MINISTRY OF COOPERATIVE AND COMMUNITY DEVT, GOMBE STATE & ORS v. GTB & ANOR
(2021)LCN/15168(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, June 02, 2021
CA/G/105/2016
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. MINISTRY OF COOPERATIVE AND COMMUNITY DEVELOPMENT GOMBE STATE 2. GOMBE STATE GOVERNMENT 3. ATTORNEY GENERAL OF GOMBE STATE PROPERTIES LTD APPELANT(S)
And
- GUARANTY TRUST BANK PLC 2. GOMBE STATE COOPERATIVE SAVINGS AND LOANS LIMITED RESPONDENT(S)
RATIO
THE DUTY OF THE APPELLATE COURT
My duty is not to assume the responsibility of the lower Court except if it is called for but rather my duty is to decide whether the lower Court was right in the decision it took over the matter. See Usman vs Garke (2003) 7 S.C. 33. This Court per Gumel, JCA put the duty of the appellate Court very well in the case of Agbabi vs Kabiru & Ors (2009) LPELR-3645 (CA) in these words:
“Let it be noted that an appeal is not a new trial. Rather it is another hearing but only based on the evidence already on record. Not any new evidence at all, except in the very rare situations when an appellate Court grants leave to a party to adduce additional evidence on appeal. It is also not the business of an appellate Court to interfere with the findings of a lower Court, except. where such findings are unreasonable perverse or not supported by the evidence on record.
Appellate Courts do not try cases of the parties. Trial of cases is effectively done at the Court of first instance. The normal duty of an appellate Court is to see whether issues presented to the trial Court were properly resolved. An appellate Court will not allow a different case from the one canvassed and argued at the trial to be pursued before it by any of the parties but will be concerned only to see whether the right procedure was followed, reasonable findings of fact made and the law correctly applied by the trial Court. See OROKE VS. EDE (1964) NNLR 118; AJADI VS. OKENIHU (1985) 1 NWLR (pt.3) 484; and NWOKORO VS. ONUMA (1999) 12 NWLR (pt.631) 342.” PER TOBI, J.C.A.
CONDITION FOR AN ACTION TO BE COMMENCED BY THE UNDEFENDED LIST
For an action to be commenced by the undefended list, the Plaintiff/Applicant, in this instance the 1st Respondent must be seeking for the recovery of liquidated monetary demand to which it believes that the Defendant, the Appellants in this appeal has no defence to the Claim. The implication of this is that the Plaintiff must state the amount involved and state the grounds of his believe that the Defendant has no defence to the action. At this stage, the Defendant is not in the matter or be seen in Court. The Defendant is cooling probably with no knowledge that a suit has been instituted against him. It is a matter between the Plaintiff and the Court. The Court must be satisfied that the Plaintiff has made out a case in the affidavit to the effect that the claim is on a liquated monetary demand and there is enough evidence in the affidavit in support of the motion that the Defendant has no defence to the action. When the Court is so convinced, the writ will be marked accordingly, that is ‘undefended’ and the case will be entered for hearing on the undefended list. A suit so filed by a plaintiff is usually placed on the undefended list when there is no dispute as to fact and law in relation to the claim put forward by the Plaintiff. See Wonah Construction Co. Ltd vs Nassarawa State Govt. & Ors (2019) LPELR-48357 (CA); Obitude vs Onyesom Community Bank Ltd (2014) 9 NWLR (pt. 1412) 352; Joe Okunrinboye Export Co. Ltd vs Skye Bank Plc (2009) 6 NWLR (pt. 1138) 518.
The Plaintiff in an action under the undefended list cannot open the champagne of victory yet as it is the requirement of the law that the writ so marked will be served on the Defendant, in this instance the Appellants and the 2nd Respondent. If the Defendant does not file any process, on the return date judgment will be entered in favour of the Plaintiff. See Dangote Gen Textile Products Ltd vs Hascon Associates (Nig) & Anor (2013) 16 NWLR (pt. 1379). If the defendant intends to defend the writ marked ‘undefended’, the Defendant will be required to file a notice of intention to defend and attach an affidavit in support which will disclose a defence in the merit. See Nkwo Market Community Bank (Nig) Ltd vs Obi (2010) 14 NWLR (pt. 1213) 169. In Amede vs UBA Plc (2018) 1-2 S.C. (pt. 1) 41, the apex Court held thus:
“An affidavit in support of the notice of intention to defend a suit should contain enough facts and particulars to satisfy the Court to remove the case from the undefended list to the general cause list. In other words, where the affidavit in support of the notice of intention to defend discloses no defence, the case would not be in the general cause list. Even if a statement of defence is filed, a plaintiff can still apply for summary judgment, if the statement discloses no defence therein. See Pan Atlantic Shipping & Transport Agencies v. Rhein Mass GMBH (1997) LPELR-2899 (SC) and Ed – of Nigeria Ltd v. SNIG (Nig.) Ltd (2013) All FWLR (pt. 708) 874 (2013) LPELR-19888 (SC), where this Court held: It must be emphasized that the respondent … must therefore show in the affidavit supporting his notice of intention to defend not only the fact of his intention to defend, but the further fact of a defence on the merit. Beyond disclosing an ex facie good defence to the appellants action, the defendant must supply full details of the actual defence he intends, if given leave, to place before the Court.” PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Hon. Justice