DEUTCHES HAUS (NIG) LTD & ANOR v. UNION HOMES SAVINGS AND LOANS PLC (2020)

DEUTCHES HAUS (NIG) LTD & ANOR v. UNION HOMES SAVINGS AND LOANS PLC

(2020)LCN/14483(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/266/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. DEUTCHES HAUS NIGERIA LIMITED 2. CHIEF (ENGR) EYO NDEM EYOJIA APPELANT(S)

And

UNION HOMES SAVINGS AND LOANS PLC RESPONDENT(S)

RATIO

THE ESSENCE OF A REPLY BRIEF

Where as in this case, a reply brief is designed to answer or respond to each and every point raised in the respondent’s brief, such is rendered unnecessary and of no good effect. See ALHAJI ATIKU ABUBAKAR V ALHAJI UMARU YAR’ADUA & ORS (2008)12 SC (prt 11) and TAIYE OSHOBOJA V ALHAJI SURAKATU AMIDA & 2 ORS (2009)12 SC (prt 11) 109. PER SHUAIBU, J.C.A.

THE PURPOSE OF THE UNDEFENDED LIST PROCEDURE

The provision of Order 10 Rule of the Cross River State High Court (Civil procedure) Rules provides–
“Whenever application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereat enter the suit for hearing in what shall be called the “undefended list” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case”.
The purpose of the undefended list procedure is for obtaining summary judgment without proceeding to trial requiring calling for witnesses. The procedure is therefore for disposing with dispatch cases which are uncontested. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. See CO-OPERATIVE & COMMERCE BANK (NIG) PLC V. SAMED INVESTMENT COMPANY LTD (2000) 4 NWLR (prt 651)19. PER SHUAIBU, J.C.A.

DEFINITION OF A “LIQUIDATED DEMAND”

A liquidated demand is a debt or other specific sum of money usually payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any further investigation. Therefore, when the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidated or made clear. See NIPOST V I. E. CO. LTD (2006)8 NWLR (prt 983) 435. The respondent in this case has emphatically stated the nature of her claim in paragraph 3 (a) to (s) of the affidavit in support of the motion exparte before the lower Court. In paragraph 3 (n) of the said affidavit, the respondent as claimant averred as follows:-
“(n) That the outstanding loan in the 1st defendant’s account with the claimant was N275,824,851.51 as at 30th August, 2016 and is well over N327,000,000.00 (Three Hundred and Twenty Seven Million Naira) as at the time of this action”. PER SHUAIBU, J.C.A.

WHETHER OR NOT EVALUATION OF EVIDENCE IS THE PRIMARY RESPONSIBILITY OF THE TRIAL COURT

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Honourable Chief Judge Michael Edem of the High Court of Cross River State delivered on the 26th day of March, 2018.

The respondent as claimant at the lower Court took out a writ of summons against the appellants as defendants thereat claiming jointly and severally:
1. The sum of N128,000,000.00 (One Hundred and Twenty Eight Million Naira only) being the total amount of concession granted to the defendants upon their application for interest waiver on the outstanding balance of the loan and overdraft facilities granted to the 1st defendant which facilities were granted by the 2nd defendant and which sum the defendants agreed to pay within 180 days to which they have refused, failed and/or neglected to pay despite repeated demands and entreaties.
2. An order for the sale of the 2nd defendant’s property lying and situate at plot 6, Government Residential Layout, Abasi- Obori, Calabar covered by the certificate of occupancy No. CA/130/2005 and registered as No. 19 at page 19 in volume 97 at the Lands Registry, Calabar

which was used as a security to the facilities granted to the defendants by the claimant with the creation of a legal mortgage in favour of the claimant by the defendants which facilities have remained unpaid till date.
3. 21% interest on the above sum from the 1st day of December, 2016 till judgment is delivered and 10% from the date of judgment until the judgment is liquidated.

By motion exparte filed on the 2nd March, 2018 the claimant/respondent pursuant to Orders 10 (Rules 1 & 2) and 21 (Rules 1 & 2) of the Cross River State High Court (Civil Procedure) Rules 2008 and Inherent jurisdiction of the Court prayed the lower Court that the writ of summons in the case be issued against the defendants and entered for hearing under the undefended list.

