.
Thus from the simple provisions of those Rules of Court, what a defendant is expected to present to court so as to be allowed to defend an action under the undefended list is not a mere affidavit narrating facts, but affidavit showing a defence on the merit of the claim of the plaintiff.
It is therefore incumbent on a defendant to set out a good defence satisfactory to the trial court, otherwise the application to have the matter transferred to the general cause list will be refused. See FRANCHAL (NIG) LTD. V. N.A.B. LTD [1995] 8 NWLR [Pt. 412] 176; U.T.C. V. PAMOTEI (1989) 2 NWLR [Pt. 103] 244; A.C.B. LTD. v. GWAGWADA [1994] 5 NWLR (Pt. 342) 25. per. ISAIAH O. AKEJU, J.C.A.

EVIDENCE: ADMISSION; WHETHER A FACT THAT HAS BEEN ADMITTED DOES NOT REQUIRE TO BE PROVED FURTHER

It is well settled that a fact that has been admitted does not require to be proved further as such fact is deemed to have been established. See BALOGUN VS. LABIRAN (1988) 1 NWLR (Pt. 80) 66; EDOPOLO v. OHENHEN (1994) 7 NWLR (Pt. 358) 511; OUR LINE LTD VS. SCC NIG. LTD. (2009) 17 NWLR (Pt. 1170) 382. per. ISAIAH O. AKEJU, J.C.A.

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST; WHETHER A DEFENDANT WHO DOES NOT HAVE A DEFENCE ON THE MERIT OF THE CLAIM UNDER THE UNDEFENDED LIST SHOULD NOT BE ALLOWED TO DRIBBLE THE COURT OR TO WASTE PRECIOUS JUDICIAL TIME AIMED AT CHEATING THE PLAINTIFF OR TO DELAY THE PROCESS OF HIS SECURING JUDGMENT

The law is that a defendant who does not have a defence on the merit of the claim under the undefended list should not be allowed to dribble the Court or to waste precious judicial time aimed at cheating the plaintiff or to delay the process of his securing judgment. See BEN THOMAS HOTELS LTD VS. SEBI FURNITURE CO. LTD (1989) 5 NWLR (Pt. 123) 523; MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 144) 283; FEDERAL MILITARY GOVERNMENT OF NIGERIA VS. SANI (1990) 4 NWLR (Pt. 147) 688. per. ISAIAH O. AKEJU, J.C.A. per. ISAIAH O. AKEJU, J.C.A.

COURT: COURT’S DISCRETION; WHETHER THE AWARD OF COSTS IS A MATTER WITHIN THE EXERCISE OF DISCRETION OF THE COURT

Beyond the disclosure from the record of appeal, it is now established that the award of costs is a matter within the exercise of discretion of the Court, and where the Court has exercised its discretion judicially and judiciously an appellate Court will not interfere. See NBCI & ANOR VS. ALFIJIR MINING (NIG.) LTD (1999) 14 NWLR (pt. 638) 179, (1999) 12 SC (Pt. II) 169. In COOPERATIVE AND COMMERCE BANK (NIG.) PLC VS. OGOCHUKWU OKPALA & ANOR (1997) LPELR – 6278, Achike JCA (as he then was) stated this principle thus: “As a general principle, it may be said that costs are in the discretion of the Court. Having said so, we must hasten to say that where the Court exercises its discretion judicially and judiciously, as opposed to doing so capriciously or upon any wrong principle, the appellate court is powerless to interfere with the honest exercise of the court’s discretion” per. ISAIAH O. AKEJU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

O. A. ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA A. WAMBAI Justice of The Court of Appeal of Nigeria

Between

ALHAJI M. K. ALIYU Appellant(s)

AND

ALHAJI AL-HASSAN MOHAMMED Respondent(s)

ISAIAH O. AKEJU, J.C.A. (Delivering the Leading Judgment): The Respondent was the plaintiff in suit No. KDH/KAD/804/2000 before the Kaduna State High Court sitting at Kaduna wherein by an action under the undefended list procedure he had claimed the sum of N3,000,050.00 (Three Million, Fifty Thousand Naira) from the Appellant as the defendant being the amount he paid to the appellant for a plot of land that belonged to the appellant with 10% interest per annum from the date of judgment until the entire amount is liquidated, and the cost of filing the action. The writ of Summons was filed with an affidavit in support showing the facts relied upon, and to which documents marked exhibits A1, A2, A3 and A4 were attached.

