HASHIM v. ASO SAVINGS & LOANS PLC
(2022)LCN/16787(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/A/234/2018
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
MR. DIKKO ALI HASHIM APPELANT(S)
And
ASO SAVINGS & LOANS PLC RESPONDENT(S)
RATIO
THE FACTOR TO DETERMINE THE NATURE OR CHARACTER OF A GROUND OF APPEAL
It is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against, but can arise from factors such as the procedure under which the decision was rendered and from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. In AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465, Muhammad, JSC (now CJN) stated as follows:
“Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. DA. Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (Pt. 126) 299; F.M.B.N. v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the text of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.” PER OGAKWU, J.C.A.
THE ESSENCE OF GROUNDS OF APPEAL
The essence of grounds of appeal is to give sufficient notice to the adverse party of the nature of the Appellant’s complaint, which such adverse party will be confronted with in Court. Where the grounds of appeal serve such notice, then the purpose and essence of a ground of appeal is achieved and the ground will not be defenestrated on any technical grounds. See AIGBOBAHI vs. AIFUWA (2006) LPELR (267) 1 at 17 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 21-23. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.” PER OGAKWU, J.C.A.
THE OPTIONS AVAILIABLE TO THE APPELLATE COURT WHERE THE ISSUE OF WRONGFUL ADMISSION OR REJECTION OF EVIDENCE IS RAISED
Where an issue of wrongful admission or rejection of evidence is raised, there are three options open to the appellate Court by virtue of the stipulations of Section 251 of the Evidence Act. These options are: the evidence may be left intact, regarding it as properly admitted or rejected; the Court may expunge the evidence wrongly admitted or in case of evidence wrongly rejected or excluded, order a retrial directing its admission. The decision of the Court of trial can only be reversed in any event, if the evidence wrongly admitted or rejected affected the decision of the Court. See DUNALIN INVESTMENT LTD vs. BGL PLC (2015) LPELR (26001) 1 at 96-97, IDUNDUN vs. OKUMAGBA (1976) LPELR (1431) 1 at 22-23 and DUROSARO vs. AYORINDE (2005) LPELR (967) 1 at 21-22. I have considered the totality of the affidavit evidence on record with the documents attached thereto and shortly, when we interrogate issue number two, to ascertain if the Appellant disclosed a defence on the merit, we would find out if the decision of the lower Court that the Appellant did not disclose a defence on the merit would have been the same if the lower Court had not placed reliance on the said ‘Exhibit ASO H’. In a coda, this issue number one is resolved against the Appellant. PER OGAKWU, J.C.A.
THE GENERAL PRINCIPLES OF LAW GOVERNING PROCEEDINGS UNDER THE UNDEFENDED LIST PROCEDURE
The general principles governing proceedings under the undefended list procedure are fairly well settled. The Court after the defendant has filed his processes has a duty to consider the same to see if he has disclosed a defence on the merit and ought to be given leave to defend the claim. It is the affidavit disclosing a defence on the merit which is filed with the notice of intention to defend that is the determinant factor on whether a defendant will be let in to defend: ED-OF NIG LTD vs. SNIG NIG LTD (2013) LPELR (19888) 1 at 25-26. Although, the Court is imbued with the discretion on whether to grant the defendant leave to defend the claim where he has disclosed a defence on the merit, in exercising this discretion the Court has a duty to consider the affidavits filed by the parties. See BEFAREEN PHARMACY LTD vs. A.I.B. LIMITED (2005) 17 NWLR (PT 954) 230 at 233. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, Coram Judice: A. B. Mohammed, J. (as he then was), in SUIT NO. FCT/HC/CV/1538/2017: ASO SAVINGS AND LOANS PLC vs. DIKKO ALI HASHIM delivered on 14th February, 2018; wherein judgment was entered in favour of the Respondent, who was the Plaintiff, at the lower Court. The Appellant being dissatisfied with the decision of the lower Court appealed against the same. The judgment of the lower Court is at pages 130-145 of the Records, while the original Notice of Appeal, which was filed on 15th February, 2018 is at pages 146-149 of the Records. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 15th September, 2020, but deemed as properly filed on 5th October, 2020.
In prosecution of the appeal, the Records of Appeal was compiled and transmitted and the parties filed and exchanged briefs of argument. The Respondent also filed a Notice of Preliminary Objection which it argued in its brief of argument, wherein it challenged the competence of the appeal. At the hearing of the appeal, learned senior counsel for the Appellant, Michael Kaase Aondoakaa, Esq., SAN and Adetayo Adeyemo, Esq., of counsel for the Respondent urged the Court to uphold their respective submissions in the determination of the appeal. The briefs on which the appeal was argued are:
1. Appellant’s Amended Brief of Argument filed on 28th September, 2021 but deemed as properly filed on 30th September, 2021.
2. Respondent’s Consequentially Amended Brief of Argument filed on 8th October, 2021.
3. Appellant’s Reply Brief filed on 15th October, 2021.
As already stated, the Respondent filed a Notice of Preliminary Objection on 8th October 2021, which it argued in its brief of argument. It is conventional wisdom to first consider and deal with the said preliminary objection which seeks to scuttle the hearing of the appeal in limine.
THE PRELIMINARY OBJECTION
The Respondent seeks the following orders in the preliminary objection:
“1. AN ORDER striking out Grounds 1, 2, 3, 4, 5 and 6 of the Amended Notice of Appeal filed on the 15th of September 2020 but deemed properly filed and served on the 5th of October 2020 for being incompetent.
2. AN ORDER striking out Issues 1 and 2 formulated from the Grounds above mentioned, i.e., Grounds 1, 2, 3, 4, 5 and 6 of the said Amended Notice of Appeal for being incompetent.
3. AN ORDER striking out the entire appeal for being incompetent”.
The grounds on which the preliminary objection is predicated are set out in the text of the Notice of Preliminary Objection.
The Respondent’s contention in argument of the preliminary objection is that grounds one and two of the grounds of appeal raise fresh issues which were not raised at the lower Court and that since no leave was sought or obtained to raise the fresh/new issues, the said grounds and the issues distilled therefrom were incompetent vide AKINWALE vs. B. O. N. (2001) 4 NWLR (PT 704) 448 at 456 and EDOKPOLO vs. SEM-EDO (1989) 4 NWLR (PT 116) 473 at 494. It was posited that a ground of appeal must constitute a complaint against the decision appealed against. The cases of DAGACI OF DERE vs. DAGACI OF EBWA (2006) LPELR-911 (SC), NWANJI vs. COASTAL SERVICES (NIG) LTD (1999) LPELR-13063 and PETER vs. THE STATE (2015) LPELR-24427 were referred to. It was asserted that the Appellant’s grounds one, two, five and six did not relate to the decision of the lower Court and should be struck out together with the issues distilled from them. The cases of IGBINOVIA vs. UBTH (2000) 8 NWLR (PT 667) 53 at 63-66, BI ZEE BEE HOTELS LTD vs. ALLIED BANK (1996) 8 NWLR (PT 465) 176 at 185 and IKWUKA vs. ANACHUNA (1996) 1 NWLR (PT 424) 355 at 364 were relied upon.
Grounds three and four, it was stated, were incompetent and ought to be struck out for not challenging the ratio of the decision, as the lower Court never made a finding that the Respondent did not prove its entitlement to the reliefs claimed. It was further stated that it was a fresh issue for which leave to raise was required, and that leave was not sought. The cases of ISHOLA vs. AJIBOYE (1998) 1 NWLR (PT 532) 71 at 79, AKINWALE vs. B. O. N. (supra) and EDOKPOLO vs. SEM-EDO (supra) were called in aid. It was opined that since the said grounds three and four did not attack the reasoning or ratio of the decision of the lower Court, they must be struck out. The cases of DAGACI OF DERE vs. DAGACI vs. DAGACI OF EBWA (supra), NWANJI vs. COASTAL SERVICES (NIG) LTD (supra) and PETER vs. THE STATE (supra) were cited in support.
