ECOBANK NIGERIA PLC V. REV. SISTER IKUNG CHARLES LUANGA
(2012)LCN/5392(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of May, 2012
CA/C/100/2010
RATIO
“Where there are material conflicts in the affidavits relied upon by the parties the remedy is to call for oral evidence. In Falobi vs Falobi (1976) NMLR 169 the Supreme Court held at page 178 as follows: “We have pointed out on numerous occasions that when a Court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to cross-examine any of the deponents or to call any witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in such circumstances. (See Akinsete vs. Akindutere (1966) 1 All NLR 147 at page 118; Eboh & Ors. vs. Oki & Ors. (1974) 1 SC 179 at pages 189 – 190; Olu-Ibukun & Anor. vs. Olu-Ibukun (1974) 2 SC. 47, 48; and Uku & Ors. vs. Okumagba & Three Ors. (1974) 2 SC 35, 56, 64 – 65).” The exception is if the irreconcilable conflicts in the affidavits can be resolved by documentary exhibits annexed or exhibited to the affidavits. This is because the documents referred to in the affidavit form part of the writ of summons or application. See Re Hinchliffe (1897) Ch. 117 cited in south Eastern States Newspapers Corporation & Ors. vs. Anwara (1975) 9 – 11 SC. 55; Nwosu vs. Imo State Environmental Sanitation & Ors. (1990) 4 SCNJ 97. Furthermore, if the conflicts relates only to points of law there will be no need to embark on oral evidence. See Okotie vs. Olughor (1995) 5 SCNJ 217 at 230; Momah vs. UAB petroleum Inc. (2000) 2 SC. 142 and Sanusi Bros. (Nig.) Ltd. vs. Cotia Commercio Exportacao etc (2000) 6 SC (pt.3) 43. Thirdly, if the affidavit is self contradictory or lacking in credibility, there will be no need to embark on an oral hearing. See Royal Exchange Assurance vs. Aswani Textiles Industries Ltd (1992) 2 SCNJ (Pt.2) 346 at 355; Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233/242. These principles have support in order 10 rule 5 of the Cross River State (Civil Procedure) Rules, 2008 which reads as follows: “5. Nothing herein shall preclude the court from hearing or requiring oral evidence or from allowing the defendant to cross examine or challenge the affidavit evidence of the claimant should it so think fit, at any stage of the proceeding under rule 4.” Per TUR, J.C.A.
“The intendment of the Undefended List Procedure is not to shut out a defendant who has a defence on the merit. Its intendment is to quicken cases of liquidated money demands Fesco (Nig) Ltd Vs. N.R. & C.P Co. Ltd 1998 page 11.” Per NDUKWE-ANYANWU, J.C.A.
“The Undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim before the court. A suit is maintainable under the undefended List Procedure if it relates to a claim for debt or liquidated money demand. It is a procedure meant to shorten the hearing of suit. S.B.N. Plc vs Kyentu (1998) 2 NWLR pt 536 Page 41, Garba vs. Sheba Int (Nig) Ltd (2002) 1 NWLR pt 748 page 372; Haido vs. Usman (2004) 3 NWLR Pt.859 page 65.” Per NDUKWE-ANYANWU, J.C.A.
“One of the main problems that often arise in the undefended list procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit. In this regard, it must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. It is sufficient if the affidavit disclose: (a) a triable issue or that a difficult part of law is involved; (b) that there is a dispute as to the facts which ought to be tried; (c) that there is a real dispute as to the amount due which requires the taking of an account to determine; or (d) any other circumstances showing reasonable grounds of a bona fide defence. Ataguba & Co. vs. Gura (Nig) Ltd (2005) 8 NWLR (pt. 927) 429 SC; (2005) 2 SCMJ 139, Federal Military Govt. vs. Sanni (1990) 7 SCNJ 159.” Per NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA PLCAppellant(s)
AND
REV. SISTER IKUNG CHARLES LUANGARespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Cross River State High Court sitting in Ogoja delivered on 10th May, 2010.
Briefly, the facts of this case is that, the Respondent as Plaintiff in the Court below claimed that the Appellant as defendant is a Commercial Bank. The Respondent maintained a savings account with the Appellant. The Respondent deposed in her affidavit that she transferred N2m from her savings account to a fixed deposit called a Commercial Paper. The fixed deposit was for 180 days with interest at 13%.
