EKPEDEME EKONG UFFORD V. PASTOR UBONG JOHNSON UDOH
(2012)LCN/5243(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of March, 2012
CA/C/192/07
RATIO
THE POSITION OF THE LAW ON THE DISCLOSURE OF GROUNDS OF DEFENCE BY THE DEFENDANT
The law is now firmly settled that for a Defendant’s affidavit to disclose a defence on the merit which would entitle him to the grant of leave by the court to defend the action, it must condescend upon the particulars of facts and deal specifically with the Plaintiffs claim by stating clearly and concisely, what the defence is. The grounds of the defence must be set out elearly showing facts which raise a triable issue or question that calls for some further explanations from the plaintiff apart from and in addition to the averments contained in the affidavit in support of the application for the issue of the writ of summons. Such triable issue or question would arise where some doubt about or on the plaintiff’s claim is cast by the facts contained in a Defendant’s affidavit which only further evidence may resolve in the suit. Consequently, a complete defence needs not be shown by the Defendant at this stage but it would suffice if particulars of facts which would constitute a defence, if proved are deposed to in the affidavit. In such a situation, good grounds and reasons would be shown there ought to be further evidence to be adduced in the suit. See PETER TIWELL NIG. LTD. V. INLAND BANK (1997) 3 NWLR (494) 408 at 419 & 422; JIPREZE v OKONKWO (1987) 3 NWLR (62) 737; EBONG v IKPE (2002) FWLR (135) 719; HAIDO V. USMAN (2004) 3 NWLR (859) 65, (04) ALL FWLR (201) 1765; ATAGUBA V. GURA (2005) 8 NWLR (927) 429, (05) 2 SCNJ, 139; IKPONG V. UDOBONG (2007) 2 NWLR (1017) 184, S.P.D.C. V. ARHO-JOE (NIG.) (2006) ALL FWLR (331) 1330. Per. MOHAMMED LAWAL GARBA, J.C.A.
REGUIREMENTS TO SATISFY THAT A GOOD DEFENCE HAS BEEN SHOWN BY THE DEFENDANT
To show that he has a good defence to the claim on the merits, the Defendant must disclose facts to satisfy the court usually by affidavit. To achieve this, he is required to condescend upon particulars, per Lord Blackburn in Wallinaford v Mutual Society (1880) 5 App, Laws 685 at 704, and the Defence must not be seen as frivolous and particularly “moonshine” to use the expression of Lord Lindley in Codd v. Delap (1905) 12 L.T. 810. To condescend upon particulars implies a tone and real disclosure of facts upon which the court can really discern a good defence.” See A.C.B. v GWAGWADA (1994) 4 SCNJ, 268; ATAGURA v GURA (supra); DANIEL v SAMAD (1997) 7 NWLR (514) 673; FISCO (NIG) LTD. v NASCO RICE & CEREAL PROD. CO. (98) 11 NWLR 673) 227. Per. MOHAMMED LAWAL GARBA, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE MERE FACT THAT THE DEFENDANT HAS A COUNTERCLAIM NECESSARILY ENTITLE HIM TO LEAVE TO DEFEND
I am aware of the general principle that where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fat probability that he has a bona fide defence, he ought to be granted leave to defend the action as laid down in some cases, including MACGREGOR v N.M.B.A (1996) 2 SCNJ, 72 AT 82 AND SANTORY CO. V. ELABED (98) 12 NWLR (579) 544. However, in situations like the present appeal where a Defendant in his affidavit, unequivocally and expressly admitted the debt claimed by the Plaintiff and even stated the desire to pay it by instalments after the property in respect of which he said he intended to file a counterclaim, were taken away in accordance with his agreement, a far case or even the probability of a bona fide defence would be absent. The real intention of the ‘facts in relation to a counter claim is to pull the wool over the court’s eyes and obfuscate the real issue raised in the affidavit in support of the claim by the Respondent. Such facts show or disclose not genuine defence on the merit, but an intention to make a spurious counter-claim. In the case of THOR V. FCMB (supra) it was held at page 1462 even where a counterclaim was made by a Defendant that: “The mere fact that the Defendant has a counterclaim does not necessarily entitle him to leave to defend. Where, therefore, there is no defence to the Plaintiff’s claim and there is arguable set-off or bona fide counter claim, judgment would be given to the Plaintiff.” Per. MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
EKPEDEME EKONG UF’FORD – Appellant(s)
AND
PASTOR UBONG JOHNSON UDOH – Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A:(Delivering the Leading Judgment) This is an appeal against the decision of the High Court of Akwa Ibom State contained in the judgment delivered on the 11/7/07 in suit No. HC/UND/192/2007 filed by the Respondent herein against the Appellant. The writ of summons was issued, marked and entered under the undefended list pursuant to the Rules of the High Court. In the affidavit in support of the application to issue the writ of summons under the undefended list, the Respondent had personally deposed as follows in paragraphs 3 – 10:-
