REV. JOSEPH SUNDAY KEHINDE v. MR LINUS OKPARAONU
(2013)LCN/6253(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2013
CA/J/110/2010 (2)
JUSTICE
RAPHEAL CHIKWE AGBOJ ustice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
REV. JOSEPH SUNDAY KEHINDE Appellant(s)
AND
MR. LINUS OKPARAONU Respondent(s)
PETER OLABISI IGE, JCA (Delivering the Leading Judgment): By his writ of summons filed in the Registry of Plateau State High Court sitting in Jos on 23rd day of July, 2009, the Respondent as Plaintiff claimed the sum of N16, 000,000.00 (Sixteen Million Naira) against the Appellant as Defendant as being the balance of building Materials the Respondent supplied to the Appellant on credit sometime in 2007 in Jos at the Appellant’s request according to the Respondent. The Respondent also claimed 10% interest on the said sum from the date of Judgment until final liquidation of the Judgment debt. By the application of the Respondent pursuant to Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules 1987 praying for a transfer of the suit to the Undefended List was granted on 30th day of July, 2009 and the writ was marked “UNDEFENDED LIST”
On 4th day of August 2009 the Appellant filed NOTICE OF INTENTION TO DEFEND the suit accompanied by Affidavit in support of Notice to Defend consisting of 42 paragraphs. The matter was heard before the learned trial Chief Judge of Plateau State and on 25th day of March, 2010 the learned trial Judge gave Judgment against the Appellant having found that Appellant has not made out a case for the transfer of the case to the General Cause List. In his Judgment aforesaid the learned trial Chief Judge held:-
“As stated earlier on the said issue of threat to his life resulting to the issuance of the several dishonoured cheques and exhibit C without him reporting same to the police or any of his colleague’s pastors or confidant is hard to believe, I hold an (sic) accept that Exhibit C is a clear admission on the part of the defendant of his indebtedness to the Plaintiff in the sum of N16,000.000.00 The issue of threat to life or endorsing same under duress is an after thought aimed at either delaying this suit or frustrating the Plaintiff out of the recovery of his liquidated sum demand, I therefore hold that the defendant has no defence on the merit or any defence at all for that matter.
On the issue of claim of 10% post Judgment interest, I hold that this does not disqualify the suit from being heard on the undefended list because it is at the discretion of the court and is provided for in our rules of Court.
On the whole, I hold that by the provision of order 23 Rule 4 of the Plateau State High Court (Civil Procedure) Rules 1987, as amended, the plaintiff is entitled to Judgment in the sum of N16,000,000 as endorsed on the writ of summons without necessarily calling upon him to prove his case formally.
I therefore, hereby enter judgment in favour of the Plaintiff in the sum of N16, 000.00, against the defendant. The Plaintiff is equally entitled to 8% post Judgment interest on the Judgment sum of N16, 000,000”
The Appellant was aggrieved.
On 9th April, 2010 he lodged an appeal against the Judgment of the trial court on three grounds. It is pertinent to reproduce the grounds. They are as follows:-
“GROUNDS OF APPEAL:-
GROUND ONE:-
The learned trial Chief Judge erred in Law when he held that the Appellant did not disclose a defence on the merit to warrant the case to be transferred to the general cause list for trial and thereby entered Judgment against the Appellant.
PARTICULARS OF ERROR
a. The Appellant maintained that he never bought any building material from the Respondent but that the transaction bordered on money lending.
b. The transaction leading to this case started in 2005 and if there was sale of building materials where are the credit sales invoices since the buying and selling was not concluded in one day.
c. That Igwe Joseph Ejimbe, the Ezeigbo of Jos presided over this matter following complaint to him by the Respondent and the Respondent never stated then that the Appellant bought building materials from him before the Ezeigbo of Jos.
d. There are disputed facts from the comparison of the affidavits of the parties to warrant a transfer to the general cause list.
e. The trial Chief Judge accepted that there are disputed facts when he held that whether the transaction is from money lending or sale of building materials what is important is that there is financial transaction.