In support of the claimant/respondent’s application is a 7 paragraphs affidavit sworn to by Ada Tase Esq. of counsel to which exhibits A, B, C, D, E, F, G, H, I and J photocopies of offer and acceptance for the restructuring loan, Legal Mortgage memorandum of understandings and letters of demands etc., were attached.

The lower Court granted the said exparte application on the 5th of

March, 2018 and fixed the 26th March 2018 as a return day. Upon service of processes on the defendants/appellants, they filed a notice of intention to defend on the 22nd March, 2018. The notice of intention to defend was also supported by a 24 paragraphs affidavit with attached Exhibit, A, photocopy of Forensic Audit Report of the 1st defendant/ appellant’s statement of account prepared by a chartered accountant, Olademiji Adebayo.

After hearing the defendants/appellants’ notice of intention to defend and in a considered ruling delivered on 26h March, 2018, learned trial Chief Judge held at page 115 of the record of appeal as follows:-
“What the defendants have offered which I had analyzed is a far cry from that judicial idealism. The defendants cannot admit on one side of the mouth but deny on the other side. No thanks to double speak and approbating and reprobating in judicial deliberations. The defendants have no defence on the merit. I find and comfortably hold.”

Dissatisfied by the decision, the defendants at the lower Court appealed to this Court through a notice of appeal filed on 27th March, 2018. The said notice

of appeal at pages 116 – 119 of the record of appeal contains four (4) grounds of appeal.

At the hearing of this appeal on 15th June, 2020, the appellants’ counsel E. Monjok Agom, Esq. adopted and relied on the appellants’ brief of argument filed on 30th July, 2018 and appellants’ reply brief filed on 11th June, 2020. Jerry Akpan, Esq., adopted and relied on the respondent’s brief of argument filed on 20th September 2018.

The appellants’ brief of argument settled by Obiageli Nwachukwu, Esq., raised the following two issues for the determination of this appellant. These are:-
1. Whether the Honourable Trial Chief Judge at the Court below was right in assuming jurisdiction under the undefended list procedure on the 2nd day of March, 2018 (the day respondent filed the writ of summons) when by the agreement of the parties the tenor of the facility is to elapse on the 15th day of March, 2019? (Distilled from grounds 1 and 2).
2. Whether the appellants had fair hearing and the lower Court right, in law, in entering judgment for the respondent in an undefended list procedure in view of the several disputed facts

and triable issues raised in the appellants’ processes and documents? (Distilled from grounds 3 and 4).

On behalf of the respondent, three issues are raised for the determination of this appeal thus:-
1. Whether upon the application of the respondent, the trial Court was right to make an order placing the respondent’s case under the undefended list.
2. Whether there was a valid or competent affidavit in support of the appellants’ notice of intention to defend the respondent’s action at the trial Court.
3. Whether the materials (affidavits evidence and exhibits) placed before the trial Court by the appellants in support of their notice of intention to defend the respondent’s action at the trial Court were sufficient to ground a defence on the merit as required by law.

On 22nd January, 2019, the respondent filed a notice of intention to contend that judgment of the lower Court be affirmed on grounds other than those relied on by the lower Court. The said notice is predicated on the following grounds:-
i. The appellants’ affidavit in support of their notice of intention to defend the

respondent’s action before the trial Court did not comply with the mandatory provision of Section 115 of the Evidence Act, No.8, 2011.
ii. Although the deponent of the appellant’s affidavit in support of their notice of intention to defend the action is a third party, Mr. Moses Archibong, the source of his informant was not disclosed, neither did he disclose the name and address of his informant nor the date, time and place he received the information.
iii. The deponent of the said affidavit did not state the grounds for his belief in the said information thus making the information so received unreliable and hearsay evidence.
iv. There was nothing in the said affidavit to indicate or suggest that the deponent had personal knowledge of the facts deposed to by him and since the facts were not of his own personal knowledge, total compliance with the provision of Section 115 of the Evidence (supra) became very mandatory.
v. Failure to comply with the provision of the Evidence Act (supra) renders the entire affidavit in support of the appellants’ notice of intention to defend the respondent’s action at the trial Court

incompetent or invalid.

Proffering argument on the first issue, learned counsel for the appellants submits that to determine whether a case should be heard under the undefended list procedure, the following must co-exist:
1. The claimant must satisfy the trial Court on the face of the claim that there is no defence to the action which must be for recovery of debt or liquidated money demand.
2. The claimant’s claim(s) must be such that is not contradicted by the defendant’s notice of intention to defend.