1. That I am the plaintiff/Applicant in this suit.
2. That by virtue of the above position I am conversant with the facts deposed herein.
3. That the Defendant/Respondent sought for financial assistance for a friendly loan from me and I agreed to lend to him the sum of N2,450,000.00 (Two Million, Four Hundred & Fifty Thousand Naira) on the 10th August 2006. A copy of the agreement dated 10th August 2006 evidencing the loan is attached herein and marked as Exhibit A.
4. That the Defendant/Respondent agreed to refund the friendly loan of N2,450,000,00 (Two Million, Four Hundred & Fifty Thousand Naira) with interest of N450,000.00 (Four Hundred and Fifty Naira) on the 21st November, 2006.
5. That on the due pay back date being 21st November 2006 I demanded for the amount owed me but the Defendant/Respondent failed to pay the debt and interest as embodied in the terms of the agreement between me and the Defendant/(Respondent.
6. That I have made several oral demands and representation for the Defendant/Respondent to pay up but he has refused to pay the loan.
The endorsement on the writ of summons itself was in the following terms:-
Wherefore The Plaintiff Claims Against The Defendant As Follows:-
1. The sum of N2,000,000.00 (Two Million Naira) being money due and owing from the Defendant to the Plaintiff since 10th August, 2006.
2. Interest of N450,000.00 (Four Hundred and Fifty Thousand Naira) due and owing from the Defendant to the Plaintiff as at 21st September, 2006.
3. Cost of the action assessed at N100,000.00 (One Hundred Thousand Naira)
After the service of the writ on the Appellant, a notice of intention to defend the action was filed on the 10/7/07 accompanied by an affidavit which I find expedient to set out in full for a clear understanding and appreciation of the facts giving rise to both the case at the High Court and this appeal. The 18- paragraphs affidavit are thus:
1. That I am the Defendant in this suit and the writ of summons, order of court, motion ex-parte and the accompanying affidavit have been served on me.
2. That paragraphs 1, 2, 3, 4, 5 and 6 of the affidavit of the plaintiff in support of the motion ex-parte are true.
3. That it is true due to a great misfortune that befell me I was unable to repay the loan as agreed.
4. That consequently and in line with clauses 3, 4 and 5 of the loan agreement exhibit ‘A’ in the Plaintiffs affidavit, the plaintiff came to my compound at No. 19 Line K, Ewet Housing Estate, Uyo in company of armed policemen from police zone 6 Headquarters, Calabar and forcibly took away the following items:-
a) Mercedez Benz V Boat 230 saloon car which I bought in January 2006 for N1,500,000 (One Million, Five Hundred Thousand Naira).
b) Mazda 626 Saloon Car valued at N750,000.00
c) Suzuki 7.5 KVA electricity generator valued at N120,000.00 (One Hundred and Twenty Thousand Naira).
d) Samsung 3000 Watt CD player with speakers which I bought at N50,000 (Fifty Thousand Naira).
e) 21″ Sony Colour Television’ which I bought at N35,000.00 (Thirty five Thousand Naira)
5. That the total value of all my property impounded by the plaintiff is N2,455,000.00 (Two Million Four Hundred and Fifty-five Thousand Naira) which is more than the money owing from me to the plaintiff.
