IBETO & ANOR v. OGUH
(2022)LCN/16815(CA)
In the Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, January 13, 2022
CA/ABJ/CV/421/2021
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
CHIEF CLETUS IBETO & ANOR APPELANT(S)
And
PASTOR IGBODI DAVID OGUH RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT CAN SPECULATE ON EVIDENCE WHEN DETERMINING AN ISSUE
On (ii) above which is the speculation which inundated the “findings” of the trial Judge, the law is trite that a Court of law is not at liberty to speculate and may only act on evidence that are legally available to the Court and placed before the Court in due form. In UCHECHUKWU v. BINCAN (2019) LPELR – 47779 (CA), the Court of Appeal concluded thus:
It is trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations. In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that: “The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187; ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.” Per IDRIS, JCA (P.39, paras. B-E). PER AKINBAMI, J.C.A.
THE POSITION OF LAW WHERE A PERSON DEPOSES TO HIS BELIEF IN A MATTER OF FACT
In FGN V. AIC LTD (2006) LPELR – 6152 (CA); (2006) 4 NWLR (PT. 970), 337 AT 357 – 358, I. T. Muhammad J.C.A (as he then was) held thus:
“The trite position of the law is that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief. When such belief is derived from information received from another person, the name of his informant must be stated in the affidavit and he must state reasonable particulars of such an informant including the time, place and circumstances of the information. Section 88 and 89 of the Evidence Act; ABU V. ALELE WILLIAMS (1992)5 NWLR (PT. 241) 340; SONNAR (NIG) LTD v. PARTENREEDRI M.S. NORDINILZD (1987) 4 NWLR (PT. 66), 520. It is only when a deponent withholds the source of his information that such an affidavit can be termed to be on hearsay and therefore inadmissible as being contrary to Sections 86, 88 and 89 of the Evidence Act. (Emphasis mine). I do not think of such a situation in the present case. The preliminary objection to the Counter-Affidavit of the Respondents lacks merit and it is thereby dismissed”. See also PDP V. PHILIPS (2010) LPELR – 8980 (CA); ATAYI FARMS LTD V. NACB LTD (2003) 4 NWLR (PT. 810), 427 AT 454-455; NIDB V. FEMBO (1997) 2 NWLR (PT. 489), 543 AT 560-561. PER AKINBAMI, J.C.A.
HOW TO DETERMINE WHETHER A DEFENDANT HAS A GOOD DEFENCE TO AN ACTION BROUGHT UNDER THE UNDEFENDED LIST PROCEDURE
Addressing the issue of the how to determine whether a defendant has a good defence to an action brought under the Undefended List Procedure, the Supreme Court in the case of NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (2010) LPELR-2051 (SC) P. 30-31 PARA-C-A held:
“Thus in determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend, it is not necessary, for the trial judge to decide at that stage, whether the defence has been established what is required is simply, he look at the facts deposed to in the affidavit or counter- affidavit to or statement of defence where applicable and see if they can prima facie afford a defence to the action.”
See per Uwais, JSC (as he then was later CJN) in the case of FEDERAL MILITARY GOVERNMENT OF NIGERIA & ORS V. SANI, (1990) 4 NWLR (PT. 147), 688; (1990) 7 SCNJ 159, 161, 164; See also the case of OKAMBAH LTD V. ALHAJI SULE (1990), 7 NWLR (PT. 160) 1, 30-31 PARA C-A (1990) 11 SCNJ 1 AT 7. In the case of ACB LTD V. GWAGWADA (1994), 4 SCNJ (PT 11) 268, it was held that the affidavit in support of the notice of intention to defend, must show that the grounds for asking to be heard in defence, are not frivolous, vague or designed to delay the trial of the action and it must show that there is a dispute between the parties as has been demonstrated by the respondent in this case leading to this appeal. See the cases of OLUBUSOLA STORES V. STANDARD BANK OF NIG. LTD. (1975) NSCC 137 AND JOHN HOLT & CO. (LIVERPOOL) LTD v. FAJEMIROKUN (1961) ANLR 513 cited in the above case. PER AKINBAMI, J.C.A.
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Capital Territory, Abuja presided over by the Honorable Justice K.N Ogbonnaya. The trial Court delivered Judgment on the 17th day of June, 2021, in favour of the Respondent and ordered the 1st and 2nd Appellants to pay the sum of N161,000,000.00 (One Hundred and Sixty-one Million Naira) only being the Respondent’s agency fee for the land he procured buyer for the 1st and 2nd Appellants.
BRIEF STATEMENT OF FACTS
The Respondent around October 2014, learnt from an agent by name Mr. Jubrin that there were plots of land at Ancestors Court, Maitama, Abuja for sale in case the Respondent had an interested buyer; the Respondent made effort to meet the owner of the plots for sale or his agent so as to verify the authenticity of the information and in the process met the 2nd Appellant who confirmed to the Respondent that the plots belonged to the 1st Appellant, his elder brother.
The Respondent had a discussion with the 2nd Appellant on what the Respondent’s agency fee will be if he was able to get a buyer and the 2nd Appellant reliably told the Respondent that he has liaised with the 1st Appellant and they have both agreed to pay the Respondent 10% (ten percent) of the transaction sum as his agency fee.
The Respondent started relating with the 2nd Appellant and as a result took over 100 prospective buyers to the land to the knowledge of the 1st and 2nd Appellants. The Respondent eventually brought a client who bought 4 (four) plots of land from the 1st Appellant at the Ancestors Court Maitama Abuja.
On the day the Respondent’s client came for inspection, the Respondent invited the 2nd Appellant who brought the original title documents for sighting and after inspection and negotiation between the Respondent’s client and the 2nd Appellant, the Respondent’s client agreed to pay the sum of N1,610,000,000.00 (One Billion, Six Hundred and Ten Million Naira) only for 4 (four) plots of land at Ancestors Court, Maitama. Abuja.
Having agreed on this amount for the four (4) plots of land, the Respondent fixed a meeting between his Client and the Appellants at Transcorp Hilton Hotel, Abuja and sometime in April, 2015, the Respondent’s client and the Appellants met at the venue and after introduction, went to the Bank where the said amount of money was transferred to the 1st Appellant’s account and every necessary document executed between the Respondent’s client and the Appellants.
Consequent upon the above Paragraph, the Respondent requested for his agency fee as agreed by both parties but the Appellants promised to pay the Respondent soon. A promise the Appellants never kept and several calls and visits the Respondent placed to the Appellants to demand his agency fee yielded no result.
The Respondent’s lawyer petitioned Economic and Financial Crimes Commission (EFCC) for investigation into matter, after repeated demands from the Appellants yielded no result, the Respondent was threatened. The Respondent vide the Writ of Summons marked undefended claimed jointly and severally against the Appellants as follows:
AN ORDER directing the Appellants to pay to the Respondent the sum of N161,000,000.00 (One Hundred and Sixty-one Million Naira) only being the agency fee the Appellants agreed to pay the Respondent for bringing the buyer of the 1st Appellant’s 4 plots of land located at Ancestors Court, Maitama, Abuja. AN ORDER directing the Appellants to pay Court’s rate of interest on the judgment sum.
The trial Court delivered judgment, in favour of the Respondent. The 1st and 2nd Appellants being dissatisfied with the judgment have brought this appeal.
The Appellants having regard to the three (3) Grounds of Appeal, contend that the issues which call for the determination of the Court of Appeal are as follows:-
1. Whether the trial Court was not wrong when it entered judgment for the Respondent based on incompetent hearsay evidence of a clerk in a lawyer’s chambers in proof of the facts in dispute (Ground III).
2. Whether the trial Court was not wrong when it dismissed the Appellants’ Notice of Intention to Defend, and entered judgment for the Respondent, despite the glaring and material conflicts between the “Affidavit in Support of Undefended list” and the Appellants’ Affidavit in Support of the Notice of Intention to defend. (Ground II)
3. Whether based on the facts disclosed in the Affidavit in Support of the Notice of Intention to defend, the trial Court was not wrong in delivering judgment for the Respondent instead of transferring the suit to the General Cause list. (GROUND I).
The Respondent on his part distilled two issues for the determination of this appeal:
1. Whether the Respondent’s affidavit in support of the Writ of Summons Undefended List, satisfied the requirements of Section 115 of the Evidence Act, LFN 2004. (Ground III)
2. Whether the Defendants/Appellants’ Notice of Intention to Defend disclosed a defence on merit as to move the Honorable trial Court to transfer the case to the general cause list (Grounds I & II).
In arguing issue I
“Whether the trial Court was not wrong when it entered judgment for the Respondent based on incompetent, hearsay evidence of a clerk in a lawyer’s chambers in proof of the facts in dispute.”
Appellants’ counsel submitted that the learned trial Judge was wrong when he dismissed the Appellants’ Notice of Intention to Defend, and entered judgment for the Respondent based on incompetent hearsay evidence captioned “Affidavit in Support of the Undefended List”. The said Affidavit at page 5 of the record of appeal is prefixed thus:
“AFFIDAVIT IN SUPPORT OF UNDEFENDED LIST
I, Chisom Ibe, Female, Adult, Christian, Nigerian and Litigation Clerk in the firm of Bethsaida Chambers do hereby make an oath and state as follows:-
That l am a Litigation Clerk in the law firm of Bethsaida Chambers Solicitors to the Claimants
That by virtue of my position in the law firm, I am conversant with the facts of this suit.
That I have the consent, permission and authority of my employers and that of the Claimants to depose to this affidavit
That the Claimant informed me in the Chambers at about 10:15am on the 21st day of September, 2020 and I verily believe him as follows:”
What followed was a story purportedly told CHISOM IBE in her capacity as the lawyer’s clerk, perhaps in the solitude of the lawyer’s chambers. The Court of Appeal is urged to examine the “facts” which were rendered in paragraph 4 (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) of the “Affidavit in Support of Undefended List” which will readily disclose that they are matters which only direct evidence may suffice to establish. They proceed to the essence of the dispute and deal with matters which, based on a consideration of the Appellants’ deposition seeking to be allowed to defend, are generously contested.
