DARLVIS INVESTMENTS LTD & ANOR. v. HALL MARK BANK PLC
(2009)LCN/3479(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of February, 2009
CA/PH/283/2005
RATIO
EVIDENCE: EFFECT OF FACTS ADMITTED AT HEARING OR IN WRITING
By section 75 of Evidence Act no fact need be proved in any civil proceedings which the parties thereto agree to admit at the hearing, or which, before the hearing they admit in writing or in their pleadings.
Order 30 Rules 1 and 3[1] of Abia State High Court [Civil Procedure] Rules, 2001 are also to such effect. They provide –
Order 30 Rule 1. Any party may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any party.
Rule 3[1] where admissions of facts are made by a party either by his pleadings or otherwise, any party may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may give such judgment, or make such order, on the application as it thinks fit. PER EJEMBI EKO, J.C.A
INTERPRETATION: RULE GOVERNING CONSTRUING STATUTES
As a rule statutes are construed to promote the general purpose of the lawmaker; judges therefore are enjoined to go, not only by the dry letters of the statute but, by the spirit of the statute: see OMOIJAHE v. UMORU [1999] 5 SCNJ 280 at 282. Therefore every clause in a statute should be construed with reference to the con and other clauses so as to make a consistent enactment of the whole statute: see ABIOYE v. YAKUBU [1991] 6 SCNJ 69 at 91. PER EJEMBI EKO, J.C.A
PROCEDURE: EFFECT OF THE DEFENDANT ADMITTING TO OWING A CLAIM OF LIQUIDATED SUM
A.I.B. LTD v. PACKOPLAST [NIG] LTD [supra] is also a case of a claim of liquidated sum under the undefended list procedure, wherein the defendant admitted owing part of. This court [Salami JCA] held at page 526 – 527:
“There should be no difficulty in the court entering judgment for the sum admitted leaving the balance to be tried on the general cause list on the oral or written application of the learned counsel for the plaintiff. See PAS [NIGERIA] LTD V. NEW NIGERIA SALT COMPANY LTMTTED [1990] 6 NWLR [PT.159] 764, 772; MOSHESHE GENERAL MERCHANT LTD V. NIGERIAN STEEL PRODUCTS LIMITED [1987] 1 NWLR [pt.55] 110, 120.
Where, in an undefended list procedure, the defendant admits part of the sum claimed the court, upon application of the plaintiff’s counsel, is empowered to enter judgment for the plaintiff in the sum admitted and transfer to the general cause list the other aspect of the claim in dispute. Agreeing with the respondent’s counsel, I hold that each case must be considered on its own merit considering its peculiar case. PER EJEMBI EKO, J.C.A
PROCEDURE: DUTY OF A COURT WHERE THERE IS A SET OFF OR COUNTER-CLAIM IN AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE
the ratio decidendi is that where a court finds that there is a set off or counter-claim in an action under the undefended list procedure, the action should be removed from the undefended list and placed on the ordinary cause list. PER EJEMBI EKO, J.C.A
PROCEDURE: AIM OF THE UNDEFENDED LIST PROCEDURE
The aim of the Undefended List procedure as provided for in Order 23 of the Abia State High court (Civil Procedure) Rules 2001 is to facilitate the speedy despatch of certain types of cases involving debts or liquidated money demands where there is no genuine defence on the merits to the plaintiffs claim. See: U.B.A v. Jargaba (2007) 11 NWLR (1045) 247 AT 272 E- H: Agwuneme v. Eze (1990) 3 NWLR (137) 242; NWLR (137) 242: I.B.W.A. Ltd v. Unakalamba (1998) 9 NWLR (565) 245; Co- Operative and Commerce International Bank (Nig) Plc v. Samuel Inv. Co. Ltd. (2000) 4 NWLR (651) 19
The procedure is designed to relieve the courts of the rigour of pleadings and the burden of hearing of tedious evidence on same defences mounted by defendants who have no defence and just want to dribble and cheat the plaintiff out of reliefs he would normally be entitled to. See: U.B.A. v. Jargaba (supra); Planwell Watershed Ltd. v. Ogala (2003) 18 NWLR (852) 478. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A
Before Their Lordships
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUNJustice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
EJEMBI EKOJustice of The Court of Appeal of Nigeria
Between
1 DARLVIS INVESTMENTS LTD
2 SIR E.C. NWOKOLOAppellant(s)
AND
HALL MARK BANK PLCRespondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): Before the Abia state High court [before I. Offonry, J] was this suit brought under the undefended list procedure. The Respondent, as the Plaintiff, claimed inter alia, the sum of Four million, three Hundred and sixty-nine thousand, twenty-six naira, twenty four kobo [N4,369,026.24] “being unsettled balance of overdraft facilities accorded to the Defendants’, now appellants, by the respondent at the former’s request. The respondent also claimed “interest at the agreed prevailing “rate of 28% per annum from January 1, 2002 or at such other rate prescribed by CBN guidelines until judgment is delivered”, and “interest at the rate of 10% per annum from the date of judgment until full liquidation.
