COASTERNERS INTEGRATED (NIG) LTD & ANOR v. PILLAR MICRO FINANCE BANK LTD (2020)

COASTERNERS INTEGRATED (NIG) LTD & ANOR v. PILLAR MICRO FINANCE BANK LTD

(2020)LCN/14877(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, December 03, 2020

CA/A/395/2014

RATIO

UNDEFENDED LIST PROCEDURE: NATURE OF UNDEFENDED LIST PROCEDURE

Judicial authorities abound on what the Undefended List procedure means by the apex Court as well as this Court. Put simply, it is a procedure which enables a Plaintiff to obtain judgment in a suit for a liquidated sum within the shortest possible time on affidavit evidence without the technicalities of pleadings, where the Defendant has no defence to the suit. See the cases of EKULO FARMS LTD. V. UNION BANK OF NIG. PLC.2006 4 S.C. PT. II P. 22 – 24, CHIEF AKINYEMI V. GOVERNOR OF OYO STATE & ANOR. 2003 FWLR PT. 40 P. 1683, FMG V. SANNI 1990 4 NWLR PT 147 P.685 and the learned author, ‘lai Oshitokunbo Oshisanya in ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENT P. 271. It is a procedure for economy of time and resources and to ensure that the Defendant is disallowed from putting the Plaintiff through unnecessary and avoidable expense of proving the obvious. However, where the Defendant decides to challenge the claim of the Plaintiff as it would seem herein, he must file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. The Defendant’s affidavit with the notice of intention must disclose a prima facie defence. Authorities abound on what is expected and acceptable as good defence which ought to cause the trial Judge to grant leave for a Defendant to defend.
Where this is the case, the action is removed from the Undefended List to the General or Ordinary Cause list. See the case of FMG & ORS V. SANI 1990 4 NWLR PT. 147 P. 699. Order 21 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules, 2004 provides for the Undefended List procedure. Rules 1 (1) and 3 (1) and (2) thereof state as follows:
1(1) Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the Judge in chambers shall enter the suit for hearing in what shall be called the “undefended list.”

(1) Where a party served with the writ delivers to a Registrar, within 5 days to 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 the Court may think just.
(2) Where leave to defend is given under this Rule, an action shall be removed from the Undefended List and placed on the ordinary Cause list; and the Court may order pleadings, or proceed to hearing without further pleadings. PER WILLIAMS-DAWODU, J.C.A.

UNDEFENDED LIST PROCEDURE: DUTY OF THE COURT WHERE THERE IS NOTICE OF INTENTION TO DEFEND

The position of the law and relevant judicial authorities are to the effect that the Court needs to consider the affidavit in support of the notice of intention to defend vis a vis that of the Plaintiff’s affidavit in support of the Writ of Summons. See the case of EKULO FARMS LTD. V. UNION BANK OF NIG. PLC. supra, per ONNOGHEN JSC as well as FAAN V. WAMAL EXPRESS SERVICES NIG. LTD. 2011 1-2 S.C.PT.II P.131 and ALHAJI HAIDO & ANOR.V. ALHAJI USMAN 2004 ALL FWLR PT. 201.1780 C.A. The Court needs to satisfy itself that the affidavit filed contains issue that are triable, or that questions have been raised which prima facie ought to go to trial. It is not required that it be cast – iron or air – tight defence or a defence that would succeed in any event. It is only to show defence on merits at that stage. See the cases of DR. EBONG V. IKPE 2002 FWLR PT. 135 P.719, ATAGUBA & CO. V. GURA NIG. LTD 2000 FWLR PT. 24 1522 CA AND FMG V. SANI supra. This Court, in the case of ANUNOBI V. OBIWELOZO 2003 12 NWLR PT. 835 617, instructively held that:
“… a defendant’s affidavit in support of a notice of intention to defend raises a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff’s claim.” PER WILLIAMS-DAWODU, J.C.A.