The law is trite that evidence in order to be admissible as well as enjoy probative value, ought to be direct and ought to be rendered by a person who is not only capable of testifying as to the truth of the matter asserted, but who could be legally cross-examined as to the testimony. See PERMANENT SECRETARY, CHIEFTANCY AFFAIRS v. BOLOGI (NIG) LTD (2017) LPELR-42989.
Arising from the foregoing, the following questions must be asked and positively responded to, before the story told by CHISOM IBE can be accorded any probative value, namely:
(i) Could she have been able to give parole evidence of the contents of the affidavit and be duly cross-examined?
(ii) Could she vouch for the truthfulness of the contents of the affidavit?
(iii) Were the contents of the affidavit offered to establish the truth of what is contained therein?
It is manifest that the deposition was offered to establish the existence of the alleged oral contract entered into between the parties to the suit. The Respondent was obviously alive when the alleged information was given and nothing in the record showed that he was indisposed at all-time material to the proceeding.
The crucial question is then, if the affidavit evidence was offered as evidence in proof of the oral contract, did the deponent, being a lawyer’s clerk, give viable direct evidence of the existence of the contract. The response must be in the negative.
As to the futility of an affidavit deposed to by a law clerk on matters in dispute as against mere formal matters, the Court of Appeal Lagos Division in a very illuminating and apt case of CA/L/181/83: A.G.S BARMA LTD v. UTC (Unreported) delivered on 14th June, 1984, at page 10 held thus:
“In my opinion, an affidavit to show cause under Order 10 Rule 3 of the High Court of Lagos (Civil Procedure) Rules 1972, could be properly sworn to by the defendant himself; or, where the intention is to high-light a preliminary objection or to raise a defence on point of law, not based on controversial facts, by the defendant’s solicitor; or, where a non-party to the suit has personal knowledge of the facts which will be relied upon to show a defence on the merits, such a person. I do not think that a law clerk, qua law clerk, who has no personal knowledge of the facts to be relied upon to show a probable defence should swear to such an affidavit, particularly because of the provision for examination on oath under Order 10 Rule 3 (c) of the Rules. For, he cannot satisfy the requirement of examination on oath in the letters of that sub-rule. A Court can, and should in any serious issue, refuse to use an affidavit where the deponent cannot be examined. See Shea vs. Green (1866) 2 T.L.R. 533. Affidavits by a law clerk should, in my view, be confined to formal matters … The first question should therefore be swerved in the negative.” (Emphasis supplied)
Undoubtedly a suit heard under the undefended list, qualifies as a full trial. It may lead to either entry of the matter in the General Cause list on the one part, or judgment for the Plaintiff on the other part. In this case where the trial Court elected not to transfer the suit to the General Cause list, but heard same on the affidavit of the Respondent, he was bound to observe the rules of evidence and hearing. On this score, the evidence offered by the Respondent has no probative value, being offered by a law clerk who had no nexus whatsoever with the transaction, the subject matter of the suit and who cannot be cross-examined on the evidence. The evidence offered by the Respondent being fully lacking in probative value did not and could not have sustained the claims of the Respondent which were bound to fail, without much ado. It is remarkable that the case was not fought on documentary evidence so as to insinuate that it was merely a matter of interpretation of documents.
The rule that governs the efficacy of oral evidence is circumscribed by the provisions of Section 126 of the Evidence Act 2011 in the following terms:
Subject to the provisions of Part 111 of this Act, oral evidence must, in all cases whatever, be direct –
(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as witness without an amount of delay or expense which the Court regards as unreasonable. The evidence of CHISOM IBE does not come within the exception provided in Part III of the Evidence Act 2011, which deals with matters of customs, admissions, confessions, written statements, its possession and enjoyment of land and evidence of scienter. The entire basis for the case which is the fulcrum of the affidavit of CHISOM IBE was that the parties agreed orally that the Respondent was entitled to the sum equal to 10% of the consideration for sale of the land. She did not depose that she was present and therefore her evidence must be taken for what it was expressed to be. A story relayed to her by the Respondent as to what transpired between him and the Appellants.
It is no doubt the law that a deponent to an affidavit may testify as to information delivered to her. This is not really the essence of the contention of the Appellants. Evidence may be ruled admissible by a matter of law, but the probative value of such evidence to prove the matter asserted is a different issue all together. In this context, I will urge the Court to maintain clear distinction between the statutory authorization of a deponent to depose to information received by him or her on the one part, and the efficacy of that evidence to establish the fact in dispute, on the other part. It is with respect to the latter that the Appellants’ contention in this issue is founded. Thus although a deponent may give facts obtained through an informant, where, however, the matter involves a fact in issue, and in this case, founded on oral evidence of a transaction, the information is no longer of a formal nature. Proof is required and must be attained through direct evidence. Even in a case where counsel is involved, he or she is still held to a standard of offering affidavit evidence only with respect to formal matters which are not in dispute or form the basis for the case. In OBADARA v. PRESIDENT OF IBADAN WEST DISTRICT GRADE B CUSTOMARY COURT (1964) LPELR -25219 (SC), the Supreme Court held thus:
We would here interpolate a comment on the undesirability of Counsel’s appearing in a professional capacity in a case in which he is a material witness. The principles underlying the rule of practice in this matter are considered by Holden in Horn v. Rickard 1963 NNL.R. 67 and we agree with the passage in his judgment in which he states the rule as follows- “There would be little harm in Counsel swearing an affidavit setting out formal facts required to be established to support a purely formal ex parte application where there is no possibility of those facts being disputed, but even in such a case there would be little need for Counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of information and belief (due heed being paid to Section 87 and Section 88 of the Evidence Ordinance). If on the other hand, Counsel finds himself in the position where he is the only person with the knowledge necessary to swear the affidavit, and where the facts to which he is to swear are likely to be in dispute, then he should for the purposes of that application withdraw from the case and brief other Counsel. per BRETT, JSC (Pp. 11-12, para C).
The admonition is clear to the effect that affidavit evidence of counsel must be formal only. Even where it is deposed to by his staff, it must relate only to “… formal facts required to be established to support formal… application where there is no possibility of those facts being in dispute … ” It therefore goes without saying that where the facts are not just formal and likely to be in dispute, deposition of a Counselor the staff will not enjoy any credence as to those disputed facts. The role of a lawyer and by extension, that of the staff under him is quite sacrosanct and must not be trivialized or shrouded by a burden to offer or adduce evidence in proof of a matter in dispute in the substantive case. Emphasizing this point, the Supreme Court in BONIFACE ANYIKA & CO LAGOS NIG LIMITED v. UZOR (2006) LPELR -790(SC) held thus:
The role of counsel in the litigation process is clear, so too the role of the parties. Counsel, being the expert of the law, supplies his expertise to edify the facts of the case with a view to procuring judgment for his client. He cannot supply the facts, which exclusively belong to his client. All he can supply is the law and the law only. Counsel can only submit on the law to vindicate the facts already before the Court. He cannot introduce facts on his own. In view of the fact that none of the two witnesses for the appellant gave evidence “that exhibit can only be in existence if the imported goods are released to the Clearing Agent”, this Court rejects the evidence emanating from counsel. This is because counsel is not competent to give evidence in a case he appears for a party as counsel qua advocate.” Per TOBI, JSC (P. 15, paras. B-E) (Emphasis supplied)
If such facts in dispute cannot be supplied by counsel, certainly they cannot be supplied by any of his or her agent in the law firm.
This is for the reason that at all times the Court is only bound to render a decision based on credible and duly tested evidence. This dichotomy was duly addressed by the Court in the case of OLOJEDE v. IGE (2015) LPELR – 41678(CA).
In the foregoing context, it will not be right to hold that Section 115 of the Evidence Act 2011, is an exception to Section 126 of the same. While Section 115 permits a party to testify as to information received, where the evidence is offered in proof of an oral transaction, then Section 126 of the Evidence Act 2011 must reign Supreme to mandate that the only evidence which will be accorded probative value must be one which –
(i) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(ii) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(iii) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(iv) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
On the foregoing premise, the testimony of CHISOM IBE founded on mere information cannot enjoy any probative value, if offered in proof of existence of an oral contract on which the suit was founded.
The law is trite that a Court of law is bound to decide a case only on evidence that is admissible in law. See HASSAN v. THE STATE (1994) 7 SC. 144; ADAMU v. ASHAKA CEMENT CO PLC (2015) LPELR -25610 (CA). See also NWAOGU v. ATUMA (2013) 11 NWLR (Part 1364) 117; (2013) LPELR- 20667 (SC). This Court in SHITTU V. FASHAWE (2005) 4 NWLR (Pt. 946) 671 re-affirmed the position of things per Musdapher JSC (as he then was) at page 629, as evidence of CHISOM IBE, stood the direct evidence of the 2nd Appellant on what transpired between the Appellants and the Respondent, explaining every detail of the transaction in which he personally participated. How this evidence was denigrated and hearsay deposition of a lawyer’s clerk who never took part in the transaction preferred, is indeed perplexing.
The Court of Appeal is urged to resolve this issue in favour of the Appellants and to strike out the Respondent’s suit, on the basis that no competent evidence supported the Writ of Summons under the Undefended list.
Argument on Issue II
Whether the trial Court was not wrong when it dismissed the Appellants’ Notice of Intention to Defend and entered judgment for the Respondent despite the glaring and material conflicts between the “Affidavit in support of Undefended list” and the Appellants’ Affidavit in Support of the Notice of Intention to Defend.
Appellants’ contended in alternative to the argument in issue I, that the trial Judge was not correct when his Lordship dismissed the Appellants’ Notice of Intention to Defend and proceeded to hear the matter under the undefended list proceedings. Before the Court were two (2) conflicting Affidavit evidence. Without even considering the viability of the Respondent’s deposition founded on mere information on the essence of the dispute, the Appellants’ Affidavit in Support of the Notice of Intention to Defend is diametrically opposed to the Respondent’s deposition in every material particulars.