The claim was supported by a verifying affidavit of 16 paragraphs deposed to by Amos Ellejuba, Advances officer of the respondent. The affidavit averred inter alia that, on 1st Appellant’s application for overdraft facility the respondent offered to the Appellant “an overdraft facility, which was accepted to enable the (1st Appellant) who ordinarily is an independent petroleum marketer to enhance its business” and that the respondent regularly sent to the appellants comprehensive statements of account that reflected their transactions with the respondent. The said affidavit further averred-
9. That the Defendant’s debit balance to the plaintiff which was as at 31.12.2001 stood (sic) N4, 369,026.24 (Four million, three Hundred and sixty nine thousand, twenty-six Naira, twenty-four kobo) as enclosed in the writ of summons inclusive of interest and other charges have since been recalled by repeated demands at the behest of the plaintiff, but the Defendant continue to unfairly withhold the funds of the plaintiff to the detriment of the latter.
11. That despite the demand notices, the defendants have refused to defray the said credit facilities accorded them by the plaintiff.
12. That by virtue of the Defendants letter of 30.8.2000 and their Solicitors, C.J. OKOLI AKIRIKA ESQ. letter of 16.1.2002, wherein they accepted liability but pleaded with the plaintiff for waiver of interest fee allegedly totaling N1.19 million, the defendants acknowledged their debit balance N2, 000,000.00 as at the year 2000 with proposal to settle the said balance by monthly installments. Copies of the said letters are herewith fired as Exhibits D and or respectively
14. That the plaintiff promptly replied the said request for a waiver vide the plaintiffs letter dated 9.10.2000 whereat the request for interest waiver was refused. A copy oh the said plaintiff’s letter is herewith filed as Exhibit E.
By the plaintiff’s Exhibit B, a letter of demand dated 23rd August, 2000, the appellants, as Defendants, were informed that as at 18th August, 2000 there was outstanding debit balance of N3,191, 121.11 against them and that the balance included the loan capital and the accrued interest. The respondent’s solicitor’s letter to the appellants is Exhibit c wherein the appellants were intimated that
As at 31.12.2001, your current account debit balance with our client despite repeated demands total N4, 369, 026.243 (four million, three hundred and six Naira twenty four kobo) inclusive of interest and other charges; vide requisite statements of accounts regularly sent to you.
Exhibit D, dated 30.8.2000, is the appellants’ letter, signed by the 2nd Appellant as Managing Director/chief Executive of the 1st Appellant. It was addressed to the respondent. The receipt endorsement shows that the respondent received the letter on 31.8.2000. It is appellant’s response to the respondent’s demand notice dated 23.8.2000 – Exhibit B. Exhibit D states inter alia –
We refer to your letter dated 23rd August, 2000 in respect of the above and wish to acknowledge receipt and state as follows:-
(1) A detailed analysis of the loan reveals that the principal amount as at 23rd August, 2000 is 2 Million Naira. The interest accrued is N1.19 million. We therefore implore you to please waive the interest and we shall pay the principal.
We will be paying N100, 000.00 monthly to liquidate the principal without fail. I attach herewith a copy of the deposit slip for N100, 000.00 being the first installment for the month of August, 2000.
Vide Exhibit 8.1 of September 14, 2000 the respondent replied the appellant’s letter, Exhibit D, stating that the appellants were advised “to make a bulk payment of the principal sum in order to get favourable consideration of your requests”.
The appellants were never in doubt that they owed the respondent a total of N2, 000.000.00, representing the principal sum of the loan facility. In Exhibit D1, appellants’ solicitor’s letter of 16.1.2002, it was stated therein –
Consequent upon DARLVIS LTD indebtedness to Hallmark Nig. PLC, an arrangement was entered into whereby DARLVIS LTD would be paying N100, 000.00 until the agreed debt of N2m is liquidated. –
As agreed with Recovery team, my client religiously performed and deposited a total sum of N600, 000.00 with Hallmark Bank Nig PLC. However, my client discovered, upon enquiries at the Factory Road Branch Abia that contrary to the arrangement entered into with your clients, the Bank continued to charge interest on the outstanding balance. Resultantly, my client stopped making further deposits and severally complained to the bank. As suggested in your letter for “an acceptable repayment proposal” I have been instructed to intimate as follows-
a. my client is ready and willing to liquidate the outstanding balance of N1.4m (having paid in N600,000.00) on the basis earlier agreed with the bank.
b. The bank will stop calculating interests on the account as earlier on arrangement
That as soon as your reply is received, my client shall commence repayment of the outstanding balance as herein suggested.
The appellants, upon their receipt of the writ of summons on the undefended list, promptly filed Notice of Intention to defend supported by an affidavit deposed to by the 2nd Appellant, for himself and on behalf of the 1st Appellant. The averments in paragraphs 21 and 28 of the said affidavit are categorical –
21. That we are indebted to the plaintiff to the remaining balance of N 1.4m [one million. Four Hundred Thousand Naira and no more
28. That we contend that the plaintiff is entitled only to the sum of N1.4m and no more.
The appellants, further to their Notice of Intention to Defend, also filed a counter-claim seeking against the respondent –
1. A declaration of this Honourable court that the continued calculation of interests on the principal sum on current Account No.0061001433015 owed by the Defendants, constituted a breach and frustration of the Debt Repayment Agreement entered by the parties on the 4th day of September 2000.
