NECHIL AGENCIES LIMITED & ANOR v. VICTOR AGENCIES LIMITED
(2011)LCN/4565(CA)
In The Court of Appeal of Nigeria
On Monday, the 23rd day of May, 2011
CA/PH/305/2006
RATIO
UNDEFENDED LIST PROCEDURE: WHETHER THE COURT IN EXERCISING ITS DISCRETION TO PLACE A SUIT ON THE UNDEFENDED LIST MUST MAKE A DEFINITE FINDING THAT THERE ARE GOOD GROUNDS FOR STATING THAT THERE IS NO DEFENCE TO THE PLAINTIFF’S CLAIM
The principles governing undefended list procedure have been settled in several cases, see OKOLI v. MORECAB FINANCE (NIG.) LTD. (2007) ALL FWLR (PT. G39) LL64; ATAGUBA & CO. v. GURA (NIG.) LTD. (2005) 8 NWLR (pt. 927) 429 etc. In exercising its discretion to place a suit on the undefended list the trial court must make a definite finding that there are good grounds for stating that there is no defence to the plaintiff’s claim. The learned trial judge must satisfy himself that the claim of the plaintiff is liquidated see NWORAH V. AKPUTA (2010) 42 NSCQR 302 , 326-327. He must also satisfy himself that the affidavit filed disclosed that the defendant had no defence to the action see S.B.N. PLC V. KYENTU (1998) 2 NWLR (pt. 536) 41. PER T. O. AWOTOYE, J.C.A
UNDEFENDED LIST PROCEDURE: CONSEQUENCE OF THE FAILURE OF THE DEFENDANT TO FILE THE NOTICE OF INTENTION TO DEFEND
When the defendant file the Notice of Intention to Defend with the supporting affidavit then it would be clear whether or not the suit will be contentious. If the defendant fails to file the Notice of Intention to Defend with the affidavit the court must proceed to judgment. see BEN THOMAS HOTEL LTD. V. SEBI FURNTTURE LTD. (1989) 5 NWLR (PT.123) 523. PER T. O. AWOTOYE, J.C.A
AFFIDAVIT EVIDENCE: WHETHER AN UNCHALLENGED DEPOSITON IN AN AFFIDAVIT CAN BE ADMITTED AS TRUE FACTS
An unchallenged deposition in an affidavit can be admitted as true facts. See LONG JOHN V. BLACK (1998) 6 NWLR (pt. 555) 524 at 532, OGOEJEFO V. OGOEJEOFO (2006) 3 NWLR (PT.966)205. PER T. O. AWOTOYE, J.C.A
PRE-JUDGMENT INTEREST: REASON WHY THE ISSUE OF PRE-JUDGMENT INTEREST CAN NOT BE ENTERTAINED UNDER UNDEFENDED LIST
The item of pre-judgment interest ought not to have been entertained at all under undefended list because pre-judgment interest has to be proved before the court. Facts justifying its claim must also be clearly stated and such facts must show how the plaintiff acquired the right to claim the pre-judgment interest. See TEXACO OVERSEAS (NIG) UNLTD v. PEDMAR (2002) 13 NWLR (Pt.785) 526; DANIEL HOLDINGS LTD. v. UBA PLC (2005) 13 NWLR (pt.943) 533; UDECHUKWU v. OKWUKA (1956) IFSC 70 at 71; EKPAN & ANOR v. UYO (1986) 3 NWLR (Pt.26) 63; EKWUNIFE v. INAYNE (W/A) LTD (1989) 5 NWLR (pt.122) 422 at 445. PER T. O. AWOTOYE, J.C.A
ERROR IN THE JUDGMENT OF THE COURT BELOW: WHETHER IT IS EVERY ERROR IN A CASE THAT WILL RESULT IN AN APPEAL BEING ALLOWED
It is not very error in a case that will result to an appeal being allowed. It is only in cases where the error is substantial and has resulted in miscarriage of justice that it will cause the appeal court to interfere. See NWAEZE v. THE STATE (1996) 2 NWLR (pt.428) 1. PER T. O. AWOTOYE, J.C.A
POST-JUDGMENT INTEREST: WHETHER A POST JUDGMENT INTEREST NEED TO BE SPECIFICALLY CLAIMED BEFORE IT CAN BE AWARDED
A post judgment interest needs not be specifically claimed before it is awarded. It is statutory. The court is empowered by the Rules of court to award such interest at the court’s discretion. It does not require to be proved. PER T. O. AWOTOYE, J.C.A
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. NECHIL AGENCIES LIMITED
2. MR. ETEKAMBA NSA Appellant(s)
AND
VICTOR AGENCIES LIMITED Respondent(s)
T. O. AWOTOYE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice S.E. Charles – Granville of Rivers state High court delivered on 3/11/2003.
