ENI AGRO ALLIED FARMS LTD v. EZEH
(2020)LCN/14042(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 13, 2020
CA/C/318/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
ENI AGRO ALLIED FARMS LTD APPELANT(S)
And
JOHN BOSCO EZEH (Doing Business As John Value Ventures) RESPONDENT(S)
RATIO
WHETHER OR NOT A DEFENDANT WHO INTENDS TO DEFEND A SUIT FILED AGAINST HIM IS REQUIRED TO FILE A NOTICE OF INTENTION TO DEFEND A SUIT
From the foregoing, a defendant who intends to defend a suit filed against him is required to file a notice of intention to defend the suit accompanied by an affidavit disclosing a defence on the merit. What this means is that the affidavit must not contain merely a general statement that a defendant has a good defence to the action. It must be supported by particulars which, if proved would constitute a defence. Thus, the affidavit should disclose the following:-
(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 other circumstances which shows reasonable grounds of a bona fide defence.
SeeIMONIYAME HOLDINGS LTD V. SONEB ENTERPRISES LTD (2010) 4 NWLR (prt 1185) 561, OBI V. NKWO MARKET COMMUNITY BANK (NIG) LTD (2010) 14 NWLR (prt 1213) 169 and DIN V. OKOSE (2014) 16 NWLR (part 1432) 124. PER SHUAIBU, J.C.A.
WHETHER OR NOT A DEFENDANT MUST SHOW BONA FIDE OR GOOD DEFENCE ON THE MERIT UNDER A SUMMARY JUDGEMENT
A mere general denial that the defendant is indebted will therefore not suffice. Again, it is not enough for the defendant to show a case of hardship but creating no enforceable right e.g. past promise by plaintiff unsupported by valuable consideration nor a mere inability to pay.
The nature of the defendant’s defence that will satisfy the Court to let him defend the suit was also buttressed by the apex Court in the case of SANUSI BROS (NIG) LTD V. COTIA C. E. I. S. A. (2000) 11 NWLR (prt 679 566 at 530 thus:-
“A defendant must show a bona fide or good defence on the merits under the summary judgment procedure and not engage in manipulative and delaying tactics. 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 SHUAIBU, J.C.A.
DIFFERENCE BETWEEN A DEFENCE ON MERIT UNDER THE UNDEFENDED LIST PROCEDURE AND DEFENCE IN LITIGATION
It needs to be restated that a defence on merit under the undefended list procedure is not the same as a defence in litigation in a case on the general cause list where evidence must be adduced to prove an issue on the preponderance of evidence or balance of probability. At that stage what is required under the undefended list procedure is for the defendant to lay foundation for the existence of a triable issue(s). PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The respondent as plaintiff took out a writ under the undefended list in suit No HU/UND38/2018 at the High Court of Akwa Ibom State, sitting at Uyo presided over by Honourable Justice Aniekan Akpan Eton claiming against the defendant (now appellant) as follows:-
1. N3,001,970.00 (Three Million One Thousand Nine Hundred and Seventy Naira) only, being outstanding debt due from the defendant to the claimant for supply of poultry feeds to the defendant at its address/poultry farm located at Nung Udoe Road.
2. N100,000.00 (One Hundred Thousand Naira) being cost of this action.
On the 14/02/2018 the respondent had moved an Exparte application pursuant to Order 11 Rule 8 of the High Court (Civil Procedure) Rules of Akwa Ibom State, 2009. Upon hearing the application, the trial Court granted the prayers sought in the following terms enrolled on page 20 of the record:
“That the claimant/applicant be and is hereby granted leave to issue the writ of summons in the suit. Upon its issuance, the writ of summons shall be marked “UNDEFENDED” and entered for hearing and
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determination of the undefended list.
Case is adjourned to 20th day of March, 2018 for hearing”.
Upon being served with the processes of the claimant, the defendant filed a notice of preliminary objection and later filed a notice of intention to defend as well as an affidavit disclosing the defendants defence on the merit.