2. The sum of N2m [Two Million Naira] being the general and special damages for breach and frustration of the said Debt Repayment Agreement entered on 4th September 2000.
As I earlier stated the parties are ad idem that the principal loan sum was N2, 000,000.00. It is not in dispute that out of the said sum the appellant had paid back N600, 000 to the respondent, leaving an outstanding debit balance of N1, 400,000.00. The appellants emphatically admit their indebtedness to the respondent in that sum only. They dispute their liability to pay interest on the principal sum, including interest on the outstanding balance of N1, 400,000.00, to the respondent. The counter-claim is only in respect of the respondent’s insistence on interest on the principal sum and the appellants’ denial of same.
On 20th November, 2002 the trial court considered paragraphs 21 and 28 of the affidavit in support of the Notice of Intention to defend, which I think was at the instance of counsel for both parties, and entered judgment for the respondent against the appellants in the sum of N1, 400,000.00 on the principle that “what is admitted needs no further proof”. Before then the appellants, counsel drew the attention of the court to the said paragraphs 21 and 28 of the affidavit in support of the notice to defend. There after respondent’s counsel “applied for judgment for the amount admitted’. The lower court entered judgment for the plaintiff/respondent for the sum admitted. It there and then transferred the issues in dispute to the general cause list and ordered the parties to exchange pleadings.
Hence this appeal.
Above are the facts giving rise to this appeal, brought on three grounds of appeals. Briefs of argument have been exchanged and adopted. For the appellants counsel distilled two issues out of the three grounds of appeal. They are –
1. whether the lower court was right in entering judgment in favour of the Respondent and transferring the rest of the claims in the same suit to the general cause list?
2. whether the lower court was right in entering summary part judgment for the Respondent despite the counter claim filed by the Appellants?
The sole issue identified from the three grounds of appeal by the respondent is not too far from the two identified by the Appellants from the three grounds of appeal. It is at page 4 of the Respondent’s Brief as follows –
Whether from the circumstances of this case the Honourable trial Judge at the court below was Respondent and thereafter transferring the matter to the general cause list.
On appellants’ issue No.1, it is submitted for the Appellants that under the undefended list procedure, as provided for under order 23 of the Abia State High Court [Civil Procedure] Rules, 2001 there is no separation of reliefs claimed by the plaintiff, and that when a suit placed under the undefended list comes for hearing the duties of the trial judge are
1. to see whether the Defendant has delivered to “the Registrar not less than five 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” In that case the court may give the defendant “leave to defend just” under order 23 Rule 3(1).
2, “where the Defendant neglects to deliver notice of defence and affidavit prescribed by Rule 3[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 plaintiff to summon witnesses before the court to prove his case formally.
It is further the contention of the appellants’ counsel that it is either that the defendant fails to deliver notice of Intention to defend, or he delivers a notice of Intention to defend that the whole case will be heard on the undefended list and judgment in the full sum claimed will be entered in favour of the plaintiff. In other words, that the trial judge has no discretion to split the case by entering judgment for a liquated sum admitted in undefended list procedure and transfer the sum denied to the general cause list for trial. Counsel further submitted, on authority of CHRISDON IND. CO. LTD v. A.I.B. LTD [2002] 8 NWLR (pt.768) 167, that it is not permissible under undefended list procedure for the trial judge to deliver judgments piecemeal.
In respect of the second issue counsel for the appellants submitted that where, in a suit on the undefended list, the defendant raises a counter claim or set off there is a clear indication that the suit is prima facie contentious and therefore, should be transferred to the general cause list. He referred to FRANCIS NYIAM BISONG V. OKOKON EKPEYONG (2003) 5 NWLR [pt.812] 156 at 158 where it was held that where a court finds that there is a set-off or a counter claim in an action under undefended list procedure, the action should be removed from the undefended list and placed on the ordinary list, and order pleadings or proceed to hearing without pleadings.
As I earlier indicated the respondent treated appellants’ issues under a single broad issue. The summary of the submissions of the Respondent’s counsel is that by other 30, Rules 1 and 3[1] of the Abia state High court (civil procedure) Rules, 2001 the trial judge, in view of paragraphs 21 and 28 of the affidavit in support of notice of intention to defend, was right to have entered judgment for the sum admitted and transferring the contentious issue to the general cause list. He relied on a number of authorities, including NATIONAL BANK OF NIG. LTD. v. GUTARIE (NIG) LTD. & ANOR [1993] 3 NWLR [pt. 284] 643 at 654; KWARA HOTELS LIMITED v. MR. DAVID ISHOLA (TRADING UNDER THE NAME AND STYLE OF DAVIS TECHNICAL COMPANY) (2002) 9 NWLR (pt. 772) 604; ANASON FARMS LTD V. NAL MERCHANT BANK LTD [1994] 3 NWLR [pt.331] 241 at 251 F – G; AFRTCAN INTERNATTONAL BANK LTD. V. PACKOPLAST NIG. LTD (2003) 1 NWLR [pt.802] 502 at 526 – 527,
On the appellants’ contention that where the defendant raises a counter-claim or set off to the sum claimed under the undefended list procedure there is a prima facie contentious issue to warrant transferring the case to the general cause list, the respondent submitted that each case must be considered in its peculiar circumstances. WEMA BANK PLC v. BALOGUN & AN.R (1999) 7 NWLR [pt.610] 242 was cited for the contention. Respondent further submitted that where the judgment of the trial court is right but the reasons are wrong [though not the case in this case] the appellate court will not interfere with the judgment, because the job of the appellate court is to determine whether the decision of the trial court is right and not whether the reasons are right. NIGERIA INSTITUTE OF INTERNATIONAL AFFAIRS v. MRS. T.O AYANFALU [2007] 2 NWLR [pt.1018] 246 at 265 was cited as the authority.