WORDS AND PHRASES: MEANING OF LIQUIDATED CLAIM OR MONEY DEMAND

Liquidated claim or money demand is described as an amount previously agreed or fixed by the parties payable under or by a contract and capable of ascertainment as a matter of arithmetic without any further investigation. See JUDICIAL LAW DICTIONARY by the learned Author, B. P. Ishaku page 244 and the cases of ALHAJI M. U. & SONS LIMITED V. LION BANK OF NIGERIA PLC. 2006 2 NWLR PT. 964 288, SURVEYOR AKPAN V. AKWA IBOM PROPERTY & CONSULTANCY SERVICES CO. LTD. 2013 5-6 SC PT. II 114, EPE L. G. V. KESINRO 2009 4 NWLR PT. 1131 405 and U.P.S. LIMITED V. UFOT 2006 2 NWLR PT. 963 1.
This Court in the case ofOGBONNA V. CHIEF UKAEGBU 2005 ALL FWLR PT. 288 P. 1170-1 C.A held that, a claim of 20% interest per annum until judgment and 10% thereafter till final liquidation is a veritable claim that has to be transferred to the general cause list and not under the undefended list as it falls outside the contemplation of liquidated money demand under the undefended list. PER WILLIAMS-DAWODU, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

1. COASTERNERS INTEGRATED (NIG) LIMITED 2. MR. KOLA ADEGOKE APPELANT(S)

And

PILLAR MICRO FINANCE BANK LIMITED RESPONDENT(S)

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/568/13 delivered by Hon. Justice Folashade Ojo on March 18th, 2014, in favour of the Respondent (the Plaintiff at the Court below) against the Appellants (the Defendants at the Court below) in the sum of Nine Million, Six Hundred and Four Thousand, Seven Hundred and Eighty-seven Naira, Eighteen kobo (N9, 604, 787. 18).

The Respondent vide its Writ of Summons sought the following reliefs under the undefended list procedure:
a. The sum of N9,604,787.18 (Nine Million, Six Hundred and Four Thousand, Seven Hundred and Eighty Seven Naira, Eighteen Kobo) only, being the principal and the interest thereon on the loan granted by the Plaintiff to the Defendants:
b. Interest at the rate of 30% from the 31st day of August, 2013 until the date of judgment.
c. Interest at the rate of 10% from the date of judgment until the entire judgment debt is liquidated.
d. Cost of this suit.

The facts briefly that culminated into this appeal were that the Respondent

sued the Appellants as already stated under the undefended list procedure for a sum of Nine Million, Six Hundred and Four Thousand, Seven Hundred and Eighty-seven Thousand, Eighteen Naira only as principal and interest in respect of a loan granted to the 1st Appellant and guaranteed by the 2nd Appellant as the Managing Director of the 1st Appellant. The Respondent claimed that the Appellants failed to repay the loan. The deposition of the Appellants in their affidavit in support of the notice of intention to defend the action was adjudged by the Court below as having failed to make out a defence on the merits and therefore judgment was entered in favour of the Respondent against the Appellants.

Being dissatisfied with the decision, the Appellants have approached this Court with their Notice of Appeal dated March 24th, 2014 and filed on March 28th, 2014 with Three (3) Grounds of appeal.
They seek the following reliefs:
a. An Order of this Honourable Court setting aside the judgment of the High Court of FCT, Abuja.
b. An Order remitting the case back to the High Court of FCT, Abuja for retrial.

In compliance with the Rules of this

Court, parties filed and exchanged their briefs of argument.

At the hearing of the appeal on September 21st, 2020, Mr. Ikechukwu Kanu Esq., adopted the Appellant’s brief of argument dated June 11th, 2015, filed June 19th, 2015, which was settled by the learned Counsel and deemed as properly filed and served on March 15th, 2018. He urged that the appeal be allowed. In response, the Respondent’s brief dated March 20th, 2018 and filed same date, which was settled by J. N. Egwuonwu SAN, was adopted by Mr. G. l. Ejeoma Esq. who urged that the appeal be dismissed.

ISSUES SUBMITTED FOR DETERMINATION
The Appellant submitted two issues as follows:
1. Whether the trial Court was right to enter judgment in favour of the Respondent without regard to the Appellants’ Notice of Intention to defend an affidavit in support instead of transferring the case to general cause list and:
2. Whether the judgment was not against the weight of evidence adduced before the trial court.