On maturity the Respondent demanded for the principal sum and the accrued interest but none was paid. After several demands the Respondent filed a suit under the Undefended List procedure and claimed the following:-
1. N2,128,219.19 (Two Million, One Hundred and Twenty Eight Thousand, Two Hundred and Nineteen Naira, Eighteen Kobo) being principal sum kept with the bank and accrued interest as at 24/9/09.
2. 10% interest per annum on the above sum from 25/9/09 until the judgment sum is paid.
The defendant filed his intention to defend on 5th May, 2010 together with his affidavit disclosing a defence on the merit. Also filed were 2 exhibits x1, & x3. The trial Judge failed to rule on the Appellant’s intention to defend, whether it disclosed any defence on the merit. The trial Judge on 10th May, 2011 the return date entered judgment for the respondent
Being aggrieved, the Appellant filed a notice and 3 Grounds of Appeal. Also filed on 20th January, 2011 is the Appellant’s brief which was deemed properly filed and served on 27th February, 2012. In it the Appellant articulated just one issue for determination.
The Respondent filed his brief on 23rd March, 2012 and adopted the lone issue articulate by the Appellant.
The lone issue is as follows:
“whether the evidence before the learned trial Judge was such that judgment can be entered for the respondent under the Undefended List?
In his argument learned counsel for the Appellant stated that the Respondent made a withdrawal of N2m from her savings account on 3rd October, 2008 and therefore had no money to the tune of N2m to transfer as fixed deposit on 2nd April, 2009. In furtherance of this position the Appellant filed together with the affidavit two withdrawal slips and the Respondent’s statement of account showing the withdrawal.
Counsel contended that the Appellant’s affidavit together with the 2 exhibits disclosed a defence on the merit. This of course raised issues that the court ought to resolve by pleadings and oral evidence. Therefore this suit should be transferred to the General cause List. Counsel urged the court to resolve this lone issue on behalf of the Appellant and thereafter allow the appeal.
In Response, the Respondent’s learned counsel, Mathew Ojua who settled this brief gallantly conceded that the affidavit and 2 exhibits of the Appellant raised issues which can only be resolved by pleadings, oral evidence viva voce during trial in the General Cause List.
I must immediately commend the gallantry of Mathew Ojua for his gentlemanly behavior. Counsel should at all times be partners with the court in the administration of justice.
The Undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim before the court. A suit is maintainable under the undefended List Procedure if it relates to a claim for debt or liquidated money demand. It is a procedure meant to shorten the hearing of suit. S.B.N. Plc vs Kyentu (1998) 2 NWLR pt 536 Page 41, Garba vs. Sheba Int (Nig) Ltd (2002) 1 NWLR pt 748 page 372; Haido vs. Usman (2004) 3 NWLR Pt.859 page 65.
In exercising its discretion to place a suit under the Undefended List Procedure, it is imperative for the trial court to make a definite finding that there are good grounds for believing that there is no defence to the plaintiff’s claim.
This is a condition precedent to the validity of any trial conducted under the Undefended List Procedure. Kabiru vs. Ibrahim (2004) 2 NWLR pt 857 page 326.
The trial Judge failed to rule on the issue whether the defendant disclosed a defence on the merit. He rather entered judgment on the return date.
One of the main problems that often arise in the undefended list procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit. In this regard, it must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. It is sufficient if the affidavit disclose: (a) a triable issue or that a difficult part of law is involved; (b) that there is a dispute as to the facts which ought to be tried; (c) that there is a real dispute as to the amount due which requires the taking of an account to determine; or (d) any other circumstances showing reasonable grounds of a bona fide defence.
Ataguba & Co. vs. Gura (Nig) Ltd (2005) 8 NWLR (pt. 927) 429 SC; (2005) 2 SCMJ 139, Federal Military Govt. vs. Sanni (1990) 7 SCNJ 159.
There are many issues brought to the fore by the affidavit of the defendant filed together with his intention to defend the suit. The Appellant’s counsel had argued that a combination of the Appellant’s affidavit and the exhibits disclosed a defence on the merit and the Respondent’s affidavit put before the court was for it to resolve whether on the face of this defence or claim by the Appellant the Respondent could have had a transaction on the 2nd April, 2009. If there was did Respondent have such money in her savings account as in Exhibit x1 & x3 from where she claimed she moved the money from and if not by what means then did the Respondent enter into the said transaction of the 2nd April, 2009?
They are indeed contradictions in the affidavits of both parties which on the face of it, the trial Judge could not have proceeded to hear this suit under the Undefended List Procedure.