Upon my passionate consideration of the issues and the arguments canvassed I am of the firm view that order 23 Rule 3[1] of the Abia State-High Court [Civil Procedure] Rules, 2001 gives the trial judge some discretion by the words “the court may give him [the defendant] leave to defend upon such terms as the court may think just” where in writing the defendant, sued on the undefended list procedure, gives notice of intention to defend the suit. He may be granted leave to defend upon such terms as the trial court may think just. This discretion is judicial and it has to be exercised judicially and judiciously.
By section 75 of Evidence Act no fact need be proved in any civil proceedings which the parties thereto agree to admit at the hearing, or which, before the hearing they admit in writing or in their pleadings.
Order 30 Rules 1 and 3[1] of Abia State High Court [Civil Procedure] Rules, 2001 are also to such effect. They provide –
Order 30 Rule 1. Any party may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or any part of the case of any party.
Rule 3[1] where admissions of facts are made by a party either by his pleadings or otherwise, any party may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may give such judgment, or make such order, on the application as it thinks fit.
It is my considered opinion, and I so hold, that order 30 Rules 1 and 3[1] of Abia State High Court [Civil Procedure] Rules are of general application and they are, in no way, rendered inapplicable to suits under undefended list procedure. Applying order 30 Rules 1 and 3[1] and order 23 Rule 3 together with section 75 Evidence it is my considered view that the trial court was on firm grounds when it entered judgment for the respondent, as plaintiff, against the appellants [the defendants] in the liquidated sum of N1, 400,000.00 being the outstanding balance of the principal loan sum which the appellants, as defendants, unequivocally and emphatically admitted in paragraphs 21 and 28 of the affidavit supporting the notice of intention to defend. Unless the Abia State High Court [civil Procedure] Rules clearly exclude the operation of order 30 Rule 3[1] thereof in undefended list proceedings it should not be interpreted to deny a party its benefits. See AGUMA v. A.G FED [1995] 5 SCNJ 66.72. As a rule statutes are construed to promote the general purpose of the lawmaker; judges therefore are enjoined to go, not only by the dry letters of the statute but, by the spirit of the statute: see OMOIJAHE v. UMORU [1999] 5 SCNJ 280 at 282. Therefore every clause in a statute should be construed with reference to the con and other clauses so as to make a consistent enactment of the whole statute: see ABIOYE v. YAKUBU [1991] 6 SCNJ 69 at 91. Accordingly my reading order 23 Rule 3 with order 30 Rule 3[1] of the Abia State High court [Civil Procedure] Rules will, rather than do violence to the said statute, promote its true purpose and spirit.The application of order 30 Rule 3[1] of the Abia State High Court Rules is predicated on specific admission in the pleadings or otherwise by a party of the sum claimed against him, as in this case; and the party in whose favour the admission is made applying for judgment in the sum admitted. see NATIONAL BANK OF NIG LTD v. GUTARIRE [supra] which interpreted order 28 Rule 6 of Lagos State High court [Civil Procedure] Rules 1972 in pari materia with Order 30 Rule 3[1] of Abia State High Court [Civil Procedure Rules, 2001.
ANASON FARMS LTD v. NAL MERCHANT BANK [supra] is almost on all fours with the instant case. The appellant was sued for recovery of bank facilities extended to it with interest thereon. Upon written demand notice by the respondent, who were the plaintiffs, the appellant by letter dated 21st May, 1988 acknowledged that it was indebted to the respondent to only a part of the sum in respect of which the demand notice was issued. The respondent in limine applied for judgment in respect of the sum admitted under Order 28 Rule 6 of Lagos state High court [civil procedure] Rules, 1972, and judgment was entered as prayed. Affirming the judgment on appeal Tobi JCA [as he then was] stated at page 251 G –
“So much discretionary power is involved in the rule, a power which, like most others, has to be exercised judicially and judiciously. By the rule, the application for judgment could be made in limine. The application can be made at any stage of the proceedings.”
I agree entirely. In the instant case the admission in paragraphs 21 and 28 of the affidavit supporting the notice of Intention to defend are emphatic and unequivocal. The conduct of both counsel at the hearing [page 23 of the record] suggests that N1, 400,000.00 out of the sum claimed was not in dispute. On application of respondent’s counsel judgment for the said sum was entered for the respondent, which in my view accords with order 30 Rule 3[1] of Abia State High court [Civil Procedure] Rules, 2001.
