EMMANUEL OKON ISAIAH v. PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK NIGERIA LIMITED
(2016)LCN/8397(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/C/145/2013
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
EMMANUEL OKON ISAIAH Appellant(s)
AND
PRUDENTIAL CO-OPERATIVE
MICRO FINANCE BANK (NIG) LTD Respondent(s)
RATIO
WRIT OF SUMMONS: WHETHER THE WRIT OF SUMMON WAS PROPERLY MARKED TO INDICATE THAT IT WAS A WRIT UNDER THE UNDEFENDED LIST
The writ of summons in the instant case is in my view is self explanatory in the sense that the suit No. is HT/UND./11/2010. Counsel for the Respondent took time to point out that it was the practice in Akwa Ibom State that the letters “UND.” or “UNDT” was used as a short form of the word “Undefended” and it was exclusive to writ of summons placed under the Undefended List to differentiate it from the ordinary writ. That explanation is cogent, concrete and convincing as the suit numbers in ordinary Writ do not bear the letters “UND”. The writ of summons served on the Appellant was therefore properly marked to indicate that it was a writ under the Undefended List and I so hold. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
COURT: PRELIMINARY OBJECTION; WHETHER PRELIMINARY OBJECTION WAS RAISED IN THE NOTICE OF INTENTION TO DEFEND THE SUIT
Again, there is no where on Record to show that the learned trial Judge failed to hear the preliminary objection raised in the Notice of Intention to defend the suit. If the preliminary objection was raised in the Notice of Intention to defend the suit, one wonders why counsel for the Appellant did not take the preliminary objection while arguing his Notice of Intention to defend the suit. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was the 1st Defendant at the Court below in the suit filed by the Respondent herein as the Plaintiff/Claimant under the Undefended suit. Judgment was entered against the Appellant in favour of the Respondent by Stephen O. Okon, J, of the Ikot Ekpene Division of the High Court of Akwa Ibom State in suit No. HT/UND/11/2010 on the 8th day of January, 2013. Aggrieved by that decision, the Appellant has appealed against that judgment.
The Appellant who operated Account No. 647 with the Respondent sought for and was granted a loan facility of N100,000 (One Hundred Thousand Naira) on the terms and conditions stipulated in the Agreement which the Appellant and his Guarantor – Mr. Nelson Aghogu signed.
The Respondent made several demands for the Appellant to liquidate the debt, but all to no avail. In reaction to one of the letters/Notices, the Appellant accepted being indebted to the Respondent.
?The lower Court granted the Respondent leave for the issuance of the Writ of Summons and placed same on the Undefended list. A writ of summons was issued against the Appellant
1
and his Guarantor Mr. Nelson Aghogu in the Undefended list in suit No. HT/UND/11/2013.
In it, the Claimant claims against the Defendants jointly and severally as follows:
1. N540,000.00 (Five Hundred and Forty Thousand Naira) only, being money owed by the Defendants to the Plaintiff as at 30th September, 2010 as follows:
(a) Principal sum = N100,000
(b) Interest of 10% per month from 10-1-2007 to 30-9-2010 (44 months) = N440,000.00 having paid the 10% interest for the first three months.
2. Interest of 10% of the Principal sum of N100,000 from October, 2010 till the debt is fully liquidated.
3. Cost of this Action.
The Learned trial Judge in a considered judgment agreed that there was no defence on the merits and proceeded to enter judgment in favour of the Respondent against the Appellant. This appeal is predicated on the said judgment under the Undefended list.
The Appellant’s counsel Nsemeke Daniel Esq distilled three issues for determination thus:
?(1) Whether it was right for the trial Court to ignore the Respondent’s non-compliance with the Rules for the issuance of the Writ of summons under
2
Undefended list in the High Court of Akwa Ibom State.
(2) Whether the trial Court was right in hearing and giving judgment to the Respondent herein in the Undefended list.
(3) Whether the judgment in this case was not given in breach of the Rules of fair hearing.”
The Respondent’s counsel Matthew H. Akpan Esq, on his own part also distilled three issues for determination as follows:
?(i) Whether it was right for the trial Court to ignore the Notice of Preliminary objection raised in the Notice of intention to defend the suit by the 1st Defendant/Appellant and enter judgment for the Respondent on the merit.
(ii) Whether the trial Court was right in hearing and giving judgment to the Respondent in the Undefended list.
(iii) Whether the judgment was not given in breach of the Rules of Fair hearing.”
Apart from slight difference in Issue No.1, the issues formulated by both counsel are the same.
?In his argument on the issues he formulated, learned counsel for the Appellant cited Order 11 Rule 8 (1) of the High Court (Civil Procedure) Rules of Akwa Ibom State, 2009 and contended that in the instant case, the word
3
“Undefended List” was not marked on the Writ of summons. This he argued was the basis for the notice of Preliminary Objection raised in the notice of Intention to defend the suit and which the trial Court failed to consider. He then posited that having failed to serve the Appellant with a properly marked and endorsed writ of summons as required by the said Order 11 Rule 8 (1), the suit was incompetent for hearing under the Undefended list. He cited the case of NATIONAL ASSEMBLY & ORS. v. CEE CHRIS INVESTMENT CO. LTD (2008) 5 NWLR (Pt. 1081) P. 519 as well as SANNI v. OKENE LOCAL GOVT. TRADITIONAL COUNCIL (2008) 10 M.J.S.C. P.199.
Counsel also submitted that it was erroneous for the trial Judge to receive and make use of a further affidavit from a sister case in suit No. HT/UNDT/15/2010 to give judgment in this suit under the Undefended List. Also that failure by the learned trial Judge to hear the preliminary objection raised in the Notice of Intention to defend amounted to breach of fair hearing.
