ECHO-SCAN SERVICES LTD. v. DR. ZIKROO A. SHITTU
(2010)LCN/3837(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/K/210/2007
RATIO
PROCEDURE: DUTY OF DEFENDANT FOR AN ACTION UNDER THE UNDEFENDED LIST TO BE TRANSFERRED TO THE GENERAL CAUSE LIST
It is a settled principle of law that for an action filed under the undefended list to be transferred to the general cause list, the defendant must present a defence to the action on the merit. It is not enough for the defendant merely to deny the claim. He must set out the details and particulars of the defence. See ADEGOKE MOTORS LTD. VS. ADESANYA (1989) 3 NWLR (PT. 109) 250; NISHIZAWA LTD. VS. JETHWANI (1984) 12 SC 234; UTC (NIG.) LTD. VS. PAMOTEI (2002) FWLR (PT.129) 1557, (1989) 2 NWLR (PT.103) 244; and JOHN HOLT & CO, (LIVERPOOL) LTD. VS. FAJEMIROKUN (1961) 1 ALL NLR 492. PER BABA ALKALI BA’ABA, J.C.A.
PROCEDURE: DUTY OF A JUDGE WHERE THE APPELLANTS HAVE NO DEFENCE TO THE RESPONDENTS SUIT PLACED UNDER THE UNDEFENDED LIST
It is the law that if the learned trial Judge finds that the appellants have no defence to the respondent’s suit which has been placed under the undefended list under Order 22, rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987, he has no option other than to enter judgment for the respondent for the sum of money that it claimed. PER BABA ALKALI BA’ABA, J.C.A.
PROCEDURE: CIRCUMSTANCES THE COURT WILL NOT ALLOW THE TRANSFER THE SUIT OF UNDEFENDED LIST TO THE GENERAL CAUSE LIST
It is trite that unless a defendant in its supporting affidavit of intention to defend a suit on the undefended list states a good defence and the particulars of such defence are adequately set out, and they are such that if proved would constitute such a defence, the court will not transfer the suit to the general cause list, and allow the defendant to defend the suit. See JIPREZE V. OKONKWO (1987) 3 NWLR (PT.62) PAGE 737, NISHIZA WA LTD. V. JETHWANI (1984) 2 SC. 234 and JOHN WALLINGFORD V. THE DIRECTORS, & C. OF THE MUTUAL SOCIETY, AND THE OFFICIAL LIQUIDATOR (1880) 5 AC PAGE 685 AT PAGE 704 PER BABA ALKALI BA’ABA, J.C.A.
Before Their Lordships
BABA ALKALI BAABAJustice of The Court of Appeal of Nigeria
JOHN IYANG OKOROJustice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria
Between
ECHO-SCAN SERVICES LTD.Appellant(s)
AND
DR. ZIKROO A. SHITTURespondent(s)
BABA ALKALI BA’ABA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Kaduna, Kaduna State, sitting in the Zaria Judicial Division, delivered on the 8th day of November, 2006 by Hon. Justice Dogara Madam of the Kaduna State High Court.
The respondent who was the plaintiff took out a writ of summon under the undefended list procedure, claiming against the defendant now appellant, the sum of N500,000.00 (Five Hundred Thousand Naira only) being the unpaid balance of the purchase price of X-Ray machine he sold to the defendant/appellant on or about the 4th day of April, 2006.
The writ of summons in support of the undefended list procedure was supported by a five paragraph affidavit to which annextures were attached.
The appellant who was the defendant before the trial court filed a notice of intention to defend the suit which he wrongly titled motion on notice.
The learned trial Judge after hearing counsel to the parties and taking into consideration the affidavit in support of the ex-parte motion brought under the undefended list procedure and the affidavit in support of the notice of intention to defend as well as the further affidavit held at page 51 of the record as follows:-
‘The defendant listed a host of other materials which it said are components of the X’Ray machine without which the machine cannot be test run namely;
(1) Darkroom accessories.
(2) Bucky table.
(3) X-Ray film processing tank.
(4) X-Ray cassettes.
(5) X-Ray Firm dryer.
(6) Safe Height.