He contend that the respondent’s claim being for total amount of concession and an order for the sale of 2nd respondent’s property as well as post and pre-judgment interest are not subject to an undefended list procedure. He further contend that a condition precedent to the liability of the mortgagor to the amount owed by the principal debtor is that the amount owed is demanded from the mortgagor and there has been a failure to pay before the mortgagor can be made liable. He thus submits that a mixed claim is incompetent to be treated as undefended list and that undefended list is for simple and straight forward and

uncomplicated claims. He referred to OCEANIC BANK INT’L PLC V C.S.S. LTD (2012) 9 NWLR (pt 1305) 397, EKERETE V UBA (2005) 9 NWLR (prt 930) 401 at 414 and ONADEKO V UNION BANK OF NIGERIA PLC (2006) ALL FWLR (prt 301) 1872.

It was also contended that when a case placed under the undefended list comes to Court on the return date, the Court has only one duty that is, to determine whether the notice of intention to defend and the affidavit discloses a defence on the merit. Learned counsel submits that it is not part of the Court’s function to strike out portion of the writ unsuited for that procedure as doing so amount to granting of an amendment not sought. He referred to MULTIBRAS S/A V. P.Z. CO. PLC (2006) 13 NWLR (prt 997) 420 and AKAPO V HAKEEM HABEEB (1992) 6 NWLR (prt 247) 266.

In further argument, learned counsel submits that it was wrong for the learned trial Chief Judge to pronounced respondent’s relief No.2 as dead because a judgment creditor has the discretion to decide, where there are multiple judgment debtors on which of them to proceed against.

He referred to Section 44 of the Sheriff and Civil Process Act, MUCAS HOSPITAL LTD V. FASUYI (2004)8 NWLR (prt 874) 67 and NIGERIA ADVERTISING LTD V. UBA (1999) 8 NWLR (prt 616) 546 in contending that the mortgagor’s power to sell can only arise where there is a failure to pay the mortgage debt at the time for payment and that the loan of the 1st appellant was repayable at the expiration of the 15th June, 2019 and hence not due for repayment.

On the appellants’ second issue, learned counsel referred to Order 10 Rule 3 (1) of the Cross River State High Court (Civil Procedure) Rules to contend that under the undefended list procedure, the defendant need not file a preliminary objection to an undefended list and that the trial Chief Judge was wrong to have held that the defendant completely abandoned the objection. He also referred to paragraphs 18, 19, 20, 21 and 22 of the affidavit in support of the notice of intention to defend to contend that the appellant’s have disclosed a defence on the merit but the lower Court degrades their case and failed to consider the expert report by the chartered accountant.

Assuming but not conceding the fact that the application for waiver was an admission, against interest, learned counsel submits that such informal admission will depend on the circumstances under which it was made. And the party that made the admission ought to be allowed to give evidence of such circumstances. He referred to SPASCO VEHICLE AND PLANT HIRE CO. LTD V. ALRAINE (NIGERIA) LIMITED (1995) 8 NWLR (prt 146) 655.

On the respondent’s first issue, learned counsel submits that with the memorandum of understanding freely entered by the parties and following the approval of the 1st appellant’s application for interest waiver, the lower Court was bound to give effect to agreement or contract freely entered by the parties. He referred to F.G.N. V INTERSTELLA COMMUNICATIONS LTD (2015)9 NWLR (prt 1463)1 at 44, IFETA V. S.P.D.C (NIG) LTD (2006) 8 NWLR (983) 585 and AFROTEC TECH SERVICES (NIG) LTD V. MIA & SONS LTD (2000)15 NWLR (prt 692) 730 at 784 to the effect that undefended list procedure is meant to prevent sham defences from the defendant by defeating the right of parties or by

delay and thereby causing great loss to the plaintiff who is endeavouring to enforce his right.

Respecting the second issue, learned counsel for the respondent contend that the affidavit in support of the appellants’ notice of intention to defend was deposed to by a third party without disclosing the source of his information as well as the circumstances under which the information was provided together with detailed particulars. He submits that since the affidavit in support of the appellants’ notice of intention to defend did not comply with the mandatory provision of Section 115 of the Evidence Act, it cannot be said that there was valid or competent affidavit in support of the appellants’ notice of intention to defend. The facts contained therein are hearsay which has no evidential value in law. He referred to ABIODUN V. C. J. KWARA STATE (2007) 18 NWLR (prt 1065) 109 at 144 – 145 and JOSIEN HOLDINGS LTD V. LORNAMEAD LTD (1995)1 NWLR (prt 371) 254 at 265.

