ECOBANK BANK PLC v. ENGR. ACHEBO PATRICK (2017)

ECOBANK BANK PLC v. ENGR. ACHEBO PATRICK

(2017)LCN/10187(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of July, 2017

CA/B/74/2011

RATIO

UNDEFENDED LIST PROCEDURE: THE ESSENCE OF THE UNDEFENDED LIST PROCEEDING

UNDEFENDED LIST PROCEDURE: THE POSITION OF THE LAW ON WHEN LEAVE MAY BE GIVEN TO THE DEFENDANT TO DEFEND AN ACTION UNDER THE UNDEFENDED LIST PROCEDURE

Order 23 of the Bendel State High Court (Civil Procedure) Rules 1988 as applicable in Edo State, Rule 3 states that:-

If the party served with the Writ of Summons and affidavit delivers to the Registrar, not less than five days (1) 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. PER JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE: THE PURPOSE OF FILING AFFIDAVIT BY THE PARTIES UNDER THE UNDEFENDED LIST PROCEDURE

The purpose for filing affidavit by the parties is for the Court to decide whether the Defendant has any defence to the action of the Plaintiff in relation to the debt or liquidated money demand. Let me also add that it is not the aim of undefended list procedure to shut out a Defendant who really wants to defend a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice. See the case of:- P. TWELL NIG LTD VS INLAND BANK (NIG) LTD (1997) 3 NWLR Part 494 Page 408. PER JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE: THE DUTY OF A DEFENDANT UNDER THE UNDEFENDED LIST PROCEDURE

By the provision of Order 23 of Bendel State High Court (Civil Procedure) Rules 1988 (applicable in Edo State) which was set out earlier in this Judgment, a Defendant in an undefended list proceeding must show in his affidavit not only that he intends to defend the action but also that he must disclose his defence to the action on the merits of the case. In other words, it is not enough merely to assert that he has a good defence to the action without giving full details of the actual defence he intends to put forward to the Court. See the following cases:- BEN THOMAS HOTELS VS SEBI FURNITURE (1989) 5 NWLR Part 123 Page 523; – A.C.B. LTD VS GWAGWADA (1994) 5 NWLR Part 342 Page 25 at 36; – PLANWELL VS OGALA (2003) 18 NWLR Part 852 Page 478. PER JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE: THE EFFECT OF THE FAILURE OF THE DEFENDANT TO FILE AN AFFIDAVIT DISCLOSING A GOOD DEFENCE

The failure of the Defendant therefore to file an affidavit disclosing a good defence places the Defendant in an intolerable weak position to satisfy the Judge or Court that he has a good defence. PER JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE: THE POSITION OF THE LAW WHERE A DEFENDANT FILES AN AFFIDAVIT

My view above is fortified by the decision in NISHIZAWA LIMITED VS JETHWANI (Supra) Page 485, where the Supreme Court held thus:-

“Where the Defendant files an affidavit, the Plaintiff cannot file any affidavit in reply to meet the Defendant’s attempt to show cause. But as the case cannot be tried on affidavit if the Defendant’s affidavit shows a good defence, it will be useless for the Plaintiff to file an affidavit in reply. The disclosure of a good defence in the Defendant’s affidavit entitles him to an order giving him leave to defend. It should be realized that the phrase by affidavit ‘or other’ occurring in the English Rules has been interpreted by English Judges to mean:- some kind of evidence beyond the mere statement of Counsel which is not sufficient.” PER JIMI OLUKAYODE BADA, J.C.A.

EQUITABLE REMEDY: WHAT THE COURT WILL CONSIDER IN GRANTING EQUITABLE REMEDY

It is true that both the trial Court and this Court are Courts of Equity. But it is said that equity helps the vigilant and not the indolent and he who seeks equity must do equity. Equitable remedies are not granted as a matter of course. There must be sufficient facts available in an affidavit to enable a Court grant equitable remedy and invoke the powers of equity in aid of a party. See the following cases:- BARR. DEDE JOHNSON NWALI VS SIMON NGOZI NWADU & OTHERS (Supra) Page 143 at 148;- WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC Page 36, (1982) All NLR Part 1 at Page 1; – EFP CO. LTD & ANOTHER VS NDIC & ANOTHER (2007) 9 NWLR Part 1039 at Page 216, (2007) All FWLR Part 367 at 793. PER JIMI OLUKAYODE BADA, J.C.A.