GROUND TWO
The Learned trial chief Judge erred in Law when he refused to transfer the case to the general cause list for trial even when the Appellant deposed that he had a counter-claim against the Respondent.
PARTICULARS OF ERROR
a. The Appellant deposed in his affidavit in support of the notice of intention to defend that he has a counter claim against the Respondent.
GROUND THREE
The Judgment is against the weight of evidence adduced at the trial.”
The Parties to this Appeal exchanged Briefs of Arguments. The Appellant’s Brief of Argument filed on 30th day of November, 2010 was deemed property filed and served by this court on 23rd day of June, 2011.
The Respondent filed his Brief Argument on 1st day of July, 2011. The Appellant found it necessary to file Reply to the Respondent’s Brief of Argument on 12th day of July, 2011.
The appeal was heard on 4th day of March, 2013 when the learned counsel to the parties to this appeal adopted their respective Briefs of Argument in this appeal.
The Appellant formulated two issues for determination as follows:-
“1. Whether from the affidavit in support of the notice of intention to defend, the Appellant did not disclose a triable issue to warrant the transfer of the case to the general cause list for trial. (Grounds 1 and 3 of the Notice of Appeal.
2. Whether the trial court was right to have entered Judgment to the Respondent notwithstanding that the Appellant averred that he had a counter-claim against the Respondent to claim the certificate of Occupancy that was given to the Respondent as security for the loan. (Ground 2).
On his part the Respondent also raised two issues as arising for determination in this appeal namely:-
“1. Whether the affidavit in support of notice of intention to defend the suit filed by the appellant/defendant disclosed triable issues that would have necessitated the transfer of the case to the Ordinary cause list.
2. Whether the mere averment of a defendant that he has a counter claim in a suit under the undefended list is sufficient to warrant the transfer of the case to the ordinary cause list.”
There is no doubt in my mind that this appeal can be determined on the two issues distilled by the Appellant from his three grounds of appeal.
ISSUE 1
WHETHER FROM THE AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND, THE APPELLANT DID NOT DISCLOSE A TRIALBLE ISSUE TO WARRANT THE TRANSFER OF THE CASE TO THE GENERAL CAUSE LIST FOR TRIAL (GROUNDS 1 AND 3 OF THE NOTICE OF APPEAL).
L. E. Manulu Esq., for the Appellant argued that the general principle in a suit brought under undefended Cause List is that the Defendant must disclose a defence on the merits before he could be allowed to defend the suit in order to have suit transferred to the general cause list. That the courts have held that the Affidavit in support of notice of Intention to defend the action must disclose triable issues and not a sham defence intended to cause delay and frustrate justice. He cited and relied on the case of
UBEMBA V. MORECAB FINANCE (NIGERIA) LIMITED (2003) 1 NWLR (PART 800) 96 AT 109 E-G.
That the claim of the Respondent was that Appellant bought building materials worth N67, 520,000.00 on credit in 2007, from him. That there was no Credit Sales Invoice exhibited by the Respondent to show there was such a transaction.
That the Appellant denied the Respondent’s assertion that Appellant paid him N51, 520,800.00 as there was no cash invoice to show the said payment. He stated that the Appellant had in the Affidavit in support of his Notice of Intention to defend paragraphs 3-16 and 18 – 39 thereof mentioned Messrs Shina and Ezeigbo as living witnesses as to the transactions between the Appellant and the Respondent. That the money he borrowed from the Respondent has nothing to do with supply of building materials. That there was no evidence of prices of the purported building materials the Respondent claimed to have supplied to the Appellant. That all these are triable issues that are enough to take the suit to general cause list for a full trial. That a triable issue is an uncontradicted and uncontroverted material allegation contained in the Appellant’s Affidavit to support his Notice of Intention to defend the action which averments, learned counsel to the Appellant contended are sufficient for further examination and trial by the trial court to unearth its veracity or otherwise. He relied on the case of MAT HOLDING LTD V. UBA PLC (2003) 2 NWLR (PART 803) 71 AT 91 – 92 F-A. That if the transaction had been supply of building materials there would not have been any need to give the Certificate of Occupancy to Respondent as collateral. That there was clear case of dispute between the parties necessitating the need for transfer of the case to the general Cause List. That where the Affidavit in support of a Notice of Intention to defend is such that the Respondent ought to explain certain matters with regard to his claim or where a doubt is cast on the plaintiff’s claim then a traible issue is said to have been made out. He referred to the cases of OGBAEGBE V FBN PLC (2005) 18 NWLR (PART 957) 357 at 381 B-C and UBA PLC VS MODE (NIG) LTD 9 2001) 13 NWLR (PART 730) 335 at 364 E-F.