It is the further contention of the Respondent that ground five is vague and imprecise, and that the grounds and particulars must cohere and that where they do not, the ground must be struck out vide BAMGBADE vs. BALOGUN (1994) 1 NWLR (PT 323) 718 at 758. Still in argument, it was posited that the submission on pre-judgment interest was not predicated on any ground of appeal and should therefore be struck out. The case of B. O. N. LTD vs. NA’ BATURE (1994) 1 NWLR (PT 319) 235 at 244 was called in aid. It was further stated that the submissions on conflicting affidavits is not sustained by any ground of appeal and therefore incompetent. The case of BON LTD vs. NA’ BATURE (supra) was cited in support. The Court was consequently urged to strike out the appeal since the grounds of appeal and issues were incompetent and defective.
In replication, the Appellant submits that grounds 1 and 2 were not fresh/new issues, but were issues which arise from the decision appealed against and so leave of Court was not required. It was opined that the said grounds emanate from the holding of the lower Court that ‘Exhibit ASO H’ shows the total indebtedness of the Appellant and therefore the Appellant can appeal against the same as of right under Section 241 (1) of the Constitution vide AKINDELE vs. A-G, LAGOS STATE (2019) LPELR-47580 (CA) at 20.
The Appellant asserted that grounds three, four, five and six relate to the decision of the lower Court, and challenge the validity of the ratio decidendi of the lower Court. The case of SACOIL 281 NIGERIA LTD vs. TRANSNATIONAL CORPORATION OF NIG PLC (2020) LPELR-49762 (CA) at 57 was referred to on the meaning of ratio decidendi. It was posited that ground three is a direct challenge on the reasoning of the lower Court at pages 130-131 and 144 of the Records in entering judgment against the Appellant, as the import of the reasoning is that the lower Court found the Respondent’s case to be unchallenged based on the finding that the Appellant did not disclose a defence on the merit. It was maintained that the Respondent did not prove its entitlement to pre-judgment interest for which judgment was entered in its favour. The case of NIGERIA GERMAN CHEMICAL COMPANY PLC vs. KRISORAL AND CO LTD (2019) LPELR-47987 (CA) was relied upon.
It was opined that grounds four and five relate to the judgment appealed against and attack the ratio of the judgment, based on the finding of the lower Court at page 144 of the Records that the Appellant did not disclose a defence on the merit and therefore entered judgment for the Respondent. It was maintained that ground five challenges the finding of the lower Court at page 143 of the Records that the period of repayment agreed upon had fallen due and that the Appellant was in default, when in fact the Appellant was not in default of any repayment instalment.
On ground six, the Appellant submits that it relates to the finding of the lower Court on the basis of which it awarded both interest and default penalty in a claim on the undefended list. It was asserted that all the grounds of appeal are clear and acquaint the Respondent with the issue involved in the appeal. The case of JIMOH vs. AYANDOYE (2012) LPELR-8006 (CA) at 8-10 was cited in support. It was conclusively submitted that the grounds of appeal were competent and that the appeal was therefore competent.
RESOLUTION OF THE PRELIMINARY OBJECTION
This preliminary objection is anchored on the premise that the grounds of appeal raise fresh issues which do not arise from the decision of the lower Court; that one of the grounds is vague and imprecise and that the submissions on pre-judgment interest and conflicting affidavits do not take their roots from any of the grounds of appeal. It seems to me that the critical consideration is whether the Respondent is correct in its assertion that the grounds of appeal neither relate to, nor do they arise from the decision of the lower Court; and that the grounds raise fresh issues which were not ventilated at the lower Court and can only be raised with leave of Court, which the Appellant neither sought nor obtained. It is hornbook law that grounds of appeal are not formulated in nubibus. Grounds of appeal must arise from the decision appealed against. Where a ground of appeal has no connection with the decision appealed against, the ground of appeal is incompetent and would not be countenanced by the Court.
The grievance and dissatisfaction with the judgment of a Court is articulated and conveyed to an appellate Court in the ground(s) of appeal. Put differently, grounds of appeal index the Appellant’s complaints against the judgment of a Court. See CCB PLC vs. EKPERI (2007) 3 NWLR (PT 1022) 493 at 511. The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. It is the reason why the decision is considered wrong by the aggrieved party: IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 563 at 578 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464.
The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground.
It is rudimentary law that a ground of appeal need not arise from the ipsissima verba of the decision appealed against, but can arise from factors such as the procedure under which the decision was rendered and from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of. In AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465, Muhammad, JSC (now CJN) stated as follows:
“Although many authorities lay emphasis that a ground of appeal must stem from the text of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. DA. Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (Pt. 126) 299; F.M.B.N. v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the text of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claim was initiated
(c) from the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) from commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what it ought not to do or even in overdoing the act complained of.”
The essence of grounds of appeal is to give sufficient notice to the adverse party of the nature of the Appellant’s complaint, which such adverse party will be confronted with in Court. Where the grounds of appeal serve such notice, then the purpose and essence of a ground of appeal is achieved and the ground will not be defenestrated on any technical grounds. See AIGBOBAHI vs. AIFUWA (2006) LPELR (267) 1 at 17 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 21-23. In ADEROUNMU vs. OLOWU (2000) 4 NWLR (PT 652) 253 at 272, Ayoola, JSC stated:
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to a matter of mere technicality whereby the Court will look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this Court and in the Court of Appeal, that the Appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice, an information to the other side of the nature of the complaint of the Appellant and consequently of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out notwithstanding, that it did not conform to a particular form.”
I will against the background of the foregoing now consider the Appellant’s grounds of appeal to ascertain if they are incompetent as contended by the Respondent. It has to be remembered that the decision of the lower Court is that the Appellant did not disclose a defence on the merit consequent upon while it entered judgment for the Respondent for the outstanding amount as reflected in the statement of account, ‘Exhibit ASO H’. I will now closely examine the respective grounds of appeal, shorn of their particulars.
“GROUND ONE
“The learned trial Judge erred in law by placing reliance on and basing his judgment on the contents of the Respondent’s ‘Exhibit ASO H’ (a bank statement of account) which is a document produced by a computer without the Respondent satisfying the conditions provided for under Section 84 of the Evidence Act, 2011 and thereby occasioned a miscarriage of justice to the Appellant”.
The above ground raises the question of wrongful admission of evidence, being the statement of account, ‘Exhibit ASO H’ and that the reliance by the lower Court on the said statement of account in arriving at its decision occasioned a miscarriage of justice. Now, the lower Court on pages 15-16 of its judgment, which is at pages 145-144 [sic] of the Records held thus:
“More so, when the documentary evidence of the Plaintiff show that the Defendant was being advised of the extent of his default in repayments of the loan at different times and of his total loan exposure, and he neither challenged those documentary exhibits nor his Statement of Account with the Plaintiff (Exhibit ASO H) which show his total indebtedness”.
When ground one of the grounds of appeal is apposed against the above extract from the decision of the lower Court, it becomes beyond confutation, given the legal position that a ground of appeal can arise from the commission or omission by the Court in either refusing to do what it ought to do or doing what it ought not to do; that the said ground relates to the lower Court doing what it ought not to do as submitted by the Appellant, id est, relying on ‘Exhibit ASO H’ which the Appellant contends is inadmissible. The said ground is therefore competent.
“GROUND TWO
The learned trial Judge erred in law by relying on and basing his judgment on the contents of the Respondent’s ‘Exhibit ASO H’ (a bank statement of account) as proof of the Respondent’s Relief (1) (i.e the claim that the Appellant was indebted to the Respondent in the sum of N142,062,859.39k as at 3rd April, 2017) when the Respondent did not rely on same as its proof of the said relief/amount.”
Once again, the above ground interrogates the self-same ‘Exhibit ASO H’, the reliance placed on the same by the Respondent and the use and reliance on the same by the lower Court. It is a complaint rooted in the assertion that the lower Court refused to do what it ought to do, namely, utilise the said Exhibit ASO H solely for the purpose on which the Respondent relied on it. The said ground two is therefore competent as it is rooted in the decision appealed against.
“GROUND THREE
“The learned trial Judge erred in law by entering judgment in favour of the Respondent under the undefended list procedure despite the fact the Respondent did not prove its entitlement to the reliefs claimed.”