Before Their Lordships

JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria

Between

ECOBANK BANK PLCAppellant(s)

AND

ENGR. ACHEBO PATRICKRespondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Edo State High Court, Benin Judicial Division in Suit No: B/351/2010 Between:- ENGR ACHEBO PATRICK VS ECOBANK PLC (Formerly Oceanic Bank International Plc) delivered on the 9th day of November, 2010, wherein Judgment was delivered in favour of the Plaintiff/Respondent and against the Defendant/Appellant.

Briefly, the facts of the case are that by the Writ of Summons, the Plaintiff (now Respondent) claimed against the Defendant (now Appellant) the sum of (N19, 270, 084.53) Nineteen Million, Two Hundred and Seventy Thousand, Eighty Four Naira, Fifty-Three Kobo being the total amount of fixed deposit the Plaintiff lodged with the Defendant Bank under a scheme known and called Oceanic Note which sum of money the Plaintiff has made several and repeated demands on the Defendant for withdrawal from the said deposit. The Defendant has failed, neglected and/or refused to accede to the Plaintiff?s request to withdraw from the aforementioned sum of money, contrary to the express terms and conditions of the said Deposit Scheme.

?The Writ

of Summons was supported by a 17 paragraph affidavit with Exhibits ?A? to ?G?. Pertinent paragraphs are 3 ? 15 reproduced as follows:-
3. That I have been rolling over the said investment since then with its consequential accrual of interests in line with the terms and conditions of the said Deposit Scheme. One of the Certificates issued to me in 2008 is herein attached ad marked as Exhibit ?A?.
4. That my Company Planning Development Construction Limited (PDC LTD) also has its corporate accounts with the Defendant different and distinct from my said personal account.
5. That by their letter dated the 24th day of July, 2008, to the GE, Branch Development, Intercontinental Bank Plc, Victoria Island, Lagos, the Defendant?s agents acknowledged this fact. Photocopy of the said letter is herein attached and marked as Exhibit ?B?.
6. That in exercise of my right of ownership over the said sum of money I lodged with the Defendant, I made demands on the Defendant to release part of the money to me to meet my immediate needs which requests the Defendant and its agents turned down.

Photocopies of my said letters of demand are herein attached and marked as Exhibit ?C?, ?C1? and ?C2? respectively.
7. That by their letter dated the 29th day of January, 2010, the Defendant and its agents formally informed me that they are not willing to honour my aforementioned requests. The said letter is herein attached and marked as Exhibit ?D?.
8. That consequent upon the refusal of the Defendant to pay me my money I requested for as shown in Exhibit ?D?, I have to brief my former Solicitors Valentine Onochie & Co., to formally make demand on the Defendant to allow me access to my aforementioned fund, which letter the Defendant ignored. The said Solicitors letter is herein attached and marked as Exhibit ?E?.
9. That my other Certificates issued to me by the Defendant bearing my personal names are herein attached and marked as Exhibits ?F?, ?F1? and ?F2?, respectively.
10. That I am a businessman and I have several contract jobs which are due for execution but I have no money to execute them because the Defendant

and its agents are sitting on my money.
11. That as a result of the recent crack down on Banks by the Central Bank of Nigeria, the Banks are no longer willing to grant loan facilities to businessmen like me.
12. That the continuous refusal of the Defendant to allow me access to my said money is causing me a lot of hardship and other damages.
13. That I am now requesting for my entire amount of money I invested in Defendant?s Oceanic Note Deposit Scheme as stated in their last Certificate to me dated March 16, 2010, (Exhibit ?F2) including all accrued interest to date.
14. That I verily believe that the Defendant has no defence whatsoever to this action.
15. That the leave of this Honourable Court is required to issue and mark the Plaintiff/Applicant?s Writ of Summons on the suit and place same on the ?UNDEFENDED LIST? and to serve same on the Defendant. A photocopy of the Writ of Summons is attached hereto and marked as Exhibit ?G?.