The plaintiff is the Respondent in this appeal. The plaintiff’s claimed against the defendants at the lower court jointly and severally for:-
“1. The sum of N10,500,000.00 (Ten Million, Five Hundred Thousand Naira) being the amount owed by the Defendants for the hire of the Plaintiff’s Dredger and its accessories for one (1) year as stipulated in clause 2 of the Dredger Hire Agreement, a Deed dated 4th July, 2001 and which expired on 5th July, 2002.
2. The sum of N15,000,000.00 (Fifteen Million Naira) being full value of the plaintiff’s Dredger and accessories hired by the Defendants as stipulated under clause 9 of the aforesaid Deed (the Defendants having failed, refused or neglected to insure the Dredger and its accessories as stipulated in the said Dredger Hire Agreement).
3. The sum of N18,500,000.00 (Eighteen Million, Five Hundred Thousand Naira) being dally rent at the rate of N50,000.00 (Fifty Thousand Naira) per day for the said Dredger and its accessories from 9th July, 2002 to 14th July 2003 (370 days) and thereafter the sum of N50,000.00(Fifty Thousand Naira) per day until delivery of the said Dredger and accessories to the plaintiffs site at osaro’s water Front, Ekara, Onne as stipulated in clauses 16 and 17 of the aforesaid Dredger Hire Agreement.
4. Interest on the above-mentioned sum at the rate of 10% per annum from the 9th of July, 2002 until judgment is given and thereafter interest at the rate of 10% with monthly interest till judgment is given and satisfied.”
By leave of court the suit was entered into undefended list and heard without the defendants filing any Notice of Intention to Defend.
Judgment was subsequently entered in favour of the plaintiff but against the defendants as follows:
“1. The sum of N10,500,000.00 (Ten Million, Five Hundred Thousand Naira) being the amount owed by the Defendants for the hire of the Plaintiff’s Dredger and its accessories for one (1) year as stipulated in clause 2 of the Dredger Hire Agreement, a Deed dated 4th July, 2001 and which expired on 5th July, 2002.
2. The sum of N 15,000,000.00 (Fifteen Million Naira) being full value of the plaintiff’s Dredger and accessories hired by the Defendants as stipulated under clause 9 of the aforesaid Deed (the Defendants having failed or neglected to insure the Dredger and its accessories as stipulated in the said Dredger Hire Agreement).
3. The sum of N18,500,000.00 (Eighteen Million, Five Hundred Thousand Naira) being daily rent at the rate of N50,000.00 (Fifty Thousand Naira) per day for the said Dredger and its accessories from 9th July, 2002 to 14th July 2003 (370 days) and thereafter the sum of N50,000.00(Fifty Thousand Naira) per day until delivery of the said Dredger and accessories to the plaintiffs site at Osaro’s Water Front, Ekara, Onne as stipulated in Clauses 16 & 17 in the aforesaid Dredger Hire Agreement.
4. Interest on the above-mentioned sum at the rate of 10% per annum from today 3/11/2003 and thereafter interest at the rate with monthly rests till judgment is satisfied.”
The defendants being dissatisfied with judgment filed this appeal, parties filed and exchanged briefs after the transmission of record of appeal, In his brief Deacon Nerry Uchefu learned counsel for the appellants formulated two issues for determination – namely:-
“i Whether given the conflicting material exhibits the trial court was right in granting the three heads of claim to the respondent.
ii. Whether the trial court exercised its discretion judicially and judiciously taking into consideration the nature, facts and circumstances of this case.”
Learned counsel for the appellant submitted that the supporting affidavit and the exhibits were contradictory on some material particulars which he submitted demanded full trial on the merit by placing suit on the general cause list. He argued that documentary evidence could be used as longes from which to test the veracity of oral testimonies. He relied on BUNGE V. RTVERS STATE GOVERNOR (2006) 12 NWLR (PT. 995 page 580 and EZEMBA V. IBENEME & ORS (2004) 10 MJSC 54. He added that the condition requisite for an action to be placed on the undefended list was that it must be non-contentions. He referred to ENYE V. OGBU (2003) 10 NWLR (PT. 828) 4A3 at 425.
He urged the court to evaluate the documentary evidence which he claimed the lower court failed to do. He cited GONZEE V. NERDC (2005) 12 MJSC 179 at 196.
He stated that a special damage must be proved strictly which was not done in this case. He cited ODUMOSU V. A.C.B. LTD. (1976) 11 SC 55.
He concluded that the decision of the lower court was perverse.
