AMITY HOTELS LIMITED v. ULTRAFIT NIGERIA LIMITED (2019)

AMITY HOTELS LIMITED v. ULTRAFIT NIGERIA LIMITED

(2019)LCN/13309(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 21st day of May, 2019

CA/C/151/2016

 

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

AMITY HOTELS LIMITED Appellant(s)

AND

ULTRAFIT NIGERIA LIMITED Respondent(s)

RATIO

THE PURPOSE OF THE RULES OF COURT IN DEALING WITH CASES TO BE PUT ON THE UNDEFENDED LIST

It is settled that the rules of Court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice. And having shown intention to defend unless the affidavit evidence proffered by the defendant does not qualify as a defence on merit, the undefended list procedure cannot be justifiably embarked upon. See AGWUNEME  V  EZE (supra). PER SHUAIBU, J.C.A.

WHETHER OR NOT A DEFENDANT CAN RELY ON A SHAM DEFENCE TO CONTEST AN APPLICATION FOR SUMMARY JUDGEMENT

The law is clear that if a defendant decides to go on stage to contest an application for summary judgment, he cannot rely on a sham defence. See NISHIZAWA LTD V JETHWANI (1984) 12 SC 234. A defendant must show a bona fide or good defence on the merits and not engage in manipulative and delaying tactics. See MACAULAY V NAL MERCHANT BANK LTD (supra). To show that he has a good defence to the claim on the merits the defendant must disclose facts to satisfy the Court. And to achieve this, he is required to condescend upon particulars and the defence must not be seen as frivolous and particularly moonshine. Also to condescend upon particulars implies a true and real disclosure of facts from which the Court can readily discern a good defence. See SANUSI  V COTIA (2000) 6 SC (pt 111), 43 at 58 ? 59. PER SHUAIBU, J.C.A.

MEANING OF AN “ADMISSION

It was held in plethora of cases including the case of U.B.A. PLC V JARGABA (2007) 11 NWLR (pt 1045) 247 at 271 that an admission in law is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Uyo delivered on 6th August, 2015. The respondent as claimant took out a Writ under the undefended list wherein, she claimed against the defendant (now appellant) as follows:
1. The sum of N5,696,552.00 (Five Million, Six Hundred and Ninety-Six Thousand, Five Hundred and Fifty Two Naira) only being balance of sum owed by the Defendant over the demised premises within July 2013 to March 2014.
2. The interest of 10% on the said sum of N5,696,552.00 from April, 2014 until judgment is delivered and thereafter at the same rate until the total liquidation of the debt.
3. Cost of action assessed at N100,000.00.

After service of the said Writ and its annexure, the defendant filed a notice of intention to defend on 29/6/2015 together with affidavit setting forth a defence on the merit. But by a considered ruling of the trial Court delivered by E. F. F. Obot J, the Court refused to grant leave to the defendant to defend the suit and thereafter entered judgment in favour of the claimant at

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page 63 of the record of appeal thus:
?What is presently before me by way of claims of the claimant is the amount owed by the defendant as rent on the premises.
And by Exhibit C attached to the claimant?s affidavit the defendant has admitted owing an outstanding balance of N5,696,552.00 (Five Million Six Hundred and Ninety Six Thousand, Five Hundred and Fifty-two Naira) having paid the sum of N5,503,448.00 (Five Million, Five Hundred and Three Thousand, Four Hundred and Forty ? Eight Naira) as rent.
Based on this, I do not have difficulty in giving judgment in favour of the claimant for the amount admitted.?

Aggrieved by the above, the defendant appealed to this Court on 14/8/2015. The appellant notice of appeal at pages 65 ? 67 of the record of appeal contain a lone ground of appeal.

At the hearing of the appeal on 11/4/2019, Samuel Ikpo, Esq., on behalf of the appellant adopted and relied on the appellant?s brief of argument filed on 23/6/2016 in urging this Court to allow the appeal. Ekpenyong Ntekim, Esq., adopted and relied on the respondent?s brief of argument filed on 30/1/2017 but deemed

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as properly filed on 15/10/2017.

Learned counsel for the appellant distilled a lone issue for the determination of this appeal as follows:
Whether the learned trial judge was right in entering judgment against the appellant when a triable issue was disclosed in the affidavit in support of notice of intention to defend.

On his part, learned counsel for the respondent also formulated a lone issue for the determination of this appeal which read thus:-
Whether the learned trial judge rightly entered judgment in favour of the respondent against the appellant in the circumstances of this case.