The Appellant who was Defendant at the lower Court filed a Notice of Intention to defend together with an affidavit of 20 paragraphs

disclosing a defence on the merit, pertinent paragraphs of which are 4 to 19 reproduced as follows:-
4. That the Defendant has offices across the country including Benin City where my office is located.
5. That the Plaintiff is the sole signatory of a company account with the Defendant called Planning Development Construction Ltd., with account number 0341101008225 and operates the company account at his whims and caprices.
6. That the funds used by the Plaintiff to invest in the Oceanic note was actually transferred from the company account into the Plaintiff?s account.
7. That it is not true that the Plaintiff maintains a personal account with the Defendant. What the Plaintiff maintains with the Defendant is an investment account. This investment account is normally funded from the corporate account mentioned in paragraph 4 above and from which funds are withdrawn by the Plaintiff.
8. That the Planning Development Construction Ltd., where the Plaintiff is the sole signatory and chief executive, is heavily indebted to the Defendant to the tune of N40, 502, 804. 52 (Forty Million, Five Hundred and Two Thousand, Eight

Hundred and Four Naira, Fifty-Two Kobo).
9. That the firm of Valentine Onochie & Co., had written a letter to the Defendant dated 16th February 2010, in respect of an alleged indebtedness to Planning Development Construction Ltd., a copy of the said letter is attached herewith as Exhibit ?A?.
10. That the Defendant, upon receiving the letter from Messrs Valentine Onochie & Co., made a comprehensive reply to the letter dated March 1, 2010. The substance of the letter showed that rather than being indebted to Planning Development Construction Ltd., the reverse was the case and that the company was indebted to the Defendant to the tune of N40, 502, 804. 52 (Forty Million, Five Hundred and Two Thousand, Eight Hundred and Four Naira, Fifty-Two Kobo). A copy of the letter is attached herewith as Exhibit ?B?.
11. The Defendant reconciled Planning Development Construction Ltd?s account with it and the referenced reconciliation of account showed that Planning Development Construction Ltd. was indebted to the Defendant to the said tune of N40,502, 804.52 (Forty Million, Five Hundred and Two Thousand, Eight

Hundred and Four Naira, Fifty-Two Kobo). A copy of the summary of reconciliation of account is attached herewith as Exhibit ?C?.
12. That the Plaintiff is the sole signatory to both the Oceanic Note and the company account of Planning Development Construction Ltd.
13. That it is normal banking practice that where a customer of a Bank is indebted to the Bank and has another account where he is a signatory that is in credit, that other account can be used to set off the account that is in debit.
14. That arising from the debt of Planning Development Construction Ltd., the Oceanic Note Investment of the Plaintiff has been used as a lien in the light of the indebtedness of Planning Development Construction Ltd.
15. That both the Planning Development Construction Ltd. and the Plaintiff are one and the same in that the Plaintiff had always represented himself to the Defendant as Planning Development Construction Ltd. and has signed all documents in the name of the company.
16. That the Plaintiff is the alter ego of Planning Development Construction Ltd. and for all intents and purposes is the same with Planning

Development Construction Ltd.
17. That the Plaintiff had withdrawn the sum of N18 million (Eighteen Million Naira) advanced to Planning Development Construction Ltd. by the Defendant for the purpose.
18. The Plaintiff was unable to execute the contract and has not refunded the said N18 million (Eighteen Million Naira) advanced to Planning Development Construction Ltd. withdrawn by him inspite of persistent demands for him to do so.
19. That it is in the interest of justice to refuse this application.

The Respondent deposed to an affidavit in his own opinion and belief that the Appellant has no defence whatsoever to his action and that it was a proper case to be heard expeditiously under the undefended list proceedings without the need to call on the parties to call their witnesses under the general cause list.

?The Learned trial Judge at the hearing, after appraisal and evaluation of the affidavit evidence, documentary evidence and oral submissions of both Counsel for the Appellant and Respondent, refused to accede to the request of the Appellant to transfer the suit to the general cause list for full trial on the ground

that the Appellant?s affidavit in support of her intention to defend the suit did not disclose any defence on merit, and Judgment was entered for the Respondent.

Dissatisfied with the Judgment of the Learned trial Judge, the Appellant appealed to this Court.

