MR. V. I. ANIGBATA & ORS v. CHIEF DAN M. OGBUEFI
(2013)LCN/6688(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of December, 2013
CA/E/212/2005
RATIO
WHEN IS THE UNDEFENDED LIST PROCEDURE ADOPTED?
The undefended list procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A Suit is maintainable under the undefended list if it relates to a claim for a debt or liquidated money demand. It is a procedure meant to shorten the hearing of the Suit. See S.B.N Plc V Kyentu (1998) 2 NWLR (Pt. 536) 41 CA, Garba V Sheba Int. (Nig) Ltd (2002) 1 NWLR (Pt. 748) 372 CA and Haido V. Usman (2004) 3 NWLR (Pt. 859) 65 CA. Per ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
ADRIZA GANA MSHELIA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. MR. V. I. ANIGBATA
2. PONNOVIC INVESTMENT LTD.
3. P.A.V. (NIG.) LIMITED Appellant(s)
AND
CHIEF DAN M. OGBUEFI Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice Anambra State, Onitsha Judicial Division per Hon. Justice G. N. Mbanugo delivered on 22nd day of February, 2005.
The Respondent in this appeal was the plaintiff at the lower Court. He instituted an action against the defendants under the undefended list on 25th November, 2004 in Suit No. 0/613/2004. The claim of the plaintiff in the Suit against the defendants jointly and severally as supported by 14 paragraph affidavit are reproduced as follows:
(i) N3,700,000.00 (Three Million Seven Hundred Thousand Naira) being the sum of money the defendants collected from the plaintiff.
(ii) 15% (fifteen per centum) as interest on the said N3,700,000.00 (Three Million Seven Hundred Thousand Naira) from the 10th day of April 2003 till judgment is entered in this Suit.
(iii) 5% (five per centum) as interest on the judgment sum until the said judgment sum is entirely liquidated.
The defendants through their counsel – C. J. Asiegbu Esq filed a Notice of Intention to Defend dated 4/1/2005 and filed on 6/1/2005. The said notice of intention to defend was supported by 20 paragraph affidavit.
The trial Judge after hearing the presentations of counsel for the parties adjourned the matter for ruling on 22/2/2005. A ruling was delivered in the Suit on 22/2/2005 wherefor the trial Judge entered judgment for the plaintiff as per the undefended list. The defendants being dissatisfied with the whole decision of the trial Court brought a Notice of Appeal dated 13th May, 2005 and filed on 17th May, 2005. The said Notice of Appeal contains four grounds.
The said grounds of appeal as contained at pages 29, 30 and 32 of the record are therein below reproduced in this judgment.
GROUNDS OF APPEAL
GROUND ONE
The Learned Trial Judge erred in law when in considering the defendant’s Notice of Intention to Defend, he held that the Appellant ought to come with clear hands.
GROUND TWO
The Learned Trial Judge failed to properly evaluate the respective affidavit filed in the matter in order to decide whether the Appellant made out a triable issue that would warrant the matter being transferred to general cause list.
GROUND THREE
The trial judge was wrong when it held that the Defendant did not address on the issue of bounced cheque.
GROUND FOUR
The trial court was wrong when it held that the Defendant/Appellant did not make out any triable issue in the affidavit in support of the Notice of Intention to Defend.
In compliance with the rules of this court, parties filed and exchanged their briefs of argument through their legal representatives. The Appellants’ Brief of Argument dated 21/8/2005 and filed 20/3/2006, but deemed filed and served on 25/09/2006 was settled by Arthur Obi Okafor Esq. The Respondent’s Brief of Argument dated 24/1/2007 and filed on the same date, but deemed filed and served on 26/04/2007 was settled by E. O. Igowe Esq. The appeal was taken on 14/11/2013 while the legal representatives to the parties adopted their respective briefs of argument in support of their stance in the matter.