B. L Iliya (Mrs.) of the Gombe State High Court of Justice delivered on 28th January, 2016 in suit No.GM/200/2015. The facts that culminated into this appeal is that sometime in or about the 25/5/2009, the 2nd Respondent applied for a loan facility from the 1st Respondent and same was granted to the tune of N75,000,000.00 (Seventy Five Million Naira Only) which was guaranteed by the 1st Appellant. The 2nd Respondent was unable to pay back the facility and so on two occasions the facility was converted to loans with the total amount coming to N184,162,850.73k representing the principal sum and interest. The 2nd Respondent was in default in repaying the loan that is the 2nd Respondent failed to settle its indebtedness to the 1st Respondent. This prompted the 1st Respondent to commence this suit in the lower Court claiming mainly for the sum of N184,162,850.73k representing the loan and interest accruing from the loan. The 1st Respondent also claimed pre and post judgment interest. The action was commenced via the undefended list proceeding under
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Order 23 Rule 1 of the High Court Rules of Gombe State. On being served with the processes, as required by law, the Appellants (2nd – 4th Defendants) in the lower Court filed a notice of intention to defend the suit seeking for an order that the suit be transferred from the undefended list to the general cause list. The notice was supported by affidavit showing defence on the merit. In the lower Court, the 2nd Respondent was like a stand alone as 1st Defendant and the Appellants were together as 2nd – 4th Defendants. Both sets of the Defendants in the lower Court filed their notices of intention to defend. The 2nd Respondent that is 1st Defendant’s notice of intention to defend is found on pages 164-167 of the records. The Appellants, that is 2nd – 4th Defendants’ in the lower Court notice of intention to defend is found on pages 183-188 of the records. The lower Court considered the affidavit evidence attached to the notice of intention to defend, filed by the Appellants and the 2nd Respondent and in a considered ruling delivered on 28/1/2016, decided in favour of the 1st Respondent. The ruling is found on pages 257-275 of the records. The lower Court after
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properly stating the law on matters brought under undefended list at page 273 & 275 of the record held thus:
“Under the undefended list procedure to raise a valid defence the defendant is under a duty to give specific details and particulars of the debt in the affidavit. The defence must not be a defence which is merely fishing for skirmishes all over the place. It is very clear from the affidavit of the Respondent that they have no credible defence to offer against the claim of the plaintiff. Based on the foregoing, it is my considered and I so hold that the Defendants have failed in their affidavit in support of their notice of intention to defend to disclose a good defence on the merit.
In the circumstances, I disallow the suit from being transferred to the general cause list and judgment is hereby entered for the Plaintiff in the sum of N184,162,850.73 (One hundred and eighty-four million, one hundred and sixty two thousand, eight hundred and fifty naira seventy-three kobo). And interest there on at the rate of 19% per annum from August 2014 until today the 28th day January, 2016 and interest thereafter at the rate of 50% per annum until the
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entire judgment debt is finally liquidated.”
The Appellants’ dissatisfied with the judgment filed this appeal of 6 Grounds in the notice of appeal found on pages 276-287 of the record of appeal. The Appellants’ counsel in this appeal is Musa Saidu Esq., who settled the Appellants’ brief of 1/11/2018 deemed on 21/1/2019. The 1st Respondent’s brief filed on 20/2/2020 but deemed properly filed before this Court on 19/1/21 was settled by O. J. Bichi Esq. The 2nd Respondent did not file any Brief in this appeal. This may be due to the fact that there is a sister appeal filed by the 2nd Respondent here which is Appeal No. CA/YL/27/2017.
The Appellants’ counsel in the brief formulated 4 issues for determination viz:
I. Whether the learned trial Judge was right when he found and held that the defendants are “merely fishing for skirmishes all over the place without substance” and had not raised a triable issue and or a defence on the merit having regard to the conflicting evidence in the plaintiff’s supporting affidavit to the claim and the defence and objections as raised by the 2nd to 4th defendants affidavit in support of their notice
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of intention to defend.
II. Whether the learned trial Judge was right when he found and held that the defendants (Appellants’ herein) had not raised a triable issue and or a defence on the merit having regard to the depositions contained in the affidavit in support of the defendant’s notice of intention to defend.
iii Whether the learned trial Judge was right on the reliance on the provisions of Exhibit “HT25” to hold that the 2nd defendant had dully admitted liability to the Plaintiff’s claim and uses(sic) same as the basis for entering judgment for the plaintiff under the undefended list procedure.
iv Whether the learned trial Judge was right to have entered judgment for the Plaintiff under the undefended list procedure having regard to the peculiar facts and circumstances of this case.