He further submitted that the plaintiff failed to mitigate the loss suffered due to the negligence of the defendant. He added that to allow a party that was a victim of negligence time almost in perpetuity to leave his damaged object unrepaired and expect damages to be calculated against years rather than a few days was according to learned counsel “giving blank cheque to rake in underserved compensation.
On issue two learned counsel referred to order 23 Rules 1, 3(i) and 4 of the rules of High Court 1987 of Rivers State and submitted that the learned trial judge ought to have found that the case was not proper to be place on the undefended list because the facts were continuous.
He urged this court to allow the appeal and set aside the judgment of the lower court.
The respondent’s brief was deemed filed 11/10/2010. Learned counsel for the Respondent formulated one sole issue for determination to wit.
“Whether the learned trial judge was right in entertaining and entering judgment in the plaintiff’s claim under the undefended list procedure on the basis of the plaintiff’s affidavit kin support of the claim and exhibit placed before him?”
Learned counsel for the respondent went through the principles governing undefended list procedure as enunciated in many cases. He submitted that failure to file a notice of intention to defend amounted to an admission of the plaintiff’s claim. He cited DANIEL v. INSICIHJ ENG. CO. LTD (2002) 10 NWLR (Pt.775) 231 at 246.
He further submitted that the learned trial judge was right to have entered judgment for the respondent kin the face of overwhelming compelling and weighty exhibits attached to the affidavit in support of respondent’s claim. He submitted that Exhibit G was not at variance with the averments in the verifying affidavit. He added that in constructing a written agreement the entire contents must be read together. He relied on MOBIL PRODUCING (NIG.) UNLIMITED V. UMENWEKE (2002) 9 NWLR (PT. 773) S43 at 557.
He urged the court to strike out pages 44to 64 of the Record as same did not form part of the appeal.
He finally urged the court to dismiss the appeal in its entirety and uphold the judgment of the learned trial judge.
I have carefully considered all the submissions of learned counsel on both sides as well as the contents of the Record of Appeal transmitted to this court. The sole issue formulated by the Respondent in this case embraces the two issues formulated by the appellant. I shall therefore consider the appeal in the light of the said issue. This issue is
“Whether the learned trial judge was right in entertaining and entering judgment in the plaintiff’s claim under the undefended list procedure on the basis of the plaintiff’s affidavit in support of the claim and Exhibits placed before him?”
The principles governing undefended list procedure have been settled in several cases, see OKOLI v. MORECAB FINANCE (NIG.) LTD. (2007) ALL FWLR (PT. G39) LL64; ATAGUBA & CO. v. GURA (NIG.) LTD. (2005) 8 NWLR (pt. 927) 429 etc.
In exercising its discretion to place a suit on the undefended list the trial court must make a definite finding that there are good grounds for stating that there is no defence to the plaintiff’s claim. The learned trial judge must satisfy himself that the claim of the plaintiff is liquidated see NWORAH V. AKPUTA (2010) 42 NSCQR 302 , 326-327. He must also satisfy himself that the affidavit filed disclosed that the defendant had no defence to the action see S.B.N. PLC V. KYENTU (1998) 2 NWLR (pt. 536) 41.
At this stage in my respectful view the trial judge is not to consider whether the suit is likely to be contentious. When the defendant file the Notice of Intention to Defend with the supporting affidavit then it would be clear whether or not the suit will be contentious. If the defendant fails to file the Notice of Intention to Defend with the affidavit the court must proceed to judgment. see BEN THOMAS HOTEL LTD. V. SEBI FURNTTURE LTD. (1989) 5 NWLR (PT.123) 523.
The appellants in this appeal did not file Notice of Intention to Defend and did not controvert the averments in the plaintiffs’ affidavit in support of the suit.
An unchallenged deposition in an affidavit can be admitted as true facts. See LONG JOHN V. BLACK (1998) 6 NWLR (pt. 555) 524 at 532, OGOEJEFO V. OGOEJEOFO (2006) 3 NWLR (PT.966)205. The meaning is that all the averments in the plaintiff’s affidavit in support of the claim are unchallenged and are deemed accepted as true.
Paragraph 15 of the said affidavit states thus:-
“15. That pursuant to the aforesaid assurances by the Defendants and their bankers (which terms were all incorporated and stipulated in the Dredger Hire Agreement), the plaintiff and the defendants executed and entered into a Dredger Hire Agreement dated 4th of July, 2001 wherein the plaintiff was to hire its ‘6’ Dredger
and its accessories to the defendants for a period of one (1) year commencing 4th of July, 2001 at an initial rent of N500,000.00 (five hundred thousand naira) per month for the first three months only (i.e. from July to September, 2001 and thereafter monthly rent in the sum of N1,000,000.00 (one million naira). Herein produced and referred to as Exhibit ‘G’ is a copy of the said Dredger Hire Agreement.”