With exception of the bucky table all the other items listed above are not containable in Exhibit A the sale agreement did not provide for text running of the machine and if the intention of the parties for providing in the agreement that the payment of the last instalment of N500,000.00 shall be within 6 weeks was to enable the Defendant to test run the machine it should have been expressly provided so: The goods sold by the Plaintiff to the Defendant is an X-Ray machine with its accessories both the X-Ray machine and the accessories have been named in Exhibit. The sale agreement and the price for which they were sold indicated and lastly the mode of payment was also stipulated. The plaintiffs claim is a liquidated demand. The affidavit in support of the notice of intention to defend which the Defendant wrongly titled Motion on Notice has not or does not disclose any defence on the merit to the Plaintiffs to warrant the transfer of the matter to the general cause list for a full trial.
The defendant’s defence is nothing but a contrivance to secure a full trial and thus prolong the quick disposal of the matter and defeat the purpose of the undefended list. I find no defence on the merit in the Defendant’s affidavit to the Plaintiff’s claim.
The learned trial Judge concluded his judgment as follows:
Accordingly, therefore, judgment is hereby entered for the Plaintiff and against the Defendant under order 22 rule 4 of the High Court (Civil Procedure) Rules 1987 of Kaduna State in the sum of N500,000.00 plus interest at the rate of 10% per annum from today until the judgment debt is fully liquidated.
Dissatisfied with the judgment of the Kaduna State High Court, the appellant who was the defendant at the trial appealed to this Court by his notice of appeal dated and filed on the 19th day of November, 2006 contained at pages 21 – 23 of the printed record containing three grounds of appeal.
At the hearing of the appeal which came up on the 24th day of March, 2010, counsel to both parties adopted and relied on their respective briefs of argument filed in accordance with Rules of Practice and Procedure of this Court.
The learned counsel for the appellant at pages 3 – 4 of the appellant’s brief formulated three issues for determination in this appeal as follows:-
(1) Whether the learned trial court was right in holding that the appellant’s notice of intention to defend did not disclose any defense on the merit to warrant transferring the suit to the general cause list.
(2) Whether the learned trial Judge properly considered the principle guiding transfer of cases from undefended list to general cause list before he entered judgment in favour of the Respondent.
(3) Whether the learned trial Judge was right in permitting the Respondent to use further affidavit in addition to those that accompanied the writ under the undefended list procedure.
The learned counsel for the respondent on the other hand formulated two issues for determination of this appeal at page 3 of the respondent’s brief as follows:-
(1) Does the trial Judge have the discretion to refuse to transfer a matter to the general cause list if he discovers that the defendant’s stories are aimed at just securing a full trial as ploy to prolong and/or frustrate the quick and just determination of the matter under defended list procedure?
(2) Taking into consideration the contents of Exhibit A which is the transaction between the parties, and the stories of the appellant seeking to impeach the contents thereof without more, was the trial Judge in error to have refused to transfer the matter to the general cause list?
From a careful study of the issues formulated by the parties, it is clear that both counsel are more or less saying the same thing on the issues for determination formulated by both of them in their respective briefs of argument, I therefore, adopt issue number one only formulated by the learned counsel for the appellant for the determination of this appeal.
Issue No.1 formulated by the learned counsel for the appellant is whether having regard to the affidavit in support of the claim and the affidavit in support of the notice of intention to defend a triable issue has been disclosed which will require pleadings to be filed going by the provisions of Order 22 rule 3(1), (2) and 4 of the Kaduna State High Court (Civil Procedure) Rules 1987.
Having adopted the appellants’ issue No.1, I intend to consider the submissions of both counsel relevant to the said issue only in this judgment.
The learned counsel for the appellant commenced his submission on issue No.1 in the appellant’s brief by stating that the appellant filed before the lower court a notice of intention to defend the suit as required by Order 22 rule 3 of the Kaduna State High Court (Civil Procedure) Rules of 1987 which was supported by a twenty-three paragraphs affidavit.
It is submitted by the learned counsel for the appellant that a critical examination of the said affidavit shows clearly that it disclosed a defence on the merit to warrant the transfer of the suit to the general cause list for hearing. According to the learned counsel for the appellant, there were many controversial points disclosed in the affidavit of intention to defend which could only be resolved by oral evidence and cross-examination at a full trial.
Reference was made to paragraphs 2(a), (c), (d) (e) and (g) of the affidavit in support of writ filed on the 25th day of July, 2006 which was seriously disputed by the appellant vide paragraphs 6, 7, 8, 9, 13, 14 and 15 of the affidavit in support of the notice of intention to defend.