For the Respondent, based on the defective deposition of CHISOM IBE, the Claimant met the 2nd Appellant and expressed the desire to procure a buyer of 1st Appellant’s property proposed to be sold. 2nd Appellant confirmed the sale to him and ” … told the [Respondent] that he has liaised with the [1st Appellant] of the transaction sum as his agency fee.” That the Respondent eventually introduced a buyer who purchased four (4) plots of land from the 1st Appellant at the sum of N1,610,000,000.00 (One Billion, Six Hundred and Ten Million Naira). The 1st Appellant failed to pay the agreed finder’s fee which prompted the Respondent to initially address Exhibit A to the 1st Appellant, demanding the sum, and thereafter Exhibit B to the EFCC, seeking enforcement.
The Appellants in the deposition made by the 2nd Appellant were categorical that:
(i) Respondent was not an agent of the Appellants, but was an agent to the buyer;
(ii) Respondent never met the 1st Appellant nor held any discussion with him at all times material to the transaction.
(iii) Respondent introduced one ALHAJI A.H. ABUBAKAR to the 2nd Appellant who showed them the land and informed the said ALHAJI A.H. ABUBAKAR that the consideration for the sale of the four (4) plots of land was fixed at N2,000,000.00 (Two Million Naira).
On the consummation of the transaction, 2nd Appellant testified thus: “15. That the said Alhaji A. H. Abubakar requested to speak with the 1st Defendant who reside in Port Harcourt in Rivers State which I facilitated.
That in the discussion and negotiations of both parties (1st Defendant and the Alhaji A. H Abubakar) which I was privy to, both parties agreed to the transaction in the sum of One Billion, Six Hundred and Ten Million Naira (N1,610,000,000.00) on the condition that no agency fee shall be paid to anyone on the Defendant side.
That Alhaji A. H Abubakar accepted that term and said he will take care of the fee of his own agent who is the Claimant on record.
That after the discussion and negotiations between both parties, the said Alhaji A. A. Abubakar, the Claimant and I held a meeting where in that meeting the said Alhaji A.H Abubakar reiterated to the Claimant of his agreement with the 1st Defendant regarding the payment of agency fees, that he will be the one to pay for the Claimant’s fee.
That the Claimant never raised any objection to that before his principal Alhaji A. H Abubakar.
That on the day of payment for the land, the 1st Defendant who resides in Port Harcourt Rivers State, came to Abuja and met the Alhaji A. H Abubakar at Trans-cop HILTON Hotel where in the transaction was consummated and documents signed and exchanged.
That I know as a matter of fact that the said Alhaji A. H Abubakar gave the Claimant the sum of One Hundred and Fifty Thousand Dollar as his agency fee.
That the 1st Defendant neither promised nor had any agreement with the claimant regarding an agency fee of any let alone 10% of the transaction sum.
That there was never a time I told the Claimant that the 1st Defendant accepted to pay the Claimant any percent of agency fee. (Emphasis supplied).
The foregoing were not only material but directly contradicted the deposition of the Respondent in the “Affidavit in Support of the Undefended list.” Without more, the effect of this conflict is covered by Section 116 of the Evidence Act, 2011 which stipulates thus:
Conflicting Affidavits.
When there are before a Court affidavits that are irreconcilably in conflict on crucial facts, the Court shall for the purpose of resolving the conflict arising from the affidavit evidence, ask the parties to proffer oral evidence as to such facts, and shall hear any such oral evidence of the deponents of the affidavit and such other witnesses as may be called by the parties.
It is accepted that the undefended list procedure is a specialized proceeding. However, within the precinct of its rules, the basic rule of evidence as enunciated in Section 116 of the Evidence Act 2011 is equally observed. Put another way, the existence of material conflict in the respective affidavit evidence of the parties supports rather than derogate from the fact that a defence had been made out on the merit, thus warranting the veracity of the divergent accounts to be tested by oral evidence and cross-examination. See the Undefended list case of UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) 10 NWLR (Part 1626) 64; (2018) LPELR-44376(SC); NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (2010) 14 NWLR (Part 1213) 169; (2010) LPELR -2051(SC); ECOBANK NIGERIA PLC V. LUANGA (2012) LPELR – 14411(CA). See FESCO (NIG) LTD v. N.R & C. P. CO LTD (1998); FIRST ROYAL MICRO FINANCE BANK LTD v. ESSIEN (2014) ALL FWLR (Part 748) 810 at 822; EZECHUKWU V. ONWUKA (2016) 5 NWLR (Part 1506) 529; (2016) LPELR – 26055 (SC) at PP 18-19 (Para D-A) , Counsel asked was there such conflict? I am tempted in acknowledgment of the deficiency in the deposition of CHISOM IBE to respond that the only outstanding and uncontradicted evidence was that of the Appellants in support of the Notice of Intention to Defend. Perchance the deposition of CHISOM IBE indeed amounts to viable evidence, which is not conceded, then clearly a situation where one side contends that there was no agreement that a finder’s fee be paid to the agent of a buyer as against that of the seller, by the seller, and the adversary’ is categorical that no such agreement existed, is such a violent and persistent disagreement of which only a full contest in the general cause list can provide a much desired panacea.
Even the trial Judge in his ruling honestly recognized the conflict in the material aspect of the case but thereafter elected to parry same. His Lordship at page 43-44 of the record of appeal held thus:
“In this case, the Plaintiff had claimed that he had an agreement with the Defendants to pay him 10% of the sum of money paid for the purchase of four (4) plots of land at the Ancestors Garden Estate. He brought buyer who bought four (4) Plots instead of the initial one (1) Plot he had wanted to pay for. But that the Defendants failed to fulfill their promise/obligation since after the sale. Hence this action. He had reported that the other agents through whom the buyer came thought that Defendants had paid him and he had refused to “settle” them. Hence they are threatening him and members of his family going by the letter he attached to the Writ – EXH C. The story of the Plaintiff is not strange to the Defendants especially to the 2nd Defendant who acted for his elder brother the 1st Defendant, he had denied that 10% interest was ever agreed with the Plaintiff and that the buyer had given Plaintiff the sum of One Hundred and Fifty Thousand US Dollars ($150,000.00). But he did not attach any evidence to buttress that claim. He confirmed that the Claimant contacted and enquired from him about the land transaction and informed him that he had a buyer who is interested to purchase the land-Alhaji A.H Abubakar. He confirmed that he, the Claimant made an offer to the … (Emphasis supplied)
The case of the Respondent was founded on the existence of an alleged oral agreement for the payment of 10% finder’s fee. On this, the Appellants were categorical that no such agreement existed. The unilateral act of the trial Judge that there was offer, acceptance and consideration in order to consummate a contract therefore had no factual or evidence to stand. If one party deposed that there was no offer, acceptance and no agreement that a consideration of be paid, a contrary finding by the Judge without calling evidence, can at best be perverse and the Court of Appeal is urged so to hold. That perversity is manifest where the trial Judge at page 45 of the record of appeal Lines 5 to 10 held thus:
“There was offer, there was acceptance, there was consideration but the consideration was not fulfilled, hence this suit. The agreement as to agency fee was known -10% of the purchase price.”
This cannot logically emanate where the same Judge had held that the Appellants maintained that there was no agreement for payment of a finder’s fee. Such conflict may only be resolved by oral evidence which in a case commenced under the Undefended list must compel a transfer to the General cause list for trial based on pleadings.
He urged this Court to resolve this issue in favour of the Appellants and in so doing adopt the ratio of EBONG v. IKPE (supra) where the Court held thus:
“On the issue of conflict in the affidavit of the parties, the learned trial Judge did not give this issue adequate treatment in his ruling. He recognized that there was a point of divergence in the affidavits of the parties as to the purpose for which the N400,000.00 was meant. The point of divergence according to him is that plaintiff alleged that it was a friendly loan to the defendant at the latter’s request, while the defendant on the other hand asserted that the money was meant for paper conversion for the plaintiff. This alone is enough conflict arising from the affidavits of the parties that cannot be resolved without calling oral evidence. The law is firmly settled that when a Court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case in order to resolve the conflict properly should first hear oral evidence from the deponent or such other witnesses as the parties may be advised to call. See Falobi v. Falobi (1976) 9-10 SC 1 at page 15 or (1976) 1 NMLR 169; Akinsete v. Akindutire (1966) 1 ALL NLR 147 at page 148; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41; Eboh v. Oki (1974) 1 SC 179 at 189 to (1990); Uku v. Okumagba (1974) 3 SC 35. In Jipreze v. Okonkwo & Anor (1987) 3 NWLR (Pt. 62) 737, the suit was brought under the undefended list and it was held that where there has been a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit on the general list. Olutawura, J C.A. (as he then was) at page 744 of the report has this to say: “Ordinarily. both affidavits can be resolved by calling tor evidence. This is where both sides should file pleadings. It will amount to a denial of fair hearing to look at both affidavits and for the Judge to conclude as in this case that the conduct of the appellant was not only bogus but fraudulent. Again in Globe Fishing Ind. v. Coker (1990) 7 NWLR (Pt. 162) 265, the Supreme Court held that the fact that affidavits conflict supports rather than derogate from the facts that there are substantial issues to be tried. In the recent case of I. K. Martins (Nig.) Ltd. v. U. P. L. (1992) 1 NWLR (Pt. 217) 322, it was held that where the decision of a trial Court is based on unresolved conflicting affidavit, an Appellate Court would not allow it to stand. Having said thus, it is therefore my candid view that there is irreconcilable conflict in the affidavits of the parties which should necessitate the transfer of the suit to the general cause list for hearing on pleadings so as to resolve the conflict by calling oral evidence.
From the foregoing therefore, he held the view that the appellant ought to have been given leave to defend the suit. The learned trial Judge was in a serious error to have entered judgment on the undefended list in favour of the respondent.