A.I.B. LTD v. PACKOPLAST [NIG] LTD [supra] is also a case of a claim of liquidated sum under the undefended list procedure, wherein the defendant admitted owing part of. This court [Salami JCA] held at page 526 – 527:
“There should be no difficulty in the court entering judgment for the sum admitted leaving the balance to be tried on the general cause list on the oral or written application of the learned counsel for the plaintiff. See PAS [NIGERIA] LTD V. NEW NIGERIA SALT COMPANY LTMTTED [1990] 6 NWLR [PT.159] 764, 772; MOSHESHE GENERAL MERCHANT LTD V. NIGERIAN STEEL PRODUCTS LIMITED [1987] 1 NWLR [pt.55] 110, 120.
Where, in an undefended list procedure, the defendant admits part of the sum claimed the court, upon application of the plaintiff’s counsel, is empowered to enter judgment for the plaintiff in the sum admitted and transfer to the general cause list the other aspect of the claim in dispute. Agreeing with the respondent’s counsel, I hold that each case must be considered on its own merit considering its peculiar case.
I have read CHRISDON NIG. CO. LTD. v. AIB LTD [supra] cited by appellant’s counsel as authority for the submission that the procedure adopted by the trial judge was alien to the Rules of Abia State High Court. I do not hesitate to dismiss the contention. The case is irrelevant and inapplicable to the instant case. The respondent, as plaintiff, in their claim on the undefended list did not approximate the sum they claimed. The liquidated sum claimed was quite specific, just like the sum admitted by the defendants.
I agree there was a counter-claim against the respondent, the plaintiff, brought by the appellants, as defendants. The counter-claim is only in respect of the interests claimed by the respondent. The sum admitted by the appellants was the balance of the principal sum.
The dispute over interest is only about whether it was waived or not by the respondent. The interest claimed on the principal sum and the outstanding principal sum are quite different and distinct issues. I therefore do not think that FRANCIS NYIAM BISONG v. OKOKON EKPEYONG [supra] applies wholesale here, in so far as the ratio decidendi is that where a court finds that there is a set off or counter-claim in an action under the undefended list procedure, the action should be removed from the undefended list and placed on the ordinary cause list. In this case, only the interest is in dispute; and that is the basis of the counter-claim, which the trial judge rightly transferred to the general cause list. There is neither counter-claim nor a set off raised against the principal sum admitted.
In view of the foregoing I do not hesitate to resolve all the-issues against the appellants. The appeal is hereby dismissed in its entirety as it lacks merits. The decision and orders of the trial court appealed are hereby affirmed. Costs assessed at N30, 000.00 are hereby awarded to the respondent against the appellants.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have read before now the judgment of my learned brother, Eko, JCA just delivered. I agree with his reasoning and conclusion that there is no merit in this appeal and it ought to be dismissed.
The aim of the Undefended List procedure as provided for in Order 23 of the Abia State High court (Civil Procedure) Rules 2001 is to facilitate the speedy despatch of certain types of cases involving debts or liquidated money demands where there is no genuine defence on the merits to the plaintiffs claim. See: U.B.A v. Jargaba (2007) 11 NWLR (1045) 247 AT 272 E- H: Agwuneme v. Eze (1990) 3 NWLR (137) 242; NWLR (137) 242: I.B.W.A. Ltd v. Unakalamba (1998) 9 NWLR (565) 245; Co- Operative and Commerce International Bank (Nig) Plc v. Samuel Inv. Co. Ltd. (2000) 4 NWLR (651) 19
The procedure is designed to relieve the courts of the rigour of pleadings and the burden of hearing of tedious evidence on same defences mounted by defendants who have no defence and just want to dribble and cheat the plaintiff out of reliefs he would normally be entitled to. See: U.B.A. v. Jargaba (supra); Planwell Watershed Ltd. v. Ogala (2003) 18 NWLR (852) 478.
In the instant case the respondent as plaintiff claimed against the appellant who was the defendant in the lower court, the sum of N4, 369,026.24 being the unsettled balance of overdraft facilities extended to the Defendant by the plaintiff.
The appellant filed a notice of intention to defend with an affidavit annexed thereto. It also filed a counter claim. In paragraphs 21 and 28 of its affidavit, the appellant averred thus:
21. “That we are indebted to the plaintiff to the remaining balance of Nl.4m (One Million Four Hundred Thousand Naira) and no more.
28. That we contend that the plaintiff is entitled only to the sum of Nl.4m and no more.” (See pages 15 & 16 of the record)
On the basis of this clear and unequivocal admission the learned trial Judge entered judgment for the respondent in the sum of N1.4 million and transferred the balance of the claim including the claim for interest to the general cause list for trial on the merits.
Although conceding that the appellant admitted part of the sum claimed learned counsel for the appellant argued before us that since the balance was contested and a counter claim filed, the entire claim ought to have been transferred to the general cause list.
The courts are enjoined at all times to do substantial justice and eschew technicalities in deciding matters before them. The fact that the appellant categorically admitted owing a specified sum out of the amount claimed showed that as far as the admitted part of the claim was concerned there was no dispute to be transferred to the general cause list.
Section 75 of the Evidence Act provides that facts admitted require no further proof.
By virtue of the provisions of order 30 Rule (3) of the High court Abia State (civil Procedure) Rules the learned trial Judge was entitled to enter judgment in favour of the plaintiff/respondent based on the admission in the affidavit filed along with the notice of intention to defend.