It is further argued that the exact amount claimed by the respondent as plaintiff is also in dispute.
Learned counsel for the appellant relying on his submission on issue No.1, the sole issue for determination in this appeal urged the court to allow the appeal and set aside the judgment of the lower court.
In his reply, learned counsel for the respondent in the respondent’s brief stated that the learned trial Judge had the opportunity of looking at the contents of all the documents presented before him by the respondent as plaintiff and the appellant as defendant respectively in the court below.
It is the submission of the learned counsel for the respondent that on the contents of Exhibit A attached to the affidavit in support of his claim, the appellant as defendant was trying to paint a different picture in an attempt to get the suit to be transfer to the general cause list which will require giving evidence by the parties.
Reference was made to the case of EYIBROSLTD. VS. N.D.LC. (2007) 29 NSCQR 1553 AND NWANKWO VS. E.D.C.S (2007) 29 NSCQR 73 by the learned counsel for the respondent who further submitted that the decision of the lower court was made on sound judicious and judicial principles of law and urged the court to uphold same.
Learned counsel for the respondent urged the court to dismiss the appeal and affirm the judgment of the lower court as the claim was for a liquidated money demand supported by Exhibit A attached to the affidavit in support of the motion brought under the undefended list procedure.
It is incumbent upon me in the determination of this appeal to refer to and reproduce some relevant paragraphs of both the affidavit in support of the application for the suit to be heard under the undefended list procedure as well as that in support of the notice of intention to defend.
The affidavit in support of the motion for the suit to be heard under the undefended list procedure was deposed to by one Miss Gloria Omonya, a Litigation Officer in the chambers of Prince Emeka Mmereole & Co. of No.3, Main Street, Sabon Gari, Zaria deposed to a five paragraph affidavit. The relevant paragraphs are as follows:-
(1) That the applicant and his counsel Prince Emeka Mmereole Esq. gave the formation of facts leading to this Oath in our chambers on the 24th day of July, 2006 in our chambers at about the hour of 10.30am which information I verily believe to be true.
(2) That the applicant and his counsel have authorized me to state the said facts in the foregoing Oath, that is to say:
(a) That on or about the 4th day of April, 2006, the applicant sold his X-ray machine to the defendant/respondent at a total price of N1,300,000 (One Million, Three Hundred Thousand Naira only).
(b) That the defendant/respondent being an incorporated company was represented in the sale transaction by Dr. Tony Irefu and Dr. Cole A. Benson who are also the directors of the defendant/respondent.
(c) That out of the cost of the transaction of N1,300,000 (One Million, Three Hundred Thousand Naira) the defendant/respondent has so far paid the plaintiff/applicant the sum of N800/000= (Eight Hundred Thousand Naira only) leaving a balance of N500,000 (Five Hundred Thousand Naira only) to date.
(d) That by the terms of the sale agreement entered into between the plaintiff/applicant and the defendant/respondent the last instalment of the price money was supposed to be paid not more than six (6) weeks after taking possession of the X-ray machine. A copy of the agreement is herewith annexed as exhibit A.
(e) That after the expiration of the period granted by exhibit A for the payment of the Xray machine the applicant has made several demands for the payment of the outstanding sum of N500,000 (Five Hundred Thousand Naira only) on the plaintiff/respondent without success.
(f) That when it became obvious to the plaintiff/applicant that the defendant/ respondent was not ready to discharge its obligation under the agreement and for no reasons whatsoever he engaged the services of a counsel to write a demand letter to this effect. A copy of the demand letter is herewith annexed as exhibit B
(g) That in spite of exhibit B the defendant/ respondent has refused, failed or neglected to pay to the plaintiff/applicant the sum of N500,000= (Five Hundred Thousand Naira only) being the outstanding balance of the price of his X-ray machine sold to the defendant/respondent under exhibit A
(3) That in the best belief of the plaintiff/applicant the defendant/respondent does not have any defence to this action.
(4) That it would be in the supreme interest of justice to grant leave to the applicant to bring this suit under the undefended list procedure of this court and the respondent shall not be prejudiced in any way.