This averment in this paragraph was not challenged deemed and therefore admitted. This also included Exhibit G which is the DREDGER HIRE AGREEMENT between the parties.
The claim for N10,5000.00 being the amount owed by the defendant for the hire of the plaintiffs dredger and its accessories for one year draw strength from paragraphs 7, 8, 15, 36, 37, 42, 43 and 44 of the unchallenged affidavit of the plaintiff. The 2nd and 3rd items of the plaintiff’s claim also draws strength from the uncontroverted paragraph 43 0f the plaintiffs affidavit. To this extent in my respectful view the entry of the suit in the undefended list cannot be questioned.
However items(5) of the claim of the plaintiff is for pre-judgment interest of 10% per annum form 9/7/2002 until judgment is given. The lower court granted 10% interest per annum form 1/11/2003 file date of judgment but did not grant pre-judgment interest. The item of pre-judgment interest ought not to have been entertained at all under undefended list because pre-judgment interest has to be proved before the court. Facts justifying its claim must also be clearly stated and such facts must show how the plaintiff acquired the right to claim the pre-judgment interest. See TEXACO OVERSEAS (NIG) UNLTD v. PEDMAR (2002) 13 NWLR (Pt.785) 526; DANIEL HOLDINGS LTD. v. UBA PLC (2005) 13 NWLR (pt.943) 533; UDECHUKWU v. OKWUKA (1956) IFSC 70 at 71; EKPAN & ANOR v. UYO (1986) 3 NWLR (Pt.26) 63; EKWUNIFE v. INAYNE (W/A) LTD (1989) 5 NWLR (pt.122) 422 at 445.
There is no averment in the plaintiffs supporting affidavit to support the claim for pre-judgment interest. The learned trial judge did not however award any pre-judgment interest. It is not very error in a case that will result to an appeal being allowed. It is only in cases where the error is substantial and has resulted in miscarriage of justice that it will cause the appeal court to interfere. See NWAEZE v. THE STATE (1996) 2 NWLR (pt.428) 1.
The plaintiff also claimed post judgment interest.
A post judgment interest needs not be specifically claimed before it is awarded. It is statutory. The court is empowered by the Rules of court to award such interest at the court’s discretion. It does not require to be proved. The learned trial judge awarded 10% post judgment interest from 3/11/2003 until the judgment debt is satisfied. This in my view is in order.
In the light of the above, I resolve the one issue in favour of the respondent. I hold that the judgment of the court below delivered on 3/11/2003 is unassailable.
This appeal lacks merit. It is accordingly dismissed.
M. DATTIJO MUHAMMAD, J.C.A.: I read in draft the lead judgment of my learned brother AWOTOYE JCA, with whose reasoning and conclusion I agree. The judgment being appealed against emanated from respondent’s claim under the undefended list procedure. The appellant filed no notice of intention to defend. He is deemed to have admitted all aspects of respondent’s claim which the law entitles the claimant to recover through the undefended list procedure. Respondent’s verifying affidavit accompanying his claim does not contain facts on the basis of which he urges payment of pre-judgment interest. The principle is that same is not recoverable under the undefended list as same, see Daniel Holdings Ltd. v. UBA Plc. (2005) 13 NWLR (pt.785) 52G Akpan & Anor. v. Uyo (1986) 3 NWLR (PT.26) 63, must be proved before the court.
The lower court obliged the respondent this aspect of his claim which the law disentitles him from recovering through the procedure he preferred. Except for this particular lapse, I adopt the fuller reasons adumbrated by my learned brother to uphold the lower court’s judgment. To that extent I dismiss this appeal and abide by the consequential orders reflected in the lead judgment.
EJEMBI EKO, J.C.A.: I read the judgment just delivered in draft. My learned brother T. O. Awotoye, JCA, has dealt with the Salient or germane issues in the appeal and I agree with his conclusions on each of them.
It is trite that facts not disputed are taken as established. They require no further proof. They are non-contentious. The appellants did not join issues with the respondent on his claims brought on the undefended List. They failed to file Notice of Intention to defend supported by an affidavit which disclosed their defence on the merits.
They are therefore taken to have accepted as true the averments of the respondent contained in the writ of summons and the supporting affidavit.
This appeal, at best, is frivolous. I also issue an order dismissing it.
Appearances
Nerry Echefu Esq.For Appellant
AND
M.N. Nnamani Esq. with O.S. Abbey Esq.For Respondent