The Appellant filed a Notice of Intention to defend the action and filed exhibits A and B with the supporting affidavit, and in the decision of 16/11/2001, the High Court of Kaduna State (now called the trial Court) granted the Respondent’s claim as undefended and gave judgment against the appellant for the sum claimed by the Respondent with interest of 10% thereon until full liquidation and costs of N1,500.00.

The Appellant filed Notice of Appeal against the judgment, and in this Court, Briefs of Argument were filed and exchanged by the parties. In the Appellant’s Brief of Argument prepared by E.B.O. Ibitope Esq., and filed on 11/11/2002, the following issues were distilled for determination;
1. Whether from the totality of the affidavit evidence before the court, is this matter not a proper case for a transfer to the ordinary cause for trial?
2. Did the learned trial judge properly evaluate the affidavit evidence of the parties before arriving at a decision to enter judgment in favour of the Plaintiff/Respondent?
3. Was the trial High Court right in awarding costs more than what was asked for?

In the Respondent’s Brief of Argument settled by Bilkisu Mohammed of Counsel and deemed filed on 6/10/2009 the issues formulated for determination are;
1. Whether the learned trial judge was right to have declined to transfer the matter/suit to the general cause list and entered judgment in favour of the Respondent as per his Writ of Summons.
2. Whether the learned trial judge was right in awarding the cost of N1,500.00 (One Thousand Five Hundred Naira) only as against the total sum of N2,124 applied for by the Respondent’s Counsel.

When the appeal was heard by this Court, Elohozino Ulebe as the learned Counsel for the appellant adopted the Appellant’s Brief and urged that the appeal be allowed while Christopher Ikpa Esq. for the Respondent urged that the appeal be dismissed based on the Respondent’s Brief which he too adopted.

I have considered the issues raised by both parties and I find no difference of substance therein. Except that the Appellant raised three issues while the Respondent has raised two. I will therefore consider and determine the appeal upon those three issues as formulated by the appellant.

On the first issue the appellant’s Counsel argued that the Appellant has in his affidavit evidence before the Court issues of facts which required oral evidence for clarification and the trial Court should have transferred the action for hearing under the undefended list. According to the learned Counsel, the Respondent who failed to file any further affidavit must be deemed in law to have admitted the facts in the appellant’s affidavit which remained undisputed or unchallenged. The cases of BADEJI V. FEDERAL MINISTRY OF EDUCATION & ORS (1996) 9 – 10 SCNJ 51; CHIEF ADESINA VS. THE COMMISSIONER, IFON/ILOBU BOUNDARY COMMISSION OSHOGBO, (1996) 4 SCNJ 111; and A.G. ANAMBRA STATE V. OKEKE (2002) 5 SCNJ 318 were cited in support of this submission.

It was also argued by learned Counsel that the trial Court had before it affidavit evidence that were irreconcilably in conflict and the proper step was to have taken the suit under the general cause list, so as to resolve the conflict in evidence rather than speculate; ORHUE V. NEPA (1998) 5 SCNJ 126.

The learned Counsel for the Respondent on his part submitted that the undefended list procedure is a special one designed to expedite the hearing of a claim for liquidated money demand and for avoidance of sham defences, citing IKPONG VS. UDOBONG (2007) 2 NWLR (Pt. 1017) 184; UBA VS. DARGUBA (2007) 4 NWLR (Pt. 1045) 270. It was the argument of the learned Counsel that the appellant had no defence to the Respondent’s action on the merit but actually confirmed that he collected N3,050,000.00 the money claimed by appellant. Part of which he had paid. On the exercise of the discretion of the Court in the determination of what amounts to a defence on the merit, the case of BAWA VS. PHENIAS (2007) 4 NWLR (Pt. 1024) 251 was cited. Also on the conditions to be satisfied by a defendant before a Court will transfer a case to the general cause list, the learned counsel cited UNBEN V. KT ORG. LTD (2007) 14 NWLR (Pt. 1055) 47; and AGBABIAKA V. FBN PLC. (2007) 16 NWLR (Pt. 1027) 47.

There was no need for the respondent to file a reply or rejoinder to the affidavit of the appellant since it does not contain a denial of the claim rendering the affidavit to be lacking in substance, the learned counsel submitted, citing REMAWA V. NACB C.F.C. LTD. (2007) 2 NWLR (Pt. 1017) 15.

