O. O. INTERNATIONAL LIMITED V. CHUKWUMA-MACHUKWU UME (Suing as RECEIVER/LIQUIDATOR TO FORTRESS INSURANCE COMPANY) (2012)

O. O. INTERNATIONAL LIMITED V. CHUKWUMA-MACHUKWU UME (Suing as RECEIVER/LIQUIDATOR TO FORTRESS INSURANCE COMPANY)

(2012)LCN/5748(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of December, 2012

CA/OW/289/2010

RATIO

EVIDENCE: DUTY OF THE TRIAL COURT WHERE THE DEFENDANT’S AFFIDAVIT DEFENDANT’S AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND IS SUCH THAT THE PLAINTIFF WILL BE EXPECTED TO EXPLAIN MATTERS WITH REGARD TO THE CLAIM

My above view is premised on the settled state of the law, first, that where the defendant’s affidavit in support of the notice of intention to defend is such that the plaintiff will be expected to explain matters with regard to the claim or where issues have been joined and facts are disputed as in the instant case, it is imperative and expedient for the trial court to allow for the full examination of the merits of the case. See, Abuja Trans National Market- vs. Abdu (supra) Muobike vs. Nwigwe (supra) Grand Cereals & Oil Mills Ltd. Vs. Asahel International Market NG & Procurement Ltd, (supra) Obi vs. Nkwo Market Community Bank (supra).

Second and relatedly, the courts have held that an affidavit disclosing a defence on the merit does not mean that the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron cast defence, all it means is that the defendant must show prima facie that he has a defence to the plaintiff’s action. In other words, it is not the business of the court to determine whether the defence of the defendant will succeed or not at the stage of granting leave to defend, that can only be done on calling oral evidence.

See.Agwuneme vs. Eze (1990) 3 NWLR (Pt. 137) 242, Okpara vs. Gusau (2009) All FWLR (Pt. 460) 801, Nya vs. Edem (2001) FWLR (Pt.57) 552 Nigeria Oil Mills Ltd. Vs.Allied International Industries Ltd (2003) FWLR (Pt.154) 545. PER MOJEED ADEKUNLE OWOADE, J.C.A

PROCEDURE: NATURE OF A LIQUIDATED DEMAND

In the case of Nigerian Postal Services vs. Insight Engineering Company Ltd, [2006] 8 NWLR (Pt. 983) 435 at 455 – 456, the Court of Appeal examined a provision identical with Order 24 rule (1) of the Federal High Court (Civil Procedure) Rules 2000. The court per Aboyi John Ikongbeh, JCA held as follows:

“lt can be seen ….that it is only in respect of claims to recover a debt or liquidated money demand” that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list if the action is not for the recovery of a debt or a liquidated money demand then no application for placement of the matter on the undefended list can be entertained by the court.” PER MOJEED ADEKUNLE OWOADE, J.C.A