That the Respondent ought in this case to explain why he did not give credit sales Invoice for a transaction that took place in 2007. That the Respondent needed to explain why he did not show evidence of payment of N51, 520,000 to him from the Appellant. That he ought to explain also how come he was in possession of Certificate of Occupancy No.BP2779 belonging to Appellant’s wife. That these are material conflicts that required oral evidence from the parties at the trial court. He relied on the case of BEFAREEN PHARM. LTD V. A.I.B. LTD (2005) 17 NWLR (PART 954) 230 at 2247 – 248 H-A. That the lower court should have required answer to the following:-
(a) What the sum of N51, 520,800.00 that was paid represented. What quantity of building materials.
(b) On what date was the amount paid?
(c) Where is the cash receipt of the payment?
(d) Why was the agreement Exhibit C made in 2009 when the supply was made in 2007?
(e) Where is the delivery note of the building materials worth N670, 520,800.00?
That these are enough to enable the trial court transferred the case to the general cause fist. He relied on the case of EURO-BATI CONCEPT S. A. V. T.I.C. LTD (2007) 18 NWLR (PART 744) 165 at 181 A-C.
That by his finding on page 44 lines 12-18 of the Judgment the trial court acknowledged that there is a triable issue raised by the appellant. That if as the learned trial Judge found that whether the transaction was money lending or supply of goods there have been monetary transaction, the learned counsel to the Appellant wondered whether the learned trial chief Judge ought not to have asked a further question as to whether the Respondent has the license to engage in that kind of business. The learned Appellant counsel however conceded that Exhibits A1 A4, B and C respectively were signed by the Appellant but that the circumstances surrounding the signing of those exhibits were explained by the Appellant in his Affidavit that it was due to undue influence and threats to life. That the failure of Appellant to report the matter to the Police or Pastors colleagues would have come up during trial. That all the Appellant was expected to do to enable the court transfer the case to general cause list was to cast doubts on the Respondent’s application for Judgment under the Undefended List relying on the case of V. S. STEEL (NIG) LTD V. GOVERNMENT OF ANAMBRA STATE (2001) 8 NWLR (PART 715) 454 at 465 F-G.
He urged the court to allow this appeal on this issue and send the case back for full trial under the general cause list before another Judge.
In response to Issue 1, the learned counsel to the Respondent I. E. ASOGWA Esq. submitted that a defendant can only be given leave to defend an action under the undefended list if he files a notice of intention to defend the case together with an affidavit disclosing a defence on the merit. This position he argued is anchored on the provisions of ORDER 23 RULES 3(1) of plateau State High Court (Civil Procedure) Rules 1987. That a defendant who has no real defence to an action and whose Affidavit does not disclose such a defence would not be allowed to frustrate the Plaintiff out of the Judgment he is legitimately entitled by the delay tactics of the defendant. He relied on the case AGRO MILLERS LTD V. CONTINENTAL MERCHANT BANK NIG PLC (1997) 10 NWLR PART 525) 469 at 477 – 478. He submitted that the Appellant/defendant’s Affidavit in support of his notice of Intention to defend the action did not disclose a real defence but was rather meant to dribble or frustrate the Plaintiff’s claim. That the Respondent averred that the Appellant was owning him up to the sum of N67, 520,800.00 as cost of building materials supplied to Appellant on credit. He stated that the Respondent exhibited cheques issued by the Defendant and a promissory Note to pay the balance of N16,000,000.00 in two installments but failed and claimed he was induced and under threat to life when he signed those documents. The learned counsel to the Respondent submitted that the appellant failed to provide particulars of the allegations made by him and that the failure was an indication that he did not have any real defence to the action. That mere general denials are not sufficient to transfer an action to the ordinary Cause List. He relied on the cases of AGRO MILLERS LTD V. CONTINENTAL MERCHANT BANK (NIG) PLC supra at 478 – 480 and MACAULAY V. NAL MERCHANT BANK LTD. (1990) 4 NWLR (PT. 144) 283.