The Respondent submitted a sole issue thus:
Whether the lower Court was right when it entered judgment in favour of the Respondent under the undefended list.

The issues by both sides are not dissimilar in my opinion.
However, as empowered, I shall adopt the sole Issue submitted by the Respondent as it is apt, direct and will justly and fairly determine this appeal.

ARGUMENTS ON BEHALF OF THE APPELLANT
The learned Appellants’ Counsel submitted that, according to Order 21 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules 2004, the Appellants’ Notice of Intention to defend and their affidavit disclosed triable issues wherein they claimed to have paid the sum of N1,000,000.00 out of the total sum owed. He contended that the amount outstanding kept changing and it was therefore impossible for the Appellants to know the exact amount in question. That, the Respondent did not file any further affidavit in rebuttal to their defence and therefore, the Court was bound by their defence and ought to have acted upon it. In support he cited the case of ATANYI V. MILITARY GOVERNOR PLATEAU STATE 2002 FWLR PT. 89 11 and AMEDE V. UBA 2008 8 NWLR PT. 1090 P. 623.

He contended that, the Court failed to properly evaluate the evidence adduced by the Respondent as it was against the weight

of evidence and ought not to be in favour of the Respondent and cited in support the case of INWELEGU V. EZEANI 1999 12 279. In conclusion, urged that the appeal be allowed and the judgment set aside.

The learned Respondent’s Counsel submitted that, a Defendant to an undefended list procedure has a duty to file within time a notice of intention to defend as well as show by affidavit evidence, a defence on the merit and cited in support the case ofFORTUNE INTERNATIONAL BANK PLC. V. CITY EXPRESS BANK LTD. 2012 14 NWLR PT. 1319 86, OBITUDE V. ONYESOM COMMUNITY BANK LTD. 2014 9 NWLR PT. 1412 352 and JOLABON INV. NIG. LTD V. OYUS INT’L CO. NIG. LTD. 2015 18 NWLR PT. 1490 30. He submitted that the Appellants’ affidavit showed that they owe the Respondent money, given as loan with interest, and had paid only N1,000,000.00 out of the principal sum lent. He submitted that the judgment being appealed is not only sound but also unassailable and that the Appellants were merely employing delay tactics in the matter and cited in support the cases of UBA PLC V. JARGABA 2007 11 NWLR PT. 1045 247, DIAMOND BANK NIGERIA LTD. V. GSM AGRO ALLIED IND. LTD. 1999 8 NWLR PT. 61

558 and TUKUR V. UBA 2013 4 NWLR PT. 1343 90. Further that, the Appellants failed to put forward any material facts to contradict the Respondent’s case in support of theirs, particularly Exhibit G but instead relied on the case that was withdrawn and in support cited the case of BELLO V. EWEKA 1981 1 SC 101. He argued that the submission of the Appellants that the statement of account kept changing is misconceived more so as the Respondent did not rely on the said Exhibit D2 but relied on Exhibit G instead and the Respondent needed not file a further affidavit to rebut a matter of no consequence factually and legally. He cited in support the case of OKEKE V. A-G ANAMBRA STATE 1992 1 NWLR PT. 215 80. In conclusion, he urged that the appeal be dismissed with substantial costs.

THE POSITION OF THE COURT
I have in details considered the submissions on both sides in this appeal and having so done I proceed to deal with the singular issue adopted which is reproduced hereunder for ease of reference.

SOLE ISSUE
Whether the lower Court was right when it entered judgment in favour of the Respondent under the undefended list.

The crux of the matter herein in the main is, whether or not the lower Court was right in entering judgment in favour of the Respondent under the undefended list when it refused to transfer the suit, subject matter of this appeal, to the general cause list.

the Plaintiff as it would seem herein, he must file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. The Defendant’s affidavit with the notice of intention must disclose a prima facie defence. Authorities abound on what is expected and acceptable as good defence which ought to cause the trial Judge to grant leave for a Defendant to defend.
Where this is the case, the action is removed from the Undefended List to the General or Ordinary Cause list. See the case of FMG & ORS V. SANI 1990 4 NWLR PT. 147 P. 699. Order 21 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules, 2004 provides for the Undefended List procedure. Rules 1 (1) and 3 (1) and (2) thereof state as follows:
1(1) Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the Judge in chambers shall enter the suit for hearing in what shall be called the “undefended list.”