The lower Court in its judgment conclusively held as follows at page 144 of the Records:
“Having found that the Defendant in this case has not disclosed any defence on the merit to the Plaintiff’s claim, I hereby enter judgment in favour of the Plaintiff against the Defendant as per the claims contained on the Writ of Summons which I had reproduced at the beginning of this judgment.“
The corollary of the decision of the lower Court that the Appellant did not disclose a defence on the merit, is that the Respondent proved its case. The complaint in this ground is essentially on the evaluation of the affidavit evidence by the lower Court. It flows from the decision of the lower Court and it is therefore a competent ground of appeal.
“GROUND FOUR
“The learned trial Judge erred in law by entering judgment in favour of the Respondent under the undefended list procedure despite the fact the Appellant disclosed a defence on the merit in his Affidavit accompanying his Notice of Intention to Defend.”
Just like ground three, the above ground of appeal questions the evaluation of the affidavit evidence by the lower Court. I have already set out the decision of the lower Court where it held that the Appellant did not disclose a defence on the merit. The Respondent is therefore not correct in its contention that the said ground four does not arise from the ratio decidendi in the case.
“GROUND FIVE
“The learned trial Judge erred in law by entering judgment in favour of the Respondent for a claim of an amount which was not due for repayment as at the date of the commencement of the suit.”
The lower Court in its decision, the pericope of which I have set out above entered judgment for the Respondent as per the claims contained in the writ of summons. The claim included a specific relief for the sum of N142,062,859.39 being the outstanding amount owed by the Appellant. The Appellant in his Notice of Intention to Defend, which the lower Court held did not disclose a defence on the merit, contended that he had faithfully made the repayment instalments due and that none was unpaid. Accordingly, the complaint in ground five arises from the decision of the lower Court entering judgment for the Respondent for the amount claimed, thus finding that the Appellant had not faithfully made the repayment instalments, contrary to his contention. The said ground five is neither vague nor imprecise and it is therefore competent.
“GROUND SIX
“The learned trial Judge erred in law when he held that since the parties agreed to the payment of default penalty in the loan agreement, that the parties are bound by their agreement; and went on to award the Respondent’s claim which embodied both interest and default penalty.“
The complaint in the above ground six is that the lower Court entered judgment for the Respondent for the principal sum, interest thereon and default penalty. I have already set out the decision of the lower Court entering judgment for the Respondent as per the claims contained in the writ of summons. The Respondent’s claim as endorsed in the writ of summons is as follows:
“1. The sum of One Hundred and Forty-Two Million, Sixty-Two Thousand, Eight Hundred and Fifty-Nine Naira, Thirty-Nine Kobo [N142,062,859.39] being the Defendant’s outstanding indebtedness to the Plaintiff inclusive of the accrued interest as at 3rd April, 2017 from the Loan Facility of One Hundred and Twenty-Six Million Naira Only [N126,000,000.00] granted to the Defendant by the Plaintiff in August 2010, under a Retail Mortgage Loan agreement, which has become due and recoverable following the Defendant’s consistent default in meeting his repayment obligations under the terms of the said agreement.
2. Interest at the rate of 18% on the said sum of N142,062,859.39 (One Hundred and Forty [sic] Million, Sixty Two Thousand, Eight Hundred and Fifty Nine Naira, Thirty Nine Kobo) from the 3rd day of April, 2017 to the date of delivery of judgment”.
In paragraphs 17, 18, 19 and 20 of the affidavit in support of the writ of summons, it is deposed as follows:
“17. That I also know as a fact that the Defendant has continuously failed refused or neglected to discharge his obligations under the Mortgage Agreement which stands at N142,062,859.39k (One Hundred and Forty-Two Million, Sixty Two Thousand, Eight Hundred and Fifty Nine Naira, Thirty Nine Kobo) as at 3rd April, 2017; without prejudice to further accruing interest.
18. That I know that the Plaintiff is entitled to recovery of the principal sum granted as mortgage facility to the Defendant as well as interest due on same as provided in the Mortgage Agreement.
19. That the Plaintiff is entitled to charge interest at 18% of the mortgage sum per annum until date of Judgment from 3rd day of April, 2017.
20. That I know the Plaintiff’s claim against the Defendant is for a liquidated money demand arising from the mortgage facility granted to the Defendant at the Defendant’s express request and which mortgage facility and accrued interest can be ascertained by simple arithmetic calculation.”
The above depositions make it clear that the amount claimed is the principal sum and accrued interest. There is nothing suggestive that the amount claimed was inclusive of default penalty and the lower Court did not so hold. Without a doubt, the lower Court at pages 142-143 of the Records, made reference to the issue of default penalty while considering the Appellant’s deposition in paragraphs 22 and 23 of the affidavit in support of the Notice of Intention to Defend, which is to the effect that the Respondent is not entitled to payment of penalty on the transaction. The lower Court having held that it is contained in the agreements entered into then conclusively held as follows:
“Having expressly agreed and embodied penalty in the event of default in their agreements, the Defendant cannot be heard to orally add to, subtract, vary or contradict those agreements.”
It is thus clear that all the lower Court did was to underscore the sanctity of the contracts entered into and how the same cannot be varied orally. This does not transmute to the lower Court having awarded a claim for default penalty. The Respondent did not claim default penalty, and the lower Court did not award default penalty. The ground six definitely does not relate to the decision of the lower Court. It is incompetent and consequently struck out.
The Respondent further made a foofaraw that the Appellant’s submissions on pre-judgment interest and conflicting affidavits are not predicated on any ground of appeal. I have set out the reliefs claimed by the Respondent. These reliefs include pre-judgment interest at the rate of 18%. Grounds three, four and five of the grounds of appeal interrogate whether the decision of the lower Court entering judgment for the Respondent in terms of the reliefs it claimed is the correct decision. Therefore, the said grounds encompass and encapsulate the Appellant’s submissions on pre-judgment interest, being one of the reliefs granted by the lower Court. The same is equally true of the submission on conflicting affidavits. As already stated, grounds three and four of the grounds of appeal also question the evaluation of the affidavit evidence by the lower Court. The ascription of probative value to the affidavits, which the Appellant contends are conflicting is definitely cognisable under the grounds complaining about the evaluation of the affidavit evidence.
From the foregoing analysis, it is effulgent that save for ground six, the grounds of appeal are firmly rooted in the ratio of the decision appealed against. The grounds of appeal are clear and contain sufficient notice of the Appellant’s complaints, thereby achieving the purpose and essence of a ground of appeal: AIGBOBAHI vs. AIFUWA (supra) at 17 and SUNMONU vs. SUNMONU (2021) LPELR (56002) 1 at 11-12.
Even though the Respondent contended that ground five of the grounds of appeal is vague and imprecise, it has not complained that it has been misled by the way in which the ground was framed or that it is in any way confused as to the complaint in the said ground. In NTA vs. A. I. C. LTD (2018) LPELR (45320) 1 at 6-7, Garba, JCA (now JSC) stated:
“Over time, the attitude of the appellate Courts has been to ignore the technical form in which the grounds of appeal and particulars thereof are couched and concern themselves with the real and substance of the complaint contained in the grounds of which notice is given therein and generally, once the complaint is unambiguous and clear, the grounds would be valid and competent for the purpose of the appeal.”
The Respondent in its Respondent’s Brief replied to the Appellant’s submissions showing that the complaints in the grounds of appeal are clear and well understood. See ACHONU vs. OKUWOBI (2017) LPELR (42102) 1 at 17-18.
Accordingly, I am unable to agree with the Respondent that all the grounds of appeal are incompetent. They are not. It is only ground six that is afflicted by the virus of incompetency. The other grounds arise from the decision of the lower Court and clearly portray and accentuate the Appellant’s complaint and grievance with the decision of the lower Court. Concomitantly, the preliminary objection succeeds in part as it relates to the said ground six which, for the avoidance of doubt is hereby struck out. We segue to the merits of the appeal.
