KINGTONY VENTURES (NIG) LTD & ANOR v. E-BARCS MICRO FINANCE BANK LTD
(2022)LCN/17008(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 04, 2022
CA/A/03/2018
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
1. KINGTONY VENTURES NIGERIA LIMITED 2. ANTHONY ONWUMELU APPELANT(S)
And
E-BARCS MICRO FINANCE BANK LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE PURPOSE OF ALLOWING ACTIONS UNDER THE UNDEFENDED LIST PROCEDURE
The purpose of allowing actions under the undefended list procedure, is to ensure justice to the claimant by avoiding delay where there is obviously no defence to his claim. When the undefended list procedure is adopted, unnecessary delay which may occasion injustice in terms of the cost of the litigation is avoided, or at lease mitigated. The Courts have therefore held severally, that the purpose is to prevent sham or frivolous defences being erected with the aim of defeating the rights of the claimant by creating delay. Of course, it is not debatable that, rules of Court are meant to ensure justice to the parties by hearing their cases on the merit with minimum delay. See University of Benin v. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt. 1055) 441, United Bank for Africa Plc. V. Jargaba (2007) 11 NWLR (Pt. 1045) 247, G.M.O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq (2010) 9 NWLR (Pt. 1200) 443 and Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425. See also Bona v. Textile Ltd. & Anor v. Asaba Textle Mill Plc. (2013) 2 NWLR (Pt. 1338) 357. Thus in MC Investment Markets Ltd. v. Core Investments & Capital Markets Ltd (2012) LPELR – 7801 (SC), the Supreme Court, per Rhodes-Vivour, JSC held that:
“The procedure … is 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. If the defendant files an affidavit disclosing a defence on the merit, he would be granted leave to defend by the Court, and if there are conflicts in the affidavits of both parties, the suit would be taken out of the undefended list and placed in the general list for hearing in the well-known way. It prevents worthless and sham defences… ” PER TSAMMANI, J.C.A.
FACTORS TO BE PRESENT BEFORE A CLAIM CAN BE SITUATED UNDER THE UNDEFENDED LIST
Before a claim can be situated under the undefended list, the claim must be either a debt or a liquidated sum or money demand. A liquidated money demand, is a claim for a sum certain or specific amount and there is nothing more that needs to be done to determine the quantum or effect of the defendant’s liability. It therefore means that, when the claim or amount to be recovered, if the claim succeeds, has not been agreed upon but depends on circumstances or is determined by opinion or estimate, it will not be a claim for liquidated money demand. In other words, the amount claimed must be ascertained or capable of being ascertained as a matter of simple arithmetic or calculation without any further investigation. See Etukudo & Anor v. Akpan (2013) LPELR – 20414 (CA), Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78, Effanga v. Rogers (2003) FWLR (Pt. 157) 1058, Champion Breweries Plc. V. Matsgal Nigeria Ltd (2009) LPELR- 8704 (CA) and Wema Securities & Finance Plc. V. Nigeria Agricultural Insurance Corp. (2015) 16 NWLR (Pt. 1484) 93. In the case of G.M. O.N. & S. Co. v. Akputa (2010) 9 NWLR (Pt. 1200) 443 at 463, the Supreme Court stipulated the factors to be considered in determining whether a claim is for liquidated money demand as follows:
“The factors for determining are as follows: (a) the sum must be arithmetically ascertainable without further investigation; (b) if it is in reference to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach; (c) the agreed and fixed amount be known- prior to the breach.”
It therefore means that, where the amount claimed can be ascertained by arithmetical calculation or is fixed by a scale of charges, or other positive data before the Court, it can be said that the claim is for liquidated money demand and therefore a proper case for determination under the undefended list. PER TSAMMANI, J.C.A.
THE POSITION OF LAW ON THE INTERPRETATION OF STATUTES
It should be noted that in the interpretation of documents including affidavits such as in the instant case, it is the entire document that should be construed and not its several parts in isolation. In other words, the entire document as a whole must be construed together. See Obatuga & Anor v. Oyebokun & Ors (2014) FWLR (Pt. 754) 110, Mbani v. Bosi & Ors (2006) LPELR – 1853 (SC) and Nigerian Army v. Aminun-Kano (2010) LPELR- 2013 (sc). Thus, in Peoples Democratic Party v. Hon. (Dr.) Harry N. Oranezi & Ors. (2017) LPELR – 43471 (SC). The Supreme Court held as follows:
“Now, a cardinal principle of interpretation, we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus, a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered …” PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory (FCT) High Court of Justice delivered by O. O. Goodluck, J (as he then was) on the day of October, 2017 in suit no: FCT/HC/CV/278/2016.