Finally, on the third issue, learned counsel reiterated his earlier argument that all the facts contained in the appellants’ supporting

affidavit were sham defences aimed at causing undue delay in the respondent’s efforts to recover her money and defeating the respondent’s right to her money. He submits that where the defendant’s affidavit does not contain sufficient facts and particulars capable of constituting a defence on the merit, leave to defend the action would be refused and the trial Court would proceed to enter judgment for the plaintiff.

I have carefully examined the argument of learned counsel in support of the above formulations. The two issues formulated by the appellants are apt and I shall therefore determine this appeal based on the two issues formulated by the appellants.

I have also examined the appellants’ reply brief which is nothing but a repetition and re-argument of issues already contained in their main brief. A reply brief shall only deal with all new points arising from the respondent’s brief. See Order 18 Rules 5 of the Court of Appeal Rules 2016. Where as in this case, a reply brief is designed to answer or respond to each and every point raised in the respondent’s brief, such is rendered unnecessary and of no good

effect. See ALHAJI ATIKU ABUBAKAR V ALHAJI UMARU YAR’ADUA & ORS (2008)12 SC (prt 11) and TAIYE OSHOBOJA V ALHAJI SURAKATU AMIDA & 2 ORS (2009)12 SC (prt 11) 109. I accordingly discountenanced the appellants’ reply brief for been a mere repetition of the argument contained in the appellants’ main brief.

Before proceeding to determine the appeal, it is pertinent to state the facts of the case giving rise to this appeal which briefly states thus:-

That arising from the 1st appellant’s application for restructuring her existing mortgage loan and fresh mortgage loan, the respondent vide a letter dated 16th June, 2009 exhibit “A” conveyed an offer for the restructuring of the existing loan and a fresh loan unto the 1st appellant which was to expire on 10th June, 2010. The 2nd appellant, by a legal mortgage exhibit “B” secured the earlier loan which was later restructured by the 1st appellant and accepted through a letter of 24th June, 2009 Exhibit “C”. The 1st appellant has by a letter of 12th May, 2016, exhibit D, requested the respondent for an interest

waiver which the respondent approved in a letter dated 6th June, 2016, exhibit “E” which resulted into executing a memorandum of understanding, exhibit “F”. It was when there was failure to discharge the obligation in the said memorandum of understanding that the respondent caused letters of demand, Exhibit “G” and “H” and thereafter commenced an action at the lower Court.

The appellants’ grievance on the first issue is that none of the respondent’s claim before the lower Court relates to an undefended list procedure. The said reliefs according to the learned counsel are mixed claims for “total amount of concession” “an order for the sale” of 2nd appellant’s property as well as post and pre-judgment interest.

is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereat enter the suit for hearing in what shall be called the “undefended list” and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case”.
The purpose of the undefended list procedure is for obtaining summary judgment without proceeding to trial requiring calling for witnesses. The procedure is therefore for disposing with dispatch cases which are uncontested. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. See CO-OPERATIVE & COMMERCE BANK (NIG) PLC V. SAMED INVESTMENT COMPANY LTD (2000) 4 NWLR (prt 651)19.

by any scale of charges or other positive data, it is said to be liquidated or made clear. See NIPOST V I. E. CO. LTD (2006)8 NWLR (prt 983) 435. The respondent in this case has emphatically stated the nature of her claim in paragraph 3 (a) to (s) of the affidavit in support of the motion exparte before the lower Court. In paragraph 3 (n) of the said affidavit, the respondent as claimant averred as follows:-
“(n) That the outstanding loan in the 1st defendant’s account with the claimant was N275,824,851.51 as at 30th August, 2016 and is well over N327,000,000.00 (Three Hundred and Twenty Seven Million Naira) as at the time of this action”.
The appellants’ application for interest waiver dated 12th May, 2016 and the respondent’s response of 16th June, 2016 marked Exhibits D and E also lend credence to the specific nature of the respondent’s claim before the lower Court. There was the claim for post-judgment interest which the appellants argued cannot be accommodated under the undefended list. From its very nature and the authority of its payment, same can be classified as a debt or liquidated money

demand. See NIPOST V. INSIGHT ENGINEERING CO. LTD (2006) LPELR – 8240 (CA). As stated earlier, the respondent also prayed for an order to sale the security for the loan facilities which the learned trial chief judge jettisoned for what he described as not being of the household of Order 10 Rule 1 of the extant rules.