THIRD ISSUE
Whether based on the facts disclosed in the Affidavit in Support of the Notice of Intention to Defend, the trial Court was not wrong in delivering judgment for the Respondent instead of transferring the suit to the General Cause List. GROUND 1
Appellants’ counsel submitted in further alternative to the foregoing that based on the affidavit of the Appellants, the trial Judge was wrong to have dismissed the Notice of Intention to Defend. In so submitting, counsel adopted the argument embodied in issues I and II above in contending that based on the quality of evidence before the trial Court, the only astute evidence was the Appellants’ Affidavit in support of the Notice of Intention to Defend.
To commence with, the Undefended List procedure is again, indeed a special process circumscribed by the adjectival law applicable to the High Court of each State. In stating its scope the Supreme Court in NKWO MARKET COMMUNITY BANK (NIG) LTD v. OBI (supra) held thus:
The undefended list procedure is adopted when it is perceived that the Defendant could not possibly have any defence to the claim. A suit maintainable under this procedure if it relates to a claim (or a debt or liquidated money demand. See Bendel Construction Co. Ltd V. Anglo Development Co. (Nigeria) Ltd. (1972) All NL.R. (Pt.1) 153 and Olubusola v. Standard Bank (1975) 1 All NL.R. (Pt. 1) 125.” Per MOHAMMED, JSC (P.26, paras. E-G)
Counsel asked if there really is a debt or liquidated money demand in this case having regard to the state of the respective affidavit of the parties. There can be no debt or liquidated money demand where a defendant denies the existence of the contractual transaction claimed by a Plaintiff to constitute the alleged debt or liquidated money demand. Respondent founded his case on a claim for a liquidated sum of N161,000,000 (One Hundred and Sixty-One Million) demanded as commission. In the case of ALHAJI M.U. & SON LTD v. CON PLC (2005) 2 NWLR (Part 964) 288 (para B-C) relied on by the Respondent at paragraph 4.4 of their “Written Address in support of Affidavit undefended”, their lordship held thus:
“A liquidated claim is a claim for an amount previously agreed on by the parties or that can be precisely determined by operation of law or by terms of the parties.”
At paragraph 4.5 of the said Address Respondent’s Counsel proceeded thus:
In the instant case, the Claimant seek the payment of a liquidated sum of N161,000,000.00 (One Hundred and Sixty-One Million Naira) only being the agency fee the Defendants agreed to pay the Claimant for bringing the buyer of the 1st Defendant’s plots of land located at Ancestors Court, Maitama, Abuja. The Defendants have deliberately neglected, failed and refused to pay the Claimant the commission as agreed immediately the money dropped into the Defendant’s account. It is on this platform that the defence offered by the Appellants ought to be scrutinized.”
Appellants filed a Notice of Intention to Defend supported by an affidavit. In that Affidavit in support, the Appellants set out their defence and denied the existence of any agreement for payment to the Respondent the sum claimed by the Respondent or any other sum. By the provisions of Order 35 Rule 3 High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2018, the Appellants were obligated to disclose a defence on the merit in order to be entitled to leave to defend. Addressing the standard to be satisfied by a defendant at this stage, the Supreme Court in NKWO MARKET COMMUNITY BANK (NIG) LTD v. UWABUCHI OBI (supra) held thus:
Thus, in determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend, it is not necessary, for the trial judge, to decide at that stage, whether the defence has been established. What is required is simply, to look at the (acts deposed to in the affidavit counter-affidavit or Statement of Defence where applicable and see if they can prima facie afford a defence to the action. See per Uwais, JSC (as he then was later CJN) in the case of Federal Military Government of Nigeria & 3 Ors v. Sani (1990) 4 NWLR (Pt.147) 688; (1990) 7 SCNJ 159, 161, 164. See also the case of Okambah Ltd v. Alhaji Sule (1990) 7 NWLR (Pt.160) 1; (1990) 11 SCNJ 1 AT 7. In the case of ACB Ltd v. Gwagwada (1994) 4 SCNJ (Pt.11) 268, it was held that the affidavit in support of the Notice of Intention to Defend, must show that the grounds for asking to be heard in defence, are not frivolous, vague or designed to delay the trial of the action and it must show that there is a dispute between the parties as has been demonstrated by the Respondent in this case leading to this appeal. See the eases of Olubusola Stores v. Standard Bank of Nig. Ltd. (1975) NSCC 137 and John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) ANLR 513 cited in the above case. In the case of Adebisi Macgregor Associates Ltd. V Nigeria Merchant Bank Ltd. (1996) 2 NWLR (Pt31) 378 cited and relied on by the Respondent, referring and reproducing the material contribution of Belgore, J.S.C (as he then was later CJN) it is also reported in (1996) 2 SCNJ 72, Ogbuwegu J.S.C at page 81, in his leading judgment, stated inter alia, that the procedure, is a peculiar procedure intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend (or mere purpose of delay:… That it is for the plain and straightforward and not for the devious and crafty. That as a general principle, where a defendant shows that he has a fair case (or defence or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide Case, he ought to have leave to defend. The English cases of Saw V. Hakim (1989) 15 TL.R. 72; Ward v. Plumbley 6 TLR 198 and Ray v. Banker 4 Ex. D. 279 were referred to therein. In the case of University of Nigeria v. Orazuluike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19 AT 29 C.A., the case of Saw V. Hakim (supra), was also referred to where it was held that where a defendant raises any substantial question of fact which ought to be tried, leave should be granted to him to defend the action. In a very well considered judgment, the Court below – per Olagunju, J.C.A. (of blessed memory), after referring to many decided authorities in respect of the said procedure and highlighting a “recipe” for avoiding the pitfalls with which the use of Undefended List Procedure for contentious matters is beset, allowed the appeal and as I mentioned earlier in this judgment, set aside the said decision of the trial Court. My answer to the said issue 1 of the parties in summary, is that the Court below was right in its decision including the orders it made.” Per OGBUAGU, JSC (Pp. 30-32, paras. B- C)
Looking at the facts presented by the Appellants, they clearly denied the existence of the alleged oral agreement. They proceeded one step further to assert that the 1st Appellant specifically stated that he had no financial responsibility to the Respondent, being the buyer’s agent as settlement of his finder’s fee was the obligation of the buyer. Indeed this was a condition precedent to the sale of the land. It was on this premise that the Respondent received the sum of $150,000.00 (US Dollars) from the buyer. This assertion cannot conceivably be frivolous, vague or designed to delay the matter.
It indeed showed, contrary to the assertion in the Affidavit in support of the claim, that there was a clear dispute between the parties as to the existence or otherwise of the alleged oral contract which formed the basis of the Respondent’s claim. It cannot therefore be said that the Respondent was entitled to judgment.”
As was held in SAW v. HAKIM (supra) where a defendant raises any substantial question of fact which ought to be tried, leave should be granted him to defend the action. In this case, the trial Judge held that, that the Appellants ” … had denied that 10% interest was ever agreed with the [Respondent] and that the buyer had given [Respondent] the sum of One Hundred and Fifty Thousand Dollars ($150,000.00).” That clearly presented a triable issue which ought to proceed to trial on pleadings. Instead the trial Judge required the Appellants to produce a receipt for a transaction between the buyer (Alhaji A. H. Abubakar) and the Respondent for the payment which did not involve the Appellants. His Lordship reasoned that the Respondent could not have” … out of the blues started making such claim and had the effrontery to report to the EFCC. His Lordship even freed the Respondent from the duty of being served petitions Exhibit A and B addressed to the EFCC on the premise that it was for the EFCC to contact the Appellants” … if they felt it was worth their while.”
If one may indulge too in speculation, one would have expected that the natural effect of the letters addressed to EFCC was that the complaint was either investigated and found wanting or was not worthy of investigation. Both or either having the consequence of debilitating the Respondent’s claim. The Judge also ignored the fact that the offence of giving false information to the police or a Civil Servant is instilled in the statute because people give false reports such as was done in this case. It is not a matter of having the boldness to write the EFCC.
The speculation that the Respondent could not “out of the blues start making such claims … ” ignores the fact that the Respondent did not write the EFCC until after four (4) years, or initiate this action till over five (5) years from the occurrence of the sale, matters which if speculation was allowed to run its course will lean towards this suit being an afterthought. Although the limitation period is six (6) years, it is indeed abnormal that any person will sit on an alleged debt of N161,000,000.00 (One Hundred and Sixty-one Million Naira) in a modem day Nigeria.
The Respondent’s letter Exhibit A allegedly written to the 1st Appellant was dated 10th July, 2018, three (3) years after the alleged transaction. The letter did not even show on the face of it that it was received by the 1st Appellant nor did the Respondent disclose any known proof of delivery of the letter.
The trial Judge proceeded in speculation to hold, that “… there is no how the Claimant would have not seen 1st Defendant who introduced the buyer to the 1st Defendant … [and must have] ordinarily met the 1st Defendant with the buyer … [and] would not have taken 100 intended buyers to the land without having a concrete though not written agreement as to what he will benefit…” these are matters in contest which may only be established after viva voce evidence would have been subjected to the rigors of cross-examination as to ascertain the veracity of the divergent accounts.
The foregoing further ignored the fact that in transaction even as relayed by the Respondent, there were two (2) parties to the sale as well as two (2) agents. The Respondent being the finder and the buyers’ agent, and the 2nd Appellant being the Seller’s agent. The primary transaction took place between both agents after which the sellers and the buyer consummated same. It also ignored the fact that the transaction proceeded to finality upon the premise that the 1st Appellant’s [the seller’s] obligation, did not extend to the buyer’s agent [the Respondent].
These are two (2) legal implications of all the foregoing, which the Court of Appeal is respectfully urged to consider, namely-
(i) the Affidavit evidence, especially that of the Appellants;
(ii) the finding of the trial Judge founded on outright speculations based on conflicting evidence.