At the trial Court, the Respondent as the Plaintiff instituted the claim against the Appellants by way of a Writ of Summons under the undefended list. By the said claim, the Plaintiff/Respondent claimed as follows:
(I) The sum of N10,000,000 (Ten Million Naira) only being the total sum of overdraft and accrued interest granted to the Defendants by the Plaintiff, which the Defendants have defaulted in repayment.
(ii) 10% interest on the judgment sum from the day of judgment until the entire judgment sum is liquidated.
(iii) Cost of the action.
The claim was backed by an Affidavit of 14 paragraphs to which were annexed Exhibits A, B, C, D and E respectively. Upon being served, the Appellants who were defendants filed a Joint Memorandum of Appearance and a Notice of Intention to Defend the suit supported by a 14 paragraphs affidavit marked “Affidavit of Defence”. Annexed to the said Affidavit were Exhibits “A” and “B” respectively. The Respondent also filed an Affidavit of 6 paragraphs in response to the Defendants/Appellants’ Affidavit of Defence, to which he annexed Exhibits E- BARCS1, E-BARCS2 and E-BARCS3.
The learned trial Judge then heard the parties, and in a considered judgment delivered on the 24th day of October, 2017 entered judgment for the Plaintiff/Respondent and granted all the reliefs sought. The Defendants/Appellants are piqued by the judgment and have filed this appeal. The Notice of Appeal consisting of two (2) Grounds of Appeal was filed on the 31/10/2017. The parties in compliance with the rules of this Court filed Briefs of Arguments. The Appellants’ Briefs of Arguments settled by E.C. Chukwu Esq., was filed on the 01/2/2018. Therein, two (2) issues were distilled for determination as follows:
1. Whether the claim of the plaintiff, brought under the undefended list pursuant to Order 21 Rules 1- 5 of the FCT High Court (Civil Procedure) Rules, 2004 can be said to be a liquidated demand.
2. Whether in the consideration of the indebtedness of the appellants of N10,830,538.21 in Exhibit D, and the N10 million in Exhibit E, the deposition of N10,000.00 in paragraph 14 of the affidavit of Iheoma Opara in support of Writ can be amended or ignored in order to sustain the judgment of the lower Court.
The Respondent’s Brief of Arguments was filed on the 01/3/2018. One issue was raised therein for determination as follows:
Whether from the totality of the Affidavit evidence before the trial Court, the trial Court was right in holding that no reasonable triable issue can be discovered from the Defendants (now Appellants) notice of intention to defend.
I have carefully reflected on the issues raised by the parties. I find that the Respondent’s sole issue is wide enough to encompass the Appellants’ two issues. In that respect, I shall determine this appeal on the two issues formulated by the Appellants, but the two issues shall be considered together.
Now, learned counsel for the Appellants began by making reference to Order 21 Rules 1-5 of the F.C.T High Court (Civil Procedure) Rules to contend that, for a claim to fall under the undefended list, it must be a claim to recover a debt or liquidated money demand, and the claimant must depose to facts which show, that the defendant has no defence to the claim. Learned counsel then submitted that, from the affidavit of the Plaintiff/Respondent and the documents annexed thereto, the Respondent’s claim is not a liquidated demand. That, the only liquidated sum demanded in the documents filed by the plaintiff is the sum of N8.5 million, the amount of the agreed loan and the sum of N10,858,538.21 as at 29/2/2016 as shown by Exhibit “D”. That, Exhibits A-D do not support the claim of N10 million.
Learned counsel for the Appellants went on to submit that, if there is anything certain, it is that the claim or debt of the Appellants as at 29/02/2016 of N10,835,538.21 cannot be the same as N10 million as at 19/6/2016. That, between the claim of N10,835,538.21 and N10 million, one of them must be false or doubtful. The case of Chrisdon Industrial Ltd & Anor v. A.I.B Ltd. (2002) FWLR (Pt.128) 1355 at 1380 was cited in support.