In arguing the appeal, learned counsel for the Appellant argued issues I, II and IV together and submitted that the answers to the issues are in the negative. It is the firm submission of counsel that the Appellants in their notice of intention to defend had disclosed triable issues and indeed has raised defence on the merit which would have warranted
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the lower Court transferring the matter to the general cause list, giving the Appellants the opportunity to defend the suit. As to what will amount to triable issues, counsel relied heavily on a plethora of authorities to seal his submission among which are; Ataguba & Co vs Gura (NIG) Ltd (2005) 8 NWLR Part 927 of 429, David VS Jolayemi (2011) 11 NWLR Part 1258 pg. 320 at pg. 368, J. V (NIG) LTD VS Almajiri (2010) 7 NWLR Part 1193 pg. 292 at 313-314, ADDAX PET. DEV. (NIG) LTD Vs Duke(2010) 8 NWLR Pat 1196 Pg. 278 at 305 para C, I.H LTD VS SONEB ENT. LTD (2010) 4 NWLR Part 1185 pt. 561 at 584 Paras F-H. It is the further submission of counsel that triable issues exists where there are facts which cast doubt on the claim of the Plaintiff and can entitle the defendant to cross-examine the Plaintiff’s witnesses on the accompanying affidavit. Learned counsel itemized some of the averments in the affidavit attached to the notice of intention to defend to show that there are disputes which should warrant transferring the matter to the general cause list. This include the fact that those who signed the irrevocable undertaking for the facility converted to loans the
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2nd and 3rd time on behalf of the Appellants never had the authority to do so. This averment was not countered by the 1st Respondent and therefore it is submitted by counsel that the 1st Respondent who asserts that despite Exhibit HT8, the staff of the Appellants who signed the irrevocable undertaking has the authority to do so have the burden to prove that fact. Counsel referred to E. A Ind VS Nerfund (2009) 8 NWLR (pt. 1144) pg. 535.
Counsel further submitted that Exhibits HT15A and HT15B were new loans advanced to the 2nd Respondent which were not authorized or guaranteed by the Appellants as the undertaking was not signed by the authorized signatories of the 1st Appellant. Counsel also submitted that the Appellants were not aware or had knowledge of the loans and further their consent was not obtained. All these call for interrogation which will have warranted the trial Court allowing the 1st Appellant enough room to interrogate the 1st Respondent on the issues. Counsel relied on the cases of Job Charles NIG LTD VS Okonkwo (2002) FWLR PART 117 pg. 1067 Ratio 7, INCAR NIG LTD VS Adegbite (1985) 2 NWLR PART 8 pg. 453.
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On issue 3, it is the submission of Counsel that the learned trial Judge failed to properly evaluate the affidavit in support of the defence of all the Appellants. Counsel in his submission vehemently denies the authorship of Exhibit HT25 by the 1st Appellant or any of its officers, and submitted further that the said Exhibit is carrying the name of the 2nd Respondent and has no Nexus to the 1st Appellant. Also, the said Exhibit’ HT25 does not in any way suggest that the 1st Appellant admits liability of the indebtedness and that the learned trial Judge failed to distinguish and separate the legal status and independency between the 1st Appellant and the 2nd Respondent. It is the further submission of counsel that the lower Court did not acknowledge the fact that each loan was distinct and as a result one irrevocable undertaking cannot go for all the loans. Counsel cited the cases of Ekrebe VS Efeizomor II (1993) 7 NWLR PART 307 Pg. 588 at 601, Olujitan VS Oshatoba (1992) 5 NWLR PART 241 Pg. 326 at 329. It is the firm submission of counsel that Exhibit HT8 cannot be overruled by parole evidence relying on Samuel Isheno VS Julius Berger NIG PLC (2008) 33 PART 1 NSCQR Pg. 296 at
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Pg. 329, Kaydee Ventures LTD VS Minister, FCT (2010) 41 Part NSCQR Pg. 830 at 929.
Counsel in his submission is therefore of the firm opinion that Exhibit HT25 had nothing to do with the 1st Appellant contrary to the ruling of the lower Court as the said Exhibit did not disclose that the 1st Appellant had in any way admitted indebtedness of the liability. The decision of the trial Judge to adopt the said Exhibit HT25 as a ground for holding all the Appellants liable to the claim is a gross failure on the part of the Court to properly evaluate the documents relied upon by the 1st Respondent as it is evidence of inconsistency and violations of the terms and conditions of the contract between the parties, the Court should not have allowed same to stand.
It is the final submission of Appellants’ counsel that the appeal be allowed and the decision of the lower Court be set aside with an order for retrial.
The learned Counsel to the 1st Respondent formulated one issue for determination:
1. Whether the learned trial Judge was right to have entered judgment for the Plaintiff (1st Respondent) under the undefended list procedure.
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In arguing the lone issue for determination, learned Counsel to the 1st Respondent answered the issue in the affirmative, further submitting laying down the well-established principles on when and how an action can be commenced under the undefended list. Counsel relied on Akingbade V African Paints (NIG) Plc (2008) 10 NWLR (pt.1096) 570 at 592, paragraphs A-B, Maley V Isah (2000) 5 NWLR 9 (PT. 658) 651; Denton West V Muoma (2010) 2 NWLR (pt. 1177) 18 at P. 23.
Learned Counsel submitted that the 1st Respondent’s claim being a debt or liquidated money demand was competently heard under the undefended list procedure as the affidavit in support shows that the Appellants have no defence. Counsel referred to UBA V. Amede (2008) 8 NWLR (pt. 1090) 623 and Jos North Local Government V Daniyan (2000) 10 NWLR (pt. 675) 281 at 290; Akingbade V African Paints (NIG) Plc (Supra) while clearly laying out what the Appellants affidavit must contain in support of motion of notice to defend.
Counsel further submits that the law is settled that for a defendant to be granted leave to defend in the ordinary procedure, it must contain particulars which if proved, could
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constitute a defence on the merit. It is the submission of counsel that the affidavit of the Appellants did not satisfy the requirement for the suit to be transferred to general cause list. The cases of Zahkem International V Ndu C. Ofoma (2000) 11 NWLR (pt. 679), P. 609, Ahmed V. Trade Bank (NIG) PLC (1997) 10 NWLR (pt.524), Obitude V. Onyesom Comm. Bank Ltd (2014) 9 NWLR (pt. 1412) 352 were referred to by counsel. The fact that the Appellant did not deny the loan is a fact that works against the case of the Appellant counsel for the 1st Respondent submitted.