The Learned Counsel for the Appellants formulated two (2) issues for determination of this appeal. The issues are:
1. Whether the Defendants/Appellants disclosed grounds of defence in the Notice of Intention to defend filed by them.
2. If issue 1 above is in the affirmative, was the learned trial Judge right in entering judgment for the Plaintiff/respondent?
The Learned counsel for the Appellant in his argument touched the two issues he formulated in the appellants’ brief of argument. He referred to Order 24 Rule 9(1) and (2) of the High Court Rules of Anambra State, 1988 as guiding rule for placement of any matter under the undefended list. He contended that in the instant case, the Defendants/Appellants raised triable issues against the case of the Plaintiff/Respondent in all ramifications. He relies on the case of EGBONG Vs IKPE (2002) 17 NWLR PART 797 page 504 at 529 paras A – E in aid.
The Learned Counsel for the Appellants posits that the affidavit of a defendant under the undefended list procedure disclosing his defence or the merit should not provide a cast-iron or an airtight defence or disclose a defence beyond reasonable doubt before the Suit could be transferred to the general cause list for hearing. He cites the cases of V. S. STEEL (NIG) LTD Vs GOVERNMENT OF ANAMBRA STATE (2001) 8 NWLR, PART 715 PAGE 454 and SCOA (NIG) PLC Vs DANBATTA (2002) 13 NWLR PART 785 PAGE 461 AT 475 – 476 PARAS F – B. He also cited the cases of SANTORY CO. LTD Vs ELABED (1988) 12 NWLR PART 579 PAGE 544, JIPREZE Vs OKONKWO (1987) 3 NWLR PART 67, PAGE 737 and JOS NORTH LOCAL GOVERNMENT Vs DANIYAN (2000) 10 NWLR PART 675 PAGE 281.
It is the further contention of the Appellants’ Counsel that from the comparison of facts posited in the affidavits of the plaintiff and the defendants, the trial court is bound to resolve the following issues:
i. Whether the plaintiff had cashed N800,000.00 out of the total of N4.5 Million as the plaintiff did not deny the issues as raised.
ii. Whether Anambra State Government once appointed the Plaintiff/Respondent Chairman of the committee on illegal Stalls/Building with effect from 2002.
iii. Whether by virtue of the appointment of the Plaintiff/Respondent Chairman of the committee he had demanded payment of the sum of money from the 1st Appellant/Applicant as internally generated revenue to the Anambra State Government.
iv. Whether in a meeting convened by Jimbaz, wherein the Plaintiff and 1st Defendant were present, the Plaintiff had agreed to return the post-dated cheques to the 1st Defendant.
He emphasized that the trial court acted in error by proceeding to enter judgment for the Plaintiff without properly evaluating the affidavit evidence placed before it. He finally urged this court to allow the appeal, set aside the decision of the trial court and transfer the matter to the general cause list for hearing.
The Respondent through his learned counsel formulated a sole issue for determination of the instant appeal. The issue reads thus:
Whether from the affidavit evidence before it, the learned trial judge was right in entering judgment for Plaintiff/Respondent.
In his argument, the learned counsel for the Respondent referred to Order 24 Rule (i) of the High Court Rules of Anambra State, 1988 and also Sodipo Vs LemminKanen OY and Anor (1986) 7 NWLR (Pt. 115) 320. He contends that what is required of the Plaintiff under the undefended list procedure is to simply support his application with an affidavit setting forth the grounds upon which the claim is based. He also stated that in compliance with the rules, the defendant under the undefended list procedure is bound to file a notice of intention to defend which should be supported with an affidavit setting out his defence.