Learned counsel for the Appellant then contended that, by paragraph 10 of the Affidavit of defence, which deposition was neither challenged nor contradicted, the Appellants had raised a triable issue. Learned counsel then cited the cases of UBA Plc. v. Mode Nig. Ltd (2002) FWLR (Pt. 112) 147 at 166, Co-operative & Commerce Bank Nig. v. Samed Investment Co. Ltd (2000) 3 NWLR (Pt. 65) 19 at 31, Eko Odume & Ors V. Ume Nnachi & Ors. (1964) 1 ANLR 329 at 333, Udemba v. Morecab Finance Nig. Ltd (2002) FWLR (Pt.85) 317 at 325 and Nipost v. Irbok Nig. Ltd. (2006) 3 FWLR (Pt. 325) 4499 in support. That, the claim of N10,835,538.21 claimed do not support the claim of N10 million as same cannot be granted without explanation from the Respondent. The cases of Chrisdon Industries Co. Ltd v. A.I.B. Ltd. (2002) 8 NWLR (Pt. 768) 152 at 187 and A.T.M. Plc. V. B.V.T. Ltd. (2007) 1 NWLR (Pt. 1015) 259 were then cited to submit that, the claim of N10 million in the circumstances amounted to a request for part payment and therefore, ought not to be allowed. In the circumstances, we were urged to hold that, the claim of N10 million being part judgment or approximated claim, is not a proper claim for consideration as liquidated demand.
On issue two (2), learned counsel for the Appellants insisted that the Respondent’s claim before the trial Court is not a liquidated demand, as same is not based on the agreed loan sum of N8.5 million or on the final balance of N10,838,538.21 as at 29/2/2016. That, there is no entry in the statement of account showing the accumulated debt of N10 million as at 19/6/2015. That, the Appellants have deposed in paragraph 10 of the Affidavit of Defence that Exhibit E was the 2nd Appellant’s act. That in any case, as decided in Chrisdon Industries Co. Ltd v. A.I.B. Ltd. (supra), a demand for part payment was an abuse of process of the undefended list procedure. Furthermore, that the deposition in paragraph 14 of the Affidavit in support of the claim of “10,000 and 000.00” is fatal to the claim of the Respondent.
Learned counsel for the Appellants went on to submit that the conjunctive word “and” used between “N10,000” and “000.00” in paragraph 14 of the Affidavit of the Respondent can only add up to N10,000.00. In other words, that the only mathematical inference to be made is the claim of N10,000.00. We were accordingly urged to hold that the Respondent has not made out a proper case under the undefended list procedure. We were also urged to hold that, the Respondent’s deposition of N10,000 and 000.00 can only mean N10,000.00 and to allow the appeal.
In response, learned counsel for the Respondent submitted that the learned trial judge was right in arriving at the conclusion that the Appellant’s affidavit disclosed no defence on the merit to warrant the transfer of the matter to the general cause list. That, to arrive at the decision whether or not to transfer the action to the general cause list, the materials to consider are the affidavit in support of the claim and the affidavit in support of the notice of intention to defend. Learned counsel then referred to Order 21 Rule 3(1) of the FCT High Court (Civil Procedure) Rules, 2004 (Order 35 Rule 3(1) of the F.C.T High Court Rules, 2018), to stress that the Court can only transfer a matter from the undefended list to the general cause list, if the affidavit of the defendant discloses a defence on the merit.
Learned counsel for the Respondent went on to submit that, the case of the Respondent is that, it granted an overdraft facility of N8.5 million to the 1st Appellant for a tenor of 180 days but at the expiration of the period, the Appellant failed, neglected or refused to pay the said sum with the accrued interest as agreed by the parties. That, after several demands, the Appellant issued a cheque of N10 million in favour of the Respondent. That the Appellant never denied receiving the overdraft facility of N8.5 million from the Respondent but only contended that, the loan has been largely paid leaving a disputed unpaid sum of N1.5 million, which the Appellants further contended, was subject of a suit at the District Court. That, the Appellants, however, did not exhibit any proof of such payment contrary to the settled law that, the defendant’s affidavit in a claim under the undefended list, must condescend upon particulars and deal as far as possible, with the plaintiff’s claim.