On the return date of 10/5/2018, the defendant’s counsel withdrew his notice of preliminary objection and same was struck out. After hearing and in its ruling delivered on 21st day of May, 2018, the trial Court refused the prayers of the appellant herein maintaining that the said affidavit did not disclose a defence on the merit.
The learned trial judge held as follows:-
“Consequently, the defendant is hereby ordered to pay the claimant the sum of N3,001,970.00 (Three Million, One Thousand, Nine Hundred and seventy Naira) only being outstanding debt due from the defendant to the claimant for supply of poultry feeds to the defendant at its address/poultry farm located at Nung Udoe Road. The defendant shall pay claimant post judgment interest at the rate of five percent (5%) per annum with effect from
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the date of this judgment till the judgment sum is fully liquidated.
The inclusion of a claim for cost does not negatively affect the placing of this suit in the undefended list.
The defendant shall also pay the sum of Ten Thousand Naira (N10,000.00) only cost of this suit to the claimant.”
Miffed by the decision of the trial Court, appellant appealed to this Court through a notice of appeal filed on 22/5/2018. The appellant’s notice of appeal contains one ground of appeal at pages 58 – 59 of the printed record.
On 22/1/2010 when the appeal came up for hearing, both counsel identified their briefs, adopted and sought to rely on their briefs of argument.
In the appellant’s brief of argument filed on 19/9/2018, a lone issue was distilled for the determination of this appeal as follows:-
Whether from the state of the affidavit evidence placed in support of the notice of intention to defend by the defendant/applicant, this suit was/is one that can be properly heard and determined under the provisions of Order 11 Rule 10 (1) and (2) of the Akwa Ibom State High Court Civil Procedure Rules 2009.
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The respondent in his brief of argument filed on 14/12/2018 but consequentially deemed on 22/1/2020 also formulated a lone issue thus:-
Whether the defendant/appellant had failed to satisfy the trial Court that it has prima facie defence on the merit.
I have examined the issue formulated by both sides and that they are seemingly the same even though couched differently. However, the appellant’s lone issue is apt and quite apposite. I shall therefore determine this appeal on the basis of the appellant’s lone issue.
Before proceeding to consider the argument of learned counsel, it is pertinent to state albeit briefly the facts of the case as disclosed in the printed record.
That sometimes in March, 2017 the appellant contracted the respondent to supply it poultry feeds worth N5 million wherein it was supplied at its poultry farm located at Nung Udoe Road, Uruan Local Government Area of Akwa Ibom State. Upon taking delivery of the said poultry feeds, appellant issued a post dated Zenith Bank Plc cheque No 33011668, dated 5/7/2017 for the agreed amount attached and marked Exhibit “A”. Vide Exhibit “A” the
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appellant promised payment of the said sum of N5 million with effect from the date stated on it.
In the month of July 2017, respondent presented Exhibit “A” for payment but same was dishonoured and upon subsequent presentation, same was again returned as dishonoured. And when he related this development to the appellant, it resorted to making piecemeal payments in which the respondent was as at 15th December 2017 paid only N1,998,030.00 (One Million Nine Hundred and Ninety Eight Thousand Thirty Naira) only as evident in the account statements, Exhibits B1,B2,B3 and B4 respectively. Thus the outstanding balance stood at N3,001,970.00 (Three Million One Thousand and Ninety Seventy Naira) which the appellant failed and refused to pay inspite of repeated demands as shown in the letter of demand Exhibit “C”. It was as a result of this failure and or refusal to liquidate its indebtedness, the respondent as claimant approached the trial Court through the undefended list procedure seeking for the recovery of the said outstanding amount from the appellant.
I now come back to the argument of learned counsel in support of their
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formulations.