?Reacting to the foregoing submissions, learned counsel for the Respondent contended that the argument by Appellant’s counsel that the writ of summons
4
was not properly marked does not hold water as the writ itself is self explanatory. It clearly bears suit No. HT/UND/11/2010. He stressed that in Akwa Ibom State the letters “UND” Or “UNDT” is a short form of the word “Undefended” and only used in a writ of summons placed on the Undefended List to differentiate it from the ordinary writ.
He further argued that the Respondent having exhibited documents evidencing the loan transaction between the Appellant and the Respondent, documents like the Loan form, An Agreement showing the receipt of the loan as well as the Loan’s Statement of Account, the learned trial Judge was right in hearing and giving judgment to the Respondent on the Undefended List.
Counsel submitted that the Appellant having been represented by counsel and his counsel further intimated the Court that he filed a Notice to defend which Notice was duly argued without reference to the preliminary objection, the Appellant cannot turn round to complain that he was denied fair hearing.
The issues raised by both counsel can conveniently be compressed into one straight forward issue of narrow compass thus:
“Whether on the facts and
5
circumstances of this case, the learned trial Judge was right in hearing and determining the Respondent’s case under the Undefended List.”
The whole essence of entering a suit under the Undefended List is captured in Order 11 Rule 8 (1) and (2) of High Court (Civil Procedure) Rules of Akwa Ibom State, 2009. Order 11 Rule 8(2) states as follows:
“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 of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.”
The Appellant made heavy weather about the writ of summons not endorsed or marked “Undefended”. The simple reason for this special enforcement or mark on the writ of summons is to intimate the defendant of the nature of the suit as well as differentiate the Undefended writ of summons from the ordinary writ of summons.
?The writ of summons in the instant case is in my view is self explanatory in the sense that the suit No. is HT/UND./11/2010. Counsel for the Respondent took time to point out
6
that it was the practice in Akwa Ibom State that the letters “UND.” or “UNDT” was used as a short form of the word “Undefended” and it was exclusive to writ of summons placed under the Undefended List to differentiate it from the ordinary writ.
That explanation is cogent, concrete and convincing as the suit numbers in ordinary Writ do not bear the letters “UND”. The writ of summons served on the Appellant was therefore properly marked to indicate that it was a writ under the Undefended List and I so hold.
Again, there is no where on Record to show that the learned trial Judge failed to hear the preliminary objection raised in the Notice of Intention to defend the suit. If the preliminary objection was raised in the Notice of Intention to defend the suit, one wonders why counsel for the Appellant did not take the preliminary objection while arguing his Notice of Intention to defend the suit.
That argument is puerile.
?On whether the learned trial Judge had good grounds for believing that there was no defence to the suit and placed same on the Undefended List, it may be pertinent to reproduce Exhibit TWC 2, a letter from Lex Associates and
7
signed by M. Akpakah Esq, dated 12th November, 2007. It reads:
“We are solicitors for Emmanuel O. Isaiah of 13 Ntiedo Udosen Street, Uyo Imminent Nigeria Company of No. 86 Udo Umana Street, Uyo and Silverline & S.L Company Ltd of No. 4 Ufeh Street, Uyo “Our clients”. Your letters representing the above (Loan) have been referred to us with full instructions to reply to same.
Our clients have not disputed their indebtedness to your client going by the contents of your letters if your client could properly reconcile the state of indebtedness between the principal and interest of the loan obtained.
Furthermore, our client informs us that his inability to meet his obligation respecting the loan is as a result of Mr, Nelson Aghogu’s refusal to pay the indebtedness owed to our client which would have facilitated his liquidation of the loan.”
?The above letter Exhibit TWC2 is very clear and succinct. It is unambiguous and need no further explanation. The above letter laid to rest any intention to defend the suit as there is absolutely nothing to defend after Exhibit TWC 2. Order 11 Rule (1) & (2) of the High Court (Civil Procedure) Rules of
8
Akwa Ibom State was fully complied with and the learned trial Judge was well within the law to have placed the suit under the Undefended List and entered judgment in favour of the Respondent.
In entering judgment for the Respondent after reading Exhibit TWC 2, the learned trial Judge had this to say:
“In the circumstance, I agree with the Claimant that the Defendants have no defence to this suit. I hereby enter judgment in favour of the Claimant against the Defendants as follows…”
The foregoing statement by the Learned Trial Judge can only be interfered with by this Court if shown to be perverse, but it has not been so shown by the Appellant. This Court therefore has no reason to interfere. In the circumstance, the sole issue is resolved against the Appellant and in favour of the Respondent. This appeal is bereft of merit and hereby dismissed. The judgment of the trial Court in suit No. HT/UND./11/2010 delivered on the 1st of August, 2013 by Stephen E. Okon, J, is hereby affirmed. I make no order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance, a draft copy of the Judgment just delivered by my
9
learned Brother, C. E. Nwosu-Iheme (Ph.D), JCA, in which the Appellant’s appeal was dismissed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I have nothing further to add.
I abide by the orders made in the lead Judgment.
PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my Learned brother Chioma Nwosu-Iheme, JCA. I agree with the reasoning and conclusion and adopt same as mine.
Having resolved the lone issue in this appeal against the Appellant, I also agree that there is no merit whatsoever in this appeal and that the appeal fails. The Judgment of the Lower Court in this appeal is also affirmed.
I also endorse his Order as to costs.
Appeal dismissed.
10
Appearances
Ubong Peters, Esq.For Appellant
AND
Obong M. Akpan, Esq.For Respondent