The right thing to do was to have transferred same to the General Cause List where these issues can be resolved.
Where there is material conflict in the affidavits of parties under the Undefended List Procedure, evidence is the only way by which the conflict can be resolved. It is therefore mandatory to enter the suit in the General Cause List. Ebong vs. Ikpe (2002) 17 NWLR pt. 797 page 504.
The trial Judge was in error when he proceeded to enter judgment in the face of the glaring conflicts in the affidavits of both parties. The intendment of the Undefended List Procedure is not to shut out a defendant who has a defence on the merit. Its intendment is to quicken cases of liquidated money demands Fesco (Nig) Ltd Vs. N.R. & C.P Co. Ltd 1998 page 11. The sole issue articulated by the Appellant is therefore resolved in his favour.
The appeal is meritorious and therefore allowed. The judgment of the trial court is set aside. This suit is to be transmitted to the Chief Judge Cross River State for assignment to another Judge to be tried de novo on the General Cause List.
I make no orders as to costs.
JOSEPH TINE TUR, J.C.A.: I have read an advance copy of the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur that the appeal is meritorious and should be allowed.
Order 10 rules 1-7 of the High Court of Cross River State (Civil Procedure) Rules, 2008 governs the “Undefended List” Procedure. Order 10 rule 1 provides that 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; and the Court is satisfied that from the documentary evidence verified on oath, there are good grounds for believing that there is no defence to the action, the suit shall be entered for hearing in what shall be called the “undefended List” The writ is then marked as ‘undefended’ and a suitable date is fixed for hearing depending on the circumstance of each case.
See order 10 rule 1 & 2.
To prove that there is a good defence, the party served shall deliver to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. Where a defence on the merit is disclosed the Court shall give that party leave to defend the suit upon such terms as the court may think just. If leave is given to defend the suit, the writ 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 (Order 10 rule 3(1) & (2)). But where the defendant served the writ neglects to deliver the notice of defence and affidavit prescribed in rule 3(1) of the order, or is not given leave to defend, the suit shall be heard as undefended, and judgment given thereon, without calling upon the claimant to summon witnesses before the Court to formally prove the case.
The claims under the procedure by way of Undefended List is established or disproved by affidavit supported, where possible, with documentary evidence.
Where there are material conflicts in the affidavits relied upon by the parties the remedy is to call for oral evidence.
In Falobi vs Falobi (1976) NMLR 169 the Supreme Court held at page 178 as follows:
“We have pointed out on numerous occasions that when a Court is faced with affidavits which are irreconcilably in conflict, the judge hearing the case, in order to resolve the conflict properly, should first hear oral evidence from the deponents or such other witnesses as the parties may be advised to call. It does not matter whether none of the parties asked to be allowed to cross-examine any of the deponents or to call any witness. Such omission by the parties should not be taken to amount to consent that affidavit evidence should be used in such circumstances. (See Akinsete vs. Akindutere (1966) 1 All NLR 147 at page 118; Eboh & Ors. vs. Oki & Ors. (1974) 1 SC 179 at pages 189 – 190; Olu-Ibukun & Anor. vs. Olu-Ibukun (1974) 2 SC. 47, 48; and Uku & Ors. vs. Okumagba & Three Ors. (1974) 2 SC 35, 56, 64 – 65).”
The exception is if the irreconcilable conflicts in the affidavits can be resolved by documentary exhibits annexed or exhibited to the affidavits. This is because the documents referred to in the affidavit form part of the writ of summons or application. See Re Hinchliffe (1897) Ch. 117 cited in south Eastern States Newspapers Corporation & Ors. vs. Anwara (1975) 9 – 11 SC. 55; Nwosu vs. Imo State Environmental Sanitation & Ors. (1990) 4 SCNJ 97.
Furthermore, if the conflicts relates only to points of law there will be no need to embark on oral evidence. See Okotie vs. Olughor (1995) 5 SCNJ 217 at 230; Momah vs. UAB Petroleum Inc. (2000) 2 SC. 142 and Sanusi Bros. (Nig.) Ltd. vs. Cotia Commercio Exportacao etc (2000) 6 SC (pt.3) 43. Thirdly, if the affidavit is self contradictory or lacking in credibility, there will be no need to embark on an oral hearing. See Royal Exchange Assurance vs. Aswani iles Industries Ltd (1992) 2 SCNJ (Pt.2) 346 at 355; Bank of Baroda vs. Mercantile Bank Ltd. (1987) 3 NWLR (Pt.60) 233/242.