Learned appellants’ counsel has vigorously argued that a condition precedent to the liability of the mortgagor to the amount owed by the principal debtor is that the amount owed is demanded and there has been a failure to pay before the mortgagor can be made liable. In deference to the submission of the learned counsel, the issue in contention before the lower Court was not about execution of judgment against the guarantor but an undefended list procedure in which the only duty of the lower Court on the return date is to determine whether the notice of intention to defend and the accompanying affidavit discloses a defence on the merit. It is premised on the clear distinction between an undefended list procedure and execution of judgment on the guarantor that the learned trial Chief Judge jettisoned the

respondent’s relief No.2 at page 712 of the record of appeal thus:-
“Without much ado relief No. 2 prizes itself out from this species of a suit under the undefended list not being of the household of ORDER 10 Rule 1 High Court Civil Procedure Rules 2008, the power station of the undefended list proceedings in the Cross River State of Nigeria. It be and is hereby jettisoned ab-initio.”

Learned counsel for the appellants has restated the law that any order made in respect of a relief not claimed will infringe the basic and fundamental principle of administration of justice wherein he relied on the authority in the case of AKAPO V. HAKEEM HABEEB (supra). By dispensing with the relief No 2 of the respondent’s claim that is not cognizable under the undefended list procedure, the learned trial chief judge has endorsed the appellants’ contention that the respondent’s claim was of hybrid or mixed nature and ought not have assumed jurisdiction under the undefended list procedure.

The appellants’ contention on the second issue is that in view of the several disputed facts and triable issues

raised in their processes, the lower Court was wrong to have entered judgment for the respondent.

The evaluation of evidence including documentary evidence is the primary responsibility of the trial Court. The appellate Court however has the duty of intervening where the trial Court failed or wrongly evaluated evidence and for that reason arrived at a decision that occasioned miscarriage of justice. See ATOLAGBE V. SHORUN (1985)1 NWLR (prt 2) 360, UKA V IROLO (2002)14 NWLR (prt 786) 195 and OKORO V. OKORO (2018)16 NWLR (prt 1646) 506 at 514. In this case, the evidence which the appellants want this Court to re-evaluate is the affidavit in support of the notice of intention to defend. In paragraphs 6 (a) to (h) of the affidavit in support of notice of intention to defend, the appellants as defendants averred as follows:-
6(a) That by letter dated the 16th day of June, 2009, the claimant restructured and consolidated two loans amounting to N96,100,000.00 (Ninety Six Million, One Hundred Thousand Naira) only, for the 1st defendant/respondent.
(b) That the facility was to be paid over 12 months (10 years

at an amortized rate of N1,986,356.99 (One Million, Nine Hundred and Eighty Six Thousand, Three Hundred and Fifty Six Naira, Ninety Nine Kobo) only, per month.
(c) That the 120 months tenor of the facility as stated in the letter of offer should elapse on the 15th day of June, 2019.
(d) That this position is confirmed in the claimant’s solicitor letter of 24 – 02 – 2017. The said letter is exhibited as “H” in the Affidavit in support of the claimant’s writ of summons.
(e) That the consolidated amount of N96,100,000.00 (Ninety Six Million, One Hundred Thousand Naira) only, was an all inclusive figure as no interest rate was stated on the letter dated 16 – 06 – 2009, conveying the approval of the additional and restructured mortgage facility.
(f) That an amount termed “Pay off Source” in the sum of N32,588,695.15 (Thirty Two Million, Five Hundred and Eighty Eight Thousand, Six Hundred and Ninety Five Naira, Fifteen Kobo) only, was debited into the account before the restructured amount of N75,100,000.00 (Seventy Five Million, One Hundred Thousand Naira) and the fresh loan of

N21,000,000.00 (Twenty One Million Naira) were credited into the account of the 1st defendant on the 19th day of June, 2009.
(g) That the 1st defendant is not indebted to the claimant in the sum of N128,000,000.00 (One Hundred and Twenty Eight Million Naira) or any sum at all.
(h) That the claimant has not granted a concession of N128,000,000.00 (One Hundred and Twenty Eight Million Naira) of and concerning the facility the subject matter of this case to the 1st defendant.