It was further contended that, a mere general denial without or devoid evidence will not suffice. The case of Jipzeze v. Oknikuro (1987) 3 NWLR (Pt. 62) 373 at 744 was cited in support. That in the instant case, the 2nd Appellant did not dispute signing the cheque but merely argued that he only issued a blank cheque without any specific figure and name of the Respondent. Learned counsel then argued that, the argument of the Appellants lack substance, because, a look at the provision titled “collateral/Support” will show, that the cheque required as collateral must be postdated to cover both the principal sum and interest. That assuming that the cheque in issue was issued at the time of granting the loan, as contended by the Appellants, the said cheque would have had the name of the drawee, dated and cover the principal sum (N8.5 million) with the interest at the time of repayment, before same could be accepted by the bank as a collateral. The case of Abeke v. The State (2007) 29 NSCQR 1180, was cited in support. That in any case, as at 23/6/2015 when the cheque was presented, the Appellants were indebted to the Respondent to an amount of N10 million.
Learned counsel for the Respondent went on to submit that, the argument of the Appellants that the sum of N10 million which was the value on the cheque issued to the Respondent is not liquidated has no foundation in law. That, nothing can be more liquidated than the amount written on the cheque issued by the Appellants to the Respondent. That, the indebtedness of the Appellants being in the sum of N10,369,034.00 was the reason for the issuance of the cheque for N10 million. That, in any case, the Appellants are not disputing owing the Respondent up to the sum of 10 million, but only contend that the sum claimed is not liquidated. The case of Akpan v. Akpi Ltd (2013) 54 NSCQR 54 was cited in support.
It was further submitted by learned counsel for the Respondent that, the Appellants admitted in paragraph 3 of the affidavit in support of the notice of intention to defend, that they received the loan of N8.5 million but alleged that the said loan has been largely paid. That the Appellants had contended that, the suit the subject of this appeal is also subject of another suit in Suit NO: CV/437/2016 in the District Court, Jiwa but concealed the fact that, the 1st Appellant who was the beneficiary of the sum of N8.5 million was not a party to that Suit No: CV/437/2016. That Suit No: CV/437/2016 was between the Respondent and the 2nd Appellant only but the 1st Appellant, the beneficiary of the loan of N8.5 million the subject of this appeal, was not a party to that suit. That, the loan subject of Suit No: CV/437/2016 was for the solely benefit of the 2nd Appellant and that, this fact is established by the letter of offer, for the loan the subject of Suit No: CV/437/2016.
Finally, learned counsel for the Respondent argued that the Appellants did not deny borrowing money from the Respondent in any of the depositions in the affidavit in support of the notice of intention to defend. The case of Agromillers Ltd v. Continental Merchant Bank Nig. Plc. (1997) 10 NWLR (Pt. 52) 446 was then cited to submit that, the Appellants had no real defence to the Respondent’s claim but resorted to every tactics to postpone meeting his obligations and indebtedness. Furthermore, the Appellant’s argument that the typographical error in paragraph 7 of the affidavit in support of the claim is fatal to the claim or judgment is misconceived especially when the parties are not in dispute as to the claim of the Respondent. We were accordingly urged to hold that the appeal lacks merit and to dismiss same.
Now, it is not in doubt that the suit leading to this appeal was initiated by a Writ of Summons under the undefended list procedure. This procedure is provided for under Order 21 of the Federal Capital Territory, Abuja (FCT) High Court (Civil Procedure) Rules, 2004. It stipulates as follows:
1(1) Where an application in 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 in 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 the “undefended list”.
(2) A Writ of Summons for a suit in the undefended list shall contain the return date of the writ.
2. A Plaintiff shall deliver to a Registrar on the issue of the writ of summons, as many copies of the supporting affidavit, as there are parties against whom relief is sought, for service.
3(1) Where a party served with the writ delivers to a Registrar, within 5 days to the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, an action shall be removed from the Undefended List and placed on the ordinary cause list, and the Court may order pleadings or proceed to hearing without further pleadings.
(4) Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3 (1) or is not given leave to defend by that Court, the suit shall be heard as an undefended suit and judgment given accordingly.
(5) A Court may call for hearing or require oral evidence where it feels so compelled at any stage of the proceedings underRule 4.