6. That the plaintiff has sold off the aforementioned items and I have not set my eyes on them ever since he took them from my house.
7. That the value of these items is more than the amount owing to the plaintiff.
8. That after selling off the above named items, the plaintiff is desirous of taking my personal and only residence which is next to plaintiff’s residence.
9. That this desire was manifested when the plaintiff instructed one Barrister Ita Aquaowo to draft a Deed of Assignment of my only house at No. 19K Line Ewet Housing Estate in favour of the plaintiff.
10. That Barister Ita Aquaowo drafted the Deed of Assignment and requested me to sign. I refused to do so.
11. That it is in pursuit of this desire to acquire my building aforesaid that the plaintiff has instituted this suit to secure an order of court to enable him annex my only house after selling off my entire personal belonging and making a tidy profit.
12. That before forcibly taking over my properties hereinbefore listed, the plaintiff had arrested me and my wife with policemen from police zone 6 Headquarters, Calabar and I was detained for 2 (two days while my wife Mrs. Grace Ekpedeme Ufford was detained for 6 (six) days and we were released only after we paid more than N100,000.00 (One Hundred Thousand) as bail fee.
13. That this arrest and detention was because of my indebtedness to the plaintiff only and nothing more.
14. That I have a very strong defence to this suit and I intend to file a counterclaim against the plaintiff for the balance of money due to me from the sale of my properties and for unlawful detention and breach of my right to liberty and that of my wife.
15. That at the hearing of this suit, I shall tender and rely on documents in support of the foregoing assertions.
16. That consequently paragraphs 8, 9, 10, 11 and 12 of the plaintiff’s affidavit false.
17. That it will be in the interest of Justice to allow me to defend this suit.
18. That if the plaintiff’s prayer is granted I will become a victim of usury and the plaintiff will ruin me and my family and enrich himself to the detriment of all that I have suffered to acquire for myself and my young family.
On the retum date fixed for the hearing of the suit, i.e. 11/7/07, the High Court after reviewing the facts contained in the affidavits of the parties, found and held that the Appellants’ affidavit did not disclose a defence on the merit. Judgment was thereafter, entered in favor of the Respondent who was said to be entitled thereto, in the sum of N2,450,000.00. Costs of N10,000.00 was also awarded. Because the Appellant was dissatisfied with the above decision, he caused a notice of the appeal on a single ground to be filed on the 16/7/07 and in the Appellant’s brief filed on the 31/10/07, the following issue was submitted for decision in the appeal:-
Whether the Defendants/Appellants had disclosed sufficient facts in the affidavit in support of the notice of intention to defend as required by law to have enabled the suit to be placed on the general cause list for hearing and determination on the merit.
In the Respondent’s brief filed on the 6/12/07, two issues were formulated for determination in the appeal as follows:-
1. Whether the appellant’s only ground of Appeal is based on law or fact or mixed law and fact.
2. Whether the facts contained in the affidavit of the Defendant/Appellant in support of his NOTICE OF INTENTION TO DEFEND discloses a defence on the merits to have justified the transfer of the suit to the general cause list by the learned trial judge.
It may be observed that the learned counsel for the Respondent did not indicate from what grounds of appeal the above issues were distilled. The law is common knowledge that for issues to be competent for determination in an appeal, they must come from or arise from competent grounds of appeal and where they do not arise from the grounds of appeal, they are liable to be struck out for being incompetent. Where issues are raised in a brief of argument but are not covered by the grounds of appeal, they are incompetent and so misconceived: REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION v BASSEY JAMES (1987) 7 SCNJ, 167; OJE v BABALOLA (1991) 4 NWLR (185) 267; SHA v KWAN (2000) 8 NWLR (670) 685.