Learned Counsel further submitted that the Appellants, particularly the 1st and 3rd Appellants were served with letters of demand in terms of Exhibits HT22 and HT24, despite receipt of the letters, the Appellants refused to respond to the business letters which were served on them by the 1st Respondent amounts to an admission citing Amber Resource Nigeria Limited V Century Energy Services Limited (2018) LPELR – 43671 (CA), Construction Road To House Limited & Anor V. Unity Bank Plc (2017) LPELR-43187(CA). In line with the decisions of the Court in the above cited cases, Counsel submitted that the
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Appellants admitted the debt in Exhibits HT22 and HT24 to the tune of one hundred and eighty four million, one hundred and sixty two thousand, eight hundred and fifty naira, seventy three kobo (N184, 162,850.73) as there was no reaction to the letters of Demand in Exhibits HT22 and HT24.
Learned Counsel in further submission invited this Court to examine the signatures in the column in Exhibits HT17 and HT20 as they are one and the same with the signatures of the 1st Appellant in Exhibits HT15 (C) and HT15(D), and compare same in line with the provisions of Section 101(1) of the Evidence Act and the decision of the Court in Daniel-Kalio VS Daniel Kalio (2005) 4 NWLR (pt. 915) 305, Gboko VS State (2007) 17 NWLR (pt. 1063) 272, Ojo VS Gharoro (2006) 10 NWLR (pt.987) 173. Counsel further submits that the law is settled that once a letter of demand in a business transaction is addressed to a party for which he is shown to have received same and has neglected to act on it, he is to be held liable, he cited the case of Uwemedimo V. MO. Nig Unltd (2011) 4 NWLR (pt.1236) 80 at 85.
It is the final submission of counsel in all, taking into cognizance the whole
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documents in the suit that the lower Court was right in delivering judgment for the 1st Respondent as there is no denial of the facility to the 2nd Respondent. Counsel relied on Olalomi Ind. Ltd V NIDB LTD (2009) 16 NWLR (pt. 1167) 266; Auto Import Export V. Adebayo (2005) 19 NWLR (pt.959) 44 and Trade Banks Plc V. Chami (2003) 13 NWLR (pt. 836) 158.
Counsel finally submits that the law is settled that a Court should not allow a defendant who has no real defence to an action on the undefended list to dribble and frustrate the Plaintiff and cheat him out of the judgment he is legitimately entitled to, by delay tactics aimed at not offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtedness, citing the cases of UBA V Amede (2008) 8 NWLR (pt.1090) 623 at 636, Ifeanyi Chukwu T. I. V LTD v O.C. B LTD (2015) 17 NWLR (pt.1487) 1 at 27.
Counsel urged this Court to dismiss the appeal with substantial cost because in taking a careful look at the affidavit in support of the notice of intention to defend filed by the Appellants, the learned trial Judge was right to have entered judgment
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for the 1st Respondent under the undefended list procedure.
The Appellants did not file a reply brief but filed list of additional authority, which is the case of Idanre L. Govt of Ondo State (2010) 14 NWLR PT. 1214 P.509 @ 512.
I had briefly stated the facts above. For completeness however I will state that the appeal before this Court is narrow and in looking at this narrow issue of the appeal, I will have to caution myself so that I do not delve into deciding the main case in the lower Court on the merit. As an appellate Court, I must be conscious of my duty. My duty is not to assume the responsibility of the lower Court except if it is called for but rather my duty is to decide whether the lower Court was right in the decision it took over the matter. See Usman vs Garke (2003) 7 S.C. 33. This Court per Gumel, JCA put the duty of the appellate Court very well in the case of Agbabi vs Kabiru & Ors (2009) LPELR-3645 (CA) in these words:
“Let it be noted that an appeal is not a new trial. Rather it is another hearing but only based on the evidence already on record. Not any new evidence at all, except in the very rare
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situations when an appellate Court grants leave to a party to adduce additional evidence on appeal. It is also not the business of an appellate Court to interfere with the findings of a lower Court, except. where such findings are unreasonable perverse or not supported by the evidence on record.
Appellate Courts do not try cases of the parties. Trial of cases is effectively done at the Court of first instance. The normal duty of an appellate Court is to see whether issues presented to the trial Court were properly resolved. An appellate Court will not allow a different case from the one canvassed and argued at the trial to be pursued before it by any of the parties but will be concerned only to see whether the right procedure was followed, reasonable findings of fact made and the law correctly applied by the trial Court. See OROKE VS. EDE (1964) NNLR 118; AJADI VS. OKENIHU (1985) 1 NWLR (pt.3) 484; and NWOKORO VS. ONUMA (1999) 12 NWLR (pt.631) 342.”
The real matter on appeal is not strictly on whether the 1st Respondent was entitled to the claim as per the writ of summon but rather whether the lower Court was right in the light of the
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affidavit evidence before it to have entered judgment for the 1st Respondent without giving the Appellants the opportunity to converse their defence in a full blown hearing. This appeal is therefore not about whether the 1st Respondent has a good case against the Appellant which in the ultimate will succeed on the proof of balance of probability. This appeal is also not about whether the Appellant has a good defence which will ultimately succeed in the trial. All these are issues for the trial Court. See Ataguba & Co., vs Gura (Nig) Ltd (2005) S.C. (pt. 1) 101. The issue before this Court is whether the lower Court was right to have entered judgment for the 1st Respondent at the stage of the undefended list that is whether the lower Court was right in holding that the affidavit of the Appellants did not disclose any defence on the merit.