Arguing the lone issue, learned counsel for the appellant, Anthony Ebuk referred to Order 11 Rules 8 – 12 of the Akwa Ibom State Civil Procedure Rules 2009 to contend that the rules are designed to relieve the Courts of the vigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendant who is just determined to dribble and cheat plaintiff out of reliefs they are normally entitled to on cases that are clear and unassailable.
He also referred to the averments in paragraphs 9, 11, 12, 13, 14, 15 and 16 of the affidavit of the defendant to show cause in submitting that the trial Court has failed to take into consideration that there is already a prima facie contention between the parties which could only be resolved by calling further evidence and thus an undefended list procedure was inappropriate. In aid, learned counsel relied on the authorities in the cases of PLANWELL WATERSHED & ANOR V OGALA (2003) LPELR 2920, MIDAS BANK PLC V. COMMERCE PROGETTI (NIG) LTD (2009) LPELR – 8263 and ADUKU V F.R.N (2009) 4 NCC 350.
In further argument, learned counsel
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submits that from the affidavit presented which clearly stated what defences the appellant hoped to raise in the full trial, the invoices it intends to rely as well as its intention to file a counter-claim, there was enough prima facie evidence to give the appellant an opportunity to be fully heard.
On his part, learned counsel for the respondent, Kufrey Effiong, Esq. submits that a defendant’s affidavit disclosing defence on the merit must not contain general evasive denial of the plaintiff’s claim but the law requires such defendant to furnish adequate, full and detailed material particulars grounding denial of plaintiff’s claim in the defendant’s affidavit. He referred to OKOLI V. MORECAB FINANCE LTD (2007) LPELR – 2463, MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR (prt 144) 311 NISHIZAWA LTD V. JETHWANI (1984) 12 SC 234 at 270 and hosts of other cases.
Still in argument, learned counsel submits that paragraphs 9 – 10 of the defendant’s affidavit disclosing defence on the merit which formed the fulcrum of its defence constitute a general denial of indebtedness, devoid of necessary particulars as
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required by law.
In further argument, he submits that mere raising of counter-claim or arguable set-off in an affidavit disclosing defence on the merit, does not entitle the defendant leave to defend if there is no defence to the claim of the plaintiff as required by law. He referred to THOR LTD V. FIRST CITY MERCHANT BANK LTD (2006) 6 SC (prt 1) 9 at 17 – 20, HARUNA MUHAMMED V. MAGLODAN (2017) LPELR – 43197 and ALUMINIUM MANUFACTURING CO LTD & ANOR V. UBN (2015) LPELR – 26010 to the effect that it is only where the counter-claim is directly related to the principal claim that a Court of law would be justified to transfer a case from the undefended list to the ordinary cause list.
As shown above, the issue in contention is whether the defendant’s affidavit in support of intention to defend has disclosed a defence on the merit to which the trial Court held otherwise. The pertinent provisions of Order 10 Rule 1 of High Court (Civil Procedure) Rules of Akwa Ibom State 2009 provides that if the party served with the writ of summons and affidavit delivers to the Registrar, before the day fixed for hearing a notice in writing
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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 may think just.
From the foregoing, a defendant who intends to defend a suit filed against him is required to file a notice of intention to defend the suit accompanied by an affidavit disclosing a defence on the merit. What this means is that the affidavit must not contain merely a general statement that a defendant has a good defence to the action. It must be supported by particulars which, if proved would constitute a defence. Thus, the affidavit should disclose the following:-
(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 other circumstances which shows reasonable grounds of a bona fide defence.
SeeIMONIYAME HOLDINGS LTD V. SONEB ENTERPRISES LTD (2010) 4 NWLR (prt 1185) 561, OBI V. NKWO MARKET COMMUNITY BANK (NIG) LTD (2010) 14 NWLR (prt 1213) 169 and DIN V. OKOSE (2014) 16 NWLR (prt
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1432) 124.