The facts of the case as disclosed in the records of appeal are as follows:
The appellant vide Exhibit A entered into a lease agreement with the respondent wherein the appellant took over the respondent?s guest house, Ultrafit Nigeria Ltd., at a monthly rental value of N1,400.00 (One Million Four Hundred Thousand Naira only) commencing from 30th April, 2013 to 29th April, 2016.
?
On 21st March, 2014, the respondent served on the appellant a letter demanding for N7,096,552.00 (Seven Million, Six Hundred and Ninety Six Thousand, Five Hundred

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and Fifty Two Naira) being an outstanding rent in respect of the leased property. The appellant responded that the outstanding balance was N5,696,552.00 (Five Million, Six Hundred and Ninety Six Thousand Five Hundred and Fifty Naira) instead of N7,096,552.00 as demanded. It was based on the said appellant?s admission that the respondent approached the trial Court through the undefended list procedure seeking the recovery of the said amount from the appellant.

I now come back to the respective argument of counsel in support of their various formulation.

Proffering argument on his lone issue, learned counsel for the appellant submitted that the appellant had sufficiently and distinctly disclosed a defence on the merit but the trial judge disregarded the defence and entered judgment in favour of the respondent.
?
Still in argument, learned counsel submitted that if the plaintiff disputed the facts and figures stated in the defendant?s accompanying affidavit, the plaintiff has a duty to file a reply controverting those averments but having failed to do so the plaintiff is deemed to have accepted those averments as representing the truth of

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the matters stated. He referred to AJOMALE V YADUAT  (1991) 55 SCNJ 178 at 179.

In further argument, learned counsel submitted that the appellant had deposed to facts sufficient enough to constitute a defence on the merit and consequent upon which the case ought to have been transferred to the General cause list. He referred to NWANKWO V EDCS (2007) 151 WRN 148 and AGWUNEME v EZE (1990) 3 NWLR (pt 137) 242 to the effect that where facts in the affidavit in support of the notice of intention to defend cast some doubt to the case of the plaintiff, the undefended list procedure cannot be justifiably embarked upon.

On his part, learned counsel for the respondent submitted that the governing contract between the parties are as contained in the lease agreement Exhibit A and thus all the other documents annexed to the appellant?s notice of intention to defend are mere proposal that preceded the lease agreement. He further submitted that a defence of merit is a genuine defence but not one that is sham and intended to delay or frustrate the claimant?s claim. He referred to AGBACHI  V AZUBUIKE (2010) LPELR

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? 3646 MACAULAY V NAL MERCHANT BANK LTD (1990) 4 NWLR (pt 144) 283 and G.M.O. NWORA & SONS LTD V  AKPUTA (2010) LPELR ? 1296.

I have carefully considered the argument of counsel on both sides as regards to the above formulations. The lone issue formulated by each counsel is the same but couched differently. However, the lone issue formulated on behalf of the respondent is apt, concise and quite apposite. I shall determine this appeal in the light of the respondent?s lone issue.

The provisions of Order 11, Rules 8 ? 11 of the High Court (Civil Procedure) Rules of Akwa Ibom State 2009 deals with undefended list procedure. It provide as follows:-
?8 (1) Where a claimant in respect of a claim to recover a debt or liquidated money demand believes that there is no defence to his claim he shall make an application to a Court for the issue of a Writ of summons in respect of the claim to recover such debt or liquidated money demand and shall support the application by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent?s belief there

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was no defence thereto.
10 (1) If the party served with the Writ of summons and affidavit delivers to the Registrar, before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as may think just.
11. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 10 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit; and judgment given thereon, without calling upon the claimant to prove his case formally.?
The question to be asked here is whether in the light of the argument proffered vis–vis the above rules, the appellant has disclosed a defence on the merit to warrant setting aside the ruling of the lower Court. I have stated elsewhere in this judgment that the appellant had filed a notice of intention to defend the suit but the learned trial judge was not convinced by the facts deposed to in support of the said notice of intention to defend the suit and therefore proceeded to enter judgment in favour of the

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respondent herein.
=
Although, the general approach of the Courts is that some liberality should be brought to bear by the trial Court while considering whether to grant leave to a defendant in an action filed against him, the defendant must depose to facts which disclose the existence of triable issues in his affidavit in support of his notice of intention to defend.
?Learned counsel for the appellant has strenuously argued that the appellant?s affidavit in support of the notice of intention to defend disclosed triable issues which will necessitate the respondent to give explanations when the matter is transferred to the General Cause List. In paragraphs 3, 5, 7, 11 and 14 of the said affidavit in support of notice of intention to defend, the appellant averred