In reaction to the respondent/plaintiff’s application for the matter to be heard under the undefended list procedure as provided by Section 22(3) of the Kaduna State High Court Civil Procedure Rules, 1987, the appellant as the defendant, filed a notice of intention to defend, supported by a twenty-three paragraph affidavit deposed to by one Patience Iroegbu, a Litigation Secretary in the chambers of Okonofua, D-R Tohanmen & Co. counsel to the respondent. The relevant paragraphs in my opinion are as follows:-
4. That the Defendant/Respondent was served with a writ of summons marked as Undefended List on the 25/7/2006; for a claim of N500,000.00, which claim the Defendant/ Respondent intends to defend.
5. That the Defendant/Respondent bought an X-ray machine from the Plaintiff/Applicant for N1.3M and paid N.8M, with a balance of N.5M to be paid six weeks after receiving the machine (Exhibit A of Plaintiff/Applicant’s writ refers).
6. That a careful perusal of Exhibit A deposed to in paragraph 5 above reveals that clause 5 therein was hand written in concluding the sentence; this was deliberate to give room for the installation and test-running of the machine at the Defendant/Respondent’s premises, before the final payments of the last instalment of N.5M to the Plaintiff/Applicant.
In response to the counter-affidavit, Gloria Omonya also deposed to a counter-affidavit on behalf of the chambers of the learned counsel for the respondent/plaintiff.
The relevant paragraphs are as follows:
3. That the paragraph 6 of affidavit in support of the motion on notice of intention to defend is not correct.
4. That the installation and test-running of the machine at the Defendant/Respondent’s premises was not a requirement for the final payment of the last instalment as nothing of such was mentioned, nor intended in the Exhibit A referred to by the Defendant/Respondent.
6. That the averment in paragraph 7 of the Defendant/Respondent’s affidavit is not part of any agreement reached between the parties nor was any other agreement reached between the Plaintiff/Applicant and the Defendant/Respondent.
7. That the items sold by the Plaintiff/Applicant are identified in paragraph 1 of the Exhibit A and it does not include darkroom accessories.
10. That the Plaintiff/Applicant did deliver all the item bought from him on the 04.04.2006 to the Defendant/Respondent who accepted them satisfactorily after due inspection of the items on the 04.04.2006 and is not under any contractual obligation to the Defendant/Respondent.
It is clear to me that in resolving the sole issue in this appeal, what I have to consider is whether the appellants’ affidavit in support of the notice of intention to defend has disclosed a good defence to warrant the action being transferred to the general cause list where pleadings will be ordered and evidence be given by the parties in support of their respective case. Whenever application is made to a court for the issuance of a writ of summons in respect of a claim to recover a debt or a liquidated money demand and such an application is supported by an affidavit setting forth the ground upon which the claim is based and stating that in the plaintiff’s view that there is no defence thereto, the court shall if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the undefended list and mark the writ accordingly and enter thereon a date for hearing, subject to the circumstance of the particular case. If the party served with the writ of summons and affidavit delivers to the Registrar a note 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. However, for an action to be transferred to the general cause list from the undefended list, there must be a defence on the merit. It must not be a half hearted defence. See FRANCHAL NIGERIA LTD. VS. NIGERIAN ARAB BANK (1995) 8 NWLR (PT. 412) 176 AT 188.
It is a settled principle of law that for an action filed under the undefended list to be transferred to the general cause list, the defendant must present a defence to the action on the merit. It is not enough for the defendant merely to deny the claim. He must set out the details and particulars of the defence. See ADEGOKE MOTORS LTD. VS. ADESANYA (1989) 3 NWLR (PT. 109) 250; NISHIZAWA LTD. VS. JETHWANI (1984) 12 SC 234; UTC (NIG.) LTD. VS. PAMOTEI (2002) FWLR (PT.129) 1557, (1989) 2 NWLR (PT.103) 244; and JOHN HOLT & CO, (LIVERPOOL) LTD. VS. FAJEMIROKUN (1961) 1 ALL NLR 492.
It is the law that if the learned trial Judge finds that the appellants have no defence to the respondent’s suit which has been placed under the undefended list under Order 22, rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987, he has no option other than to enter judgment for the respondent for the sum of money that it claimed.
Having carefully examined the affidavits filed in support by the respective parties in this case, as well as the Exhibits, it is clear to me that the appellants’ affidavit did not disclose a defence to warrant transferring the suit to the general cause list.
The provisions of Order 22 rules 3 and 4 of the Kaduna State High Court (Civil Procedure) Rules, 1987 provides as follows:-
3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date 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, the 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.