THE APPEAL
The Appellant formulated two issues for determination, namely:
“a. Whether in the circumstances, the Learned Trial Judge was right to have entered judgment in favour of the Respondent for the sum of N142,062,859.39 as liquidated money demand under the undefended list procedure? (distilled from Grounds 1 and 2 of the Amended Notice of Appeal dated 14th September, 2020 but filed on the 15th September, 2020, deemed as properly filed and served by Order of Court dated 5th October, 2020).
b. Whether in the circumstances, the Learned Trial Judge was right to hold that the Appellant’s affidavit in Support of Notice of Intention to defend the suit did not disclose a defence on the merit to warrant the transfer of the suit to the General Cause List? (distilled from Grounds 3, 4, 5, and 6 of the Amended Notice of Appeal dated 14th September, 2020 but filed on the 15th September, 2020, deemed as properly filed and served by Order of Court dated 5th October, 2020)”
The Respondent did not formulate any issues for determination. It adopted and argued the two issues crafted for determination by the Appellant.
Now, the Appellant professes that he distilled his issue number two from grounds three, four, five and six of the grounds of appeal. In resolving the Respondent’s Preliminary Objection, I held that ground six of the grounds of appeal was incompetent and struck the same out. The Appellant, having distilled his issue number two from grounds three, four, five and six of the grounds of appeal means that the said issue has been formulated from both competent and incompetent grounds of appeal. It is hornbook law that where an issue for determination is distilled from both competent and incompetent grounds of appeal, it is not the duty of the Court to delve into the issue in order to excise or separate the arguments in respect of the competent grounds from the arguments in respect of the incompetent grounds. The Courts are not for such surgical procedures. See JEV vs. IYORTYOM (2014) 4 NWLR (PT 1426) 578 at 608, AYALOGU vs. AGU (1998) 1 NWLR (PT 532) 129, GEOSOURCE (NIG) LTD vs. BIRAGBARA (1997) 5 NWLR (PT 506) 607 and OCHALA vs. JOHN LPELR APPEAL NO. CA/C/62/2019 at 36. Such an issue is incompetent in its entirety and liable to be struck out: SEHINDEMI vs. GOV. LAGOS STATE (2006) 10 NWLR (PT 987) 1, ARIBO vs. CBN (2010) LPELR (4751) 1 at 29 and AJOBENA vs. MUJAKPERUO (2014) LPELR (23209) 1 at 12-13. Inexorably, the Appellant’s issue number two having been contaminated by the incompetent ground six, the said issue number two is ipso jure impotent and incompetent and the Court has no business whatsoever to deal with the issue. See WILKEY vs. OGIEGBAEN (2001) FWLR (PT 71) 1729 at 1739, EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546, EBBA vs. OGODO (1984) 4 SC 84 at 112 and THE STATE vs. OLADIMEJI (2003) LPELR (3225) 1 at 8.
Premised on the foregoing, the impotent and incompetent issue number two ought to play no further part in the consideration of this appeal. However, being the penultimate appellate Court, I would still consider and resolve the said issue, in the unlikely event that I reached a wrong decision in the preliminary objection that ground six of the grounds of appeal is incompetent. This is to afford the apex Court, where there is a further appeal from the decision of this Court, the benefit of the views of this Court on the merits of the appeal.
ISSUE NUMBER ONE
Whether in the circumstances, the Learned Trial Judge was right to have entered judgment in favour of the Respondent for the sum of N142,062,859.39 as liquidated money demand under the undefended list procedure?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court erred by entering judgment for the Respondent on the undefended list. It was posited that the Respondent did not clearly state and plead the pre-judgment interest it claimed in the writ of summons and that it occasioned a miscarriage of justice for the lower Court to enter judgment for the Respondent as claimed in the writ of summons. The cases of AKPAN vs. AKWA IBOM PROPERTY & INVESTMENT CO. LTD (2013) 12 NWLR (PT 1368) 377 at 396, WEMA SECURITIES & FINANCE PLC vs. NAIC (2015) 16 NWLR (PT 1484) 93 at 142-143 and JULIUS BERGER (NIG) PLC vs. TOKI RAINBOW COMMUNITY BANK LTD (2019) 5 NWLR (PT 1665) 219 at 259 were relied upon.
It was further submitted that the lower Court was wrong to rely on ‘Exhibit ASO H’ in holding that the Appellant was owing the Respondent. It was opined that ‘Exhibit ASO H’ was a computer generated evidence, and that the precondition for its admissibility under Section 84 of the Evidence Act was not met and so the lower Court was wrong to rely on the same vide OMISORE vs. AREGBESOLA (2015) 15 NWLR (PT 1482) 205 at 295 and KUBOR vs. DICKSON (2013) 4 NWLR (PT 1345) 534 at 278 [sic].
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent asserts that it claimed pre-judgment interest as relief two in the writ of summons and deposed to the facts in support thereof in paragraphs 18-20 of the affidavit in support of the writ of summons. The cases relied upon by the Appellant were therefore said to be distinguishable and inapplicable.
It was further submitted that ‘Exhibit ASO H’ is not inadmissible since the action is on the undefended list with a supporting affidavit to which documents are attached as exhibits. The exhibits, it was opined, must be considered by the Court. The cases of MIKAKO INTERNATIONAL CONNECTION LTD vs. I. C. G. M. F. BANK LTD (2018) ALL FWLR (PT 958) 940, UNIVERSITY OF ILORIN vs. OYOLANA (2001) FWLR (PT 83) 2193 and NEC vs. WODI (1989) 2 NWLR (PT 104) 444 were referred to. It was further contended that the admissibility of ‘Exhibit ASO H’ was not raised at the lower Court and that the appellate Court is not the forum to raise such an objection which should have been raised at the lower Court. The cases of ADEYEMO vs. GOVERNOR (1970) 1 ALL NLR 183, NWOSU vs. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT 135) 688 and ROSEHILL vs. GTB (2016) LPELR-41665 (CA) at 40-48 were called in aid. It was posited that the same Appellant who has raised the issue of the admissibility of ‘Exhibit ASO H’ relies on the same ‘Exhibit ASO H’ as showing that he had overpaid what he owed; the Appellant, it was maintained, cannot approbate and reprobate on the said ‘Exhibit ASO H’.
It is the further submission of the Respondent that in addition to ‘Exhibit ASO H’, the lower Court relied on other factors like the Appellant not having furnished any evidence of payment, the demand letters written to the Appellant on his default in repayment being unchallenged and ‘Exhibit ASO H’ itself, not having been challenged. It was consequently submitted that even if the Court holds ‘Exhibit ASO H’ to be inadmissible, the judgment of the lower can still be sustained since the lower Court did not predicate its judgment on ‘Exhibit ASO H’ only.
APPELLANT’S REPLY ON LAW
The Appellant submits in his reply brief that evidence which is wrongly admitted is not legal evidence and must be expunged since a Court cannot rely on the same for its decision, otherwise, the decision will be perverse. The case of OLAYINKA vs. THE STATE (2007) LPELR-2580 (SC) at 14 was cited in support. It was maintained that apart from ‘Exhibit ASO H’ having been wrongly admitted in evidence, that the lower Court was also wrong to rely on the same, when the Respondent did not explain how the entries therein were arrived at. The lower Court, it was argued, embarked on an investigation by relying on the said ‘Exhibit ASO H’ and resultantly occasioned a miscarriage of justice vide FIRST BANK OF NIG PLC vs. MAMMAN NIG LTD (2001) FWLR (PT 31) 2890 at 2906-2907.
RESOLUTION OF ISSUE NUMBER ONE
The Appellant has contended that the Respondent did not clearly claim, state and plead pre-judgment interest in the writ of summons and that the lower Court was in error to have awarded pre-judgment interest. It is no doubt settled law that interest may be claimed as of right where it is contemplated in the agreement between the parties, and where this is so, the claim to entitlement of interest must be made on the writ and the facts in support of the head of claim clearly specified in the evidence: JULIUS BERGER (NIG) PLC vs. TOKI RAINBOW COMMUNITY BANK LTD (supra) and WEMA SECURITIES & FINANCE PLC vs. NAIC (supra). Allied to this settled law is that it is elementary law that a Court is bound by the reliefs or relief sought in an action and a Court cannot give a party what he did not claim. See EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) LPELR (980) 1 at 40, DUMEZ NIG LTD vs. NWAKHOBA (2008) LPELR (965) 1 at 26 and OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44 and 55. So, it would be a grave error if the Appellant is correct in his contention that the Respondent did not claim the pre-judgment interest which was awarded by the lower Court. But is the contention correct?