JUSTICES

UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria

MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria

HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria

Between

O. O. INTERNATIONAL LIMITED Appellant(s)

AND

CHUKWUMA-MACHUKWU UME (Suing as RECEIVER/LIQUIDATOR TO FORTRESS INSURANCE COMPANY) Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A: (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of H.T. Soba J. delivered on 15/5/2007 in Suit No. FHC/UM/CS/108/2006 at the Federal High Court sitting at Umuahia. The Writ of Summons in this case was filed at the Abuja Division of the Federal High Court but was transferred to the Umuahia Division of the Court.
The Respondent Cross-Appellant as plaintiff in the court below filed a Writ of Summons with a verifying affidavit on 27/7/2006 that his claims against the defendant appellant Cross-Respondent be entertained under the undefended list.
The claims of the Respondent Cross-Appellant as endorsed on the Writ of Summons are as follows:
(a) The outstanding premium of N188,880.00
(b) The cost of this suit which is assessed at N300,000.00.
(c) Total sum of N488,880.00
(d) 20% of the judgment sum until same is paid.
On 14th day of September 2006, Mr. N.D. Ojeh, counsel to the Defendant/Appellant Cross-Respondent filed a Notice of intention to defend the suit pursuant to the provision of Order 24 Rule 3(1) of the then Federal High Court (Civil Procedure) Rules 2000.
Consequently, the Plaintiff Respondent cross-Appellant filed a further and better verifying Affidavit on 5/3/2007. The suit was nevertheless heard on the undefended list on 3/4/2007. In his judgment the learned trial Judge held upon going through the defendant’s notice of intention to defend the suit that the defendant has not disclosed reasonable defence to the principal claim.
At page 66 of the record, the learned trial Judge concluded:
“Accordingly, judgment is hereby entered in favour of the plaintiff in the sum of N188,800.00 premium. The defendant to defend the other legs of the claim to wit assessment of the cost of the suit and the amount of interest for the principal.”
Both parties to the suit were dissatisfied with this judgment. The defendant filed a Notice of Appeal containing three (3) grounds of appeal dated 16/5/07 on 22/5/2007. The plaintiff also filed a cross-appeal containing two (2) grounds of appeal on 8/10/2010.
The grounds of appeal of the Defendant Appellant devoid of particulars are as follows:
Ground One
The learned trial Judge erred in law when he entered judgment in favour of the plaintiff based on the further and better verifying affidavit of the plaintiff.
Ground Two
The learned trial Judge erred in law when he entered judgment in favour of the Respondent in terms of writ of summons.
Ground Three
The judgment of the honourable court is perverse, it being against the weight of evidence.
Also the grounds of the cross appeal of the plaintiff Cross-Appellant devoid of particulars are as follows:
Ground 1
The Hon. Trial Judge erred in law when he failed to award post judgment interest in favour of the Cross-Appellant but ordered the Cross-Respondent defend same.
Ground 2
The Hon trial court erred in law when he having found that the Respondent had no defence to the case, went ahead to separate the claims entering judgment in part and ordering defence in one part.
The relevant briefs of argument for the appeal and the cross-appeal are as follows:
1. Appellant’s brief of argument dated 17/12/2010 and filed on 21/12/2010 – settled by ND Ojeh, Esq.
2. Respondent’s brief of argument dated 20/12/2010 and filed on 21/12/2010 – settled by Innocent M. Njaka, Esq.
3. Cross-Appellant’s brief of argument dated 20/12/2010 and filed on 21/12/201 0 – settled by Innocent M. Njaka, Esq.
4. Cross-Respondent’s brief of argument dated 20/12/2010 and filed on 22/12/2010 – settled by ND Ojeh, Esq.
THE MAIN APPEAL
Learned counsel for the Appellant nominated a sole issue from the three (3) grounds of appeal in the main appeal; namely:
“Whether the trial court was right to have entered judgment in favour of the respondent in favour of the Respondent based on the further and better verifying affidavit instead transferring the matter to the general cause list (grounds 1 and 3).”
Counsel for the Respondent also submitted a sole issue for determination, to wit:
“Whether considering the affidavit evidence before the Honourable Court, the Hon. Trial Court was not right to have entered judgment in favour of the Respondent under the undefended list procedure.”
On the sole issue, learned counsel for the Appellant submitted that the essence of summary trial under the undefended list procedure is to quickly dispose of non-contentious claims.