On (i) above, that is to say, the affidavit evidence, the law is trite that the Judge was bound to consider the affidavit in support of the notice to defend and determine whether a defence was disclosed. In so doing, it is pertinent to note that the only direct evidence of the transaction came from the defence, while that of the Respondent was founded on hearsay evidence of CHISOM IBE which lacked probative value. The debilitating effect of this on the case was explored in issue I, but besides this, the effect when placed alongside the affidavit in support of the Notice of Intention to defend tilts the balance grossly disproportionately in favour of the evidence of the Appellants, without much ado. There was indeed nothing in the opposite side of the scale on which the trial Judge should mercilessly scrutinize the case of the Appellants as he did. Further to this, the categorical denial made by the Appellants, even if isolated, cannot justify the purported evaluation embarked upon by the trial Judge on conflicting affidavit, to the detriment of the Appellants. The effect of the conflict on material points on which issues were joined, namely whether or not there was any contract, even if the Respondent’s affidavit is credited, is that trial should proceed on the pleading.
See NKWO MARKET COMMUNITY BANK (NIG) LTD v. OBI (supra) to the effect that –
Where a defendant can show in his Affidavit that he has a defence on the merit or there is serious conflict in the affidavit of the parties, or raises issue that is friable, he will be granted leave to defend the suit …” Page 23, para B-D
On (ii) above which is the speculation which inundated the “findings” of the trial Judge, the law is trite that a Court of law is not at liberty to speculate and may only act on evidence that are legally available to the Court and placed before the Court in due form. In UCHECHUKWU v. BINCAN (2019) LPELR – 47779 (CA), the Court of Appeal concluded thus:
It is trite principle of law that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculations. In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that: “The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187; ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.” Per IDRIS, JCA (P.39, paras. B-E)
The Court of Appeal is most respectfully urged to resolve this issue in favour of the Appellants.
The Respondent on issue 1:
Whether the Respondent’s affidavit in support of the Writ of Summons Undefended satisfied the requirements of Section 115 of the Evidence Act, LFN 2004 Ground III.
Respondent’s counsel in answering this question stated that, it is trite law that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief. See SAMBO & ORS V. THE NIGERIA ARMY COUNCIL & ORS (2015) LPELR – 40636 (CA) P. 17, PARA D.
Where the Court held that “The trite position of the law is that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief.”
FGN V. AIC LTD (2006) LPELR – 6152 (CA); (2006) 4 NWLR (PT. 970), 337 AT 357 – 358; VEEPEE INDUSTRIES LTD V. COCOA INDUSTRIES LTD (2008) LPELR – 3461 (SC) where the Supreme Court held:
“…, further, when a person deposes to his belief in any matter of fact, as did Mr. Edokpolor, and his belief is derived from any source other than his own personal knowledge, he is required to set forth explicitly the facts and circumstances forming the ground of his belief.” Per MUHAMMAD JSC (P.22, Paras B-C)
The Respondent in the Affidavit in support of Undefended List at page 5 of the record of proceeding reproduced hereunder stated thus:
“AFFIDAVIT IN SUPPORT OF UNDEFENDED LIST
I, Chisom Ibeh, Female, Adult, Christian, Nigeria and Litigation Clerk in the firm of Bethsaida Chambers do hereby make an oath and state as follows:
That I am litigation clerk in the law firm of Bethsaida Chambers Solicitors to the claimants.
That by virtue of my position in the law firm, I am conversant with the facts of this suit.
That I have the consent, permission and authority of my employers and that of the Claimants to depose to this affidavit.
That the Claimants informed me in the Chambers at about 10:15am on the 21st day of September, 2020 and I verily believe him as follows:…”
A closer look at paragraph 4 above shows complete compliance with the position of law laid down by the Supreme Court in the above cases. The litigation clerk in the law firm of the Solicitors for the Respondent by name Chisom Ibeh deposed to facts she derived from the Respondent and also set forth explicitly the facts and circumstances forming the ground of his belief. The question remains whether evidence is limited to oral testimony. The Supreme Court answered the question in the case of AMAECHI V INEC & ORS (2008) LPELR – 446 (SC), P. 201. PARA E thus:
“…It is erroneous to argue that evidence is limited to oral testimony whereas it includes documents and objects duly tendered and admitted as Exhibits in any legal Proceedings.”
Since evidence is not limited to oral testimony, the said Chisom Ibeh the litigation clerk in Bethsaida Chambers. Solicitors to the Respondent can depose to facts disclosed to her by the Respondent as long as it complies with Section 115 of the Evidence Act without it amounting to hearsay evidence as submitted by the Appellants.
The procedure for bringing an application for Writ of Summons Undefended is stated in Order 35 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules, 2018. Order 35 Rule 1 is reproduced hereunder:
“Where an application is Form 1, as in the Appendix is made to issue 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 it, the judge in chambers shall enter the suit for hearing in what shall be called “Undefended List”. A writ of summons for a suit in the Undefended List shall contain the return date of the writ.”
The order specifically stated Affidavit and Section 115 of the Evidence Act, LFN, 2004 laid down the contents of an affidavit as reproduced hereunder:
“a. Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true;
b. An Affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion;
c. When a person deposes to his belief in any matter of fact and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief;
d. When such belief is derived from information received from another person, the name of his information shall be stated, informant and the time, place and circumstance of the information.
We also commend the following cases for My Lords careful perusal where the Court further laid down the rules as to what a deponent who deposes to his belief in a matter and whose belief in such matter is derived from any source besides his personal knowledge must state in his affidavit and then relate same to the facts of this appeal.
EDEWOR & ORS V. AMCON (2018) LPELR – 46699 (C.A), PP. 3-5 PARAS D-A … “The essential requirements for a deponent to an affidavit, to fulfill pursuant to Section 115 (4) of the Evidence Act 2011, is to state the name of his informant, the place and time of the information and whether the deponent believes the information, passed unto him by his informant. Ms FRA Williams being the Appellants/Applicants’ Counsel, it is not unusual for him to be aware of the “Complicated family dynamics”, in that family. And that constitutes facts within his personal knowledge. Therefore it would be over stretching the requirements of Section 115 (4) of the Evidence Act, 2011 to demand that Ms FRA Williams, ought to have furnished the source of information, to the deponent of the further and Better Affidavit. I am satisfied that the Deponent – Azeez Abiodun, having stated the source of his information, the place and time of the information which he verily believed, was in compliance with Section 115 (4) of the Evidence Act, 2011. In effect, the submissions of the Respondent’s Counsel against paragraph 4 (I) & (II) of the Further and Better Affidavit in question, to my mind is no more than an attempt to split hairs. It is disingenuous and unmeritorious.
In relating this position of law to the instant appeal, Chisom Ibeh in paragraph 4 of the Affidavit in support of Writ of Summons Undefended page 5 of the Record of Proceeding stated copiously her informant (Claimant) who is the Respondent now, the place which is Bethsaida Chambers the office of the Respondent’s Solicitors, the time of information, 10:15am, date and that she verily believe the information supplied by the Claimant to be true.
Respondent’s counsel submitted that is complete compliance with Section 115 of the Evidence Act, 2011 and the position of the law in the cases stated above.
In SAMBO & ORS V. THE NIGERIA ARVIY COUNCIL & ORS (2015) LPELR – 40636 (CA) P. 16 -18, PARA F-C, the Court stated thus “.. a Deponent deposition could be derived either from his personal knowledge or from information which he believes to be true.”
Where a deponent to an affidavit such as this counter-affidavit, deposes to facts which are not within his personal knowledge but from information not necessarily obtained from a party to the suit and he believes such fact to be true, once the particulars as specified in Section 115 of the Evidence Act are disclosed, such deposition can be relied upon by the Court.
In FGN V. AIC LTD (2006) LPELR – 6152 (CA); (2006) 4 NWLR (PT. 970), 337 AT 357 – 358, I. T. Muhammad J.C.A (as he then was) held thus:
“The trite position of the law is that a person who deposed to his belief in a matter of fact and whose belief is derived from any source other than his own personal knowledge must state explicitly the facts and circumstances forming the ground of his belief. When such belief is derived from information received from another person, the name of his informant must be stated in the affidavit and he must state reasonable particulars of such an informant including the time, place and circumstances of the information. Section 88 and 89 of the Evidence Act; ABU V. ALELE WILLIAMS (1992)5 NWLR (PT. 241) 340; SONNAR (NIG) LTD v. PARTENREEDRI M.S. NORDINILZD (1987) 4 NWLR (PT. 66), 520. It is only when a deponent withholds the source of his information that such an affidavit can be termed to be on hearsay and therefore inadmissible as being contrary to Sections 86, 88 and 89 of the Evidence Act. (Emphasis mine). I do not think of such a situation in the present case. The preliminary objection to the Counter-Affidavit of the Respondents lacks merit and it is thereby dismissed”. See also PDP V. PHILIPS (2010) LPELR – 8980 (CA); ATAYI FARMS LTD V. NACB LTD (2003) 4 NWLR (PT. 810), 427 AT 454-455; NIDB V. FEMBO (1997) 2 NWLR (PT. 489), 543 AT 560-561.
The Appellants are of the opinion that the affidavit in support of the writ of summons undefended is hearsay and is urging the Court to treat it as same whereas Chisom Ibeh litigation clerk in the firm of Solicitors to the Respondent complied fully with the particulars of provision of Section 115 of the Evidence Act, LFN, 2004 and never withheld the source of her information such as to warrant the affidavit she deposed to be referred to as hearsay.
My Lords, it is settled law that proceedings under the Undefended List are conducted and decided on affidavit evidence and we commend the case of OBARO V. HASSAN (2013) LPELR – 20089 (SC) P. 31, PARAS D-F where ARIWOOLA, J.S. C. held thus:
“It is trite law that cases tried pursuant to Undefended List are decided entirely on affidavit evidence but not on pleadings. (Emphasis mine); Pleadings are to be ordered after the Court is satisfied that by his affidavit in support of his notice of intention to defend the action, the Defendant has shown that indeed he has a good defence in reaction or response to the facts in support of the Plaintiffs claim. In view of the above, we humbly submit that the position of the Appellants regarding the depositions of Chisom Ibeh in the affidavit undefended in page 4, 5 and 6 of the Record of proceeding is misconceived, borne out bad faith and an attempt to use this appeal deprive the Respondent from enjoying the fruit of his judgment at the trial Court.