The Learned Counsel for the Appellant formulated two issues for the determination of the appeal, the issues are set out as follows:-
(i) Whether in the light of the conflicting affidavit evidence particularly the affidavit in support of the Notice of Intention to defend disclosing a defence on the merit, Learned trial Judge ought not to have transferred the case to the general cause list for trial on the merit. (Distilled from Grounds 1 & 2).
(ii) Whether it is not inequitable to stop the Appellant from tracing the fund moved from the Respondent?s corporate account to his personal account for the purpose of recovering the debt in the corporate account arising from the movement and which was used to fund the personal account. (Distilled from Ground 3).

?The Learned Counsel for the Respondent in his own case also formulated two issues for the determination of the

appeal.

The issues are set out as follows:-
(a) Whether the Appellant?s affidavit in support of Intention to Defend disclosed any defence on the merits to warrant the Learned trial Judge transferring the suit to the general cause list. (Distilled from Grounds 1 and 2).
(b) Whether the defence of equitable tracing was available to the Appellant in the general circumstances of this case. (Distilled from Ground 3).

At the hearing of this appeal on 23/5/2017, the Learned Counsel for the Appellant stated that the appeal is against the Judgment of Edo State High Court, Benin Judicial Division delivered on 9th day of November, 2010. The notice of appeal was filed on 10/11/2010 while the record of appeal was transmitted on 9/3/2011. The Appellant?s brief of argument was filed on 15/5/2015 with the leave of Court dated 16/2/15.

?The said Appellant?s brief was deemed as properly filed on 15/5/2015. The Appellant?s reply brief was filed on 14/3/2017. The said Appellant?s brief as well as the Appellant?s reply brief were adopted and Counsel relied on them as his argument in urging that the appeal be allowed.<br< p=””

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The Learned Counsel for the Respondent also referred to the Respondent?s brief of argument filed on 20/5/2015, he adopted and relied on the said brief in urging that the appeal be dismissed.

I have carefully examined the issues formulated by Counsel for the parties in this appeal, the issues are more or less the same but the issues formulated on behalf of the Respondent are more straight-forward and apt in the determination of this appeal. I will therefore rely on the said issues.

ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO 1
Whether the Appellant?s affidavit in support of Notice of Intention to Defend disclosed any defence on the merits to warrant the learned trial Judge transferring the suit to the general cause list. (Distilled from Grounds 1 & 2).

The Learned Counsel for the Appellant submitted that in the light of conflicting affidavit evidence, particularly the affidavit in support of the Notice of Intention to defend disclosing a defence on the merits, the Learned trial Judge ought to have transferred the case to the general cause list for trial on the merits. He referred to Order 23 of the Bendel

State High Court (Civil Procedure) Rules 1988 (as applicable in Edo State). Rule 3 of the Order states that:-
If a party served with the Writ of Summons and affidavit delivers to the Registrar, not less than five days (1) 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.

The Learned Counsel for the Appellant submitted that sufficient facts were placed before the Learned trial Judge in the affidavit disclosing a defence on the merits in support of the Notice of Intention to Defend which are in direct conflict with affidavit in support of the Writ of Summons, so as to tilt the imaginary scale of justice in favour of the Appellant and warrant a transfer of the case to the ordinary cause list as against the Respondent?s affidavit in support of Writ of Summons.

?He contended that in a

matter of this nature, the Court is not required to determine whether the defence will succeed or not at the point of trial, but what the law enjoins the Court is to see whether there is a good defence. He relied on the case of:-
– OSAYAMEH VS INSTITUTIONAL INVESTORS LTD (2003) 34 WRN Page 104 at 111.

He referred to paragraphs 5 & 6 of the affidavit in support of the Notice of Intention to Defend set out earlier in this Judgment which he stated was not controverted by the Respondent. He went further in his argument that paragraphs 5 ? 17 of the said affidavit of the Appellant were not controverted.

He submitted that having failed to controvert the said paragraphs, it was incumbent on the learned trial Judge to accept the depositions as true. He relied on the following cases:-
– SANYAOLU VS ABDULWAHAB & ANOTHER (2005) 48 WRN Page 72 Ratio 2;
– ANUOBI VS OBIWELOZO (2003) 48 WRN Page 153 Ratios 2 & 3;
– SANTORY COMPANY LTD VS ELABED (1998) 2 NWLR Part 579 Page 538 at 544;
– HONDA PLACE LTD VS GLOBE MOTORS HOLDINGS NIGERIA LTD (2006) 10 W.R.N. Page 134 (SC) Ratio 1.