It is clear that even from the formulation by the learned counsel that the Appellant’s notice of appeal contains a sole ground of appeal and the law is also known that though a single issue may be distilled from more than one ground of an appeal, a single ground of appeal cannot be used to formulate more than one issue for determination. JAWANDO V. BAKARE (2006) ALL FWLR (332) 1590; ADELUSOLA V. AKINDE (2004) 5 SC (II) 71; EGWEBE V. EZUMA (1999) 6 NWLR (606) 205.
There is no record that the Respondent had either filed a cross appeal or a Respondent’s notice in the appeal and so the learned counsel is limited and confined to frame a single issue from the sole ground of appeal filed by the Appellant. AKINBOLA v THE STATE (1991) 8 NWLR (2008) 191; AKINLAGUN v OSHOBOJA (2006) ALL FWLR (325) 53.
The issue 1 above formulated by the Respondent’s counsel appears to be a preliminary objection to the competence of the ground of appeal. Although the law allows a Respondent to raise and argue a preliminary objection in the Respondent’s brief, it however does not permit a respondent to raise such an objection by way of formulating it as an issue for determination in an appeal. The position of the law on the point was enunciated by the Supreme Court in the case of EZUKWU v UKACHUKWU (2004) 7 SC (1), 96 at 101 as follows:-
“The position of the law is that where a respondent has not filed a cross appeal, the role of the appellate court is limited to seeing whether or not the decision of the court below is correct. Such a respondent does not have an unrestrained or unbridled freedom of raising issues for determination which have no relevance to the grounds of appeal filed. See the case of DR. O.M. UDOM v MICHELLETI & SONS (1982) 7 SCNJ 488 at 457; (1997) 8 NWLR (Pt. 516) 187.
As stated above, the issue under consideration is not derived from the appellant’s ground of appeal. The issue is in the nature of a preliminary objection for determination before hearing the appeal in which issues for determination are raised. As an issue for determination in this appeal, it is incompetent and accordingly struck out.”
In the above premises, the Respondent’s issue which is not only in the nature of but in fact a preliminary objection which has no relevance to the ground of appeal, is incompetent and liable to be struck out. In addition, because it is a preliminary objection, the law requires that, it be moved by the Respondent’s counsel at the hearing of the appeal before the appeal itself was argued. Where it was not so moved, it would be deemed to have been abandoned in law. See NSIRIM v NSIRIM (1990) 5 SC (II) 94, (90) 3 NWLR (138) 295; SALAMI v MOHAMMED (2000) 6 SC (II) 37, (2000) 9 NWLR, 449; TIZA v BEGHA (2005) 5 SC(II) 1, (2005) 5 SCNJ, 168 at 178.
It may be recalled that I had stated that the parties to the appeal were not represented at the hearing of the appeal on the 20/12/2012 even though counsel were duly served with the hearing notice. The preliminary objection raised in Issue 1 was therefore not moved at and before the appeal was heard and so deemed abandoned by the Respondent.
In the above circumstances, the Respondent’s Issue 1 either as an issue for determination, or as a preliminary objection, is liable to be struck out for being incompetent or abandoned. It is hereby struck out. The Respondent’s Issue 2 is the same with the Appellant’s issue, derived from the sole ground of appeal.
The submissions by the Appellant’s counsel on the issue are, relying on UBA PLC v JARGABA (2007) 11 NWLR (1045) 247, that the Appellant’s affidavit had shown facts which should have prompted the High Court to transfer the suit to the general cause list for determination. Paragraphs 4, 5, 6 and 7 of the Appellant’s affidavit were referred to, said not to have been denied by the Respondent and ought to have been acted on by the High Court as admitted by him. Cases including IEKA v TYO (2007) 11 NWLR (1045) 385 at 389 were cited and it was contended that it was wrong for the High court to have relied on Exhibit ‘B’ attached to the Respondent’s affidavit to enter judgment for the Respondent. Reference was made to the case of NWOSU v I.S.E.A. (1990) 2 NWLR (135) 688 at 701 and in conclusion, we were urged to allow the appeal.