To have transferred the entire claim to the general cause list would have been to encourage the very mischief the Undefended List procedure set out to cure: the defendant would have been able to dribble the plaintiff and deprive it of the sum already admitted as due and owing to it.
The courts will not lend themselves to such tactics.
For these and the fuller reasons contained in the lead judgment. I also dismiss this appeal as lacking in merit. I hereby affirm the judgment of the trial High court delivered on 20th November 2002.
Costs of N30. 000.00 are awarded in favour of the respondent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: A. This is an appeal against the judgment of the Abia state High court holden at Abia Judicial Division delivered on 20/11/2002 by Hon. Justice Ijeoma Offonry J; in suit NO A/219/2002.
The facts and circumstances surrounding this case are to the effect that on 27/3/2002, a writ of summons was filed in the court below by the Respondent seeking against both Appellants, jointly and severally the following reliefs:
N4, 369,026.24 (four Million, three hundred and sixty nine thousand, twenty six Naira, twenty four Kobo) being unsettled balance of overdraft facilities accorded to the Defendants by the plaintiff at the formers request vide application letter for overdraft facilities dated 30:5:96 together with accrued interest charged at agreed/prevailing rate.
Interest charged at agree/prevailing rate of 28% per annum from January 1, 2002 or at such other rate prescribed by CBN guide lines until judgment is delivered.
Interest at the rate of 10% per annum from the date of judgment until full liquidation.
On 19/8/2002, a notice to defend the said suit was filed in the lower court by the Appellants’ counsel, Gordy Uche Esq. the Appellants’ counsel equally filed in the said court a counter claim to the suit seeking the following reliefs.
A Declaration of this Honourable Court that the continued calculation of interest on the principle sum on current Account No. 0061001433015 owed by the Defendant, constituted a breach and frustration of the Debt Repayment Agreement entered by the parties on the 4th day of September 2000.
2. The sum of N2m (Two Million Naira) being General and special damages for the breach and frustration of the said Debt Repayment Agreement entered on 4th September 2000.
It is indeed evident from the lower court’s record, that on 20/11/2002, when the suit came up for hearing, the two learned counsel “for the Respondent (plaintiff) and Appellants (Defendants), in the persons of G.U. Eke and Gordy Uche, were both in court. Most particularly, the Appellant’s as well as the Respondent’s learned counsels were recorded as having submitted thus:
Gordy Uche says they filed their notice intention to defend. He says they also filed a counter claim. Barrister Gordy Uche refers court to paragraphs 21 and 28 of their affidavit in support of their notice of intention to defend for only 1.4 million (One Million, four hundred thousand Naira only). Barrister Egbedi applied for judgment for the amount admitted by the Defendants.
Thus, not surprisingly the learned judge, with out much ado, proceeded to pronounce judgment as follows:
JUDGMENT:
Having considered the writ of summons, the affidavit in support and exhibit annexed thereto (sic). Having also considered paragraphs 24 and 26 of the affidavit in support of defendants Notice of Intention to defend (sic). Court gives judgment to plaintiff against defendants in the sum of 1.4 Million Naira (One Million Four Hundred Thousand Naira) only since what is admitted needs no further proof. Defendants are therefore to pay that amount to plaintiff.
With regard to the rest of the plaintiffs claim, suit is transferred to the general cause list and parties are to exchange pleadings.
The Appellants were not satisfied with the above judgment of the lower court. They accordingly filed the present appeal, which has been predicated on a total of three grounds of appeal with their particulars.
It’s rather instructive, that the parties had filed and served their respective briefs of argument. The Appellants’ brief, in particular, was filed on 28/6/2006. On the other hand the Respondent brief was filed on 01/3/2007, but deemed properly filed and served on 07/3/2007. The Appellants have raised two distinct issues for determination in the said brief as follows:
A. ISSUES NO. 1 (Arising from Grounds 1 & 3)
Whether the lower court was right in entering part-judgment, in favour of the Respondent and transferring the rest of the claims in the same suit to the general cause list.
Whether the lower court was right in entering summary part judgment for the Respondent despite the counter claim filed by the Appellants.
On his part, the Respondent’s learned counsel, O.C. Odionye Esq; has raised only one issue in the brief thereto for determination, viz:
Whether from the circumstances of this case the Honourable trial judge at the court below was right in Entering judgment for the Respondent, based on the unequivocal admitted sum by the Appellants on their indebtedness to the Respondent and thereafter transferring the matter to the general cause list.
I have accorded an ample consideration upon the submissions of the learned counsel in their respective briefs vis-a-vis the record of proceeding of the court below as a whole. The submissions of the respective learned counsel have been copiously alluded to in the lead judgment. I do not need to recount them.
ON ISSUE NO 1:
The first issue of the Appellants raises the vexed question of whether or not the lower court was right in entering, as it did part judgment in favour of the Respondent and thereby transferring the remaining unadmitted claim to the general cause list. Contrary to the erroneous contention of the Appellants learned counsel, there is nothing novel or wrong with the procedure adopted by the learned trial judge in entering judgment for the sum of 1.4 Million Naira expressly admitted by the Appellants in both paragraphs 21 and 28 of the affidavit in support of the Notice of Intention to Defend the suit, which are to the following effect:
21. That we are indebted to the plaintiff to the remaining balance of 1.4 M (One Million Four Hundred Thousand Naira) and no more.