In construing a similar provision, the Supreme Court in MACAULAY V. NAL MERCHANT BANK LTD (supra) also following its earlier decision in NISHIZAWA LTD V. JETHWANI (supra) held that the defendant 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 latter case it should specify the part. A mere general denial that the defendant is indebted will therefore not suffice. Again, it is not enough for the defendant to show a case of hardship but creating no enforceable right e.g. past promise by plaintiff unsupported by valuable consideration nor a mere inability to pay.
The nature of the defendant’s defence that will satisfy the Court to let him defend the suit was also buttressed by the apex Court in the case of SANUSI BROS (NIG) LTD V. COTIA C. E. I. S. A. (2000) 11 NWLR (prt 679 566 at 530 thus:-
“A defendant must show a bona fide or good defence on
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the merits under the summary judgment procedure and not engage in manipulative and delaying tactics. 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.”
Did the appellant as defendant show a bona fide or good defence on the merits and or condescended upon the particulars? In paragraphs 9, 11, 12, 13, 14, 15 and 16 of the affidavit to show cause, the appellant as defendant at the trial Court averred as follows:-
9. That paragraph 9 of the affidavit is true to the extent that the various amount of money listed therein were paid to the plaintiff and at the various date. We state further that paragraphs 9 (a-d) does not represent all the money paid to the plaintiff by the defendant as the defendant had long concluded the payment for the said transaction.
11. That paragraph 10 of the affidavit is denied, the defendant had concluded all payment on the said transaction and moved on to other business relationships with the claimant.
12. That paragraph 11 of the affidavit is also denied. I
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rather state that all the transactions the defendant has had with the claimant has never been on a cash and carry basis but on a futuristic payment or supply plan as the case may be.
13. That paragraphs 12 and 13 of the affidavit are admitted only to the extent that the defendant received a letter from one Kufre Effiong Esq. of learned counsel but has always maintained that it is rather the claimant who has gotten his account mixed up and we are entitled to goods on an outstanding credit balance of N2,500,000.00 as per product order paid for and goods yet to be delivered as of the vendors ledger of the 31st of January, 2018. A copy of the ledger is attached and marked Exhibit I.
14. That at the trial, the defendant will counter-claim against the claimant for the sum of N2,500,000.00 of unsupplied products.
15. That at the full trial, the defendant will tender all the counterfoil copies of the claimant’s invoice and full history of the transaction between the parties.
16. That I believe that it is in the interest of justice to grant this matter be moved to the general cause list for proper presentation of facts and evidence.
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It needs to be restated that a defence on merit under the undefended list procedure is not the same as a defence in litigation in a case on the general cause list where evidence must be adduced to prove an issue on the preponderance of evidence or balance of probability. At that stage what is required under the undefended list procedure is for the defendant to lay foundation for the existence of a triable issue(s).
A meticulous perusal of the aforesaid affidavit in support of the notice of intention to defend, same in my respective view contains mere general denials, devoid of any particulars. And by failing to substantiate its bare statements with detailed particulars supported by documents, the defendant did not show that it has a good defence to the action on the merit neither did it disclose facts that would have been deemed sufficient to entitle it to be granted leave to defend the action.
In the result, the lone issue is resolved against the appellant. I therefore cannot but agree entirely with the learned trial judge that the appellant’s affidavit in support of its notice of intention to defend the action did not disclose any defence on
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the merit to justify granting the appellant leave to defend the action. The appeal is accordingly dismissed and the judgment of the lower Court of 21/5/2018 is hereby affirmed. There shall be costs which I assessed at N50,000.00 to the respondent against the appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother M. L. SHUAIBU JCA.
I agree with the reasoning and conclusion and I also agree that the appeal lacks merit and it deserves to be dismissed.
I abide with the order as to costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother M.L. SHUAIBU, JCA. I am in full agreement with the resolution of the appeal.
I also abide by the orders made in the lead judgment particularly dismissing the appeal.
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Appearances:
Anthony Abuk, Esq. For Appellant(s)
Kufrey Effiong, Esq. For Respondent(s)