It is important to state here that the lower Court in my view appropriately stated the law on the principles involved in undefended list. I cannot fault that. The lower Court did a good job at that. If there is any challenge whatsoever in the ruling of the lower Court, it will be in the application of the facts to the
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correct position of law as stated by the lower Court.
The principal characters in the case before the lower Court were the 1st and 2nd Respondent who were the Plaintiff and 1st Defendant respectively. A facility of N75,000,000 was advanced by the 1st Respondent to the 2nd Respondent which facility was guaranteed by the 1st Appellant through the Hon. Commissioner and the Permanent Secretary as shown in Exhibit HT7. The 2nd Respondent could not pay back the facility and so it was converted to loans on two occasions as shown in Exhibit HT15B. This was made on 14/5/2010. The undertaking as guarantor was made by the 1st Appellant’s office as shown in Exhibit HT15C. This was made on 21/5/2010. I am tempted to highlight or mention some differences I see with the signatories in those documents. I think I should just fall for the temptation in case I forget to address that point. It is clear that those who signed as Permanent Secretary and the Hon. Commissioner of the 1st Appellant in HT6 & HT7 are different from the signature in HT15A, 15C, 15D. In fact, the signature of the Permanent Secretary for the 1st Respondent in Exhibit HT15A is different from
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the signature of the permanent Secretary in Exhibit HT15C & 15D. I just intercepted the flow of the facts by that observation. Let me return to the facts.
The 2nd Respondent could not repay the facility and as such, the loan was restructured again into another loan on 5/1/2011 (Exhibit HT16). The irrevocable undertaking Exhibit 17 was signed by the Director of cooperative and the Permanent Secretary. The signature in Exhibit HT15C, HT15D and HT18 are different from those in Exhibit HT7. Despite the restructuring of the facility, the 2nd Respondent was unable to pay back hence the 1st Respondent instituted the action in the lower Court for the repayment of the sum of N184,162,850.73k representing the principal sum and interest. The 1st Respondent commenced the suit by way of undefended list proceedings. The Appellants and the 2nd Respondent filed separate notices of intention to defend with supporting affidavit to show defence on the merit. The main defence the Appellants disclosed in the affidavit in support was that the Appellants were not aware of the subsequent facilities and they did not consent to the subsequent conversion of the facility to loans
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on the two occasions. It is the case of the Appellants as disclosed in the affidavit in support of the notice to defend that the authorized officers in the 1st Appellant’s ministry did not sign the undertaking and the guarantee, therefore the Appellants are not liable for the execution of any guarantee against them. The lower Court considered the defence but was not convinced that it was a defence on the merit and therefore held in favour of the 1st Respondent. This appeal is brought by the Appellants who were 2nd-4th Defendants in the lower Court. The 1st Appellant was sued as the supervising ministry of the 2nd Respondent that made the undertaking and guaranteed the facility and the loans. The 2nd and 3rd Appellants are the Government of Gombe State and the Chief Law Officer of the 2nd Appellant. The main question before this Court is therefore, whether the lower Court was right in holding that the Appellants affidavit in support of the notice of intention to defend the suit is ‘merely fishing for skirmishes all over the place’. This is the real issue here. In the circumstance, I will adopt the sole issue raised by the 1st Respondent as
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the issue for determination in this appeal because in my opinion, this issues covers the grounds of appeal and addresses the live issues in this appeal. I will now reproduce it for ease of reference as follows:
Whether the learned trial Judge was right to have entered judgment for the Plaintiff (1st Respondent) under the undefended list procedure?
The lower Court has adequately stated the legal position as it relates to proceedings that can be brought under undefended list and what a Court should consider in determining whether to give judgment on the action on the undefended list or transfer the case to the general case list for a full blown trial. It will not be out of place to add a few cases of mine for ease of reference in this judgment.
For an action to be commenced by the undefended list, the Plaintiff/Applicant, in this instance the 1st Respondent must be seeking for the recovery of liquidated monetary demand to which it believes that the Defendant, the Appellants in this appeal has no defence to the Claim. The implication of this is that the Plaintiff must state the amount involved and state the grounds of his believe that the
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Defendant has no defence to the action. At this stage, the Defendant is not in the matter or be seen in Court. The Defendant is cooling probably with no knowledge that a suit has been instituted against him. It is a matter between the Plaintiff and the Court. The Court must be satisfied that the Plaintiff has made out a case in the affidavit to the effect that the claim is on a liquated monetary demand and there is enough evidence in the affidavit in support of the motion that the Defendant has no defence to the action. When the Court is so convinced, the writ will be marked accordingly, that is ‘undefended’ and the case will be entered for hearing on the undefended list. A suit so filed by a plaintiff is usually placed on the undefended list when there is no dispute as to fact and law in relation to the claim put forward by the Plaintiff. See Wonah Construction Co. Ltd vs Nassarawa State Govt. & Ors (2019) LPELR-48357 (CA); Obitude vs Onyesom Community Bank Ltd (2014) 9 NWLR (pt. 1412) 352; Joe Okunrinboye Export Co. Ltd vs Skye Bank Plc (2009) 6 NWLR (pt. 1138) 518.