The Appellant seems to be in oblivescence of the reliefs claimed by the Respondent as endorsed on the writ of summons. The second relief endorsed on the writ of summons is as follows:
“Interest at the rate of 18% on the said sum of N142,062,859.39 (One Hundred and Forty [sic] Million, Sixty Two Thousand, Eight Hundred and Fifty Nine Naira, Thirty Nine Kobo) from the 3rd day of April, 2017 to the date of delivery of judgment”.
This is clearly a claim for pre-judgment interest. So it is not correct that the Respondent did not claim pre-judgment interest.
It is further contended that the Respondent did not clearly state and plead the pre-judgment interest. Nothing can be further from the truth. As already demonstrated the Respondent claimed pre-judgment interest and the facts in support thereof and the documentary evidence establishing the same are replete in the affidavit in support of the writ of summons. In paragraphs 7, 9, 10, 17, 18, 19 and 20 of the affidavit in support of the writ of summons, it is deposed as follows:
“7. That sequel to the Offer Letter mentioned in paragraph 6 above, the Defendant by a letter dated the 2nd day of August, 2010, applied to the Plaintiff for a mortgage facility in the sum of N126,000,000.00 (One Hundred and Twenty-Six Million Naira) to enable him purchase the property contained in the offer letter mentioned in paragraph 6 above. The said letter of 2nd August, 2010 is hereby exhibited and marked as ‘Exhibit ASO B’.
9. That upon consideration of the Defendant’s application, the Plaintiff by a document dated the 10th day of August, 2010 and titled “OFFER OF RETAIL MORTGAGE LOAN” offered the Defendant a mortgage facility in the sum of N126,000,000.00 (One Hundred and Twenty-Six Million Naira) which the Defendant duly accepted by his execution of the acceptance column at the last page of the offer letter. The Plaintiff’s Offer Letter dated the 10th day of August, 2010 is attached as ‘Exhibit ASO D’.
10. That pursuant to the Plaintiff’s offer letter of mortgage facility to the Defendant, the Defendant further executed a Loan Agreement and a Deed of Legal Mortgage in respect of the mortgage loan transaction as well as a Letter of Authority by the Defendant authorizing the Plaintiff to sell the mortgaged property upon default on repayment without recourse to the Defendant. The Loan Agreement, Deed of Legal Mortgage and Letter of Authority are hereby attached as Exhibit ASO E, Exhibit ASO F and Exhibit ASO G respectively.
17. That I also know as a fact that the Defendant has continuously failed, refused or neglected to discharge his obligations under the Mortgage Agreement which stands at N142,062,859.39k (One Hundred and Forty-Two Million, Sixty Two Thousand, Eight Hundred and Fifty Nine Naira, Thirty Nine Kobo) as at 3rd April, 2017; without prejudice to further accruing interest.
18. That I know that the Plaintiff is entitled to recovery of the principal sum granted as mortgage facility to the Defendant as well as interest due on same as provided in the Mortgage Agreement.
19. That the Plaintiff is entitled to charge interest at 18% of the mortgage sum per annum until date of judgment from 3rd day of April, 2017.
20. That I know the Plaintiff’s claim against the Defendant is for a liquidated money demand arising from the mortgage facility granted to the Defendant at the Defendant’s express request and which mortgage facility and accrued interest can be ascertained by simple arithmetic calculation”.
In the letter of OFFER OF RETAIL MORTGAGE LOAN referred to in paragraph 9 of the supporting affidavit and attached as ‘Exhibit ASO D’, the Loan Agreement, ‘Exhibit ASO E’ and the Deed of Legal Mortgage, ‘Exhibit ASO F’, both referred to in paragraph 10 of the supporting affidavit, the parties are agreed that their transaction would attract 18% interest. So in addition to claiming pre-judgment interest, the facts in support thereof and which establish the same are clearly stated. The Appellant’s contention in this regard is devoid of merit.
The Appellant has challenged the reliance by the lower Court on ‘Exhibit ASO H’, contending that the said exhibit did not satisfy the precondition in Section 84 of the Evidence Act since it is a computer generated document. Let me start by saying that this matter was heard on affidavit evidence and the documentary evidence relied upon was attached to the affidavit and formed part of the evidence adduced in the case. This is in contradistinction to where it is a case fought on pleadings, where the pleadings does not constitute evidence. The affidavit is evidence which a Court can act upon and a document attached to an affidavit forms part of the evidence adduced by the deponent and being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence it has already been admitted in evidence before the Court. I can do no better than refer to the recent decision of the apex Court in this regard. By some uncanny coincidence, it is a decision in which the learned senior counsel for the Appellant in this matter was the Appellant. Here my Lord, Kekere-Ekun, JSC in AONDOAKAA vs. OBOT (2021) LPELR (56605) 1 at 35-37:
“In a matter fought on affidavit evidence, the documentary evidence relied upon is attached to the affidavit and therefore forms part of the evidence adduced in the case before the Court. The distinction between averment of facts in pleadings and averment of facts contained in an affidavit was explained by this Court in Magnusson vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt. 317) 287 at 303 C, as follows: ‘Averments of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application before a Court. Whereas the former, unless admitted constitutes no evidence, the latter are by law, evidence upon which a Court of law may, in appropriate cases, act.’ The holding of Mbaba, JCA in Ilorin East Local Government vs Alasinrin & Anor (2012) LPELR 8400 (CA) referred to and relied on in the case of: B.A.T (Nig) Ltd vs International Tobacco Co. Plc (2013) 2 NWLR (Pt. 1339) 493 at 520-521 D-A, following the reasoning in Magnusson vs Koiki (supra), is quite instructive. His Lordship held, inter alia: ‘I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with … The reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the Court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms).’”
I kowtow. See also EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 37, ANUEBUNWA vs. A-G, FEDERATION (2020) LPELR (51434) 1 at 18-19 and THE NIGERIAN AIR FORCE vs. CHIA (2021) LPELR (53923) 1 at 56-58.
It would seem to be in the realisation that unlike with pleadings, ‘Exhibit ASO H’ being attached to affidavit evidence was already admitted in evidence by the affidavit which it forms a part of, that no issues were raised at the lower Court as to whether any conditions for the admissibility of ‘Exhibit ASO H’ in evidence, including the stipulations of Section 84 of the Evidence Act, had been met. The Appellant cannot now raise the same especially when the Appellant in paragraphs 6 and 8 of the affidavit disclosing a defence on the merit relied on the said ‘Exhibit ASO H’ as showing that he had completed payment on the loan and had indeed overpaid on the agreed quarterly repayment instalments. It is in this wise that the decision in the cases of OMISORE vs. AREGBESOLA (supra) and KUBOR vs. DICKSON (supra) relied on by the Appellant are distinguishable. The said cases were not fought on affidavit evidence; they were fought on the pleadings filed and exchanged by the parties, so there remained the abiding need for the facts pleaded to be converted to admissible evidence at the trial, with the attendant requirement of issues of admissibility of exhibits.
The matter does not end there, at least not just yet. The Appellant’s complaint on ‘Exhibit ASO H’ is on the wrongful admission of evidence. Section 251 (1) of the Evidence Act, 2011 provides:-
“The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that the decision would have been the same if such evidence had not been admitted.”
So it is not enough for the Appellant to show that ‘Exhibit ASO H’ was wrongfully admitted in evidence, he has to go further to show that if the same had not been admitted in evidence and acted upon, the decision would have been different: OJENGBEDE vs. ESAN (2001) LPELR (2372) 1 at 31-32, OKOBIA vs. AJANYA (1998) LPELR (2454) 1 at 17-19 and OMOMEJI vs. KOLAWOLE (2008) LPELR (2650) 1 at 22.
Where an issue of wrongful admission or rejection of evidence is raised, there are three options open to the appellate Court by virtue of the stipulations of Section 251 of the Evidence Act. These options are: the evidence may be left intact, regarding it as properly admitted or rejected; the Court may expunge the evidence wrongly admitted or in case of evidence wrongly rejected or excluded, order a retrial directing its admission. The decision of the Court of trial can only be reversed in any event, if the evidence wrongly admitted or rejected affected the decision of the Court. See DUNALIN INVESTMENT LTD vs. BGL PLC (2015) LPELR (26001) 1 at 96-97, IDUNDUN vs. OKUMAGBA (1976) LPELR (1431) 1 at 22-23 and DUROSARO vs. AYORINDE (2005) LPELR (967) 1 at 21-22. I have considered the totality of the affidavit evidence on record with the documents attached thereto and shortly, when we interrogate issue number two, to ascertain if the Appellant disclosed a defence on the merit, we would find out if the decision of the lower Court that the Appellant did not disclose a defence on the merit would have been the same if the lower Court had not placed reliance on the said ‘Exhibit ASO H’. In a coda, this issue number one is resolved against the Appellant.