(1) Where a party served with the writ delivers to a Registrar, within 5 days to 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 the Court may think just.
(2) Where leave to defend is given under this Rule, an action shall be removed from the Undefended List and placed on the ordinary Cause list; and the Court may order pleadings, or proceed to hearing without further pleadings.

It is necessary to consider the findings of the Court. On page 52 of the printed Record, the Court stated thus:
“From the affidavit in support of the notice of intention to defend, the defence of the defendants in the main is that the statement of account relied upon by the plaintiff is not the correct position of their account. They say the plaintiff relied on a statement of account in SUIT NO. FCT/HC/CV/2105/10 which is different from Exhibit G relied upon in the case at hand.”

On whether the Appellants’ affidavit disclosed a defence on the merits to justify the transfer of this suit to the

general cause list, it found as follows on page 53 of the Record:
“Exhibit G is the statement of account relied upon by the plaintiff in proof of its case. It is different from the statement of account Exhibit D2 attached to the defendant’s affidavit in support of the notice of intention to defend. The defendants say they challenged Exhibit D2 in a previous suit. Can a challenge in the previous suit constitute a defence in the present action?
The defendants have not challenged Exhibit G which is the statement of account relied upon in the present suit. No details or particulars of error have been identified in the said statement of account.”
Further stated thus still on same page:
“My view is that the defendants have not offered any real defence to the plaintiff’s claim in the instant suit and I so hold. The defendants have admitted taking the loan, on terms and conditions. They have not repaid the loan. They claim that the plaintiff has not been consistent in the statement of their account generated. They have not stated how much they agree is outstanding on the loan…..The Court should not allow the defendants to dribble and

frustrate the plaintiff.”
It then concluded as follows on page 54 of the Record:
“……The plaintiff’s claim which is one for liquidated money demand qualifies to be heard as an undefended action. In the circumstance, I find the plaintiff entitled to judgment as per his claim and I so hold.”

For the foregoing, the Court entered judgment in favour of the Respondent and granted all the reliefs sought by it.
From the Record at the Court below, the Appellants filed an affidavit in support of their notice of intention to defend. A pertinent question that follows herein is what should the Court consider before granting or refusing leave to defend. The position of the law and relevant judicial authorities are to the effect that the Court needs to consider the affidavit in support of the notice of intention to defend vis a vis that of the Plaintiff’s affidavit in support of the Writ of Summons. See the case of EKULO FARMS LTD. V. UNION BANK OF NIG. PLC. supra, per ONNOGHEN JSC as well as FAAN V. WAMAL EXPRESS SERVICES NIG. LTD. 2011 1-2 S.C.PT.II P.131 and ALHAJI HAIDO & ANOR.V. ALHAJI USMAN

2004 ALL FWLR PT. 201.1780 C.A. The Court needs to satisfy itself that the affidavit filed contains issue that are triable, or that questions have been raised which prima facie ought to go to trial. It is not required that it be cast – iron or air – tight defence or a defence that would succeed in any event. It is only to show defence on merits at that stage. See the cases of DR. EBONG V. IKPE 2002 FWLR PT. 135 P.719, ATAGUBA & CO. V. GURA NIG. LTD 2000 FWLR PT. 24 1522 CA AND FMG V. SANI supra. This Court, in the case of ANUNOBI V. OBIWELOZO 2003 12 NWLR PT. 835 617, instructively held that:
“… a defendant’s affidavit in support of a notice of intention to defend raises a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff’s claim.”