The purpose of allowing actions under the undefended list procedure, is to ensure justice to the claimant by avoiding delay where there is obviously no defence to his claim. When the undefended list procedure is adopted, unnecessary delay which may occasion injustice in terms of the cost of the litigation is avoided, or at lease mitigated. The Courts have therefore held severally, that the purpose is to prevent sham or frivolous defences being erected with the aim of defeating the rights of the claimant by creating delay. Of course, it is not debatable that, rules of Court are meant to ensure justice to the parties by hearing their cases on the merit with minimum delay. See University of Benin v. Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt. 1055) 441, United Bank for Africa Plc. V. Jargaba (2007) 11 NWLR (Pt. 1045) 247, G.M.O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq (2010) 9 NWLR (Pt. 1200) 443 and Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425. See also Bona v. Textile Ltd. & Anor v. Asaba Textle Mill Plc. (2013) 2 NWLR (Pt. 1338) 357. Thus in MC Investment Markets Ltd. v. Core Investments & Capital Markets Ltd (2012) LPELR – 7801 (SC), the Supreme Court, per Rhodes-Vivour, JSC held that:
“The procedure … is 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. If the defendant files an affidavit disclosing a defence on the merit, he would be granted leave to defend by the Court, and if there are conflicts in the affidavits of both parties, the suit would be taken out of the undefended list and placed in the general list for hearing in the well-known way. It prevents worthless and sham defences… “
Before a claim can be situated under the undefended list, the claim must be either a debt or a liquidated sum or money demand. A liquidated money demand, is a claim for a sum certain or specific amount and there is nothing more that needs to be done to determine the quantum or effect of the defendant’s liability. It therefore means that, when the claim or amount to be recovered, if the claim succeeds, has not been agreed upon but depends on circumstances or is determined by opinion or estimate, it will not be a claim for liquidated money demand. In other words, the amount claimed must be ascertained or capable of being ascertained as a matter of simple arithmetic or calculation without any further investigation. See Etukudo & Anor v. Akpan (2013) LPELR – 20414 (CA), Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78, Effanga v. Rogers (2003) FWLR (Pt. 157) 1058, Champion Breweries Plc. V. Matsgal Nigeria Ltd (2009) LPELR- 8704 (CA) and Wema Securities & Finance Plc. V. Nigeria Agricultural Insurance Corp. (2015) 16 NWLR (Pt. 1484) 93. In the case of G.M. O.N. & S. Co. v. Akputa (2010) 9 NWLR (Pt. 1200) 443 at 463, the Supreme Court stipulated the factors to be considered in determining whether a claim is for liquidated money demand as follows:
“The factors for determining are as follows: (a) the sum must be arithmetically ascertainable without further investigation; (b) if it is in reference to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach; (c) the agreed and fixed amount be known- prior to the breach.”
It therefore means that, where the amount claimed can be ascertained by arithmetical calculation or is fixed by a scale of charges, or other positive data before the Court, it can be said that the claim is for liquidated money demand and therefore a proper case for determination under the undefended list.
In the instant case, the Respondent who was plaintiff in the case below, deposed to an affidavit in support of the writ of summons for consideration under the undefended list. Specifically, it was deposed in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the said Affidavit as follows:
“3. The 1st Defendant through an application for an overdraft facility dated 14th day of April, 2014 applied for an overdraft facility of N8,500,000.00 (Eight Million, Five Hundred Thousand Naira) only. The said application letter is hereby annexed and marked Exhibit A.
4. That the said application made by the Defendants was approved through an offer letter dated 10th day of April, 2014. The said offer letter is hereby annexed and marked as Exhibit B.
5. That the defendants through a Board Resolution dated 14th day of April, 2014 duly executed by the 2nd defendant and the secretary of the 1st defendant accepted the grant of the overdraft facility of N8,500,000.00 Eight Million, Five Hundred Thousand Naira) only. A copy of the board resolution is hereby annexed and marked as Exhibit C.
6. That the Defendant through his account No. 030312147 with the plaintiff started the enforcement of the overdraft from the 25th day of April, 2014 as can be seen in the statement of account. The said statement of account is hereby annexed and marked Exhibit D.
7. The said facility was granted for 180 days with 3% monthly interest for the said period.
8. The defendants are to pay 7% interest per month upon the expiration of the tenor of 180 days for any unpaid sum.
9. At the expiration of 180 days, the plaintiff demanded for the payment of the entire sum granted and the accrued interest but the Defendant defaulted in repayment.
10. After repeated demand without success for the payment of the overdraft and the accrued interest by the Plaintiff, the Defendant issued a Diamond Cheque (sic) of N10,000,000.00 (Ten Million Naira) only dated day of June, 2016 covering the granted overdraft and the accumulated interest.