ISSUE NUMBER TWO
Whether in the circumstances, the Learned Trial Judge was right to hold that the Appellant’s affidavit in Support of Notice of Intention to defend the suit did not disclose a defence on the merit to warrant the transfer of the suit to the General Cause List?
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong in holding that he did not disclose a defence on the merit. It was stated that where there are conflicts in the affidavits of the parties, the conflicts are to be resolved by oral evidence vide AMEDE vs. UBA PLC (2018) 6 NWLR (PT 1614) 29 at 38-39. It was asserted that paragraphs 8 and 10-20 of the Appellant’s affidavit disclosed a defence on the merit and made several averments which contradict the statement of the Respondent, as a consequence of which the matter ought to have been transferred to the general cause list. The case of WEMA SECURITIES & FINANCE PLC vs. NAIC (supra) was referred to.
It was posited that the lower Court was wrong to have looked at the Respondent’s affidavit, while considering the Appellant’s affidavit in resolving the conflict on the issue of repayment of the sum stated in the Appellant’s affidavit. It was opined that it is only the Appellant’s evidence that the lower Court is to consider in order to decide if a defence on the merit is disclosed. The case of NPA vs. AMINU IBRAHIM & CO. (2018) 12 NWLR (PT 1632) 62 at 84 was relied upon. It was conclusively submitted that the lower Court was wrong to have proceeded to enter judgment on the undefended list as the amount claimed was not a liquidated money demand, that the amount owed before the inclusion of interest was not clearly stated and so the amount said to be owed was not arithmetically ascertainable without further investigation. The case of MIC MERAH INT’L AGENCY LTD vs. A-Z PETROLEUM PRODUCTS LTD (2012) 2 NWLR (PT 1285) 564 at 601 was called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent maintains that the Appellant’s affidavit did not disclose a defence to the specific claims of the Respondent and therefore a defence on the merit or triable issues were not disclosed vide UBA PLC vs. JARGABA (2001) 2 NWLR (PT 750) 200 at 222. It was posited that the Appellant, in paragraphs 6 and 8 of his affidavit, admitted collecting the loan facility and that he did not dispute the contents of the demand letters, Exhibits ASO I and L; which being business letters ought to be replied to. The cases of R. M. A. F. C. vs. ONWUEKWEIKPE (2009) 15 NWLR (PT 1165) 592 at 612 and COOPERATIVE DEVELOPMENT BANK PLC vs. EKANEM (2009) 16 NWLR (PT 1168) 585 at 601 were cited in support.
It was stated that the Appellant who deposed that he was in credit when the demand letters were written, did not state by how much he was in credit and also did not furnish any details of repayment. It was therefore asserted that the Appellant’s defence was not concise and specific, and that it was vague. The cases of UBA vs. JARGABA (2007) 11 NWLR (PT 1045) 247 at 270-271 and AGRO MILLERS LTD vs. C. M. B. (1997) 10 NWLR (PT 525) 469 at 478-479 were relied upon.
APPELLANT’S REPLY ON LAW
The Appellant submits in his Reply Brief that at the stage of disclosing a defence on the merit, he is not required to pinpoint where specifically in the statement of account the payments he made were reflected, as it only at the trial stage when witnesses are called that such is to be done. It was asserted that it sufficed at this stage for the Appellant to raise triable issues and not proof of the same. The cases of SAMABEY INTERNATIONAL COMMUNICATIONS LTD vs. CELTEL NIGERIA LTD (2013) LPELR-20758 (CA) at 34 and USMAN vs. MUNGA (2012) LPELR-15186 (CA) at 46 were referred to.
RESOLUTION OF ISSUE NUMBER TWO
The trial at the lower Court was under the undefended list procedure of Order 21 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004, which was the applicable rules of Court at the time of the proceedings. By Order 21 Rule 1 of the applicable Rules of the lower Court, the Judge in chambers enters a suit on the undefended list where an application is made for a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to the claim. The Judge in chambers enters the suit on the undefended list upon being satisfied from the processes filed that the claim is for a debt or liquidated money demand and that prima facie, there would seem to be no defence to the claim.
Thereafter, the defendant in the suit entered on the undefended list has the obligation, by Order 21 Rule 3 of the applicable Rules of the lower Court, to give a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. Where the Court is satisfied that a defence on the merit has been made out, thereby displacing the prima facie notion that there is no defence to the action, the Court may give the defendant leave to defend the action upon such terms as it may think just, and then remove the suit from the undefended list and place it for hearing on the ordinary or general cause list.
The general principles governing proceedings under the undefended list procedure are fairly well settled. The Court after the defendant has filed his processes has a duty to consider the same to see if he has disclosed a defence on the merit and ought to be given leave to defend the claim. It is the affidavit disclosing a defence on the merit which is filed with the notice of intention to defend that is the determinant factor on whether a defendant will be let in to defend: ED-OF NIG LTD vs. SNIG NIG LTD (2013) LPELR (19888) 1 at 25-26. Although, the Court is imbued with the discretion on whether to grant the defendant leave to defend the claim where he has disclosed a defence on the merit, in exercising this discretion the Court has a duty to consider the affidavits filed by the parties. See BEFAREEN PHARMACY LTD vs. A.I.B. LIMITED (2005) 17 NWLR (PT 954) 230 at 233.
The object of the Order 21 undefended list procedure is to ensure the speedy disposal of cases where the matter is straightforward, uncontested and incontestable. By the stipulations of the Order, it is employed in claims for a debt or liquidated money demand and it is a truncated form of civil hearing to ensure the quick despatch of cases where there is no defence on the merit or good defence to the claimant’s claim. See UBA PLC vs. JARGABA (2007) 11 NWLR (PT 1045) 247 at 272, BON LTD vs. INTRA BANK SA (1969) 1 All NLR 91 and OSIFO vs. OKOGBO COMMUNITY BANK (2006) 15 NWLR (PT 1002) 260 at 278. It is designed to relieve the Courts of the rigour and burden of hearing tedious evidence on sham defences mounted by defendants who have no defence and are just determined to dribble and cheat claimants out of reliefs they are normally entitled to.
See PLANWELL WATERSHED LTD vs. OGALA (2003) 12 SC (PT II) 39 at 43-44 or (2003) 18 NWLR (PT 852) 478. Where the matter is straightforward and incontestable, the Court proceeds to enter judgment for the claimant as stipulated in Order 21 without embarking upon a plenary trial and calling upon the plaintiff to formally prove his case by calling witnesses. But the undefended list procedure is not a procedure for denying the defendant a right to defend the claim against him, if he has a defence thereto. See NIGERIAN COTTON SEED CO. LTD vs. CELTIC COMMERCE & IND. LTD (2002) 1 WRN 67 at 75. Therefore, the speedy disposal of a case under the undefended list procedure is short-circuited where the defendant is able to disclose a defence on the merit, in which case the Court is bound to grant the defendant leave to defend the suit and then conduct a plenary trial.
What then is a defence on the merit, as employed in Order 21 Rule 3 (1) of the applicable Rules of the lower Court, which a defendant has to disclose to entitle him to be granted leave to defend?
It seems to me, from the case law and legal literature, that a good defence or defence on the merit is an issue raised by way of defence, which is prima facie plausible and would necessitate the Court to require further explanation from the plaintiff. It is a triable issue. See JOS NORTH LG vs. DANIYAN (2000) 3 WRN 60 and FMG vs. SANI (1990) 4 NWLR (PT 147) 688 at 699. At page 286 of the book, “The Nigerian Judge” the learned author, Hon. Justice Niki Tobi (of blessed memory), gave the following instances of what would constitute triable issues. He stated:
“The following situations then postulate triable issues, for example (a) where there are difficult points of law involved in the issues raised; (b) where there are disputes as to facts which ought to be tried; (c) where there are disputes as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (d) where there are reasonable grounds or a fair probability of a bona fide counter-claim.”