28. That we contend that the plaintiff is entitled only to the sum of N1.4 M and no more.
It is a trite fundamental law, that whenever an application is made to a court for the issue of a writ of summons regarding a claim to recover a debt, liquidated money demand etc, and the application is duly supported by an affidavit setting forth the grounds upon which the claim is predicated, and the fact that in the deponents belief there is no defence thereto, the court shall, (if satisfied that there are good grounds for it to believe that there are no defence thereto) enter the suit for hearing in what is known the “undefended List,” name the writ accordingly and enter therein a date for hearing. See Order 23 Rule 1 Abia State High Court (Civil Procedure) Rules, 2001.
Under the Undefended List procedure and practice, reliefs being claimed by a plaintiff in a suit usually wholly tried and judgment summarily entered thereupon, or transferred to the general cause list for the plaintiff to prove his claim. However, as an exception to the general rule, where a defendant admits to a part of the plaintiff’s claim, as in the instant case, the trial court has an unfetted discretion to enter judgment regarding the sum or amount so admitted, thereby transferring the rest of the disputed claim to the general cause for trial. This proposition is predicated on the well settled fundamental principle that no fact need be proved in any civil proceedings which a party or parties thereto or the agents thereof agree to admit at the hearing, or which prior to the hearing, they agree to admit in writing, or which by any rule or pleadings thereof. See section 75 of the Evidence Act to the following effect:
75. No fact need be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
See also NEPA V. EL-FANDI (1986) 3 NWLR (part 32) 884; NWADIKE V. NWADIKE (1987) 4 NWLR (Part 65) 394; OBIKOYA V. WEMA BANK LTD (1989) 1 NWLR (Part 96) 157; UNION BANK (NIG) LTD V. AJAGU (1990) 1 NWLR (Part 126) 328; AFRICAN INTERNATIONAL BANK LTD V. PACKOPLAST NIG. LTD (2003) 1 NWLR (Part 802) 502 at 526 – 527.
Thus, I have no doubt in my mind that the answer to the Appellants’ issue No. 1 is most inevitably in the affirmative. And I also hold.
ON ISSUE NO. 2:
The second issue, as it were, raised the question of whether the court below was right in entering the summary judgment for the Respondent, despite the Appellants’ counter-claim. I think, having already answered issue No.1 above in the affirmative, it goes without saying, that the answer to issue No. 2 must undoubtedly be also in the affirmative, for some reasons.
In the instant case, as referred to above, the learned trial judge, after entering the judgment regarding the N1.4M so far admitted by the Appellants, ordered thus:
“With regard to the rest of the plaintiff’s claim is transferred to the general cause list and parties are to exchange pleadings.”
The Appellants’ learned counsel has cited and relied upon the decision of this court in the case of BISONG V. EKPENYONG (2003) 5 NWLR (Part 812) 156 at 158, in support of his contention that the court below ought t have transferred the entire claim to the general cause list, in view of the Appellants’ counter claim. It is not doubt, that it’s a trite principle that where there is set-off or counter claim to an action or suit under an undefended list procedure, the action or suit ought to ordinarily be transferred to the general cause list for hearing thereof, with or without pleadings. See BISONG V. EKPENYONG (2003) 5 NWLR (Part 812) 156 at 158.
However, as pointed out above, it’s not in all cases that a suit should be transferred to the general cause list merely on the basis of a set-off or counter claim. The trial judge has discretion to consider whether or not the entire suit ought to be transferred to the general cause list. This is definitely so, because every action or application must be considered on the basis of its own merit, and nay, the nature and circumstances surrounding same. See WEMA BANK PLC V. BALOGUN & ANOR (1999)7 NWLR (Part 610) 242.
The Appellants had by the said counter claim sought-
1. A Declaration of his Honourable court that the continued calculations of interest on the principle sum on current Account NO. 0061001433015 owed by the Defendants, constituted a breach and frustration of the Debt Repayment agreement entered by the parties on the 4th day of September, 2000.
2. The sum of N2M (Two Million Naira) being General and special damages for the breach and frustration of the said Debt Repayment Agreement entered on 4th September, 2000.
The above two reliefs of the Appellants’ counter claim certainly speak for themselves. The reliefs are in a way a protest against the alleged arbitrary mode of charging or calculating interest rate by the Respondent which has
“…constituted a breach and frustration of the Debt Repayment entered by the parties on the 4th day of September, 2000.”
Thus, in view of the above highlight, there is every reason to believe that the Appellants’ grouse vis-a-vis the counter claim thereof has more to do with the excruciatingly escalating high interests arbitrary being charged or levied against them by the Respondent, than the actual principle sum itself. I have no difficulty whatsoever in appreciating the fact that the learned trial judge had an unfetted discretion to enter judgment, as he did, for the sum admitted by the Appellant i.e. the sum of N1.4M (One Million Four Hundred Thousand Naira), thereby transferring the outstanding balance of the claim in dispute to the general cause list for hearing, with or without pleadings.