The learned counsel further contends that the affidavit attached to the notice of intention to defend did not disclose any defence to the claim of the Plaintiff/Respondent as to warrant a transfer of the matter to the general cause list. He refers to Exhibits ‘A’, ‘A1’ and ‘A2 attached to the Plaintiff’s claim. He cited Section 132 of the Evidence Act, Whyte Vs Jack (1996) 2 NWLR (Pt. 431) 407 at 416, Ebong Vs Ikpe (2002) 17 NWLR (Pt. 797) 504 (2002) FWLR (Pt. 135) 719, Dala Air Services Ltd Vs Sudan Air-ways Ltd (2004) A FWLR (Pt. 238) 684 at Pp. 685 – 686 (Ratio 1) particularly at (P. 695 paragraph F, P. 696 paragraphs C – D).
The Respondent’s counsel submits that the authorities cited by the Appellants do not help their case in the light of the copious documentary evidence before the court on the following grounds:
i. There is no disputed fact as to the issuance of the N3.7 million post-dated cheque in favour and in the name of the Plaintiff/Respondent by the Defendants/Appellants and no other person, not even Anambra State Government.
ii. There is no dispute as to the fact that Exhibit ‘C’ (attached to the Affidavit in support of the Plaintiff/Respondent’s claim) which is the Plaintiff’s solicitor’s letter to the Defendants/Appellants and the weighty facts contained therein were never controverted by the Defendants/Appellants.
iii. There is no dispute as to the fact that the said post-dated cheques for the sum of N3.7 million were dishonoured on presentation.
iv. There is no dispute as to the fact that the Plaintiff/Respondent’s claim in the court below is materially a reproduction of the said Exhibit C which was not controverted by way of reply by the Defendants/Appellants.
The Respondent’s counsel further referred to the Respondent’s notice dated 4/4/2006 and filed on the same date. He relies on Order 3 Rule 14 of the Court of Appeal Rules, 2002. On this note, he contends that the judgment of the trial court dated 22/2/2005 is correct and proper. He urges this court to dismiss this appeal and affirm the decision of the lower court.
In considering the facts of this case and the argument of learned counsel for the parties, I will determine this appeal based on the issues canvassed by the learned counsel for the Appellants. These issues have been earlier reproduced at page 2 of this judgment.
Appellants’ Issue 1
The paragraphs of the affidavit in support of claim as found at pages 5 – 7 of the record are devoid of ambiguity. The annexed Exhibit A, A1, A2, C and C1 refer to paragraphs 7, 9 and 11 of the affidavit under reference. The Exhibits are found at pages 8 – 15 of the record.
The Appellants vide a Notice of Intention to defend filed a 20 paragraph affidavit with Exhibits A, B, B1, C & D found at pages 16 to 26 of the record.
The undefended list procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim. A Suit is maintainable under the undefended list if it relates to a claim for a debt or liquidated money demand. It is a procedure meant to shorten the hearing of the Suit. See S.B.N Plc V Kyentu (1998) 2 NWLR (Pt. 536) 41 CA, Garba V Sheba Int. (Nig) Ltd (2002) 1 NWLR (Pt. 748) 372 CA and Haido V. Usman (2004) 3 NWLR (Pt. 859) 65 CA.
Under the rule, a Plaintiff who wants his Suit placed on the undefended list must file an affidavit at the time that he is making an application for the issue of the writ. The affidavit must depose to facts from which the court can come to the conclusion that the defendant has no defence. It is only when the court comes to that conclusion from the facts placed before it through the affidavit that an order to place the suit on the undefended list will be made. See S.B.N. Plc V Kyentu (supra).
On the other hand, a defendant who intends to defend an action brought under the undefended list procedure is expected to file a notice of intention to defend together with an affidavit disclosing a defence on the merit or a triable issue. See Haido V Usman (supra).
I have carefully studied the affidavit in support of the claim by the Plaintiff/Respondent and that which supports the notice of intention to defend by the Defendants/Appellants. The court is guided by the facts posited by the parties to a suit. The case of the Respondent as Plaintiff before the trial court is liquidated money demand. The debt is a specific sum of N3.7 Million Naira only given to the Appellants through the 1st Appellant in bits i.e N2.5 Million, N1 Million and N200.00 respectively. It is on record that the Appellants upon the receipt of the various amounts from the Respondent issued post-dated cheques Exhibits ‘A’ ‘A1’and A2 to the Respondent, even though they were dishonoured.