Trials under the undefended list are done entirely by affidavit evidence which affidavit must comply with the provisions of Section 115 of the Evidence Act, LFN 2004. If for any reason whatsoever the trial Court had any doubt or spots inconsistency in the Affidavit of the writ of summons undefended and the Affidavit in Support of the Notice of Intention to defend, the Court would have transferred the case to the general cause list and order the exchange of pleadings where full trial will be conducted to resolve the inconsistency. That was not the case in the instant Appeal at the trial Court.
A deponent of an affidavit is a witness that can depose to facts that are either of his knowledge or information he believes to be true. Honorable Justice Eko of the Supreme Court put it succinctly in the case of ALHAJI YEKINI JIMOH V. THE HON. MINISTER FEDERAL CAPITAL TERRITORY & ORS (2018) LPELR- 46329 (SC) P.10, PARA A thus “… A deponent of an affidavit in any proceeding before a Court of law is a witness in the matter. Section 115 (1) of the Evidence Act, 2011 enjoins the deponent as a witness, to depose to facts in an affidavit that “either of his own personal knowledge or from information which he believes to be true”. (Emphasis mine).
We also refer my Lords to the case of BAA V. ADAMAWA EMIRATE COUNCIL & ORS (2021) LPELR – 220-68 (CA) P. 36, PARAS F, where my Lord DENTON WEST J.C.A stated
“… it is my view that the provisions of the Evidence Act, 2011 (as amended) particularly Section 115 stipulate the form of facts that ought to be contained in an affidavit evidence with respect to time, place and circumstances of information received and failure to comply with this provision like any other statute will render the information evidence and defective … “
Having stated the above, counsel urged the Honorable Court to discountenance the submissions of the 1st and 2nd Appellants with regards to the issue of the depositions in the affidavit of the writ of summons undefended by the litigation clerk being hearsay as the Supreme Court have held through the combined reading of the cases stated above and the provisions of the Evidence Act 2011 that a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true as in the instant case and same will be admitted in Court as evidence and not treated as hearsay. Furthermore, the deponent disclosed the source of her information and same cannot be treated as hearsay. In sum, we urge my Lords to dismiss GROUND III of the Notice of Appeal.
ARGUMENT ON ISSUE 2
Whether the Defendants/Appellants’ Notice of Intention to defend disclosed a defence on merit as to move the Honorable trial Court to transfer the case to the general cause list. GROUNDS I & II.
Counsel submitted that the Appellants’ notice of intention to defend did not disclose a defence on merit as to move the Honorable Trial Court to transfer the case to the general cause list. That the mere filing of Notice of Intention of Defend with Affidavit and written address in support does not suffice.
The said notice of intention to defend an affidavit in support must disclose a good defence on the merit not a ground of defence that is not clear and reasonable or flimsy and vague. See G.MO. NWORAH & SONS CO. LTD V. AKPUTA (2010) LPELR-1296 (SC), P. 27-28, Paras D-D where OGBUAGU, J.S.C. held thus: “In the case of U.T.C. NIG. LTD. V. CHIEF PAMOTEI & 4 ORS (1989) 2 NWLR (PT 103), 244 AT 299; (1989) 3 SCNJ, 79 Per Belgore J.S.C. (as he then was and later CJN) in his contribution, dealt perhaps, extensively with when a matter or suit, should be heard under the undefended list or be transferred to the general cause list for hearing thus:
“The Court can refuse to let in a Defendant to defend a suit, when once it is satisfied that the Defendants’ affidavit does not disclose a good defence on the merit, or where the ground of defence is not clear and reasonable or it is flimsy or vague. It must be stressed that the object in the Undefended List Procedure, is to prevent unnecessary delay in proper cases or where the claim of the Plaintiff from the affidavit evidence, is unassailable. MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144), 283 AT 324-325; (1990), 6 SCNJ, P. 117; AGWUNEDO v. EZE (1990), 3 NWLR, (PT. 137), 242 AT 255; C.A; OKAMBA LTD V. ALHAJI SULE (1990), 1 NWLR (PT. 160) 1 AT 13; (1990) 11 SCNJ, 7. In order words, the Court will enter judgment in favour of a plaintiff, where there is a shae elongation of the litigation or whem defence raised in order to gain time or for thre assuming all the facts are favor on the defendant, but they do not amount to a defence in law.”
It follows therefore that the side by side reading of the 1st and 2nd Appellants’ Notice of Intention to defend and affidavit in support of the writ of summons undefended informed the trial Court’s decision and the Respondent’s deposition through Chisom Ibeh on pages 5-6 record of appeal; is reproduced hereunder –
“That sometime around October, 2014, the Claimant learnt from an agent by name Mr. Jubrin that there were plots of land at Ancestors Court, Mailama, Abuja for sale peradventure the Claimant has an interested buyer.
That the Claimant made effort to meet the owner of the plots for sale or his agent so as to verify the authenticity of the information and in the process, the 2nd Defendant who corroborated Claimant that the plots belonged to the 1st Defendant his elder brother.
The Claimant had a discussion with the 2nd Defendant on what the Claimant’s agency fee will be if he was able to get a buyer and the 2nd Defendant reliably told the Claimant that he has liaised with the 1st Defendant and they have both agreed to pay the Claimant 10% (ten percent) of the transaction sum as his agency fee.
That the Claimant started relating with the 2nd Defendant and as a result took over 100 prospective buyers to the land to the knowledge of the and 2nd Defendants.
That the Claimant eventually brought a client who bought 4 (four) plots of land from the 1st Defendant at the Ancestors Court.
That on the day the Claimant’ client came for inspection, the Claimant invited the 2nd Defendant who brought original title documents for sighting
That after inspection and negotiation between the Claimant’s client and the 2nd Defendant, the Claimant’s client agreed to pay the sum of N1,610,000.000.00 (One Billion, Six Hundred and Ten Million Naira) only for 4 (four) plots of land at Ancestors Court, Maitama, Abuja.
That having agreed on this amount for the 4 plots of land, the Claimant fixed a meeting between his Client and the Defendants at Transcorp Hilton Hotel, Abuja.”
The 2nd Appellant in their Affidavit in Support of Notice of intention to defend at pages 27-29 of the Record of Proceeding deposed as follows:
“I, Ikechukwu F. Ibeto Esq., male adult, Christian, and Nigeria Citizen with address at No. 19 Gwani Street, Wuse Zone 4 Abuja, FCT do hereby make and path and states as follow:
1. That I am 2nd Defendant in this suit.
2. That l am involved in the negotiation and discussions leading to the sale of the said plots of land in question.
3. That by virtue of my aforesaid position. I am conversant with the facts of this suit and I have the consent and authority of the 1st Defendant to depose to this affidavit.
4. That I have seen and read the Claimant’s affidavit in support, the facts are false and do not represent what transpired in the course of the transaction.
5. That the claimant was never at any time of the transaction an agent of either myself the Defendant nor that of the 1st Defendant in the transaction.
6. That the said plots of land were never mine but that of the 1st Defendant who sold same to one Alhaji A.H. Abubakar in 2014.
7. That during and after the transaction, there was never a time the 1st Defendant had any inter-face with the claimant nor held any discussions regarding the plots of land in issue let alone matters regarding any agency fee.
8. That the 1st Defendant at that time wanting to sell his plots of land situated and lying at Ancestors Court Maitama.
9. That at the time the plots of land were advertised for sale, the Claimant was amongst the people who called me to enquire about the plots of land because my phone number was on the advert also.
10. That when the Claimant called me that he had interested buyer for the plots of land would like to inspect the land and subsequently make an offer to the 1st Defendant.
11. That I told the Claimant that I will be ready any time to take him and his buyer to the plots of land for inspection anytime they are ready.
12. That on a certain day thereafter, the Claimant called me to take them (the Claimant and Alhaji A.H. Abubakar) to the plots of land for inspection which I did without delay.
13. That upon visit and after inspection of the plots of land, the said Alhaji A.H. Abubakar said he was interested to buy the four plots of land and demanded to speak with the owner of the property.
14. That there upon, I told the said Alhaji A.H Abubakar and the Claimant that the net price of the four plots of land was Two Billion Naira (2,000,000.00) only and that the owner is my elder brother (1st Defendant) and may not likely take a lesser offer.
15. That the said Alhaji A.H. Abubakar requested to speak with the 1st Defendant who resides in Port-Harcourt in Rivers State which I facilitated.
16. That in the discussion and negotiations of both parties 1st Defendant and the Alhaji A.H. Abubakar which I was privy to both parties agreed to the transaction in the sum of One Billion, Six Hundred and Ten Million Naira (N1,610,000,000.00) on the condition that no agency fee shall be paid to anyone on the Defendant side.
17. That Alhaji A.H. Abubakar accepted that term and said he will take care of the fee of his own agent who is the Claimant on record.
18. That after the discussion and negotiations between both parties, the said Alhaji A.H. Abubakar, the Claimant and I held a meeting where in that meeting the Alhaji A.H. Abubakar reiterated to the Claimant of his agreement with the 1st Defendant regarding non-payment of Claimant’s fee but he will be the one to pay for the Claimant’s fee.
19. That the Claimant never raised any objection to that before his principal (Alhaji A.H. Abubakar).
20. That on the day of payment for the land, the 1st Defendant who resides in Port Harcourt Rivers State, came to Abuja and met the Alhaji A.H. Abubakar at Trans-cop Hilton Hotel where in the transaction was consummated and documents signed and exchanged.
21. That I know as a matter of fact the said Alhaji A.H Abubakar gave the Claimant the sum of One Hundred and Fifty Thousand Dollar as his agency fee.
22. That the 1st Defendant neither promised nor had any agreement with the Claimant regarding an agency fee of any percent let alone 10% of the transaction sum.