Learned Counsel therefore

urged that this issue be resolved in favour of the Appellant.

The Learned Counsel for the Respondent on the other hand, referred to the affidavit in support of the Notice of Intention to defend which he described as mere barren assertions without substance. He contended that the Appellant failed to substantiate the paragraphs with documentary evidence. He went further in his argument that it behoves on the Appellant to exhibit the statement of accounts of both customers to show particular of cash or fund movement from one account to the other.

He relied on the cases of:-
– NISHIZAWA LIMITED VS STRICHAND JETHWANI (1984) All NLR (Reprint) Page 470 at 484 ? 485;
– ALHAJI ABDUL YAHAYA BAWA VS SHELEBA PHENIAS (2000) 4 NWLR Part 1024 Page 251 at 263.

It was also submitted on behalf of the Respondent that a bank is prohibited from combining several accounts of the customer if all the accounts are not in the customer personal name.

He relied on the following cases of
– ALLIED BANK OF NIGERIA LIMITED VS JONAS AKUBUEZE (1997) 6 S.C.N.J. Page 116 particularly at page 135;
– JOE GOLDAY CO. LIMITED & OTHERS VS

COOPERATIVE DEVELOPMENT BANK PLC (2003) 5 NWLR Part 814 Page 586 at Page 611;
– BRITISH AND FRENCH BANK LTD VS OPALEYE (1962) All NLR (Reprint), Page 20 particularly at 30 ? 31.

He finally submitted on this issue that the defence raised in the affidavit in support of the Notice of Intention to defend by the Appellant did not disclose any defence on merits. He urged this Court to answer this issue in the negative against the Appellant.

The undefended list proceeding is designed to enable parties obtain Judgment within a short time and shorten the hearing of the suit where the claim is for a liquidated sum. As a result, all the technicalities associated with the filing of pleading in a normal hearing in the High Court are eliminated.
Order 23 of the Bendel State High Court (Civil Procedure) Rules 1988 as applicable in Edo State, Rule 3 states that:-
If the party served with the Writ of Summons and affidavit delivers to the Registrar, not less than five days (1) 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.
The purpose for filing affidavit by the parties is for the Court to decide whether the Defendant has any defence to the action of the Plaintiff in relation to the debt or liquidated money demand. Let me also add that it is not the aim of undefended list procedure to shut out a Defendant who really wants to defend a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice. See the case of:-
– P. TWELL NIG LTD VS INLAND BANK (NIG) LTD (1997) 3 NWLR Part 494 Page 408.

the case. In other words, it is not enough merely to assert that he has a good defence to the action without giving full details of the actual defence he intends to put forward to the Court.
See the following cases:-
– BEN THOMAS HOTELS VS SEBI FURNITURE (1989) 5 NWLR Part 123 Page 523;
– A.C.B. LTD VS GWAGWADA (1994) 5 NWLR Part 342 Page 25 at 36;
– PLANWELL VS OGALA (2003) 18 NWLR Part 852 Page 478.
In this appeal under consideration, a perusal of the affidavit in support of the Notice of Intention to defend the suit set out earlier in this Judgment, would reveal that the Appellant merely expressed the intention to defend the suit but he did not state the details of the defence he intends to make in the action on the merits by supporting the assertions made in the affidavit with documentary evidence. For example, the Appellant as the Banker to both the Respondent and Planning Development Construction Limited has the detailed book of accounts of both customers, it ought to exhibit the statement of account to show the actual particulars of cash or fund movement from one account to the other.
?In cases under the undefended

list procedure, the Court is expected to give a full and exhaustive consideration to the affidavit in support of the Notice of Intention to defend the action. A case is not transferred from the undefended list to the general cause list as a matter of cause, but this must be upon a proper examination of the averments in the affidavit in support of the Notice of Intention to defend.
In the circumstance, no fanciful, inappropriate or shaky defence would be allowed to prolong a case. The Defendant must put up a real defence on the merits. See ? U.T.C. NIG LTD VS. PAMOTEL (1989) 2 NWLR Part 102 Page 244.
In the case of NISHIZAWA LIMITED VS STRICHAND JETHWANI (Supra) (Reprint) Page 470 particularly at pages 484 ? 485, the Supreme Court per Obaseki JSC held among others as follows:-
?Thus the fact that he has served a defence may be sufficient to enable a Defendant to get leave to defend, but not if it is a sham defence served at or soon after appearance.
See ? MCLARDY VS SLATEUM (1890) 24 QBD 504 where the Plaintiff successfully applied for Judgment under Order 14 one month after the defence was served.
?Under