The Plaintiff in an action under the undefended list cannot open the
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champagne of victory yet as it is the requirement of the law that the writ so marked will be served on the Defendant, in this instance the Appellants and the 2nd Respondent. If the Defendant does not file any process, on the return date judgment will be entered in favour of the Plaintiff. See Dangote Gen Textile Products Ltd vs Hascon Associates (Nig) & Anor (2013) 16 NWLR (pt. 1379). If the defendant intends to defend the writ marked ‘undefended’, the Defendant will be required to file a notice of intention to defend and attach an affidavit in support which will disclose a defence in the merit. See Nkwo Market Community Bank (Nig) Ltd vs Obi (2010) 14 NWLR (pt. 1213) 169. In Amede vs UBA Plc (2018) 1-2 S.C. (pt. 1) 41, the apex Court held thus:
“An affidavit in support of the notice of intention to defend a suit should contain enough facts and particulars to satisfy the Court to remove the case from the undefended list to the general cause list. In other words, where the affidavit in support of the notice of intention to defend discloses no defence, the case would not be in the general cause list. Even if a statement of defence is
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filed, a plaintiff can still apply for summary judgment, if the statement discloses no defence therein. See Pan Atlantic Shipping & Transport Agencies v. Rhein Mass GMBH (1997) LPELR-2899 (SC) and Ed – of Nigeria Ltd v. SNIG (Nig.) Ltd (2013) All FWLR (pt. 708) 874 (2013) LPELR-19888 (SC), where this Court held: It must be emphasized that the respondent … must therefore show in the affidavit supporting his notice of intention to defend not only the fact of his intention to defend, but the further fact of a defence on the merit. Beyond disclosing an ex facie good defence to the appellants action, the defendant must supply full details of the actual defence he intends, if given leave, to place before the Court.”
As the lower Court has ably stated, this is not a defence which must succeed on the merit but rather the defence must be such that reasonably calls for some interrogation on the claim of the Plaintiff. The defence which does not disclose any challenge on the claim of the Plaintiff will not be a defence on the merit and in such a situation, the lower Court will not waste it’s time to transfer the case to the general cause list.
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The point I am trying to make is that if the defence does not disclose any reasonable defence in relation to the claim, the Court will deliver judgment in favour of the Plaintiff and at that stage the case is over, only subject to appeal. The Plaintiff can then open the champagne of victory. It is therefore not enough for the defendant to raise a defence, the defence must be on the merit and must relate to the claim, raising triable issues. If it is true that the defence the Appellants have put forward in the affidavit in support of the notice of intention to defend is merely skirmishes, the lower Court decision will be upheld. See G.M.O. Nworah & Sons Co., Ltd vs Akputa (2010) 2 FWLR (pt. 519) 2909.
The question is, what kind of defence will amount to defence on the merit? In Okoli vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt. 1053) 37, the apex Court held:
“In an action filed on the undefended list, where a defendant wanted to defend the action, the only issue for consideration is whether the defendant has disclosed a defence to justify transferring the matter to general cause list or not.
In an action placed in the undefended list
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where the plaintiff claims repayment of loan, the only defences open to the defendant are only two. (1) That the defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid or (2) That he never borrowed the money in the first place, he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery.”
However, if the Defendant discloses a defence on the merit, that is to say the defence raises triable issues or there are dispute of fact and law that will affect the claim of the Plaintiff, the Court should exercise caution not to enter judgment on the undefended list for the Plaintiff. At this stage, the main process in the front burner for consideration is the Defendant’s affidavit in support of the notice of intention to defend. This is what matters at this stage. The question a Court will ask itself is, whether the affidavit discloses some issues of dispute in law and the fact which will affect the claim of the Plaintiff. If the Court so holds then the
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matter will be transferred to the general cause list for a full blown trial and hearing to enable parties call witnesses, passing them through the process of examination-in-chief, Cross-examination and re-examination. This will clear all the cobwebs surrounding the case and explain all the issues that are not clear. I must emphasize again that, the issues that need to be interrogated in the full trial must be issues that has direct relationship with the claim of the Plaintiff.
To cap this little excursion into the law as stated above, suffice to say that where there are serious disputes in the affidavit in relation to the claim, where there are disputes of law and fact, where there are triable issues or where the affidavit disclose facts that challenges the claim which calls for further explanation or interrogation, a Court should be cautious in entering judgment for the Plaintiff but rather be prepared to err on the side of caution by transferring the cause to the general cause list. In Massken Nig Ltd vs Amaka (2017) 16 NWLR (pt. 1592) 438, the apex Court held:
“I need to re-emphasis the point that the Undefended List Procedure is fashioned
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to take care of cases relating to simple, uncontested debt or liquidated money demand or monetary claims. Where, however serious disputes arose in the affidavits on points of law relating to the claim(s), the trial Court ought to exercise caution in entering judgment under the Undefended List Procedure and should transfer the matter from the Undefended List to the General Cause List to be dealt with by pleadings etc.”
Similarly, the apex Court dealt with the general principles on undefended list and circumstances when matters in undefended list can be transferred to the general cause list. This was in the case of Nworah vs Akputa (2010) 9 NWLR (pt. 1200) 443. I am tempted to quote extensively from this case because it covered the field. The apex Court held thus:
“In the case of U.T.C. Nig. Ltd. v. Chief Pamotei & 4 Ors (1989) 2 NWLR (pt.103) 244 @ 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. The Court can refuse to let in a defendant
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to defend a suit, when once it is satisfied that the defendant’s 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. See Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (pt. 144) 283 @ 324 – 325; (1990) 6 SCNJ 117; Agwuneme v. Eze (1990) 3 NWLR (pt.137) 242 @ 255; C.A.; Okambah Ltd. v. Alhaji Sule (1990) 7 NWLR (pt.160) 1 @ 13; (1990) 11 SCNJ 1 @ 7.