That, where the defendant disputes the plaintiff’s claim and goes ahead to join issues with the plaintiff by filing affidavit of facts which compels the plaintiff to file further affidavit which raises new issues, the undefended list procedure cannot be appropriate.
In those circumstance, counsel said, the only inevitable conclusion that will be ultimately drawn is that the defendant had raised triable issues, which call for resolution through the laying of oral evidence.
He referred to the provision of Order 24 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2000 (now Order 12 Rule 3(1) of the Federal High Court (Civil Procedure) Rules, 2009.
Counsel submitted that in an undefended list matter where the defendant’s affidavit raises substantial question of fact or law which ought to be tried or there is an alleged misrepresentation by the plaintiff or the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiffs witnesses, then \he defendant ought to be let in to defend.
On this, he referred to the cases of Okoro vs. Okoro (2009) All FWLR (Pt 489) 480, University of Nigeria vs. Orazuruike Trading, Co. (1989) 5 NWLR (Pt 119) P. 19, Agbo Millans Ltd. Vs. CMB (1997) 10 NWLR (Pt 525) P.469, Daniel vs. Samad (Nig.) Ltd (1997) 7 NWLR (Pt.514) P.673.
Counsel submitted that Order 24 of the Federal High Court (Civil Procedure) Rules 2000 (now Order 12 of the 2009 Rules) does not admit of filing of better and further affidavit. That, once the defence is filed, it is incumbent on the trial Judge to decide one way or the other. He referred to the case of Okoro vs. Okoro (supra).
Counsel submitted that the law is settled that triable issue under the undefended list procedure is disclosed where the defendant’s affidavit in support of the notice of intention to defend is such that the plaintiff will be expected to explain matters with regard to his claim or where the averments in the affidavit casts a doubt on the plaintiff’s claim. That, the courts have held that leave to defend will generally be granted in suits brought under the undefended list and the suit transferred to the general cause list for its full trial, when:
(i) The defendant raises a substantial question of fact or law which ought to be tried as in the instant case or
(ii) The defendant alleges misrepresentation or fraud by the plaintiff, or
Once it becomes evident, as in the instant case that issues have been joined and facts are disputed, it is imperative and expedient for the trial court to allow for the full examination of the merits of the case.
He referred to the cases of Abuja Trans National Market vs. Abdu (2007) All FWLR (Pt. 376) P. 657, Muobike vs. Nwigwe (2000) 1 NWLR (Pt. 642) 620, Grand Cereals & Oil Mills Ltd vs. Ashel International Market NG & Procurement Ltd. (2000) 4 NWLR (Pt. 652) 310, Obi.vs. Nkwo Market Community Bank Ltd (2001) 2 NWLR (Pt. 690) 113.
Counset submitted that their position is strengthened by the nature of judgment given by the trial court that is giving judgment in respect of the alleged liquidated sum and special damages and transferring the issue of interest for hearing. The question that arises, said counsel is, can a court give two separate judgments in respect of one claim?
He answered the question in the negative. He referred to the definition of judgment in the seventh edition of the Black’s Law Dictionary at page 846 as “A court’s final determination of rights and obligations of the parties in a case” He also referred to the provision of Order 23 Rule 1 of the Federal High Court (Civil Procedure) Rules 2009 which states that “The Judge shall after trial deliver judgment in open court” He submitted that in the present case, the judgment delivered by the trial court fell short of the definition of judgment as above defined. He added that a judgment decreed before the conclusion of trial as in the instant case cannot be regarded as a judgment in stricto sensu:
Appellant’s counsel further submitted that under the undefended list procedure all that a defendant needs to do is to file a notice of intention to defend and also an affidavit disclosing a defence on the merit. That, the courts have held that an affidavit disclosing a defence on the merit does not mean that the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron cast defence all it means is that the defendant must show prima facie that he has a defence to the plaintiff’s action. The defence may fail or succeed but that can only be determined after the hearing of the suit.
He referred to the cases of Agwuneme vs. Eze (1990) 3 NWLR (Pt.137) 242, Okpara vs. Gusau (2009) All FWLR (Pt. 460) 801, Nya vs. Edem (2001) FWLR (Pt. 57) 552, Nigeria Oil Mills Ltd. Vs.,Allied International Industries Ltd (2003) FWLR (Pt. 154) 545.