These principles have support in order 10 rule 5 of the Cross River State (Civil Procedure) Rules, 2008 which reads as follows:
“5. Nothing herein shall preclude the court from hearing or requiring oral evidence or from allowing the defendant to cross examine or challenge the affidavit evidence of the claimant should it so think fit, at any stage of the proceeding under rule 4.”
In my humble view due to the irreconcilable facts deposed to in the affidavits supported by documentary evidence, the learned trial judge should have removed the suit from the undefended List to the Ordinary Cause list and ordered pleadings, or should have called for oral evidence to resolve the conflicts. None of these procedures did the learned trial Judge adopt.
Nevertheless, the learned trial Judge held at page 26 lines 20 to page 27 lines 1-28 of the printed record as follows:
“On the affidavit of defence I make the following observations:
1. The claim herein relates to a commercial paper (Exhibit MM.3 attached to the writ of summons) and not Saving Account No. 103060185070901 to which the withdrawal slip (Exhibit X1A to the affidavit of defence) belongs.
2. I was not told that a Commercial Paper and Saving Account mean one and the same thing.
3. Throughout Exhibit x1 and x3 attached to the affidavit of defence, which starts from 26-09-2008, goes through the 02-04-2009 (the date on the Commercial Paper) and ends on 01-04-2010, no mention is made of the transaction on the commercial paper. That goes to strengthen my view that the transaction on the Commercial Paper was not done on Saving Account No. 106060185070901 because if it was done there, it would have reflected on the statement of Account: Exhibits X1 and X3.
4. On Exhibit X1 to the affidavit of defence it is shown that the Claimant made a withdrawal of N2 Million from her Saving Account on 03-10-2008. On Exhibit MM.3 to the writ of summons it is shown that the Claimant made a N2 Million investment in Commercial Paper marked to mature on 24-09-2009. No link whatever has been provided between the 2 (two) transactions.
5. The Claimant has shown vide Exhibit MM.3 that she invested N2 Million with the Defendant on 02-04-2009 (value date) marked to expire on 24-09-2009 (maturity date). The onus now shifts to the Defendant to show that it paid over that investment to the Claimant. The Defendant has failed to do so. Until the Defendant so shows the money invested lies where it is stated on Exhibit MM.3, with the Defendant it is now time to pay over the money to the claimant.
In conclusion, therefore, I find and hold that even if the Defendant proves that the claimant withdrew N2 Million from her Saving Account on 03-10-2008 it will not be a defence to the claims here which are for non payment on the Commercial Paper, a transaction done in the year, 2009.
In the end result I hereby enter judgment for the Claimant against the Defendant in the sum of N2, 128,219.18 being principal sum and interest accrued thereon as at 24-09-2009 as stated on Exhibit MM.3 attached to the affidavit filed in support of the summons.
Pursuant to Order 35 rule 4 of the current Rules of this Court, and as claimed, I hereby order interest to be paid on the said sum at the rate of 10% per annum until the judgment sum is liquidated.
For seeking to dribble the Claimant as if we were on soccer pitch, in this action to which the Defendant certainly has no defence. I assess and award cost of this action in the sum of N20,000.00 against the Defendant”
Only oral evidence could explain the conflicts in the affidavit and documentary exhibits through cross examination of the deponents.
I think it is commendable for learned Counsel to the Respondent to have conceded in his brief that there should be a retrial. That is how it should be. I abide by all the orders made by my Lord in favour of a retrial de novo.
ISAIAH OLUFEMI AKEJU, J.C.A.: My Lord Uzo I. Ndukwe-Anyanwu, JCA gave me the privilege of reading the draft of the lead judgment just delivered. The conclusion to be reached in the appeal has become obvious from the “ARGUMENT” of the Respondent in the Respondent’s Brief of Argument settled by Mathew Ojua Esq. and filed on 28th March, 2012. After adopting the lone issue raised for determination in the Appellant’s Brief, the learned counsel for the Respondent argued that:-
The respondent concedes to the appeal on the ground that the notice of intention to defend and the facts in the supporting affidavit filed by the appellant disclosed a defence on the merit which ought to have warranted the matter being transferred to the general cause list for hearing”.
Based on this standpoint and the fuller reasons advanced in the lead judgment, I too allow the appeal and abide by the consequential order in the lead judgment.
I make no order as to costs.
Appearances
Samson Onah, Esq,For Appellant
AND
Mathew Ojua, Esq,For Respondent