For the Respondent the case of ATAGUBA v GURA (2005) 126, LRCN, 982, was cited on what an affidavit in support of a notice of intention to defend must contain in order to disclose a defence on the merit under the undefended procedure. It was argued that the Apellant’s affidavit did not show or give particulars of the properties said to have been sold and so mere denial of the Respondent’s claim would not suffice to disclose a defence on the merit as stated in the case of ATAGUBA v GURA (supra) and JOS NORTH L.G.A v DANIYAN (2000) FWLR (21) 872. In further argument, learned counsel said although the Appellant had deposed in paragraph 15 of his affidavit that he was to tender documents to support his assertions, he did not attach copies to the affidavit and that even if he had a counter-claim, it is no reason for the transfer of the case to the general cause list if the court was not satisfied that there was a defence on the merit. As authority, the case of THOR v FCMB (2005) 128 LRCN, 1445 was cited.
Lastly, it was also contended for the Respondent that under the undefended list procedure, he did not have to file a Reply to the Appellants’ affidavit which was said to be self contradictory, reliance being placed on ROYAL EXCH. ASSURANCE v ASWANI ILE LTD, (1992) 2 NWLR (227) 13. We were asked to dismiss the appeal.
The law on the application of the undefended list procedure provided in all State High Court (Civil Procedure) Rules is now fairly settled by the courts in several judicial pronouncements on it. Some general principles have been laid down to guide trial courts in the application of the Rules reading to suit that may be placed or entered under the undefended list for the purpose of hearing. They include that:
(a) there must be an application for the issuance of a writ of summons under the undefended list by a plaintiff
(b) that the application must be accompanied by an affidavit setting clearly the particulars of the facts on which the claim is based including documents which support the claim where available.
(c) the claim must be in respect of a debt of a definite amount or liquidated money demand; money had received or owed the plaintiff by the Defendant.
(d) specific averment or deposition in the affidavit that in the deponent’s belief, the Defendant has no defence to the claim.
(e) the trial court before the issue of the writ of summons, has a duty to consider on the record, the depositions contained in the affidavit of the Plaintiff, along with any documents that may be attached thereto, satisfy itself by making a definite finding that there are good grounds for the belief that the Defendant has no defence to the claim made against him.
(f) thereafter, if satisfied, the trial court would mark the writ of summons and enter it under the undefended list
(e) the case/suit, would be fixed for hearing on a date to be endorsed on the writ as the return date for service on the Defendant
(h) the Defendant served with the writ of summons, if he intends to defend the action, shall file a notice of the intention to defend along with an affidavit setting out the specific particulars of the facts which constitute or amount to a defence on the merit.
(i) that the notice of intention to defend must be filed or delivered to the Registrar of the court at least five days before the date fixed for hearing or the return date.
(j) on the return date for hearing of the case, if a notice of intention to defend was filed or delivered by the Defendant as and within the time prescribed, the court would consider the facts deposed to in the affidavit of the Defendant, along with those in the Plaintiff’s affidavit in support of the claim and make a finding on the record, whether the Defendant’s depositions have disclosed a triable issue which only further evidence can resolve or a defence on the merit.
(k) Where such triable issue or a defence on the merit is disclosed, the court would grant leave to the Defendant to defend the action and accordingly, transfer the ease from the undefended list to the general cause list for him to do so.
(l) if the court found that the particulars of the facts in the Defendant’s affidavit do not raise or show a triable issue for decision or disclose a defence on the merit, it would refuge or decline to grant the defendant leave to defend the action and proceed to hear the suit as undefended.