The pertinent question has always been whether the notice of intention to defend and the affidavit in support has disclosed a triable issue. In determining whether the defendant has a good defence to the action brought against him or he has disclosed such facts as may be deemed sufficient to defend the action, it is not necessary for the trial judge to at that stage consider whether the defence has been proved. What is required is simply to look at the facts deposed to in the affidavit in support of the notice of intention to defend and see if they can prima facie afford a defence to the action. The defendant’s affidavit must however condescend upon particulars and

should as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what documents are relied on to support it. Thus, the affidavit in support of the notice of intention to defend must of necessity disclose facts which will, at least, throw some doubts on the plaintiff’s case. See SANUSI BROTHERS (NIG) LTD V COTIA COMMERCIA EX. IMP. S.A. (2000)11 NWLR (prt 679) 566, UBA PLC & ANOR V. ALHAJI BABANGIDA JARGABA (2007)11 NWLR (prt 1045) 247 and OKOYE V. INTERNATIONAL TRUST BANK PLC. (2007) LPELR – 4441. In PAN ATLANTIC SHIPPING & TRANS V. RHEIN MASS GBHN (1997) LPELR – 2899, the Supreme Court held the view that the affidavit in support of the notice of intention to defend the suit should contain enough facts and particulars to satisfy a reasonable tribunal to remove the case from the undefended list. Where the affidavit to defend discloses no defence, the case should not be in the general cause list. Even if a statement of defence is filed, a plaintiff can still apply for summary judgment if the statement

discloses no defence.
The crux of the matter is whether from the affidavit in support of the notice of intention to defend, the appellants have thrown some doubts as to their indebtedness to the respondent. I have reproduced the pertinent averments in paragraph 6 of the said affidavit in support of the notice of intention to defend in which the appellants denied the claim and insisted that the tenor of the facility is 120 months and that loan should elapse on the 15th day of June, 2019. The above assertion clearly throws some doubts on the interest waiver and the respondent’s approval respectively dated 12th May, 2016 and 6th June, 2016. The appellants’ position is also at variance with the memorandum of understanding, Exhibit D attached to the respondent’s affidavit in support of the motion exparte. In other words, the appellants’ affidavit in support of notice of intention to defend discloses a defence on merit and thus the case should be transferred to the general cause list.

In respect of the respondent’s notice, learned counsel argued that the deponent to the affidavit in support of the notice of intention to

defend being a third party ought to have disclose his source of information. The provisions of Section 115 of the Evidence Act deals with contents of affidavit. Subsection (3) and (4) thereof provides that –
“(3) When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant and the time, place and circumstances of the information.”
An affidavit must contain only those facts of which the maker or deponent has personal knowledge of or which are based on information which he believes to be true. In the latter case, he must also state the grounds of his belief and state the name and full particulars of his informant. See JOSIEN HOLDING LTD V. LORNAMEAD LTD (supra). In the instant case, the deponent to the affidavit in support of the notice of intention to defend is the

accountant of the 1st appellant and deposed to the said affidavit based on information given to him by his employers. He neither state the grounds of his belief nor full particulars of his information particularly the time, place and circumstances of the information which contravenes the provisions of Section 115 (3) and (4) of the Evidence Act, 2011. The averments in the said affidavit are therefore liable to be struck out.

In view of my earlier findings that the respondent’s claim before the lower Court are of mixed nature comprising also an order to sale the security for the facilities, the defect in the appellants’ affidavit alone is not a basis for the lower Court to assume jurisdiction over the matter. Thus, the appeal succeeds on either ways and it is hereby allowed. The case is accordingly transferred to the general cause list for trial before another judge other than Honourable Justice Michael Edem.
Parties shall bear their respect costs.

MOJEED ADEKUNLE OWOADE, J.C.A: I agree

HAMMA AKAWU BARKA, J.C.A: I was opportune to have read in draft the judgment of my learned

brother Muhammed L. Shuaibu, JCA.
I agree with the reasoning and conclusion arrived at and endorse all orders made including that as to coats.

Appearances:

A. Nkanu For Appellant(s)

Jerry Akpan Esq. For Respondent(s)