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as follows:
?3. That paragraphs 1 and 2 of the affidavit are admitted, paragraph 3 is admitted only to the extent that such an Agreement was entered into. There were series of meetings entered into between the parties touching and concerning the said Agreement.
5. That the defendant wrote two letters of proposal on how to take over the claimant Hotel. These two letters are attached and marked Exhibits A and B. The claimant replied to these letters and their replies are Exhibits C and D.
7. That the defendant wrote three letters to the claimant on the issue of refurbishment of the said Hotel. These three letters are attached and referred to as Exhibits E, F and G.
11. That paragraphs 4 and 5 are admitted only to the extent that the rents were certain but the gadgets brought into the Hotel by the defendant were to be monetized and payments made. The claimant has not paid any kobo having firmly promised to refund the outstanding like cost of Generator, electricity bills and the like.
14. That the claimant is fraudulent in his dealings with the defendant.?
The law is clear that if a defendant decides to go on stage to

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contest an application for summary judgment, he cannot rely on a sham defence. See NISHIZAWA LTD V JETHWANI (1984) 12 SC 234. A defendant must show a bona fide or good defence on the merits and not engage in manipulative and delaying tactics. See MACAULAY V NAL MERCHANT BANK LTD (supra). To show that he has a good defence to the claim on the merits the defendant must disclose facts to satisfy the Court. And to achieve this, he is required to condescend upon particulars and the defence must not be seen as frivolous and particularly moonshine. Also to condescend upon particulars implies a true and real disclosure of facts from which the Court can readily discern a good defence. See SANUSI  V COTIA (2000) 6 SC (pt 111), 43 at 58 ? 59.

Discerning the respondent?s claim based on the affidavit evidence before him, learned trial judge rightly found in my view that the claims of the claimant is the amount owed by the defendant as rent on the leased property. Thus, the defendant?s complaints on electricity bills and other expenses incurred in the refurbishing the Hotel are clearly outside the terms

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and conditions of the agreement binding the parties.

Where a defendant has himself admitted that the terms and conditions of the agreement between him and the plaintiff, which is the subject of dispute before the Court, such a defendant cannot be heard to say that besides those written terms and conditions, there is other evidence of the terms of the agreement. It is only the written conditions and terms of such agreement that are evidence of the agreement?s terms and condition. In the instant case, it is only the lease agreement, Exhibit A attached to the claimant?s supporting affidavit that guide and regulate the dispute between the parties and the appellant cannot be heard to say that besides those there is other evidence of the terms of the lease agreement. Consequently, the letters written to the respondents by the appellant, Exhibits A, B, C and D demanding for the payment of some bills, having proceeded the binding agreement are sham, frivolous and designed to delay the trial of the action.
It was held in plethora of cases including the case of U.B.A. PLC V JARGABA (2007) 11 NWLR (pt 1045) 247 at 271 that an

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admission in law is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact.
In the instant case, the learned trial judge has found and I completely agree that Exhibit C attached to the respondent?s affidavit is an admission by the appellant of its liability to the respondent. Whereas in this case, the appellant has freely and voluntarily admitted indebtedness, same can be relied and acted upon by the Court. I therefore resolved the lone issue in favour of the respondent.

In the result, this appeal lacks merit and same is accordingly dismissed. The respondent is damnified in costs which I assess and fix at N50,000.00.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the priviledge of reading in draft the judgment delivered by my learned brother Muhammed L. Shuaibu. JCA. I agree with the reasoning and conclusion reached in the judgment.

I agree that the appeal lacks merit and I also dismiss the appeal. I abide by the order as to costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned

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brother MUHAMMED LAWAL SHUIABU, JCA and I am in complete agreement with the reasoning and resolution of the sole issue for determination in the appeal. I have nothing more to add.
?
I too dismiss the appeal and abide by the orders made in the lead judgment.

 

 

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Appearances:

I. O. Eddie, Esq.
For Appellant(s)

Abasiodiong Ekpenyong, Esq.For Respondent(s)

 

Appearances

I. O. Eddie, Esq.For Appellant

 

AND

Abasiodiong Ekpenyong, Esq.For Respondent