The Plaintiff/Respondent deposed at paragraph 14 of the Affidavit in support, that the Defendants/Appellants are indebted to it in the sum of “N10,000 and 000.00”. This, the Appellants contend, we should hold that the Respondent’s claim contradicts or weakens the Respondent’s claim for N10,000,000.00. That, it only means that, the Respondent’s claim is not a liquidated money demand but a claim of N10,000.00 only.
It should be noted that in the interpretation of documents including affidavits such as in the instant case, it is the entire document that should be construed and not its several parts in isolation. In other words, the entire document as a whole must be construed together. See Obatuga & Anor v. Oyebokun & Ors (2014) FWLR (Pt. 754) 110, Mbani v. Bosi & Ors (2006) LPELR – 1853 (SC) and Nigerian Army v. Aminun-Kano (2010) LPELR- 2013 (sc). Thus, in Peoples Democratic Party v. Hon. (Dr.) Harry N. Oranezi & Ors. (2017) LPELR – 43471 (SC). The Supreme Court held as follows:
“Now, a cardinal principle of interpretation, we must not forget, which learned appellant’s counsel however seems to ignore, is that provisions of a statute, an instrument or indeed pleadings should not be read in isolation of the other parts of the statute, instrument or pleadings. In order to determine the intendment of the makers of the statute, instrument or pleadings, same should be read as a whole. Thus, a clause in any of these must be construed together and with reference to the context and other clauses in the statute, instrument or pleadings in ensuring the discovery of a consistent meaning of the whole, here, the pleading being considered …”
Armed with this authoritative pronouncement of the Supreme Court, I have no hesitation in holding that paragraph 14 of the Affidavit in support of the writ of summons cannot be construed in isolation from other paragraphs of the said Affidavit. The said paragraph 14 must be construed together with the other paragraphs of the same Affidavit, in order to give the Plaintiff/Respondent’s claim a harmonious and consistent meaning. When that is done, it will be seen that the Respondent’s claim against the Appellants is for the sum of Ten Million Naira only (N10,000,000.00) being the principal sum borrowed plus the accrued interest therein. I am of the firm view that, “the sum of N10,000 and 000.00” stated in paragraph 14 of the Affidavit of the Plaintiff/Respondent, is nothing but a typographical or drafting mistake or error.
Having held as above, and upon a sober construction of the depositions in the Affidavit of the Respondent, it is apparent that the Plaintiff/Respondent’s claim is for a debt due from the Appellants to the Respondent. It is for the sum of N8.5 million being the principal sum as overdraft facility granted the Appellants by the Respondents plus the accrued interest thereon. It is clear from Exhibits “B”, “C” and “D” annexed to the Affidavit in support that the sums claimed are ascertainable by simple arithmetical calculation. I am therefore of the view, which I hold, that the Respondent’s claim before the trial Court, satisfied the requirements of Order 21 of the F.C.T. High Court Rules (supra). The claim is therefore, for a liquidated money demand.
Now, by Order 21 Rule 3(1) of the F.C.T. High Court Rules (supra), where a defendant is served with the writ, he should within 5 days to the day fixed for hearing of the case, give a notice of his intention to defend the suit. Such notice must be accompanied with an affidavit which discloses a defence on the merit. The Supreme Court have held severally and dutifully followed by this Court, that what is required of a defendant is to depose to facts in an affidavit that accompanies the notice of intention to defend the action, which contain sufficient facts and particulars which will satisfy the Court that the defendant has a defence on the merit. Such defence must condescend and deal specifically with the plaintiff’s claim. The defence must therefore be a direct response to the plaintiff’s claim, and not a sham defence meant only to delay and frustrate the claimant. In a nutshell, the defence must be on the merit, such that the facts deposed in the affidavit of defense must disclose a triable issue or that there is dispute as to the facts which ought to be tried. It may also be a real and not invented dispute as to the amount due. See Ataguba & Co. v. Gura Nigeria Ltd. (2005) 2 S.C. (Pt. II) 101, Pan Atlantic Shipping & Transport Agencies Ltd v. Rheinmass GMBH (1997) 3 NWLR (Pt. 493) 248, Ed- Of Nig. Ltd. v. SNIG (Nig.) Ltd. (2013) 9 NWLR (Pt. 1359) 276 and UTC (Nig). Ltd. v. Pamotei & Ors (1989) 2 NWLR (Pt. 103)244. Thus, in Shell Pet. Dev. of (Nig.) Ltd. v. Arho -Joe (Nig.) Ltd. (2006) 3 NWLR (Pt. 966) 172, it was held that:
“…the point has been made that the notice of intention to defend must be accompanied by an affidavit. I must add that, it is the affidavit that discharges the burden imposed on the defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster the proceeding. He must show that there is a dispute between the parties. The grounds of his defence must satisfy the Court that there is a triable issue and a triable issue or defence on the merit is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the affidavit throws some doubt on the plaintiff’s claim.”