23. That there was never a time I told the Claimant that the 1st Defendant accepted to pay the Claimant any percent of agency fee.
24. That the said plots of land were never mine and I could not have made any agreement with the Claimant over the transaction.
25. That the 1st Defendant does not know the Claimant and had no agreement with him regarding the said plots d land.
26. That the Exhibits attached to the Claimant’s affidavit in support were not served on either the 1st Defendant or the 2nd Defendant.”
Counsel submitted that, a careful perusal of the paragraphs above discloses offer and acceptance as the learned trial judge rightly held. The Appellants were unsuccessful in their attempt to cover up their role or deny knowledge of the Respondent’s active involvement or role in the sale of the property to wit; getting the buyer of the property. However the “story” line of both parties is fundamentally the same irrespective of the 2nd Appellants’ attempt at masking the truth.
In paragraph 7 of the Affidavit in support of Notice of Intention to Defend (P. 27 of the record of appeal), the 2nd Appellant deposed thus:
“That during and after the transaction, there was never a time the 1st Defendant had any inter-face with the claimant nor held any discussions regarding the plots of land in issue let alone matters regarding any agency fee.”
And went further to paragraph 20 of the same affidavit (P.28 of the record of appeal) and stated thus:
“20. That on the day of payment for the land, the 1st Defendant who resides in Port Harcourt Rivers State, came to Abuja and met the Alhaji A.H. Abubakar at Trans-cop Hilton Hotel where in the transaction was consummated and documents signed and exchanged.”
The 2nd Appellant contradicted himself on one hand and confirmed/admitted the Respondents’ side of the story in paragraph h of the Affidavit in support of undefended list (P. 6 of the ROP) reproduced thus:
“That having agreed on this amount for the 4 plots of land, the Claimant fixed a meeting between his client and the Defendants at Transcorp Hilton Hotel, Abuja.”
Counsel submitted that facts admitted need no further proof and urged the Court to so hold. See DIN V. AFRICAN NEWSPAPER OF (NIG) LTD (1990) LPELR-947 (SC), PP. 14-15, PARAS E-F.
Now one might ask how the Respondent was privy to information about the meeting if he was not the one that set it up between himself, 1st and 2nd Appellants and the buyer Alhaji A.H. Abubakar; a fact the Appellants conveniently left out but did not escape the diligent eye and attention of the Honorable trial Judge.
Further reading of the Appellants’ Notice of Intention to defend and the affidavit in support reveals facts that corroborate the Respondents’ facts in the affidavit in support of undefended list and this tantamount or equals to admission. We refer my Lords to paragraph b of the affidavit in support of undefended list reproduced hereunder and also in (P. 5 of the record of appeal)
b. “That the Claimant made effort to meet the owner of the plots for sale or his agent so as to verify the authenticity of the information and in the process of the 2nd Defendant who corroborated Claimant that the plots belonged to the 1st Defendant/2nd Defendant’s elder brother.”
And paragraph 14 of the Appellants affidavit in support of Notice of Intention to defended list in P. 27 of the record of appeal, reproduced hereunder:
“14. That there upon, I told the said Alhaji A.H. Abubakar and the Claimant that the net price of the four plots of land was Two Billion Naira (2,000,000.00) only and that the owner is my elder brother (1st Defendant) and may not likely take a lesser offer.”
The 2nd Appellant corroborated the facts deposed to by Respondent in the Affidavit in support of Undefended List on the parties involved location of property, amount paid for the property, pretty much on everything save payment of agency and we ask my Lords: is that not convenient?
All these were the facts the trial Honorable judge considered to arrive at that sound judgment. The honorable trial judge held that he does not see any issue to be tried after due consideration of the processes of both parties before him and entered judgment in favor of the Respondent accordingly.
One might ask what amounts to a triable issue in the context of an undefended list proceeding and the Supreme Court answered the question in the case of G.M.O. NWORAH & SONS CO. LTD V. AKPUTA (SUPRA) P.10-11 Pars F-A.
“What then amounts to a triable issue in the context of an undefended list proceeding? if a defendants’ affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiffs claim, such brings the parties within the concept of joining issues as explained in GRAHAM V. ESUMAJ (1984) 15 NSCC 733, 743 AND EHIMARE V. EMHONYON (1985) 1 NWLR, (PT. 2), 177; (1985) 16 NSCC (P.1) 163, 169.”
The question was also answered in the case of SADA V. ACCESS BANK (2017) LPELR-43182 (CA) P.25-26 Paras C-A by BDLIYA J.C.A. thus:
“What is a triable issue or put it differently, when is a triable issue disclosed by the depositions in an affidavit filed in support of notice of intention to defend an action under the undefended list procedure? The decision as to whether or not a defence under the Undefended List Procedure discloses a triable issue does not depend on the discretion of the Court. Rather, it involves the consideration or evaluation of the evidence before the Court for it to determine whether or not a triable issue has been made out by the defence. See UBA PLC V. JARGABA (2007) 11 NWLR (PT. 1045) P.247@273; GS & FC LTD V. OBIEKEZIE (1997), 10 NWLR, (PT. 526), P.527. A Defendants’ affidavit in support of Notice of Intention to defend a suit on the undefended list raises a triable issue when the affidavit is such that the Plaintiff will be required to explain certain matters with regards to his claim or where the affidavit throws a doubt on the Plaintiffs claim.”
In relating the answered question above to the instant appeal, it is our humble view that the Honorable trial Judge does not see the need for the parties to join issues or exchange pleadings after carefully considering and evaluating the evidence before him. The Appellants’ Notice of Intention to Defend with the affidavit deposed to by the 2nd Appellant on behalf of both Appellants did not raise any triable issue that would warrant the Honorable trial Judge to require some explanation from the Respondent in that regard neither did the said Notice of Intention to Defend throw any shred or iota of doubt on the Claimant’s case hence the judgment of the trial Court.
What the Appellants’ Notice of Intention to Defend with the Affidavit in support did was corroborate the facts in the Respondent’s Affidavit in Support of Undefended List and this formed the basis of the trial judges’ decision.
It therefore follows that the 1st and 2nd Appellants have no defence to the action at the trial Court because mere starting of facts by the 2nd Appellant in paragraphs 16 and 21 of the affidavit in support of notice (page 28 of the ROP) does not suffice. The said paragraphs are reproduced hereunder:
16 “That in the discussion and negotiations of both parties (…Defendant and the Alhaji A.H Abubakar) which I was privy to, both parties agreed to the transaction in the sum of One Billion, Six Hundred and Ten Million Naira (N1,610,000,000.00) on the condition that no agency fee shall be paid to anyone on the Defendant side”.
21 “That I know as a matter of fact the said Alhaji A.H Abubakar gave the Claimant the sum of One Hundred and Fifty Thousand Dollar as his agency fee.”
Counsel contended that the paragraphs above do not prima facie, afford the Appellants a defence to the action. Those paragraphs which the Appellants so heavily rely on as a defence can at most be described as frivolous, vague or designed to move the Court into transferring the case to the general cause list in order to delay the trial of the action.
Addressing the issue of the how to determine whether a defendant has a good defence to an action brought under the Undefended List Procedure, the Supreme Court in the case of NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (2010) LPELR-2051 (SC) P. 30-31 PARA-C-A held:
“Thus in determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend, it is not necessary, for the trial judge to decide at that stage, whether the defence has been established what is required is simply, he look at the facts deposed to in the affidavit or counter- affidavit to or statement of defence where applicable and see if they can prima facie afford a defence to the action.”
See per Uwais, JSC (as he then was later CJN) in the case of FEDERAL MILITARY GOVERNMENT OF NIGERIA & ORS V. SANI, (1990) 4 NWLR (PT. 147), 688; (1990) 7 SCNJ 159, 161, 164; See also the case of OKAMBAH LTD V. ALHAJI SULE (1990), 7 NWLR (PT. 160) 1, 30-31 PARA C-A (1990) 11 SCNJ 1 AT 7. In the case of ACB LTD V. GWAGWADA (1994), 4 SCNJ (PT 11) 268, it was held that the affidavit in support of the notice of intention to defend, must show that the grounds for asking to be heard in defence, are not frivolous, vague or designed to delay the trial of the action and it must show that there is a dispute between the parties as has been demonstrated by the respondent in this case leading to this appeal. See the cases of OLUBUSOLA STORES V. STANDARD BANK OF NIG. LTD. (1975) NSCC 137 AND JOHN HOLT & CO. (LIVERPOOL) LTD v. FAJEMIROKUN (1961) ANLR 513 cited in the above case.
Counsel noted that the trial Court aligned itself with the position of the Supreme Court above and held that the Appellants have no Prima facie Defence and that the Respondent’s case is clear and unassailable. We humbly urge my Lords to so hold. See also the case of SCIRROCCO INT. LTD V. UNITY BANK PLC (2016) LPELR- 40265 (CA) P. 17-18, PARAS F-E.
The Appellants never supported their claims with any evidence. The said agency fee of $150,000.00 (One Hundred and Fifty Thousand Dollars) Alhaji Abubakar allegedly paid the Respondent is frivolous and vague fact pleaded without any evidence in support and the Appellants want the trial Court to rely on those facts as basis to move the ease to the General Cause List.
Counsel submitted that there is no dispute at all between the parties that will warrant the exchange of pleadings to resolve as paragraphs 16, 17, 18, 19, 22 & 23 of the Affidavit in Support of Notice (page 28 ROP) are all facts cooked up by the Appellants to deny their indebtedness to the Respondent and stall the case in Court.
The Appellants asserted that they never agreed to pay the Respondent agency fee rather Alhaji A.H. Abubakar gave the Respondent the sum of $150,000.00 (One Hundred and Fifty Thousand Dollars) as his agency fee. The Appellants however failed to prove the above assertions simply because those facts do not in fact exist.