(m) where leave is refused or a Defendant did not file a notice of intention to defend as prescribed by the Rules, the court would then proceed to enter judgment without calling on the Plaintiff to produce oral evidence Or
(n) the court may call on the Plaintiff to produce oral evidence in respect of any or all the items of the claim as it may deem fit in the peculiar circumstances of the suit. See generally AFRO CONTINENTAL v AYATANYI (1985) 12 SCNJ 1, F.M.G. V. SANI (1990) 4 NWLR (147) 688; NDUKWE V. DOMSEY INT. SALES CORP. (1991) 7 NWLR (206) 680; FRANCHAL V. N.A.B. (1995) 8 NWLR (412) 176, KNIGHTS BRIDGE V. SHEKARI (2000) 2 NWLR (645) 387.
The undefended list procedure was provided for by the Rules of court to be employed, used or adopted when it is reasonably believed that a defendant could not have a viable defence in law to a claim for a debt owed by him or liquidated money demand which has accrued from him to the plaintiff. The belief that a Defendant has no defence to the claim is to be based on the facts in the Plaintiffs affidavit which prima facie, show good grounds that no such defence is available to the claim. The procedure is meant to shorten time spent in hearing a suit that relates to claim for a debt or liquidated money demand and which guarantees each party an opportunity to present the material particulars of his case for consideration by the court. It is a special procedure, peculiar in its subject and application by which a High Court is empowered to enter judgment in a suit based solely on the affidavit evidence of the parties without the need to call for oral evidence and which therefore provide a quick channel for recovery of debts or liquidated money demand, yet ensuring and creating the opportunity for fair hearing and substantial justice between the parties. It achieves justice without undue delay and unnecessary expenses if the Rules are fully and properly complied with and applied.
The main problem that usually arises in the undefended list procedure is in the consideration of whether the affidavit which accompanies a defendant’s notice of intention to defend, discloses a defence on the merit to the claim of the Plaintiff.
The law is now firmly settled that for a Defendant’s affidavit to disclose a defence on the merit which would entitle him to the grant of leave by the court to defend the action, it must condescend upon the particulars of facts and deal specifically with the Plaintiffs claim by stating clearly and concisely, what the defence is. The grounds of the defence must be set out elearly showing facts which raise a triable issue or question that calls for some further explanations from the plaintiff apart from and in addition to the averments contained in the affidavit in support of the application for the issue of the writ of summons. Such triable issue or question would arise where some doubt about or on the plaintiff’s claim is cast by the facts contained in a Defendant’s affidavit which only further evidence may resolve in the suit. Consequently, a complete defence needs not be shown by the Defendant at this stage but it would suffice if particulars of facts which would constitute a defence, if proved are deposed to in the affidavit. In such a situation, good grounds and reasons would be shown there ought to be further evidence to be adduced in the suit. See PETER TIWELL NIG. LTD. V. INLAND BANK (1997) 3 NWLR (494) 408 at 419 & 422; JIPREZE v OKONKWO (1987) 3 NWLR (62) 737; EBONG v IKPE (2002) FWLR (135) 719; HAIDO V. USMAN (2004) 3 NWLR (859) 65, (04) ALL FWLR (201) 1765; ATAGUBA V. GURA (2005) 8 NWLR (927) 429, (05) 2 SCNJ, 139; IKPONG V. UDOBONG (2007) 2 NWLR (1017) 184, S.P.D.C. V. ARHO-JOE (NIG.) (2006) ALL FWLR (331) 1330.
It may have been observed that the pith of the Appellant’s complaint is that he intended to file a counter claim in respect of the property which he asserted were taken away by the Respondent who did not deny the averment. However, as can be clearly seen, in paragraphs 1 and 2 of the Appellant’s affidavit which were set out earlier, the said property were admittedly taken away by the Respondent in line with Clauses 3, 4 and 5 of the loan agreement which he entered into with the Respondent and Exhibited with the affidavit in support of the claim. In addition, it was after the taking away of the property that the Appellant’s lawyer wrote the letter dated 20/3/2007 to the Respondent; Exhibit ‘B’ attached to the Respondent’s affidavit, saying that the Appellant was still desirous of liquidating the loan but shall do so by three instalments. If the Appellant’s property taken away in line with the loan agreement were in fact worth more than the amount he owed to the Respondent, would he have indicated his desire to liquidate the same loan by instalments? It must also be pointed out that the Appellant did not exhibit the receipts of the mentioned property taken away by the Respondent in his affidavit in order to show their actual value at the time of purchase which would be a basis of the assessment of the value at time they were taken away. The Appellant merely listed the items said to have been taken away and fixed the price of each without any basis indicated.