I have carefully considered the response of the Appellants as alleged in the affidavit in defence contained on pages 29 to 31, particularly paragraphs 9 to 13 thereof on page 30 of the Record, Exhibits D2 on pages 39 to 40 of the Record and Exhibit G by the

Respondent on pages 21-25 as well as the proceedings of the Court on November 28th, 2013, on pages 43 to 44 of the Record. Having so carefully done, one is of the view and humbly that, there is a need for some clarification or explanation in terms of the statements of the account, Exhibits G and D2, so as to ascertain precisely, the outstanding sum against the Appellants. At a glance, one finds the disparity between the figures on 19/10/2009 in Exhibit G on page 21 of the Record and those in Exhibit D2 on the same 19/10/2009 on page 39 of the Record as raised by the Appellants during the proceedings at the Court below. See page 43 of the Record. It is pertinent to note that, the two documents would appear to have emanated from the Respondent in respect of the details of the transactions between the parties from 5/10/2009, the date the loan was granted. In my considered view and humbly, there would appear to be a prima facie defence by the Appellants which, the Court would need to resolve and in that regard, they should be given the opportunity to pursue same. Therefore and respectfully, as opposed to the position of the Court below, the matter should not have

proceeded under the Undefended list procedure but transferred to the General/Ordinary cause list for determination.

It is important to note that the Respondent claimed 30% interest from 31st day of August, 2013 until the date of judgment and 10% interest from date of judgment until the entire judgment debt is liquidated. One wonders if the percentages asked for were liquidated claims too. Liquidated claim or money demand is described as an amount previously agreed or fixed by the parties payable under or by a contract and capable of ascertainment as a matter of arithmetic without any further investigation. See JUDICIAL LAW DICTIONARY by the learned Author, B. P. Ishaku page 244 and the cases of ALHAJI M. U. & SONS LIMITED V. LION BANK OF NIGERIA PLC. 2006 2 NWLR PT. 964 288, SURVEYOR AKPAN V. AKWA IBOM PROPERTY & CONSULTANCY SERVICES CO. LTD. 2013 5-6 SC PT. II 114, EPE L. G. V. KESINRO 2009 4 NWLR PT. 1131 405 and U.P.S. LIMITED V. UFOT 2006 2 NWLR PT. 963 1.
This Court in the case ofOGBONNA V. CHIEF UKAEGBU 2005 ALL FWLR PT. 288 P. 1170-1 C.A held that, a claim of 20% interest per annum until judgment and 10% thereafter till final

liquidation is a veritable claim that has to be transferred to the general cause list and not under the undefended list as it falls outside the contemplation of liquidated money demand under the undefended list.

In the light of the foregoing, the singular Issue in this appeal is resolved in favour of the Appellants and the appeal hereby succeeds. Consequently, the Judgment of the Court below is hereby set aside. It is hereby ordered that, the case be remitted to the Chief Judge of the High Court of the Federal Capital Territory, Abuja, for re-assignment to another Judge for hearing on the merit on general cause list.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, E. O. WILLIAMS-DAWODU, JCA and I am in total agreement with the reasoning and conclusion arrived at. My Lord in succinct and concise manner resolved the issues donated for resolution in the appeal.

I wish to add my voice as admonition to trial Judges to give more attention especially in cases instituted under undefended list procedure. The Appellants herein,

disclosed facts that should convince the Court in setting down the claim for full trial.
I must say that the trial Judge in this case foreclosed the Appellants and drove them away from Justice without a hearing. The legal implications of the issues raised by the Appellants deserve to be determined in a full trial. See IFEANYICHUKUWU TRADING INVESTMENT VENTURES LTD & ANOR V. ONYESOM COMMUNITY BANK LTD (2015) LPELR- 24819(SC) where the apex Court held thus:
“…. In the situation where a triable issue is disclosed, then the case can no longer be tried or heard under Undefended list but must be transferred to the general list for trial on pleadings. See;Nworah & Sons Ltd. Vs. Akputa Esq. (2010)4 SCM 31.”
Per ARIWOOLA ,J.S.C ( Pp. 35-36, para. D)
It is therefore necessary to set aside the Judgment appealed against and return parties to the trial Court for determination of the claim in a full hearing.

It is in the light of above that I also agree that the appeal is meritorious and be allowed. I also abide by the other orders made in the lead Judgment.

Appearances:

Mr. Ikechukwu Kanu For Appellant(s)

Mr. G. I. Ejeoma For Respondent(s)