In GOD’S LITTLE TANNERY vs. NWAIGBO (2005) 7 NWLR (PT 924) 298 at 332, Ba’aba, JCA stated:
“… [T]he triable issue envisaged should not be at large but related to the Defendant’s defence. Defence, in my respectful opinion, are facts which, if proved, would exonerate the Defendant from the Plaintiff’s claim. The affidavit is required to set up a defence against the Plaintiff’s claim and not to rake up fresh suit or cause or causes of action against the Plaintiff.”
The decision as to whether or not a defence on the merit under the undefended list procedure has been made out does not depend so much on the discretion of the Court. It involves the evaluation of the affidavit evidence before the Court for it to determine whether or not a defence on the merit has been made out by the defendant. See UBA PLC vs. JARGABA (supra) at 273 and GENERAL SECURITIES & FINANCE CO. LTD vs. OBIEKEZIE (1997) 10 NWLR (PT 526) 577.
It is pertinent to state that in determining whether a defence on the merit has been disclosed, it is not necessary for the Court to consider whether the defence has been proved at that stage. No. A complete defence need not be shown. It suffices if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial: OKAMBAH vs. SULE (1990) 7 NWLR (PT 160) 1 and YAHAYA vs. WAJE COMMUNITY BANK (2001) 46 WRN 87 at 96. It is not necessary for the defendant’s processes disclosing his defence to provide a cast iron defence or disclose proof beyond reasonable doubt before he can be granted leave to defend: V. S. STEEL (NIG) LTD vs. GOVT OF ANAMBRA STATE (2001) 8 NWLR (PT 715) 454. The defendant is not required at that stage of proceedings to satisfy the Court that the defence disclosed will succeed, it suffices that the defence disclosed constitutes a defence on the merit, a triable issue, a valid defence in law or fact. See LEWIS vs. UBA (2016) LPELR (40661) 1 at 22, ATAGUBA & COMPANY vs. GURA NIG LTD (2005) LPELR (584) 1 at 29-30, G. M. O. NWORAH & SONS CO. LTD vs. AKPUTA (2010) LPELR (1296) 1 at 10-11 and AMEDE vs. UBA (2018) LPELR (47994) 1 at 13-16.
In considering whether a defence on the merit has been disclosed, the Courts are usually liberal. See IMONIYAME HOLDINGS vs. SONEB ENT. LTD (2002) 4 NWLR (PT 758) 618 at 658. While the Courts are liberal and do not require a cast-iron defence, the processes filed to disclose a defence on the merit must still show a good defence. It has been held that it is not enough merely to assert that there is a defence on the merit without giving full particulars of the actual defence. See A.C.B. vs. GWAGWADA (1994) 5 NWLR (PT 342) 25 at 36 and PLANWELL WATERSHED LTD vs. OGALA (supra) at 43-44. Where particulars of actual defence are given, it must condescend on particulars. A clearly and concisely stated defence must be set up with the facts supporting it. See NISHIZAWA vs. JETHWANI (1984) 12 SC 234 at 260, MACAULAY vs. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT 144) 283 at 306-307 and PLANWELL WATERSHED LTD vs. OGALA (supra) at 47. It is not enough for the defendant to deny the claim without more. See FRANCHAL (NIG) LTD vs. NIGERIAN ARAB BANK LTD (1995) 8 NWLR (PT 412) 176 at 188. The defence must not be a sham defence designed to frustrate and dribble the Plaintiff. See BATURE vs. SAVANNAH BANK (1998) 4 NWLR (PT 546) 438 and OKOLI vs. MORECAB NIG LTD (2007) 33 WRN 1 at 8. Also see generally DURO PETROLEUM CO. LTD vs. UNITY BANK PLC (2018) LPELR (43566) 1 at 13-23, ORIENTAL ENERGY RESOURCES LTD vs. HERCULES OFFSHORE NIG. LTD (2020) LPELR (50873) 1 at 24-31, MUTUAL BENEFIT ASSURANCE vs. ACCESS BANK (2021) LPELR (52751) 1 at 28-29, NIGERIA ELECTRICITY LIABILITY (MGT) CO. LTD vs. WHIRLPOOL LEGAL CONSULT (2021) LPELR (52963) 1 at 8-9 and AJAYI vs. ALARAB PROPERTIES LTD (2021) LPELR (56073) 1 at 36-42.
The facts of this matter as garnered from the Records are not convoluted. They make for easy comprehension. The Appellant, desirous of acquiring a property in the highbrow Maitama District of Abuja, approached the Respondent for a facility to enable him pay the purchase price for the property. The Respondent offered the Appellant a loan facility of N126million, being the purchase price for the said Maitama property, at, inter alia, an interest rate of 18% per annum. It was a further term of the offer that the Appellant was to make a quarterly repayment of interest and principal in the sum of N6.8 million on reducing annuity basis. The Appellant accepted this offer and the parties entered into a Loan Agreement and formal Deed of Mortgage.
The loan facility having been drawn down, the Respondent, contending that the Appellant defaulted in making the agreed quarterly repayments, wrote demand letters to the Appellant in this regard. The Appellant did not reply the letters. The Respondent later instituted the action on the undefended list before the lower Court, which having found that the Appellant did not disclose a defence on the merit entered judgment for the Respondent. In arriving at its decision, the lower Court after reviewing the Appellant’s affidavit at pages 137-141 of the Records evaluated the same and stated as follows at page 141 of the Records:
“From the Defendant’s affidavit in support of the Notice of Intention to Defend, it is clear that the Defendant had not disputed any of the averments relating to the mortgage loan of N126,000,000.00 granted him by the Plaintiff or any of the 12 documentary exhibits ASO A to ASO L annexed thereto. He has also not disputed that by the Mortgage Loan Agreement he was to be paying the sum of N6,847,236.47 every quarter. [See paragraph 5 of his affidavit]. His only assertion was that from the time the said sum of N126,000,000 was disbursed by the plaintiff to the property developer on his behalf up to the filing of his suit twenty six (26) quarters had passed, and that the instalments for 26 quarters is in the total sum of N178,028,148.22 while he had paid a total sum of N210,370,000.00 to the Plaintiff as shown in Exhibit ASO H. (See paragraph 8 of the Defendant’s affidavit quoted above). But a look at Exhibit H which is the Defendant’s Statement of Account with the Plaintiff shows that as stated by the Plaintiff in paragraphs 12 to 17 quoted above, the Defendant defaulted in consistently paying the said N6,847,236.47 every quota [sic] as agreed in the Mortgage Loan Agreement (Exhibit ASO E)”.
Let me intercalate and state that the Appellant’s contention that the lower Court looked at the Respondent’s affidavit while considering the Appellant’s affidavit in resolving the conflict on the issue of repayment is not borne out by the Records. It is lucent from the extract from the judgment reproduced above, that the lower Court in discharge of its duty of evaluation of the affidavit evidence did not rely on the Respondent’s affidavit to resolve any conflicts which the Appellant perceives existed. Having so stated, the Appellant is equally not correct in his contention that there existed conflicts which ought to have been resolved by oral evidence. Howbeit, it is not in every instance where there is conflict in affidavit evidence that the taking of oral evidence will inexorably be resorted to. In ORIENTAL ENERGY RESOURCES LTD vs. HERCULES OFFSHORE NIG LTD (supra) at 53-54, Ogakwu, JCA stated:
“While it is abecedarian law that where there are conflicts in affidavits, oral evidence has to be called to resolve the conflict: FALOBI vs. FALOBI (1976) 9-10 SC 1; as a Court of law has no competence to suo motu and willy-nilly reconcile affidavit evidence without oral evidence. See PHARMACISTS BOARD vs. ADEBESIN (1978) 5 SC 43 and NATIONAL BANK (NIG) LTD vs. ARE BROTHERS (NIG) LTD (1977) 6 SC 97. However, where there is enough documentary evidence outside the conflicting affidavit evidence, the Court can make use of that evidence without needing to call oral evidence: LIJADU vs. LIJADU (1991) 1 NWLR (PT 169) 627 at 649 and EZEGBU vs. FATB LTD (1992) 1 NWLR (PT 220) 699.”