In other words, the Court will enter judgment in favour of a plaintiff, where there is a sham defence raised in order to gain time or for the elongation of the litigation or where assuming all the facts are favour on the defendant, but they do not amount to a defence in law or where it is (1975) NSCC 137; Jipreze v. Okonkwo (1987) 3 NWNR (pt.62) 737; Franchal Nig. Ltd. v. Nigeria Bank (1995) 8 NWLR (pt.412) 176 @ 188 and Jos North Local Government v. Daniyan (2000) 10 NWLR (pt.675) 281 just to mention but a few.
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On the other hand, a defendant will be let in to defend, where among other things, there are disputed facts or that there is a dispute between the parties or a defendant, shows that he has a fair case for determination . See the cases of National Bank of Nigeria Ltd v. Weide & Co. Nig. Ltd. & 3 Ors. (1996) 9 -10 SCNJ 147 @ 155 – 1556 and V.S. Steel (Nig) Ltd. v. Government of Anambra State (2001) 8 NWLR (pt.715) 454 C.A. Just to mention but a few.
Generally, on this issue, see the case of Nishizawa Ltd. v. Jethwani (1984) 12 SC. 234 @ 246; U.T.C. Nig. Ltd. v. Chief Pamotei & Ors. (supra); Adebisi Macgregor Associates Ltd. v. Nigeria Merchant Bank Ltd (1996) 2 NWLR (pt.431) 378; (1996) 2 SCNJ. 72 @ 79 – 80 and Ataguba & Co. v. Gura Nig. Ltd. (2005) 2 SCNJ 139 @ 147, 150, 157; (2005) 2 S.C. (pt.1) 101 – per Edozie, J.S.C. In the instant case, from the Records, the Appellant was “fighting” or challenging the said claim of the Respondent, even filed a further affidavit. It seems to me that the said claim of the Respondent, became very contentious. In such a situation, it has been held that it calls for a measure of liberation when viewing the
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affidavit of the defendant in order to determine whether or not, a defence on the merit is disclosed. See the case of Takum Local Government v. United Community Bank (Nig.) Ltd. (2003) 16 NWLR (pt. 846) 288 @ 301 – 302. So also, where there is a defence which calls for investigation, the suit should and ought to be transferred to the General Cause List for hearing. See also the cases of Calvin Ply Ltd. & 2 Ors. v Pekab International Ltd (2001) FWLR (pt.51) 1655 @ 1657 & 1664; Igwe Stephen Ofomata v. Emmanuel Onwuzuligbo (2002) 8 NWLR (pt.769) 298 @ 301 – 313 and Thor Ltd. v. First City Merchant Bank Ltd. (2005) All FWLR (pt.274) @ 212.
In the case of University of Nigeria v. Onuzulike Trading Co. (1989) 5 NWLR (pt.119) 19 @ 29, it was held that where a defendant raises a substantial question of fact (as in the instant case) which ought to be tried, leave should be granted to him to defend. See also the cases of Saw v. Hakim (1889) 5 TLR 72; Ward v. Plumbley 6 TLR 198; Ray v. Baker 4 EXD 279 referred to in Adebisi macgregor Associates Ltd v. Nigeria Merchant Bank Ltd (supra) and NAM Ltd. v. Fetty Kene Nig. Ltd. (1995) 4 NWLR (Pt. 357) 100.
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Even in the case or UTC v. Chief Pamotei & Ors (supra), the following inter alia, appear:
“Even where a defendant neglects (I will add fails) to deliver a notice and an affidavit as required by the rules, may on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, be let in to defend on term.”
This is the appropriate time in my view to look at the affidavit in support of the Notice of intention to defend as filed by the Appellants in the lower Court as 2nd-4th Defendants. The defence the Appellant raised in the affidavit in support to the notice of intention to defence in summary states that the Appellants cannot be liable for a facility they did not guarantee especially the 2nd and 3rd loans as the undertaking and the guarantee were not signed by the authorized signatory of the 1st Appellant. The authorized signatories of the 1st Appellant as shown in Exhibit HT8 are the Permanent Secretary and the Hon. Commissioner. It is the Appellants defence that those who signed Exhibits HT15C, HT15D, HT17 and HT18 are not the authorized signatories of 1st Appellant as they are not the Permanent Secretary and the
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Hon. Commissioner who are authorized to sign any transaction on behalf of the 1st Appellant. The 1st Appellant in Exhibit HT8 which was made on 25/5/2009 had informed the 1st Respondent of the signatories and officers who are authorized to commit her on transaction entered into on its behalf. The said Exhibit which is a letter stated that Mr. Akula Bula Nduke and Mr. Raymond Y. Massam, the Commissioner and the Permanent Secretary of the 1st Appellant respectively has the authority to sign transaction on behalf of the 1st Appellant. Clearly from the signature of the Permanent Secretary and the Hon. Commissioner in HT6 and HT7, there is a difference between those in Exhibits HT15B and HT15C. It is clear that those who signed as Permanent Secretary and the Hon. Commissioner of the 1st Appellant in HT6 and HT7 are different from the signature in HT15A, HT15C and HT15D. In fact, the signature of the Permanent Secretary for the 1st Appellant in Exhibit HT15A is different from the signature of the permanent Secretary in Exhibit HT15C and 15D.