note 14/3/ – 4/4 the learned authors said of DEFENDANTS AFFIDAVIT:
?The Defendant?s affidavit must 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 facts are relied on as supporting it. It should also state whether the defence goes to the whole or part of the claim, and in the later case, it should specify the part. A mere general denial that the Defendant is indebted will not suffice (Wellingford Vs Mutual Society (1880) 5 Appeal cases per Blackburn of Page 704: Re General Rail Whiteby?s case (1900) 1 Chancery Per Lindley M.R. at Page 369. Anon (1875) 249 per Quain J at Page 250) unless the grounds on which the Defendant relies as showing that he is not indebted are stated?
If the defence relied on is fraud, the affidavit should state the particulars of the fraud (Wellingford Vs Mutual Society (1880) 5 Appeal Cases 685). A mere vague general allegation of fraud is useless (ibid). Similarly, if a legal objection is raised, the facts and the point of law arising thereon must be

clearly stated.
?
The failure of the Defendant therefore to file an affidavit disclosing a good defence places the Defendant in an intolerable weak position to satisfy the Judge or Court that he has a good defence.?

The Learned Counsel for the Appellant has contended that by the failure of the Respondent to deny or controvert the averment in the affidavit in support of Notice of Intention to defend, he has admitted the contents of the said affidavit as correct or true. But this is erroneous because the affidavit in support of the Notice of Intention to defend is not counter affidavit strictly called. It is an exclusive affidavit to show that the Defendant has a defence to the action. In order to determine whether or not a Defendant has a defence on the merits, the trial Court must rely solely on the affidavit in support of the Notice of Intention to defend and nothing else.
?My view above is fortified by the decision in ? NISHIZAWA LIMITED VS JETHWANI (Supra) Page 485, where the

Supreme Court held thus:-
?Where the Defendant files an affidavit, the Plaintiff cannot file any affidavit in reply to meet the Defendant?s attempt to show cause. But as the case cannot be tried on affidavit if the Defendant?s affidavit shows a good defence, it will be useless for the Plaintiff to file an affidavit in reply. The disclosure of a good defence in the Defendant?s affidavit entitles him to an order giving him leave to defend. It should be realized that the phrase by affidavit ?or other? occurring in the English Rules has been interpreted by English Judges to mean:- some kind of evidence beyond the mere statement of Counsel which is not sufficient.?

In conclusion on this issue, as I said earlier on in this Judgment, the Appellant by its affidavit merely expressed the intention to defend the suit but he did not state the details of the defence he intends to make in the action on the merits by supporting the assertions made in the affidavit with documentary evidence as exhibits.

?Therefore, it is my view that the materials placed before the learned trial Judge by the Appellant has not disclosed

any defence on the merits to warrant the Learned trial Judge to have transferred this suit from the undefended list to the general cause list.

This Issue No.1 is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE NO 2
Whether the defence of equitable tracing was available to the Appellant in the general circumstances of this case. (Distilled from Ground 3).

The Learned Counsel for the Appellant submitted that there is uncontroverted affidavit evidence that the funds in the Respondent?s personal account (Oceanic Note) investment was moved from the corporate account, PDC Ltd, there is also uncontroverted affidavit evidence that the corporate account was indebted to the Appellant arising from the failure of PDC to execute a contract awarded to it by the Appellant amounting to the sum of (N18,000,000.00) Eighteen Million Naira only. Therefore that it will be inequitable and amounts to double portion to allow the Respondent, who is the alter ego of the PDC Ltd to keep the said contract sum for a total failure of consideration, and still retain his investment in the personal account and thus prevent the

Appellant from linking the two accounts or tracing the funds to the personal account. He stated that Black?s Law Dictionary 7th Edition defines tracing as the process of tracking property?s ownership or characteristics from the time of its origin to the present. He relied on the case of:- F.B.N. PLC VS SONGONUGA (2005) 13 WRN Page 73.