It’s indeed a well settled principle, that any party to an action or suit has the liberty to give notice vide the pleading thereof, or otherwise, in writing admitting the truth of either the whole or part of the claim made against him by the other party. See order 30 Rule 1 of the Abia State High Court (Civil Procedure) Rules 2001 (supra). The law is also trite, that where in pleadings or otherwise, an admission of fact is made, any party to the action may apply to the court for such judgment or an order to be entered or made thereupon without necessarily waiting for the determination of the remaining issue(s) between the parties.
The court, in the circumstances, has the power to give such judgment, or make such order as it deems expedient. See order 30 Rule 3(1) of the Rules in question.
It is rather axiomatic, that a counter claim, which is a claim by a defendant in opposition to, or deduction from, the plaintiffs claim, is quite distinct, separate, independent from, and absolutely exclusive to, the action or suit wherein it’s raised. See AIR VIA LTD V. ORIENTAL AIRLINES LTD (2004) 9 NWLR (part 878) 298; ODUWOLE V. L.S.D.P. (2004) 9 NWLR (part 878) 382; NBN LTD V. A.I. ENG. CO. LTD (2006) 16 NWLR 210 at 223
Thus, in view of the above highlight, there is no doubt that the answer to the second issue is undoubtedly in the affirmative, and same is resolved in favour of the Respondent.
In the present case, there is every reason to appreciate, albeit pityingly, that the Appellants have unfortunately found themselves on the horns of a dilemma. Not surprisingly, they have become so desperate trying to extricate themselves, albeit unsuccessfully, from the shackles of the exploitative and rather insensitive, free capital market. Undoubtedly, the Appellants, in the present circumstances, serve as a typical example of shake-spear’s lyric poetry in THE MERCHANT OF VENICE; a true personification of the unfortunate and gullible ANTONIO. Contrariwise, the Respondent aptly personifies the insensitive, exploitative and capricious SHYLOCK the Jew. The court, of course, aptly personifies the wise and just PORTIA. Undoubtedly like the dispassionate virtuous and eloquent PORTIA, this court has imposed upon itself the onerous and fundamental duty to dispense justice to the parties, without fear or favour, affection or ill-will. And as judges, we are under the paramount duty to guard against temptations and sentimental disposition; against having our vision warped and clouded by the dust of conflict. See YUILL V. YUILL (1945) 1 ALL ER 183; 61 TLR 176 per LORD GREENE. As aptly and rather philosophically remarked by LORD DENNING, MR (of blessed memory), that erudite and humorous jurist of all times –
Yes, he (judge) must keep his vision undoubted. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth and the less dust there is about the better. Let the advocates one after the other put the weights into the scales – the “nicely calculated less or more” but the judge at the end decides which way the balance tilts, be it ever so slightly. See The Due Process of Law Butter Worths 1980 at 60.
Thus, as judges we are indeed ‘Portia-men’, courtesy Lord Denning, MR.
However, most unfortunately for the Appellants, their appeal is not meritorious at all. What is more, the procedure adopted by the Appellants in directly filing the instant appeal is, in my considered view, wrong in law. It is my considered view that the most appropriate thing they ought to have done was to apply to the court below to set aside the judgment in question for irregularity. This is so because, it’s trite that where a judgment is obtained under the undefended list the party against whom it was so given may apply to that court to set it aside on ground of irregularity. However, the defendant applying for the setting aside of the judgment given under the undefended list procedure must specify in the motion the nature of the irregularity, and in the affidavit in support the circumstance under which the irregularity arose, as well as disclose the nature of the defence thereof. See BEN THOMAS HOTELS LTD V. SEBI FURNITURE LTD (1999) 5 NWLR 523.
Unfortunately, for the Appellants, they have not seemed to have duly complied with the rules. And as aptly and most authoritatively stated by the Supreme Court-
The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the plaintiff to comply strictly with those Rules injustice is being avoided to a defendant whose freedom to defend the case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the Rules are followed strictly: and if those Rules are complied with the defendant need suffer no prejudice if he himself and on his part complied with the Rules. See OLUBUSOLA STORES V. STANDARD BANK (1975)1 ALL NLR (part 1) 125 at 130 per Coker, JSC.
Thus, in the instant case, the Appellants ought to have liberally allowed the due process of law to take its full and natural course, by proceeding with the trial of the outstanding claims in the suit (including the vexed issue of interest raised in their counter claim) to its logical conclusion. Most indisputably, they are the architects of their own misfortune.
Hence, in the light of the aforementioned postulations, I have no hesitation whatsoever in concurring with the reasoning and conclusion impressively reached in the lead judgment, prepared and just delivered by my learned brother, EIEMBI EKO,JCA, to the effect that this appeal is grossly unmeritorious.
Consequently, the appeal is hereby dismissed by me. The judgment of the court below and the consequential orders therein, dated 20/11/2002; are hereby affirmed. I also abide by the costs of N30, 000.00 awarded in favour of the Respondent against-the Appellants.
Appearances
Okey Onuigbo holding brief of Gordy UcheFor Appellant
AND
A.O. Aboh holding brief of O.C. OdionyeFor Respondent