Now, upon being served the writ of summons and Affidavit of the Plaintiff/Respondent, the Defendants/Appellants filed their Notice of Intention to Defend the suit. It was accompanied by an Affidavit of Defence consisting of 14 paragraphs. I find paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 relevant in determining whether or not the Defendants/Appellants had disclosed a valid defence on the merit. In those paragraphs of the Affidavit of Defence, it was deposed as follows:
3. That the loan facility of N8.5 million I applied for has largely been settled and a dispute of about N1.5 million unpaid but which the bank claimed to be N2.5 million.
4. That the Plaintiff has since 22nd August, 2016, instituted an action at the Senior District Court, Jiwa to recover the sum of N2.5 million.
5. That the suit at Jiwa is ongoing and has been adjourned to 30/01/2017 for continuation of the testimony of Iheoma Opara and for cross-examination.
6. That the exhibits or annextures frontloaded in their suit, though not properly identified, are the same exhibits or annextures relied on at the District Court.
7. That the Civil Summons in Suit No: CV/437/2016 dated 22/8/2016 is here annexed and marked Exhibit A and the hearing notice dated 17th January, 2017 is also annexed and marked as Exhibit B.
8. That the defendant are not indebted to the Plaintiff to the tune of N10,000,000.00 as claimed with interest.
9. That there is only one letter of offer dated 10/4/14 of N8,500,000.00 and it is being used to persecute the defendants in both Courts thereby giving the impression that the loan offer was for N10,000,000.00.
10. That the cheque Exhibit E, was not my deed as what I presented at the request of the Plaintiff at the time of accepting the loan offer was a blank cheque without any monetary commitment and without the name of e-barcs mfb Ltd as noted on it.
The learned trial Judge considered the Affidavits of the parties and the submissions of counsel, and resolved at page 48 lines 12 – 50 line 7 of the record of appeal as follows:
“In summary, the Defendants contend that they have a defence on the merit. This Court has carefully examined the affidavit evidence filed by both sides to this action, the pertinent issue before this Court at this point is to determine whether the Defendants has (sic) raised a meritorious defence worthy of being tried or transferred to the general cause list.
This Court’s inescapable conclusion is that the Defendants has (sic) not presented this Court with a justifiable defence on the merit. The 2nd defendant in this Court’s view are not (sic) disputing that the 2nd Defendant took a facility in the sum of N8,500,000.00 (Eight Million Five Hundred Thousand Naira). See paragraph 3 of the affidavit of defence, it’s contention is that, Defendant has settled the Plaintiff leaving an outstanding balance of N2,500,000.00 (Two Million Five Hundred Thousand Naira).
The Defendant failed or neglected to establish before this Court, his proof of part payment neither is he contending that he will present same at trial. It is also contended that the sum of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) which is the disputed balance is the subject matter of Suit CV/437/2016. One could have expected that he will present this Court with a Certified True Copy of the processes in Suit CV/437/2016 to enable this Court to determine whether the claim in Suit CV/437/2016 is one and the same as the claim before this Court.
I am of the view and will so hold that a Court can take judicial notice of parties in a suit by examining the title of the Court processes presented by the Defendant.”
The learned trial Judge proceeded to make findings and to hold as follows:
“A careful examination of the originating process notes the 1st Defendant as King Tony Ventures Limited in paragraph 3, it is the case of the Plaintiff that the 1st Defendant is the party that applied for an overdraft facility in the sum of N8,500,000.00 (Eight Million, Five Hundred Thousand Naira). A careful examination of the title of the processes in Suit CV/437/2016 does not reflect the 1st Defendant as a party in this suit. This Court’s deduction from Exhibit A is that the 1st Plaintiff is not a party in Suit CV/437/2016 hence, this Court can safely deduce that the parties in both suits are different as the subject matter of the suit before this Court is in relation to an overdraft facility taken by the 1st defendant.