Because, like I stated before now, the decision on whether or not to grant leave to a Defendant in an undefended list procedure, is based entirely on the affidavit evidence of the parties placed before the court and in particular, the affidavit of the Defendant disclosing a defence on the merit, the burden is imposed by the Rules of court on the Defendant to show that the grounds for asking to be heard in defence are not frivolous, vague and craftily designed to delay the proceedings and eventually frustrate the claim of the Plaintiff. The position was enunciated by the Supreme Court in the case of SANUSI BROS. (NIG) LTD. v COTIE C.E.I.S.A (2000) 11 NWLR (679) 566 at 580 as follows:
“A Defendant must show a bona fide or good defence on the merit under the summary judgment procedure and not engage in manipulative and delaying tactics. See MACAULAY v NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 155) 283.
To show that he has a good defence to the claim on the merits, the Defendant must disclose facts to satisfy the court usually by affidavit. To achieve this, he is required to condescend upon particulars, per Lord Blackburn in Wallinaford v Mutual Society (1880) 5 App, Laws 685 at 704, and the Defence must not be seen as frivolous and particularly “moonshine” to use the expression of Lord Lindley in Codd v. Delap (1905) 12 L.T. 810. To condescend upon particulars implies a tone and real disclosure of facts upon which the court can really discern a good defence.”
See A.C.B. v GWAGWADA (1994) 4 SCNJ, 268; ATAGURA v GURA (supra); DANIEL v SAMAD (1997) 7 NWLR (514) 673; FISCO (NIG) LTD. v NASCO RICE & CEREAL PROD. CO. (98) 11 NWLR 673) 227.
I am aware of the general principle that where a Defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fat probability that he has a bona fide defence, he ought to be granted leave to defend the action as laid down in some cases, including MACGREGOR v N.M.B.A (1996) 2 SCNJ, 72 AT 82 AND SANTORY CO. V. ELABED (98) 12 NWLR (579) 544. However, in situations like the present appeal where a Defendant in his affidavit, unequivocally and expressly admitted the debt claimed by the Plaintiff and even stated the desire to pay it by instalments after the property in respect of which he said he intended to file a counterclaim, were taken away in accordance with his agreement, a far case or even the probability of a bona fide defence would be absent. The real intention of the ‘facts in relation to a counter claim is to pull the wool over the court’s eyes and obfuscate the real issue raised in the affidavit in support of the claim by the Respondent. Such facts show or disclose not genuine defence on the merit, but an intention to make a spurious counter-claim. In the case of THOR V. FCMB (supra) it was held at page 1462 even where a counterclaim was made by a Defendant that:
“The mere fact that the Defendant has a counterclaim does not necessarily entitle him to leave to defend. Where, therefore, there is no defence to the Plaintiff’s claim and there is arguable set-off or bona fide counter claim, judgment would be given to the Plaintiff.”
The Appellant’s affidavit did not contain particulars of facts which if proved, would constitute a real defence, on the merit to the claim made by the Respondent against him to entitle him to the grant of leave
by the High Court to defend the action.
In the circumstances, I am in agreement with the High Court that the Appellant’s affidavit accompanying the notice of intention to defend does not disclose a defence on the merit and so the Respondent was/is entitled to judgment in line with the provisions of that court’s Rules for the undefended list procedure.
In the result, I find no merit in the submissions by the learned counsel for the Appellant on the sole issue for determination in the appeal which is therefore resolved against the Appellant. The ground of the appeal fails, and the appeal is accordingly dismissed by me.