He went further that whether or not the funds can indeed be traced or linked is one of the issues which can only be resolved after a full trial necessitating a transfer to the ordinary cause list and in accordance with Order 23 Rule 3 of the High Court (Civil Procedure) Rules 1988 of Bendel State as applicable in Edo State.

In his response, the Learned Counsel for the Respondent submitted that the defence of equitable tracing does not avail the Appellant in the general circumstances of this case. He submitted that equitable reliefs or remedies are not granted as a matter of course. He relied on the following cases.
– BARRISTER DEDE JOHNSON NWALI VS SIMON NGOZI NWADU & OTHERS (Supra) Page 143 at 148;
– PUNCH NIG LTD & OTHERS VS ARIK AIR NIGERIA LTD (2012) 23 W.R.N. Page 177.

It was

contended by Counsel for the Respondent that the principle of equitable doctrine of tracing raised by the Appellant was without particulars to substantiate it.

He therefore urged that this issue be resolved in favour of the Respondent.

In this appeal, the issue is whether the defence of equitable tracing was available to the Appellant in the general circumstances of this case.

It is true that both the trial Court and this Court are Courts of Equity. But it is said that equity helps the vigilant and not the indolent and he who seeks equity must do equity.
Equitable remedies are not granted as a matter of course. There must be sufficient facts available in an affidavit to enable a Court grant equitable remedy and invoke the powers of equity in aid of a party.
See the following cases:-
– BARR. DEDE JOHNSON NWALI VS SIMON NGOZI NWADU & OTHERS (Supra) Page 143 at 148;
– WILLIAMS VS HOPE RISING VOLUNTARY FUNDS SOCIETY (1982) NSCC Page 36, (1982) All NLR Part 1 at Page 1;
– EFP CO. LTD & ANOTHER VS NDIC & ANOTHER (2007) 9 NWLR Part 1039 at Page 216, (2007) All FWLR Part 367 at 793.
The Appellant in

this case has prayed the lower Court to consider the equitable remedy of tracing in its favour as a defence to the Respondent?s action but it failed to condescend upon particulars in its affidavit in support of its Notice of Intention to defend. The particulars ought to have been exhibited. For example, the Appellant failed to lay before the trial Court the statement of accounts of Planning Development Construction Limited (PDC) alongside of the details of lodgments into the Respondent?s Oceanic Investment Notes.
I am of the view that it is only by these particulars that a Court can arrive at a just and equitable decision whether or not to track Planning Development Construction Limited (PDC) funds to the Respondent?s Investment Account. A competent Court will not make that kind of blind order without any particulars.

The issue of uncontroverted affidavit evidence of Notice of Intention to defend under the undefended list proceedings was adequately dealt with under Issue No. 1. I do not have to repeat myself on this.

?Consequent upon the foregoing, this Issue No. 2 is hereby resolved in favour of the Respondent and against the

Appellant.

In the result, with the resolution of the two issues for determination in this appeal in favour of the Respondent and against the Appellant, it is my view that this appeal lacks merit and it is hereby dismissed.

The Judgment of the trial Court in Suit No. B/351/2010 ? Between ? ENGR. ACHEBO PATRICK VS ECO BANK PLC (Formerly Oceanic Bank International Plc) delivered on the 9th day of November, 2010 is hereby affirmed.
The Respondent is entitled to costs which is fixed at (N75,000.00) Seventy-five thousand Naira against the Appellant.
Appeal dismissed.

PHILOMENA MBUA EKPE, J.C.A.: The lead judgment prepared by my learned brother J.O. Bada JCA was made available to me before now. Having perused same, I am in entire agreement with the reasoning and conclusions reached in the resolution of the two issues for determination in this appeal in favour of the Respondent and against the Appellant the appeal fails and is hereby dismissed for lacking merit.

I abide by the consequential order as to costs.

?MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the

judgment of my learned brother, JIMI OLUKAYODE BADA, JCA, just delivered.

Since my learned brother has given comprehensive and elaborate reasons for dismissing the appeal, with which I agree and to which I have nothing useful to add, I also dismiss the appeal as it lacks merit.

The judgment of the lower Court is hereby affirmed.
I abide by the order as to costs.

Appearances

Dr. J.O. OdionFor Appellant

AND

Mrs. S.O. Agwinede with, Miss F. AkhatorFor Respondent