Finally, learned counsel for the Appellant urged that the appeal be allowed and that the decision of the court below be set aside.
Learned counsel for the Respondent on the other hand submitted that the Appellant having admitted in writing of his indebtedness cannot be heard to raise a defence because the matter is in court. Counsel reiterated what he termed the clear facts of the case, that the main matter before the court below was whether the Appellant was issued with a performance bond by the Respondent and whether the whole premium was paid by the Appellant. That, the verifying affidavit in support of the application to enter the suit under the undefended list stated that performance bond was issued to the Appellant and that it (the appellant) only paid a premium of N50,000.00 leaving a balance of N188,880.00.
Counsel submitted that the Appellant subsequently filed a Notice of Intention to defend raising issues to the effect that the liquidator was not appointed and that it did not sign any bond. Consequently, the Respondent by means of further and better affidavit supplied documents showing that the liquidator was duly appointed and that winding up proceedings of the Respondent company was ordered and that leave was obtained by the liquidator.
Respondent’s counsel submitted that in those circumstances, “to allow the appellant to get away with the denial of peripheral facts, when the meat of the matter was left unanswered would be to allow them to dribble the plaintiff out of the judgment to which it was lawfully entitled.”
Counsel added that where the defendant in an undefended list procedure admits a liquidated debt in writing, he has afforded the plaintiff good ground for instituting the procedure.
He referred to the cases of Kenfrank (Nig.) Ltd. Vs. U.B.N. Plc. (2002) 8 NWLR (Pt. 789) 46 at 74, Aikabeli vs. African Petroleum Plc. (2001) 6 NWLR (Pt. 708) 93 at 101.
Learned counsel for the Respondent submitted that it would still have been a waste of precious judicial time to have transferred the case to a general cause list because it is the same evidence to which the Appellant has no answer to that would still be tendered. That, exhibits attached to the further and better affidavit as well as the main affidavit put it beyond doubt that the Appellant is indebted to the respondent.
He referred to the cases of University of Ilorin vs. Oyalana (2001) 15 NWLR (Pt. 737) 684 at 706, and National Electoral Commission & Qrs. vs. Sunday Oyonda Wodi (1989) 2 NWLR (Pt. 104) 444.
Counsel submitted that in view of the above, the court does not need oral evidence in this case to determine whether the Appellant was indebted to the Respondent. Documentary evidence, he said, is the best evidence. To call for oral evidence in this case will only cause more injury on the Respondent and defeat the entire purpose of the undefended list procedure.
Counsel submitted that the court cannot overlook a vital document/evidence before it on technical ground that the rule does not provide for further and better verifying affidavit. He argued that even documents in file can be utilized to support established facts. He referred to the case of Agbaisi vs. Fbikorefe (1997) 4 NWLR (Pt. 502) 630 at 648.
Counsel urged us to hold that the court below followed the right procedure and that the totality of the evidence before the court support the procedure adopted by the court in referring to the further and better verifying affidavit and entering judgment in favour of the Respondent. And, that in the event that this court found that the court below was wrong (not conceding) that the first verifying affidavit was enough to support the judgment entered in favour of the Respondent.
In deciding the sole issue for determination in this case, I think it is important to separate the relevant from the not so relevant in the arguments of counsel to the parties. For example, both counsel seemed to have dwelt so much on the propriety perhaps legality of a further and Better Affidavit by the Respondent after the Appellant had served a notice of intention to defend the suit. As the name sounds a further and better affidavit is to explain missing links in the case of the plaintiff and sometimes to serve as a reply to the defendant’s counter-affidavit. On the face of it, the provision of Order 24 Rule 3(1) of the Federal High Court (Civil Procedure) Rules 2000 (now Order 12 Rule 3 (1) of the Federal High Court Rules 2009) do not contemplate the use of further and better affidavit by the plaintiff for the court to take a decision either to grant or not to grant leave to a defendant to defend the suit.
However, the filing and consideration of such further and better affidavit by a trial Judge in the exercise of his discretion to grant or not to grant leave under the undefended list procedure cannot be considered fatal to the case.