Order 22 Rules 1-5 of Kaduna State Court (Civil Procedure) Rules 1987 (which is applicable to this action) provide for commencement and trial of actions under the undefended list procedure. Under those rules where a party applies for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and support same with affidavit setting forth grounds for the claim and stating that in the deponent’s believe there is no defence to the claim, the Court shall have the suit entered for hearing in the undefended list if the court is satisfied as to this fact that the defendant has no defence to the claim.

The complaint of the appellant on this issue is the refusal of the learned trial judge to enter the suit for hearing under the general or ordinary cause list based on the affidavit evidence he had presented to Court.

The claim of the plaintiff (Respondent) is the recovery of the amount of money the defendant (appellant) allegedly received from him in respect of sale of land owned by the appellant; which claim was supported with documentary evidence. The appellant accepted receiving the money from the Respondent out of which he has made part payment. It was specifically deposed in paragraph 4(d) of the appellant’s affidavit;
“That the plaintiff paid N3,000,050.00 to the Defendant, leaving a balance of N1,999,950.00”.

The learned trial judge found that no valid defence on merit had been raised to warrant the transfer of the action to the general cause list and gave judgment to the Respondent accordingly.

The appellant has argued that the failure of the appellant to file a reply to the affidavit in support of intention to defend amounts to an admission and would have necessitated the transfer to general cause list. This argument will in my view have no place in the instant case where the appellant had admitted receiving the money from the respondent. It is well settled that a fact that has been admitted does not require to be proved further as such fact is deemed to have been established. See BALOGUN VS. LABIRAN (1988) 1 NWLR (Pt. 80) 66; EDOPOLO v. OHENHEN (1994) 7 NWLR (Pt. 358) 511; OUR LINE LTD VS. SCC NIG. LTD. (2009) 17 NWLR (Pt. 1170) 382. It is my humble view that the failure to file a rejoinder in the circumstances of this case cannot avail the appellant.

The law is that a defendant who does not have a defence on the merit of the claim under the undefended list should not be allowed to dribble the Court or to waste precious judicial time aimed at cheating the plaintiff or to delay the process of his securing judgment. See BEN THOMAS HOTELS LTD VS. SEBI FURNITURE CO. LTD (1989) 5 NWLR (Pt. 123) 523; MACAULAY v. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 144) 283; FEDERAL MILITARY GOVERNMENT OF NIGERIA VS. SANI (1990) 4 NWLR (Pt. 147) 688.
I cannot accept the argument of the appellant on this issue and I resolve the issue against him.

The contention of the appellant on the second issue is that the trial Court did not properly evaluate the affidavit evidence which led to the entry of judgment for the respondent in the amount claimed thereby occasioning a miscarriage of justice. The cases of OTUEDON V. OLUGHOR (1997) 7 SCNJ 411; BASSIL v. FAJEBE (2001) 4 SCNJ 257; DARAMOLA VS. AH. GEN. ONDO STATE (2002) FWLR (Pt. 6) 997 and EZEAFULUKWE VS. JOHN HOLT (1996) 2 SCNJ 104 were relied upon and Counsel concluded that in the absence of proper evaluation, it is open to this Court to interfere and evaluate the affidavit evidence.

The learned trial judge reviewed, appraised and evaluated the affidavit evidence of the parties on page 45 of the record of appeal before making a finding that the appellant did not have a defence on the merit of the action and finally gave judgment in favour of the appellant. Having found that the trial Court has creditably carried out this exercise of evaluation of evidence, this Court has no reason to embark on the same exercise. The law is firmly settled that evaluation of evidence and ascription of probative value thereto are within the domain of the trial Court and an appellate Court will interfere only where the Court has failed to carry out the duty or has in the process arrived at a jaundiced finding. See OBUEKE VS. NNUMCHI (2012) VOL. 5 – 7 MJSC (Pt. II) 1; OJOKOLOBO VS. ALAMU (1998) 9 NWLR (Pt. 565) 226; SHA v. KWAN (2000) 5 SC 178; VADIS NIG. LTD. VS. G.N.I.C. LTD. (2002) ALL FWLR (Pt. 370) 1348.
I resolve this issue against the appellant.

The third issue in the Appellant’s Brief which is the Respondent’s second issue is about the award of costs of N1,500.00 by the trial Court after the conclusion of the whole trial.
It is the contention of the appellant that the cost awarded is over and above the amount the party asked for and should be set aside; UGOCHUKWU VS. COOPERATIVE AND COMMERCE BANK NIG. LTD. (1996) 7 SCNJ 22.