4. Where any defendant neglects to deliver the 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 trite that unless a defendant in its supporting affidavit of intention to defend a suit on the undefended list states a good defence and the particulars of such defence are adequately set out, and they are such that if proved would constitute such a defence, the court will not transfer the suit to the general cause list, and allow the defendant to defend the suit. See JIPREZE V. OKONKWO (1987) 3 NWLR (PT.62) PAGE 737, NISHIZA WA LTD. V. JETHWANI (1984) 2 SC. 234 and JOHN WALLINGFORD V. THE DIRECTORS, & C. OF THE MUTUAL SOCIETY, AND THE OFFICIAL LIQUIDATOR (1880) 5 AC PAGE 685 AT PAGE 704
Taking into consideration the contents of the affidavit in support of the motion exparte, for the application suit to be heard under the Undefended List procedure, the affidavit in support of the notice of intention to defend the suit as well as the judgment of the trial court, I have no reason whatsoever to disturb the judgment of the lower court particularly having regards to the clear provisions of Order 22 rules 3 and 4 of the Kaduna State High Court (Civil Procedure) Rules, 1987.
In the result, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the Kaduna State High Court in Suit No.KDH/Z/120/2006 delivered on the 8th day of November, 2006 by Dogara Mallam, J. of the Kaduna State High Court is hereby affirmed by me. No order on costs.
JOHN INYANG OKORO, J.C.A.: I had the privilege of reading in advance the judgment of my learned brother, Ba’aba, J.C.A just read and I agree that this appeal is devoid of merit and ought to be dismissed. My learned brother has carefully and completely resolved the lone issue adopted for the determination of this appeal. I do not intend to repeat the exercise here. So I adopt both his reasons and conclusion as mine.
Accordingly, I also dismiss this appeal. I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, Baba Alkali Baaba, J.C.A, and I fully agree with his Lordship that this appeal is devoid of merit and ought to be dismissed.
Although, it has been stated that the Rules of Court relating to actions commenced under the undefended list were not designed to shut out defendants who adopted improper procedure or method in filing or presenting their defence thereunder, it is somewhat necessary to draw the attention of Counsel for the Appellant in this appeal to the provisions of Order 22 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules which dictates that a Defendant wishing to file his defence under the undefended list procedure, shall do so by filing a Notice of Intention to Defend together with an affidavit disclosing his defence thereto, and, not for a Defendant to file a Motion on Notice seeking for leave of the Court to defend the suit under the undefended list.
Be that as it may, it is the law that the Court should not allow a Defendant who has no real defence in an action in the undefended list to dribble and frustrate the plaintiff, therefore, it is not any moment or every time a Notice of Intention to Defend is filed together with an affidavit stating grounds of the Defendant’s defence, that the suit would automatically be transferred to the general cause list. The determinant factor is whether the Defendant’s affidavit raised any bona fide issue for trial between him and the Plaintiff.
In the present case, I have studied carefully the facts deposed to in the affidavit in support of the Appellant’s Motion on Notice seeking for an order granting leave to the Defendant i.e. the Appellant, to defend the suit under the undefended list, and must say, that I find the averment at paragraph 6 of the said affidavit very disturbing, in that, the Appellant, was trying to read into Exhibit A, what was not incorporated therein by the parties as at the time, the said Exhibit was made. Paragraph 5 of Exhibit A seems to me succinct and precise and, the only meaning deducibie therefrom was that, the said balance of N500, 000, still outstanding and being owed by the Appellant to the Respondent was to be paid six weeks after receipt of the X-ray machine by the Appellant.
I must observe that the Appellant did not allege in its affidavit, that the said X-ray machine was not or has not been delivered by the Respondent. It admitted receipt of the said machine at paragraph 7 of its affidavit in support of the said motion. The sum outstanding was simply the balance of the purchase price of the X-ray machine.
I must point out that the issues relating to the alleged defects in the said X-ray supplied by the Respondent have nothing whatsoever to do with the contents of Exhibit A, which is a clear acknowledgement on the part of the Appellant of its indebtedness to the Respondent in the sum of N500,000 (Five Hundred Thousand Naira) only, being the balance of the purchase price of said the X-pay sold to the Appellant by the Respondent.
I may, too, observe that there is no indication, whatsoever, in the affidavit in support of the Appellant’s.
Appearances
K. A. ADEDOKUN ESQ.For Appellant
AND
PRINCE EMEKA MMEREOLE ESQ.For Respondent