In my opinion, there are two critical issues in the determination of Appellant’s sole issue. The first which was alluded to in the Appellant’s brief is that an affidavit disclosing a defence on the merit does not mean that the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron cast defence, all it means is that the defendant must show prima facie that he has a defence to the plaintiffs action.
Nigeria Oil Mills Ltd. vs. Allied International Industries Ltd. (2003) FWLR (Pt.154) 545.
The second, which escaped the mind of the learned counsel for the Appellant is whether or not the court below really conformed with the Provision of order 24 Rule 3(1) of the Federal High Court (Civil Procedure) Rules 2000 which talks of “an application in respect of a claim to recover debt or liquidated money demand.”
Learned counsel for the Appellant was right when he referred to the case of Abuja Trans National Market vg. Abdu (supra) to say that triable issue under the undefended list procedure is disclosed where the defendant’s affidavit in support of notice of intention to defend is such that the plaintiff will be expected to explain matters with regard to his claim or where the averments in the affidavit cast a doubt on the plaintiff’s claim.
Counsel for the Appellant would also have been right if he had said that in the instant case, the learned trial Judge would have seriously considered the fact that the filing of further and better affidavit itself by the Plaintiff/Respondent is suggestive of triable issues between the parties.
Now, let us take another look into the facts presented at the court below. Paragraphs 5-10 in particular of the Appellant’s affidavit in support of Notice of intention to defend at pages 34 – 35 of the record of appeal read as follows:
That the true facts of the transaction between the plaintiff and the defendant are as follows:
(a) That sometime in 2003, the defendant was awarded a contract by Abia State Housing and Property Development Corporation to build 6 No. 4 bedroom bungalow, 1 No. 4 bedroom duplex (Type C) and 3 No. 5 bedroom duplex (Type A) at a total cost of N47,760,000.00 at Unity Garden Estate, Osisioma.
(b) That as part of the requirements for the due execution of the contract, Abia State Housing and Property Development Corporation demanded a performance bond from a reputable insurance company.
(c) That the defendant approached the plaintiff and specifically told the plaintiff that her client, the Abia State Housing and Property Development Corporation demanded that the bond must come from a reputable and solvent insurance company.
(d) That the plaintiff’s Managing Director boasted to the defendant that the plaintiff was one of the best in the industry and that she was very solvent.
(e) That based on the elaborate representation of the staff of the plaintiff, the defendant then requested the plaintiff at her Umuahia office to issue the required performance bond at the premium of N286,560.00 on the 30th April, 2003.
(f) That on the 30th of April 2003 the plaintiff’s staff at Umuahia prepared the performance Bond Policy No. FBD/0015/UA annexed to the plaintiff’s affidavit and claimed that they forwarded same to her office at Owerri.
(g) That on the 2nd of May, 2003 when I visited the plaintiff’s office at Umuahia I was informed by the plaintiff’s M.C. Okoro and I verily believe him as follows:
(i) That the plaintiff’s Managing Director insisted that the defendant must make part payment of the premium before the performance bond could be prepared.
(ii) That by that 2nd of May, 2003 he had not forwarded the performance bond policy to the plaintiff’s head office for execution and sealing of same by the plaintiff’s Managing Director.
(h) That based on the information given to me by the plaintiff’s M.C. Okoro, I on behalf of the defendant made a part payment of N50,000.00 in respect of the premium of N286,000.00 in respect of the contract Ref. No. ABSHPDC/MD.163/1/43. Attached as Exhibit “A” is cash Receipt No. 3202 dated 2/5/2003.
(i) That it was after the payment in exhibit “A” that the plaintiff’s M.C. Okoro forwarded the performance bond policy No. FBD/0015/UA (Annexed to plaintiff’s affidavit) to his head office, Owerri for proper execution and sealing.
(j) That shortly after defendant’s payment of N50,000.00 to the plaintiff, the rumours of the plaintiff’s insolvency started spreading until it became common knowledge that the plaintiff was going into liquidation which it finally did and this made the defendant’s client uncomfortable with the proposed bond.