In BULET INT’L (NIG) LTD & ANOR V. OLANIYI & ANOR (2017) LPELR – 42475 (SC) P. 47 AT PARAS C-E; EKO, J.S.C. held that “Whoever desires a Court of Law to give him judgment as to any legal right, dependent on the existence of facts he asserts, has the burden or onus of proving that those facts exist, failure to prove or establish positively asserted facts leads to assumption, admittedly, that those positively asserted facts do not in fact exist.” (Quote Section 136 EA too).
Section 131 (1) of the Evidence Act Cap E- LFN 2004 also restated that position “Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.”
The Appellants, we submit have not adduced cogent, concrete or credible evidence to back up their assertions in paragraphs 16, 17, 18, 19, 22 & 23 of the Affidavit in Support of Motion on Notice (page 28 ROP) and counsel urged this Court to so hold.
See also the case of DASUKI V. FRN & ORS (2018) LPELR – 43897 (SC), EKO J.S.C. P. 13 PARAS D-F held thus: “The law is settled; he who asserts must prove. That is the essence of Section 131 (1) of the Evidence Act, 2011. The burden of proof in every suit or proceeding lies on the party who will fail if no evidence at all were given on either side: Section 132 of the Evidence Act.
In relating the above Principle of Law to the instant appeal the Appellants’ averments are unsupported by particulars which if proved would constitute a defence that will warrant a transfer to the General Cause List. The Appellants merely denied service of the Exhibits service of Exhibits A, B and C pages 7-20 record of appeal) and not the contexts of the Exhibits. Paragraph 26 of the Affidavit in support of notice is reproduced thus:
That the Exhibits attached to the Claimant’s affidavit in support were not served on either the 1st Defendant or the 2nd Defendant.
Moreover, Exhibits A & B were addressed to the Chairman of Economic and Financial Crimes Commission (EFCC) on one hand and Exhibit C addressed to the Respondent on the other hand and not to the Appellants as to necessitate letters dated 10th July, 2018, 1st March, 2019, 24th August, 2018 and 18th December, 2018. The Respondent could not have confidently petitioned the EFCC repeatedly over the years as seen on the dates on the service of the Exhibits on them, if he does not have legitimate claim against the Appellants. It was when the Respondent exhausted that opportunity that he resorted to the last hope of the common man which is the Court and got respite.
Finally counsel submitted that the Appellants have failed to supply particulars that if proved would constitute a defence that would necessitate a transfer of the suit to the general cause list.
This was the finding of the trial Honorable Court in the suit after which the Court exercised it discretion (judicially and judiciously in favour of the Respondent) hence the instant Appeal. See also the case of MASSKEN NIGERIA LIMITED & ORS V. MR AMBILE AMAKA & ANOR (2017) LPELR-42360 (SC) Per KEKERE- EKUN J.S.C, Pp 17-19, PARAS E-B.
Counsel urged the Court to so hold, resolve issue 2, in the negative and against the 1st and 2nd Appellants, and dismiss GROUNDS I & II of the Notice of Appeal.
In summary, counsel submitted that after a combined reading of the cases cited in arguing the 1st issue and the provisions of the Evidence Act, 2011, that a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information.
The trial Court was not in error in holding that the Appellants have no prima facie Defence to this case, dismissed the Notice of Intention to Defend for not disclosing any defence on merit that would have necessitated the transfer of the suit to the general cause list and proceeded to enter judgment in favour of the Respondent against the Appellants. Counsel urged this Honorable Court to dismiss the entire appeal and affirm the judgment of the trial Court.
Resolution of Issue
Whether the trial Court was not wrong when it entered judgment tor the Respondent based on incompetent hearsay evidence of a clerk in a lawyer’s chambers in proof of the facts in dispute.
Appellants first issue questions the competence of the affidavit evidence of the law clerk in the chambers of Respondent’s lawyer, in support of the Respondents claim under the undefended list procedure.
Order 23 Rules of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules provides for the undefended list. It states that:
1. Whenever application is made to a Court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based, and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List” and mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case. The procedure under the rules referred to above are designed to prevent delay in cases where the plaintiff has a clear case and the defendant has no defence. So, where the plaintiff satisfies the Court with affidavit evidence which the defendant cannot answer, the Court would enter judgment for the plaintiff thereby avoiding a full blown trial with the usual expense, frustrations and delay. On the other hand, if the defendant files an affidavit which discloses a defence on the merit, he would be granted leave to defend by the Court, and if there are material conflicts in the affidavits of both parties, the suit would be taken out of the Undefended List and placed on the general cause list for a hearing in the well-known way. It prevents worthless and sham defences. See M.C. Investment Ltd & v. C.I. & C.M. Ltd (2012) 6 SC (Pt. 1) p. 188, Gambo v. Ikechukwu & Ors (2011) 10 SC P. 1, International Bank Ltd v. Brifian Ltd (2012) 5 SC (Pt. II) p. 190, Nkwo Market Community Bank (Nig.) Ltd v. Obi (2010) 4-7 SC (Pt. 1) p. 30.
I have carefully perused paragraphs 4(a)-(t) of the affidavit in support of Respondent’s claim in the Undefended List, I find that they disclose that they are matters which only direct evidence may suffice to establish. They proceed to the essence of the dispute, and deal with matters which, based on a consideration of the Appellants’ deposition seeking to be allowed to defend, are generously contested. Evidence of Chisom Ibe, the law clerk stood as the direct evidence of the 2nd Appellant on what transpired between the Appellants and the Respondent, explaining every detail of the transaction in which he personally participated. This evidence was denigrated and hearsay deposition of a lawyer’s clerk who never took part in the transaction was wrongly preferred by the lower Court. The law is trite that evidence in order to be admissible as well as enjoy probative value, ought to be rendered by a person who is not only capable of testifying as to the truth of the matter asserted, but who could be legally cross-examined as to the testimony.
The first issue based on all the correct legal arguments proffered by the Appellants is resolved in favour of the Appellants. The Respondent has no competent evidence in support of the Writ of Summons under the undefended list before the lower Court. I therefore strike out the Respondent’s suit. The appeal is meritorious.
Having concluded that the appeal is meritorious, the other two issues have become academic exercise. I access costs at N100,000 in favour of the Appellants.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, F. O. Akinbami, JCA. I concur with the reasoning therein reached to the conclusive effect that this appeal is meritorious, and ought to be allowed.
However for the sake of emphasis where the only competent witness is the party in the case in the sense that he was directly involved in the transaction and no other person, he has to give evidence whether oral or by affidavit evidence, otherwise any other evidence from any person would be a bundle of hearsay. In this instant case, the affidavit evidence in support of the undefended suit was deposed to by a clerk in the law firm of the Respondent’s solicitors. He never took part in the transaction and he cannot be cross-examined as an oral testimony. It is settled law that evidence in order to be admissible as well as enjoy probative value, ought to be direct and ought to be rendered by a person who is not only capable of testifying as to the truth of the matter asserted but who could be legally cross-examined as to the testimony. See Permanent Secretary, Chieftaincy Affairs v. Bologi (Nig.) Ltd (2017) LPELR-42989 (CA).
Hence, against the backdrop of the forgoing and the more detailed reasons contained in lead judgment that too allow the appeal, being meritorious. I abide by the consequential Orders in the lead judgment.
PETER OYINKENIMIEMI AFFEN, J.C.A.: My learned brother, FATIMA OMORO AKINBAMI JCA obliged me with a draft of the leading judgment just delivered, which I had the advantage of reading before now.
The rather forceful submission of learned counsel for the Respondent to the effect that ‘a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information’ clearly loses sight of the probative value or forensic utility of such evidence. Whilst it is correct that Section 115(4) of the Evidence Act 2011 permits a deponent to swear to facts derived from a third party in an affidavit insofar as the source of his information is properly disclosed, such depositions are of very little forensic Utility as they constitute hearsay evidence. The factum that such information was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible. See ORUNOLA v ADEOYE [1995] 6 NWLR (PT. 401) 338 at 353 -per Nsofor JCA and NIGERIA PORTS AUTHORITY v AMINU IBRAHIM & CO. supra at 500 – 501 – per Agbo JCA.
Hearsay is evidence given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a person who is himself not called as a witness but what he said is repeated by another witness who is called. See OJO v GHARORO (2006) 2 – 3 SC. 105, AROGUNDADE v STATE (2009) LPELR-559(SC) and SUBRAMANIAM v PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969. That is why it is always ill-advised for a lawyer or his clerk or secretary to depose to facts intended to prove a case as they are not in any position to vouch for the truth or accuracy of information derived from clients.
Even the evidence of an employee of a company who was not directly involved in a transaction is to be treated with caution as it is scarcely of equal stature with, and may be insufficient to contradict the evidence adduced by the adverse party who was directly involved in the transaction. See KATE ENTERPRISES LTD v DAEWOO NIG LTD [1985] 2 NWLR (PT. 5) 116 where the Supreme Court held that any employee of a company who is conversant with a transaction is competent to testify in Court on behalf of the company, and not only those who were directly involved in the transaction, but proceeded to sound a note of caution that even though the evidence adduced by an employee who was not directly involved in a transaction is admissible, the question of the weight or probative value to be ascribed to his/her evidence is an entirely different matter.
In the instant case, the evidence in support of the Respondent case was based entirely on the affidavit evidence of Chisom Ibe: a lawyer’s clerk who deposed to facts based on information derived from the Respondent. To the extent that the averments contained in the affidavit of Chisom Ibe seek to establish the truth of the transaction between the Appellants and the Respondent, they constitute inadmissible hearsay and incapable of sustaining the Respondent’s claim before the lower Court.
In the light of the foregoing and the fuller reasons proffered in the leading judgment, I also allow the appeal and abide by the consequential orders contained therein.
Appearances:
Onyeachi Ikpeazu, SAN, with him, Tobechukwu Nwoke, Esq., Julius Mba, Esq., Nwosu Ojekwe and A. J. Obiora, Esq. For Appellant(s)
Emeka Ugwuowo, Esq., with him, Ifejiwe Okonkwo, Esq. and John Okorefor, Esq. For Respondent(s)