That apart, the Appellants defence is that the facility which was converted to loans on 21/5/2010 (Exhibit HT15C) and
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5/11/2011 (Exhibit HT16) are separate facilities from the original facility, therefore any undertaking and guarantee on those loans must be done in line with Exhibit HT8. The argument of the Appellants therefore is that the subsequent loans are not known to them and they did not guarantee those loans, therefore they cannot be held liable for the unpaid loans that the 2nd Respondent entered into with the 1st Respondent. This is contained in paragraphs 4 (j)(k)(l)(o) of the 2nd- 4th Defendants, that is the Appellants before this Court. The Appellants had gone ahead to say that there is a complaint on the loan facility which the Economic and Financial Crimes Commission (EFCC) is investigating an allegation of fraud and as such it is not proper for the lower Court to enter judgment for the 1st Respondent in the circumstance. These facts are averments contained in paragraphs 4 (m)(n)(p) of the Appellants affidavit in the lower Court. All these are in my view are disputes that call for inquiry which will require the transfer of the case to the general cause list.
The lower Court did not find these defences weighty enough to warrant further investigation in a
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full trial mainly because of Exhibits HT22 and HT24 which are letters of demand to which the Appellants did not reply to been business letter. The refusal to reply to them, the lower Court saw as admission of the amount contained therein in the letters. I have looked at the said exhibits, they were not addressed to the Appellants. They were merely copied. The Appellants are therefore not under any obligation to reply such a letter. The admission made by one Muhammad G. Hassan in Exhibit HT15A, 1st Respondent seems to anchor on for the liability of the Appellants. That letter is not conclusive as the signatory to Exhibit HT15A is not the known or recognized and authorized signatory of the 1st Appellant as stated in Exhibit HT8. I do not think I agree with the lower Court in this respect. These defences with due respect to his Lordship are not mere skirmishes as they fundamentally affect the claim of the 1st Respondent.
To appreciate the point I am making, it will not be out of place to consider the purport of those defences. In my opinion, the Appellants are saying they are not liable to pay the 1st Respondent the money claimed as they did not know
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about the subsequent loans to which they did not make any undertaking as the officers who made Exhibit HT15D, HT15D, HT17 and HT18 in the light of HT8 had no authority to execute those documents on its behalf. The Appellants denied knowledge of the transaction. In the light of Exhibit HT8 and the fact that Exhibit HT25 was not written by the Appellants and the said exhibit has no connection to the Appellants, it would have been better for the lower Court to exercise caution as there are disputes both on law and fact as to the liability of the Appellants. There are triable issues on whether the signatories to the undertaking and the guarantors have the authority in law to execute the documents on behalf of the 1st Appellant. Also in the light of the report of the case of fraud to the EFCC which has not been resolved since investigation is ongoing, the exact amount owed is in issue. There are issues that need to be interrogated further before judgment can be delivered in favour of the 1st Respondent. The Appellants in effect are challenging the debt and their liabilities as guarantors of the loans.
In the circumstance, I cannot see my way clear to agree
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with the lower Court. In other words, I think the lower Court should have exercised some caution before entering judgment for the 1st Respondent. What is in issue here is not whether the 2nd Respondent is owing the 1st Respondent, it is whether in the light of the defence as contained in the affidavit in support of the Notice of intention to defend, it is proper to shut the Appellant out of the opportunity to properly ventilate the defence in a full trial. I do not think shutting out the Appellants from interrogating the issues further in a full trial will be fair. A full trial is necessary to determine the question whether the Appellant knew of the facility and loans, whether they actually made the undertaking and the guarantee which they are called upon to settle. I have tried as much as I could not to go into the details of the merit because of the order I am going to make so that the lower Court will not be influence by any finding of this Court. All I have done is to raise triable issue as disclosed in the affidavit in support of the notice of intention to defend which will necessitate the transfer of the matter to the general cause list. It is sufficient
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to say that the lower Court should have transferred the matter to the general cause list and not to have entered judgment for the 1st Respondent on the undefended proceeding.
The Appellant has sought for the following order in this appeal viz:
1. To allow the appeal.
2. To set aside the trial Court ruling/judgment and transfer the hearing of the suit to the general cause list.
The decision of this Court on the appeal is obvious. I have no difficulty in setting aside the ruling of the lower Court in Suit No: GM/200/2015 – Guarantee Trust Bank Plc vs Gombe State Cooperative Saving & Loans & 3 Ors delivered on 28/1/2016. This appeal succeeds and it is allowed. The suit is to be transferred to the general cause list for just determination on the merit.
Parties are to bear their own cost.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading in draft the judgment just delivered by my learned brother, Ebiowei Tobi, J.C.A.
His Lordship has exhaustively analyzed the issues involved in the appeal. I am in agreement with his reasoning and conclusion. It would therefore superfluous repeating same here.
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The appeal is meritorious and is allowed. I abide by the consequential orders made therein.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the draft of the judgment of my learned brother Ebiowei Tobi, J.C.A.
I agree with the reasoning and conclusion therein. I have nothing more to add. I abide by the consequential orders in the lead judgment.
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Appearances:
Musa Saidu For Appellant(s)
J. Bichi – For 1st Respondent. For Respondent(s)