(k) That the inability of the plaintiff to process the performance bond policy and deliver same to Abia State Housing and Property Development Corporation caused the corporation to review the original contract awarded to the defendant and it advised her to secure a fresh performance bond policy. Abia State Housing and property Development Corporation letter to the defendant is herewith attached as Exhibit “B”.
(l) That up till today the plaintiff has not delivered the performance bond policy either to Abia State Housing and Property Development Corporation or to the defendant.
(m) That as a result of the plaintiff’s failure to issue the performance bond policy to Abia State Housing and Property Development Corporation the defendant suffered great loss which it intends to bring an action against the plaintiff.
(n) That upon being awarded the revised contract by Abia State Housing and Property Development Corporation, the defendant secured a valid Performance Bond from Coral International Insurance Co. Ltd. Attached herewith and marked as Exhibit “C” is Coral International Insurance Co. Ltd.
(o) That the defendant did not sign nor seals any performance bond policy issued by the plaintiff as she was not issued any by the plaintiff.
(6) That the defendant did not receive any letter from the Managing Director, HRM Eze J.C. Ojukwu dated 7th July, 2004 or on any other date.
(7) That the defendant is not owing the plaintiff any outstanding premium of N188,88.00 or any sum at all.
(8) That the defendant is not liable to the cost of this suit or any interest thereto.
(9) That the defendant has a good defence to this suit.
(10) That it will be in the interest of justice that this suit be transferred to the general cause list for both parties to be heard properly……..”
Obviously, the above paragraphs contained in the Appellant’s supporting affidavit to his notice of intention to defend the suit bellie the preposterous assumption contained in paragraph 2.0 of the Respondent’s brief that on receipt of the Appellant’s notice of intention to defend what the Respondent did was just to supply documents showing that the liquidator was duly appointed and that winding up proceedings were ordered with the leave of the court.
Besides, the above statement by the respondent does not explain or tally with the equally copious contentious replies to the Appellant’s affidavit of intention to defend contained in the Respondent’s further and Better Affidavit. For example, paragraphs, 10 – 23 of the Respondent’s further act Better Affidavit contained on pages 48 – 49 of the record of appeal averred as follows:
“10. That prior to June 2003 when the insurance cover elapsed and before the institution of this action at no point did the defendant communicate to the plaintiff, that the performance bond was rejected.
11. That if the revised contract and the Coral International Insurance co. Ltd. existed it is for entirely a different period, a different contract of a different value and therefore different from the claim of the plaintiff.
12. The purported revised contract did not make any reference to the earlier contract awarded to the defendant on which he was issued a performance bond by the plaintiff.
13. That the purported Performance Bond was affixed with rubber stamp and not company seal.
14. That the exhibit marked “C” to the Defendant’s Notice of Intention to defend was purposefully made to defeat the plaintiff’s claim.
15. That M.C. Okoro by his memo dated 2/5/2003 informed the Managing Director of Fortress Insurance Company Ltd. (in-liquidation) that he has issued a Performance Bond to the plaintiff and was only forwarding to him a copy for his record.
16. That it is this name M.C. Okoro, the defendant claims informed him “that by that 2nd May 2003 he had not forwarded the performance bond policy to the plaintiffs head office for execution and sealing of same by the plaintiff’s Managing Director”.
17. That I know as a fact that Bawas Investment Ltd. was awarded the same contract by Abia Housing Corporation of the same value and for the same period and it secured a performance bond of Fortress Insurance Company Ltd. in liquidation.
18. That the same way the Defendant’s Performance Bond was forwarded to it was the same way it was forwarded to BAWAS INVESTMENT LTD and it paid its premium completely and never came back to complain as the defendant is complaining. The letter and the receipt of payment issued to the BAWA Investment Ltd is herein attached and marked Exhibit ‘B’ and ‘B2’.
19. That while the purported revised contract is dated 17th September 2004, the purported Coral International Insurance Co. Ltd. Performance Bond is referring to another contract letter of 7th October 2004.
20. That the Defendant’s Affidavit in Support of Notice of Intention to defend is full of conjectures, contradictions and raised no triable issues.