The Respondent submitted that award of costs is at the discretion of the Court and follows events; GABARI vs. ILORI (2002) 12 NWLR (Pt. 786) 103 and that the court may take the circumstances of the case into consideration in awarding costs; OYEDEJI vs. AKINYELE (2002) 3 NWLR (Pt. 755) 623; also that the constitution of the Federal Republic of Nigeria 1999 (as amended) does not confer on a party the right to appeal on costs; ASIMS (NIG.) LTD VS. LBRB DEVT. AUTH (2002) NWLR (pt. 769) 366 (incomplete).

In the light of the argument of the two learned counsel on this issue I have referred to the record of appeal on the matter of costs. At page 46 of the record, the learned trial judge recorded thus;
“Mohammed Esq.: We ask for the cost of filing the suit at N1,124.00 as well as service which we tried several times but the defendant was evading service. We ask for N1, 000.00
Chioke Esq.: We do not concede to any cost outside the cost of filing the suit.
Court: N1, 500.00 cost is awarded the plaintiff”.

The foregoing shows beyond doubt that the plaintiff did not ask for only N1,000.00 and that the trial Court did not award more than the plaintiff asked for as argued by the appellant.

Beyond the disclosure from the record of appeal, it is now established that the award of costs is a matter within the exercise of discretion of the Court, and where the Court has exercised its discretion judicially and judiciously an appellate Court will not interfere. See NBCI & ANOR VS. ALFIJIR MINING (NIG.) LTD (1999) 14 NWLR (pt. 638) 179, (1999) 12 SC (Pt. II) 169. In COOPERATIVE AND COMMERCE BANK (NIG.) PLC VS. OGOCHUKWU OKPALA & ANOR (1997) LPELR – 6278, Achike JCA (as he then was) stated this principle thus:
“As a general principle, it may be said that costs are in the discretion of the Court. Having said so, we must hasten to say that where the Court exercises its discretion judicially and judiciously, as opposed to doing so capriciously or upon any wrong principle, the appellate court is powerless to interfere with the honest exercise of the court’s discretion”

Taking into consideration the amount sought by the plaintiff, the amount awarded by the trial court and the basis for the award which are essentially the filing fees and service expenses, I am of the firm view that the learned trial judge has exercised his discretion judicially and judiciously leaving no grounds for interference by this Court.
I resolve this issues against the appellant.

Having resolved all the issues in the manner I have done, the appeal remains hollow and unmeritorious. It is accordingly dismissed with costs of N30,000.00 to the Respondent.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with my learned brother, Isaiah O. Akeju, JCA that this appeal lacks merit.

The purpose of a summary judgment procedure, as the present case is, is a procedure for disposing with despatch, cases which are virtually uncontested. It also applies to cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment where it is inexpedient to allow a Defendant to defend for mere purposes of delay. So held the Supreme Court in the case of United Bank for Africa Plc vs. Jargaba (2007) 11 NWLR Part 1045 Page 247 at 270 Para G – H per Muhammad, JSC. It was also held by His Lordship in that case, at P. 270 Para F that:
“Order 22 Rule 3 (1) of the Kaduna State High Court (Civil Procedure) Rules is designed to relieve the Courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by Defendants who have no defence and are just determined to dribble and cheat Plaintiffs out of reliefs they are normally entitled to.”
As succinctly put by Tobi, JSC in the said judgment at P. 272 Para E.
“The “Undefended List” Procedure is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the Plaintiff’s claim is disputed, to necessitate such a hearing.”

As held by their Lordships in the case above, for an action to be transferred from the Undefended List to the General Cause List, the affidavit of the Defendant must raise a triable issue such that the Plaintiff will be required to explain certain matters with regard to his claim and should deal specifically with the Plaintiff’s claim. It cannot be a half hearted defence.

I am in agreement with my learned brother Hon. Justice I. O. Akeju, JCA that the Appellant failed to disclose a defence on the merits as required, to justify a transfer to the General Cause List for hearing. The lower Court was thus right to have entered judgment against him under the Undefended List.

I adopt the reasoning of His Lordship for the resolution of all issues for determination against the Appellant and for the dismissal of the appeal, as lacking in merit.

AMINA AUDI WAMBAI, J.C.A.: My learned brother I. O. Akeju JCA, had before now, obliged me the draft copy of the judgment just delivered. I am in agreement with the conclusion reached that the appeal has no merit. I also dismiss the appeal and abide by the cost awarded in the lead judgment.

Appearances

Elohozino Ulebe Esq.For Appellant

AND

Christopher Ikpa Esq. and H. Abdullahi Esq.For Respondent