See also PETERS vs. JACKSON (2002) FWLR (PT 113) 376 at 392, EZECHUKWU vs. ONWUKA (2016) 5 NWLR (PT 1506) 529 at 559 and UNION BANK vs. AWMAR PROPERTIES LTD (2018) LPELR (44376) 1 at 47-48. There were no conflicts in the affidavits filed in this matter that required oral evidence to resolve. Any conflicts, which I still maintain do not exist, could have been resolved by resort to the documentary evidence.
The lower Court, after the due review and evaluation of the Appellant’s affidavit, conclusively held as follows at pages 15-16 of its judgment which is reproduced as pages 145-144 [sic] of the Records:
“In the instant case, the Defendant who had clearly admitted the loan granted him by the Plaintiff has merely asserted that he had repaid the loan but has not put forward any evidence to that effect which could challenge or contradict the documentary exhibits put forward by the Plaintiff as to his outstanding indebtedness. More so, when the documentary evidence of the Plaintiff show that the Defendant was being advised of the extent of his default in repayments of the loan at different times and of his total loan exposure, and he neither challenged those documentary exhibits nor his Statement of Account with the Plaintiff (Exhibit ASO H) which show his total indebtedness. I therefore find and hold that the Defendant’s Affidavit in support of his Notice of Intention to Defend has not disclosed any defence on the merit or raised any triable issue which would warrant the transfer of this matter to the general cause list“.
The Appellant has contended that the lower Court erred by holding that he did not disclose a defence on the merit. I have already given a broad overview of the principles guiding the Courts in actions on the undefended list. The debt or liquidated money demand claimed by the Respondent in this matter arose from a loan facility which it granted the Respondent and which it contended that the Appellant had defaulted in repaying. In OKOLI vs. MORECAB (2007) LPELR (2463) 1 at 22, Musdapher, JSC (later CJN) stated as follows:
“In an action placed in the undefended list where the plaintiff claims repayment of loan, the only defences open to the defendant are only two.
1. That the defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid or
2. That he never borrowed the money in the first place, he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery”.
See also EKAETE vs. UBN PLC (2014) LPELR (23111) 1 at 45, ECO INT’L BANK vs. NULGE, JALINGO LGC (2014) LPELR (24171) 1 at 35 and OBIDIGWE vs. KAY KAY CONSTRUCTION LTD (2014) LPELR (24561) 1 at 18-19.
In paragraphs 6 and 8 of the Appellant’s affidavit disclosing his defence on the merit, the Appellant admitted that the loan amount of N126million was paid by the Respondent to the property developer for the purchase of the Maitama property (see pages 121-122 of the Records). This obviates the availability to the Appellant of one of the two defences stated in OKOLI vs. MORECAB (supra), id est, that he never borrowed the money in the first place. The second defence available and on the basis of which a defence on the merit can be said to have been disclosed is that the entire loan had been repaid.
The Appellant deposed in paragraphs 8, 10, 11 and 12 of his affidavit (page 122 of the Records) that he had paid in excess of the total sum due to the Respondent as shown in ‘Exhibit ASO H’ and that his account was in credit not in debit as wrongly stated in the Respondent’s letter ‘Exhibit ASO I’. Evaluating these depositions the lower Court held as follows at pages 141-142 of the Records:
“… Even then Exhibit ASO H which he referred to shows that the total payments made by the Defendant from 7th September, 2010 when he said the payment commenced was not up to the N210,370,000.00 stated by him. As stated earlier, Exhibit ASO H shows that the Defendant was not consistent with his payment for the quarters, necessitating the Plaintiff to write Exhibits ASO I, ASO J, ASO K, and ASO L. Interestingly, these letters are dated 13th February, 2014, 13th March, 2014, 24th April, 2014 and 8th April, 2015, respectively. Apart from Exhibit ASO J which gave the Defendant his total exposure as at 31st March, 2014 and 15th May, 2014, the other exhibits were actually giving the Defendant his arrears of repayment“.
Let me iterate that where the defence is that the debt has been repaid, the defendant is to produce the receipts, bank tellers or any other documents showing that the debt had been totally repaid. The defendant must set out the details and particulars of all payments: OKOLI vs. MORECAB (supra) at 24, FRANCHAL (NG) LTD vs. N. A. B. LTD (supra) and UTC vs. PAMOTEI (1989) 2 NWLR (PT 103) 244. The Appellant did not set out any details and particulars of payments made, neither did he produce any receipts, bank tellers or any document showing that he had repaid the debt. As rightly found and held by the lower Court, ‘Exhibit ASO H’ does not reflect the payment of the amount he claimed to have repaid.
As I near the terminus for this judgment, let me state that I have not lost sight of the Appellant’s submission in the Reply Brief that ‘Exhibit ASO H’ was dumped on the Court, a submission not suited for the Reply Brief, since no such point was raised in the Respondent’s Brief. The essence and purpose of a reply brief is to reply to new points arising from the Respondent’s Brief (see Order 19 Rule 5 (1) of the Court of Appeal Rules, 2021). This notwithstanding, the contention of the Appellant is not correct. ‘Exhibit ASO H’ cannot be said to have been dumped on the Court without any explanation of the entries therein. ‘Exhibit ASO H’ being part of the affidavit evidence is documentary evidence which speaks for itself. Furthermore, ‘Exhibit ASO H’ has a narration of every entry made therein. It shows entries for credit and debit and what the debit charges are for and the particulars of credit lodgements that were made. The said ‘Exhibit ASO H’ eloquently speaks for itself. The Appellant did not allude to any payment he made that was not credited and reflected in the said ‘Exhibit ASO H’, or any wrong debit entry therein. There is also other documentary evidence providing the history of the relationship between the parties, the loan facility granted and drawn down, the rate at which the loan was granted and the security for the facility. These documents cast and throw further light on the entries in ‘Exhibit ASO H’, such that the document cannot be said to have been dumped on the Court so as to deprive the Respondent of judgment under the undefended list procedure. See DURO PETROLEUM vs. UNITY BANK (supra) at 21-22. In a summation, this issue number two is resolved in favour of the Respondent. The manner of resolution of this issue settles any question there may be as to the effect of ‘Exhibit ASO H’ having been wrongly admitted in evidence. I repeat that it was not wrongly admitted in evidence. Even if it was, the decision of the lower Court would have been the same if the said ‘Exhibit ASO H’ was not part of the evidence.
It would appear that every blade of grass in the lawn of this judgment has been mowed, tendered and groomed. The Appellant by this appeal is clearly on a mission to frustrate, dribble and cheat the Respondent out of a judgment that it is entitled to. There is absolutely nothing in the processes filed by the Appellant which discloses a defence on the merit, a triable issue, which requires any further explanation whatsoever from the Respondent; or which shows any reason why there ought to be a trial by the case being entered on the ordinary or general cause list.
The lower Court was therefore correct when it held that the Appellant did not disclose a defence on the merit. There is no justifiable factual or legal basis on which to interfere with the correct decision of the lower Court. The decision of the lower Court is hereby affirmed. The appeal being devoid of merit fails and it is hereby dismissed with costs of N100,000.00 in favour of the Respondent.
PETER OLABISI IGE, J.C.A.: I had the privilege of reading in advance, the draft judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I agree with his reasoning and conclusion that the appeal lacks merit and that the appeal be dismissed. The decision of the lower Court is also hereby affirmed by me.
I also abide by the consequential order as to cost contained in the lead judgment.
DANLAMI ZAMA SENCHI, J.C.A.: I have had the opportunity to reading in draft, the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA just delivered and I agree with the findings and conclusion reached therein that this appeal lacks merit and it is dismissed by me as well.
Accordingly, the judgment of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/1538/2017 delivered on 14th February, 2018 by A. B Mohammed, J is hereby affirmed.
I abide by the order as to cost in the lead judgment and I adopt same as mine.
Appearances:
Michael Kaase Aondoakaa, Esq., SAN, with him, Abdul Ter Kohol, Esq. and Aondowase Jacob Apera, Esq. For Appellant(s)
Adetayo Adeyemo, Esq. For Respondent(s)