21. That M.C. Okoro remained in the employment of the plaintiff till August 2004 and did not counter his memo dated 2/5/2003.
22. That I know as a fact that the defendant has no defence to this action.
23. That the defendant is only buying time and is committed to frustrating the plaintiff’s claim….”
A perusal of the Affidavit in Support of the Appellant’s Notice of intention to defend the suit as well as the Respondent’s Affidavit and further and Better Affidavit reveals that there are contentious and triable issues in between the parties. Indeed, if nothing else is contentious, the question whether or not the appellant actually received the Respondent’s performance bond is in dispute.
The question of whether the Appellant rejected the Respondent’s performance bond is triable. So is the question of whether there was a revised contract ad another performance bond in favour of the appellant by Coral International Insurance Co. Ltd.
In all the circumstances of the case, more especially because the purported indebtedness of the Appellant to the respondent was based on the premium payable on a contract of insurance, the learned trial judge would have exercised his discretion under the provision of Order 24 Rule 3(1) of the Federal High Court (Civil Procedure) Rules 2000 in favour of the Appellant by granting leave to defend the suit on such terms as the court may think just.
My above view is premised on the settled state of the law, first, that where the defendant’s affidavit in support of the notice of intention to defend is such that the plaintiff will be expected to explain matters with regard to the claim or where issues have been joined and facts are disputed as in the instant case, it is imperative and expedient for the trial court to allow for the full examination of the merits of the case. See, Abuja Trans National Market- vs. Abdu (supra) Muobike vs. Nwigwe (supra) Grand Cereals & Oil Mills Ltd. Vs. Asahel International Market NG & Procurement Ltd, (supra) Obi vs. Nkwo Market Community Bank (supra).
Second and relatedly, the courts have held that an affidavit disclosing a defence on the merit does not mean that the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron cast defence, all it means is that the defendant must show prima facie that he has a defence to the plaintiff’s action. In other words, it is not the business of the court to determine whether the defence of the defendant will succeed or not at the stage of granting leave to defend, that can only be done on calling oral evidence.
See.Agwuneme vs. Eze (1990) 3 NWLR (Pt. 137) 242, Okpara vs. Gusau (2009) All FWLR (Pt. 460) 801, Nya vs. Edem (2001) FWLR (Pt.57) 552 Nigeria Oil Mills Ltd. Vs.Allied International Industries Ltd (2003) FWLR (Pt.154) 545.
Therefore, on account alone of his failure to transfer the suit to the general cause list having regard to the substantial questions of fact which ought to be tried, the learned trial Judge was in error having not exercised his discretion under the provision of Order 24 Rule (1) of the Federal High Court (Civil Procedure) Rules 2000 judicially and judiciously.
A more fundamental error by the learned trial Judge in relation to this case was the breach of the provision of Order 24 Rule (1) of the Federal High Court (Civil Procedure) Rules 2000. Order 24 Rule (1) opened up and says in part:
“Whenever application is made to a court for the issuance of a writ of summons in respect of a claim to recover a debt or liquidated money demand……”
Unfortunately, the learned trial Judge in the instant case did not consider that the claim of the Respondent in the court below was not entirely for a debt or for liquidated money demand.
The Plaintiff’s/Respondent’s claim as contained in the Writ of Summons was hybrid, it was an admixture of a debt and an unliquidated sum of money. It would be recalled that the Respondent claimed as follows (a) the outstanding premium of N188,880.00 (b) the cost of this suit, which is assessed at N300,000.00 (c) the total sum of N488,880.00 (d) 20%o of the judgment sum until same is paid.
Clearly, the claim of N300,000.00 for the cost of the suit is not for liquidated money and could not be accommodated under the undefended fist procedure. Similarly, when a claim for debt and/or liquidated money demand is joined in the same Writ of Summons with a claim for unliquidated money demand such a cause of action should be transferred from the undefended list to the general cause list.
The 7th Edition of the Black’s Law Dictionary at page 432 defined ‘debt’ as liability on a claim, a specific sum of money due by agreement or otherwise ……..”the dictionary says:
“The action of debt lies where a party claims the recovery of a debt, that is a liquidated or certain sum of money due him …….”