The Defendant’s denial of indebtedness in this Court’s view is an evasive denial or a traverse of facts in a pleading which amount to an implied admission.”
I have soberly reflected on the above findings of the learned trial Judge. I have also considered the facts as deposed to in the affidavits of the parties including the documentary evidence annexed thereto. The facts show clearly that the Appellants are not disputing that they took an overdraft facility from the Respondent in the sum of N8.5 million. The defence put forward by the Appellants is that, the sum borrowed has been repaid, leaving a balance of N1.5 million but which balance is disputed as the Respondent claimed that the balance unpaid is N2.5 million. That the Respondent had instituted an action in the District Court to claim the said balance of N2.5 million. However, as rightly found by the learned trial Judge, the Appellants were unable to show any evidence of repayment of the overdraft facility. Indeed, the Respondent debunked this claim of the Appellants, when it exhibited documentary evidence, including the Court Processes from the District Court, which show that, the claim before the District Court is a separate and distinct claim from the claim subject of this appeal. The claim before the District Court pertains to an overdraft facility taken by the 2nd Appellant as evidenced by Exhibits E-Barcs 1 and E- Barcs 2 annexed to Respondent’s Affidavit in response to the Appellants’ Affidavit of Defence.
Having thus resolved, and in agreement with the learned trial Judge, I am unable to find any fact, even documentary, which has disclosed any defence on the merit. The issues of fact and of law, raised by the Appellants do not condescend to or amount to a response to the facts deposed in support of the Respondent’s claim. They are intended to obfuscate issues and deflect from the real issues put up by the Respondent in the claim. I therefore hold that the learned trial Judge was right when he held that the Appellants’ Affidavit of Defence has not disclosed any defence on the merit. On that note, the two issues raised by the Appellants are resolved against the Appellants.
Having thus resolved, it is obvious that this appeal lacks merit. It is hereby dismissed. Accordingly, I affirm the judgment of the F.C.T. High Court of Justice delivered on the 24th day of October, 2017 in Suit No: FCT/HC/CV/278/2016. I award cost of two hundred thousand naira only (N200,000.00) against the Appellants in favour of the Respondent.
HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI JCA was made available to me in draft before now. I agree with the reasoning and conclusions.
Indeed the undefended list procedure is a mechanism adopted for the recovery of a debt or a liquidated money demand or any other claim, which facts are shown by affidavit evidence setting forth the grounds which leads the deponent to believe that the defendant has no defense. See Gah v. Adinnu (2013) LPELR – 22116 (CA), Wema Securities & Finance PLC vs Nigeria Agricultural Insurance Corp. (2015) LPELR-24833 (SC). The reasoning for the provision on the undefended list rules is to ensure speedy attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has no defence to the plaintiffs case. See Rangaza vs Micro Plastic Company Ltd (2013) LPELR- 20303(CA), Maradun vs Tambuwal (2015) LPELR-24443(CA), Union Bank of Nigeria vs Awmar Properties Ltd (2018) LPELR-44376(SC).
The Court under such a circumstance will not allow the defendant to dribble the plaintiff and the Court by adducing worthless and sham defence. See M.C Investment Ltd & Ors vs. C.I. & C.M Ltd (2012) 6 SC (Pt. 1) 188, Gambo vs Ikechukwu & Others (2011) 10 SC 1, Nkwo Market Community Bank (NIG) Ltd vs Obi (2010) 4-7 SC (PT 1) 30, Maradun vs Tambuwal (Supra).
My Lord in the lead judgment brilliantly identified the facts, married the facts to the state of the law, therefore resolving that appellants statement of defence failed to exhibit any defence on the merit.
I adopt the reasoning as mine to the conclusion that this appeal is lacking in merit and thereby join my learned brother in dismissing same. I abide on order made as to costs.
DANLAMI ZAMA SENCHI, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, Haruna Simon Tsammani, JCA just delivered and I agree with the reasoning, findings and conclusion reached therein that this appeal lacks merit and I dismissed it as well.
The judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/278/2016 delivered on October, 2017 by O.O Goodluck J., is hereby affirmed. The sum of N200,000.00 is hereby awarded against the Appellant and in favour of the Respondent.
Appearances:
E. C. Chukwu, Esq. For Appellant(s)
Chibuzor C. Ezike, Esq. For Respondent(s)