There shall be costs assessed at N50,000.00 in favour of the Respondent and to be paid by the Appellant.
UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft from the judgment just delivered by my learned brother Mohammed Lawal Garba JCA.
The undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A suit is maintainable under the undefended list if it relates to a claim for a debt or liquidated money demand. It is a procedure meant to shorten the hearing of the suit. S.B.N. Plc. Vs. Kyenfu (1998) 2 NWLR Pt. 536 page 4, Garba vs. Sheba Int. (Nig.) Ltd. (2000) 1 NWLR Pt. 748 page 372 Haido Vs. Usman (2004) 3 NWLR Pt. 859 page 65.
A defendant who intends to defend an action brought under the undefended list procedure is expected to file a notice of intention to defend together with an affidavit disclosing a defence on the merit or a triable issue. Haido v. Usman (supra).
The trial Judge is just required to consider only the evidence contained in the affidavit filed by the defendant in support of the notice of intention to defend the suit. Once the court comes to the conclusion that the affidavit does not disclose a defence on the merit or a triable issue, the court is to proceed with the hearing of the suit as an undefended suit and enter judgment accordingly without calling on the defendant even if present in court to answer or be heard. Haido Vs Usman (supra).
In the instance appeal, the Appellant did not disclose a defence on the merit. The trial Judge was right in going ahead with the suit and delivering its judgment.
For this and the more elaborate reasons and conclusions in the lead judgment, the appeal is dismissed, it lacking in merit. I abide by all the consequential orders as to costs.
JOSEPH TINE TUR, J.C.A: I have read the lead judgment of my learned brother Mohammed Lawal Garba, JCA and I agree that this appeal lacks merit and is dismissed. I shall add a few comments.
In the affidavit supporting the Notice of Intention to defend the suit the appellant did not dispute his indebtedness to the Respondent as claimed in the writ of summons but averred his inability to pay the debt was due “to a great misfortune that befell me” hence “I was unable to repay the loan as agreed” See paragraph 3 of the affidavit in support of the Notice of Intention to Defend the suit, The second reason is that the Respondent had attached his various properties and sold in satisfaction of the debt, realizing more than the outstanding loan, and thirdly, that he had the intention to counter-claim. By the time the suit came up for hearing on 11-07-2007 no counter-claim had been filed in the Court below.
Order 10 rule 3(1) of the High Court of Cross River State (Civil Procedure) Rules, 2008 provides as follows:
“3(i) If the party served with the writ of summons and affidavit delivers to the Registrar 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) xxxxxxxxxxxxxxxxxxx.”
When a defendant served a writ of summons under the Undefended List procedure admits that the debt was not yet paid, how can any reasonable judge refrain from entertaining judgment on the ground that “a great misfortune” had befallen the defendant? How could it be reasonably said that the affidavit disclosed a defence on the merit? To Crown it all, the appellant did not counter-claim by the time the suit came up for hearing; he only evinced an intention to do so. If the Respondent had seized the appellant’s properties and sold them to satisfy the debt and the appellant was not satisfied, the cause of action could not be by way of a counter-claim in an action brought by the Respondent under the Undefended List procedure. The procedure applies only whenever an application is made to a Court for the issuance of a “writ of summons in respect of o claim to recover a debt or liquidated money demand” supported by affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto. See Order 10 rule 1 of the Rules supra.
A claim that the properties attached and sold by the Respondent exceeds the debt cannot be “to recover a debt or liquidated money demand.” I am of the doubtful opinion whether such a cause of action can be prosecuted under the Undefended List Procedure. The effect is that when the suit came up for hearing on 11-07-2007 there was no defence on the merit and the learned trial Judge acted rightly to have entered judgment for the Respondent. For the fuller reasons given by my Lord, I also dismiss the appeal and abide by the orders made by my Lord.
Appearances
Parties absent and not representedFor Appellant
AND
Parties absent and not representedFor Respondent