The Appellants in their construed defence went into navigational tales that did not address the facts contained in the Respondent’s case through the affidavit on record. The Exhibits which the Respondent annexed to prove his case were not addressed by the Appellants. This singular act seems acquiescence to the presentation of the Respondent.
The position of the law is that in an action brought under the undefended list procedure, the trial court is required to consider only the evidence contained in the affidavit to defend the suit. Once the court comes to the conclusion that the affidavit does not disclose a defence on the merit or a triable issue, the court is to proceed with the hearing of the Suit as an undefended suit and enter judgment accordingly without calling on the defendant even if present in court, to answer or be heard. See Haido v. Usman (2004) 3 NWLR (Pt. 859) 65 CA.
I carefully perused through the facts in the case of Egbong V Ikpe (2002) 17 NWLR (Pt.797) as relied upon by both parties in the appeal. In that case, the Plaintiff alleged that he advanced to the defendant a friendly loan of N400,000.00. In his defence, the defendant admitted the receipt of N400,000.00 from the plaintiff, but denied that it was a friendly loan and went further to say that the money was for paper conversion for the plaintiff which the plaintiff ordered for and that he had never borrowed money from the plaintiff. It was based on the above disclosed facts that the Court of Appeal held that the defendant who appealed to the Court of Appeal disclosed a defence on the merit and that the learned trial judge was wrong to have refused him leave to defend the suit.
In the instant case, the defendants/Appellants ought to have disclosed a triable issue or a prima facie defence or a plausible defence in his affidavit and not a fanciful or sham defence. In Knightsbridge Ltd V Atamaco (2000) 2 NWLR (Pt. 645) 385, it was held that all that a defendant seeking to defend a case placed on the undefended list needs to show in his affidavit is that what he regards as his defence is not a mere general statement that he has a good defence to the action. He must go as far as possible to deal specifically with the Plaintiffs claim and state clearly what his defence is and what facts and documents he relies on.
In effect of the above, I have placed the affidavits of the Appellants and the Respondent on a scale of balance while watching the dangling scale I asked myself; can it be said that the Appellants disclosed a triable and plausible defence?” I do not think so.
Flowing from the above, I am satisfied with the reasoning of the learned trial judge that since the defendants (now Appellants) did not address the issue of bounced cheques: Exhibits ‘A’, ‘A1’, and ‘A2′, the court cannot close her eyes to the documentary evidence before her. In the circumstance, I agree with the decision of the learned trial Judge. This issue is therefore resolved in favour of the Respondent.
Appellants’ Issue 2:
Since the issue 1 above is in the negative, it is therefore imperative that the answer to issue 2 is in affirmative; therefore the learned trial judge was right in entering judgment for the Plaintiff/Respondent.
In the light of the foregoing, this appeal lacks merit and it is bound to fail. Accordingly the appeal is dismissed.
The judgment of the High Court of Justice Anambra State, sitting at Onitsha per Hon. Justice G. N. Mbanugo in Suit No. 0/613/2004 delivered on 22/2/2005 is hereby affirmed. This appeal is hereby dismissed.
N50,000.00 costs is awarded to the Respondent against the Appellants.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in advance the lead judgment of my learned brother Abubakar Jega Abdul-Kadir, JCA. just delivered. I completely agree with the reasoning and conclusion that the appeal ought to be dismissed. I too dismiss the appeal and abide by the consequential orders made in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my Learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA. I agree with the reasoning and conclusions therein. I also hold that the appeal lacks merit. It is accordingly dismissed. The appellant shall pay cost of N50,000 to the respondent.
Appearances
Mr. Arthur Obi OkaforFor Appellant
AND
Mr. E. O. IgoweFor Respondent