A liquidated demand is a debt or other specific sum of money usually due and payable or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore,the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said, to be ‘liquidated’ or ‘made clear’. See, Befareen Pharmacy Ltd. vs. African International Bank Ltd [2005] 17 NWLR (Pt. 954) 230 at 244.
In the case of Nigerian Postal Services vs. Insight Engineering Company Ltd, [2006] 8 NWLR (Pt. 983) 435 at 455 – 456, the Court of Appeal examined a provision identical with Order 24 rule (1) of the Federal High Court (Civil Procedure) Rules 2000. The court per Aboyi John Ikongbeh, JCA held as follows:
“lt can be seen ….that it is only in respect of claims to recover a debt or liquidated money demand” that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list if the action is not for the recovery of a debt or a liquidated money demand then no application for placement of the matter on the undefended list can be entertained by the court.”
The claim of the cost of the suit which was assessed by the Respondent at N300,000.00 is not a debt or liquidated sum and it is not certain that the court would grant such amount to the Plaintiff/Respondent. Therefore, that particular claim has defeated the purport of Order 24 Rule (1) of the Federal High Court (Civil Procedure) Rules 2000 relating to the undefended list.
On the whole, the learned trial Judge was in error not to have transferred the Respondent’s suit to the general cause list in all the circumstances of the case. For this reasons, the sole issue in this appeal is resolved in favour of the Appellant. Accordingly the appeal succeeds. Suit No. FHC/UM/CS/108/2006 is remitted to the Federal High Court to be heard de novo.
I make no order as to cost.
The Cross-appeal
The Plaintiff/Respondent to the main appeal cross-appealed by filling a Notice of Appeal containing two (2) grounds of appeal before this court on 8/10/2010.
The Respondent’s Cross-Appellant’s grounds of appeal devoid of particulars are as follows:
Ground 1
The Hon. Trial Judge erred in law when he failed to award post judgment interest in favour of the cross Appellant but ordered the cross Respondent defend same.
Ground 2
The plaintiff/Cross Appellant need not to prove a post – judgment interest under the undefended list procedure.
The parties to the cross-appeal filed and exchanged briefs of argument.
The Cross-Appellant nominated a sole issue for determination namely:
“Whether the Hon.Trial Court on granting the judgment sum as prayed can justifiably refuse to award a post judgment interest on the same sum but called for the defence of the said interest.”
The Cross-Respondent also formulated a sole issue that is:
“Whether the Honourable Trial Court was wrong to have refused to award a post judgment interest immediately in the circumstances of this case… … .”
The summary of the Cross-Appellant’s argument on the sole issue is that the learned trial Judge was in error in not awarding post-judgment interest to the Cross-Appellant and also in error in splitting the judgment of the court as the splitting of a judgment is not known to our laws. In particular that:
(a) Post judgment interest is statutory ad ought to be obeyed by the trial judge
(b) Neither the rules nor the case law made any provisions for split judgment.
(c) Where the defendant has no defence to a claim of liquidated sum in an undefended list procedure, judgment shall be given to the plaintiff without more.
(d) The prayers accompanying the principal claim are incidental to it and ought to be pronounced upon either way.
The Cross-Respondent on the other hand argued that a post judgment interest as the name implies is usually awarded by the court at the end of trial after the total amount of judgment debt would have been determined. That, in the instant case, the judgment of the court is not a final judgment having not determined the total debt owed and therefore the court below was right not to have awarded a post judgment interest.
It is suffice to say that having held that there are fundamental irregularities in the judgment of the court below in the main appeal and having ordered a retrial of the case on appeal, the cross-appeal has no leg to stand. Something cannot be placed on nothing. It is not appropriate for me to go into the merit of the cross-appeal.
The cross-appeal is accordingly struck out. And, that shall be the order of the court.
I make no order as to costs.

UWANI MUSA ABBA AJI, J.C.A (PRESIDING): I have read before now the judgment of my Learned brother M. A. Owoade, JCA just delivered.
I agree with the reasoning and conclusion of my learned brother therein arrived at that the appeal is meritorious. It is also allowed by me. The judgment of the trial Court delivered on the 15th May, 2007 is hereby set aside.
The suit is hereby remitted to the Federal High Court for trial de novo. Accordingly, the cross appeal is struck out.
I endorse the consequential order as to costs.

HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading earlier than now, the lead judgment delivered by my learned brother, M. A. Owoade, JCA.
My learned brother reasoned that having found fundamental irregularities in the judgment of the lower court in the main appeal, and having ordered a retrial thereon, the cross-appeal should not be allowed to stand. He accordingly ordered that the cross-appeal be struck out. I agree with him. In that respect, I allow the appeal and strike out the cross-appeal.
I abide by the orders on costs.

Appearances

Njideka Animwonwa, Esq.For Appellant

AND

Chukwuma Machukwu Ume, Esq.For Respondent