On the question of loan without particulars and threat to life of Appellant, the learned counsel to the Respondent said the Appellant failed to state the place he was threatened, with what he was so threatened and the occasions. He urged the court to take cognizance of the documents which were executed by the Appellant as having been executed on different dates without complaints from any of the parties. That it is not enough for Appellant to merely state that he was threatened to sign documents, he must furnish particulars and establish it. That merely deposing to it in paragraph 39 of the Affidavit of Intention to defend would not be enough. He relied on the case of EDE LOCAL GOVERNMENT V. HON. MATTHEW BISOYE KESINRO & ORS (2009) 4 NWLR (PART 1131) 405 at 425 B-E & 427-428 G-A and ALHAJI ALIYU ABUBAKAR V. LAWRENCE MANULU (2001) 8 NWLR (PT 716) 717 AT 728 B-H.
That all the Appellant deposed to on pages 26-30 of the Record without proof cannot avail him and that Appellant did not report any of the incidents to the security Agents. That the Appellant did not also make any demand to retrieve those documents even after they were signed. That the facts deposed to by Appellant did not cast any doubt on the Respondent’s case to warrant the transfer of the case to the general cause list. He cited and relied on the cases of UNITED BANK FOR AFRICA PLC & ANOR V. ALH. BABANGIDA JARGABA (2007) 11 NWLR (PT 1045) 247 AT 270 – 271 H.A, 273 C-E AND ASO MOTEL KADUNA LTD VS MR DAYO ADEYEMO (2006) 7 NWLR (PT 978) 87 at 123 D-G.
That there was no conflict in the Affidavits before the trial court requiring any explanation. He relied on the case of MRS. B. A. SANYAOLU V. ALH. ABDUL WAHAB ADEKUNLE & ANOR (2006) 7 NWLR (PART 980) 551 at 563 – 564 E-A. That there were no material conflicts between the affidavits before the court sufficient enough to transfer the case to the general cause list. He relied on the case of CHARLES EKELIOANYA V. HON. CHIKE ANYAONU (2003) 7 NWLR (PT. 819) 259 at 273 E-G. That since it was the Appellant who stated that the transaction was not supply of building materials but loan transaction then the Appellant ought to exhibit documents to lend credence to that assertion. He submitted that the lower court was right in hearing the case under the undefended list and entering Judgment for the Respondent. The Respondent learned counsel urged the court to resolve issue one in favour of the Respondent.
The Appellant in his Reply brief filed on 12/7/2011 in response to the Respondent’s submission on issue one mostly reargued issue one. He however argued that the Appellant was not at the time of hearing the action under the undefended list expected to make out a complete defence to the Respondent’s claim as he would at the trial but to make out a prima facie case. According to the learned Appellant counsel:-
“The chances of success of the said defence or its merit is immaterial
It does not even matter whether the defence is shallow provided a triable issue is raised in the notice of intention to defend.”
He reeled out several authorities viz.
1. BEFAREEN PHARMACY LTD VS A. I. B. LTD (2005) 17 NWLR (PART 954) 230 AT 246 E-F,
2. V. S. STEEL (NIG) LTD v. GOVERNMENT OF ANAMBRA STATE (2001) 8 NWLR (PART 715) 454 AT 465 F-G.
3. GLOBAL BANK LTD V. S. A. INSURANCE (2010) 13 NWLR (PART 210 1 at 15 B-D and
4. N.M.C.B. (NIG) LTD V. OBI (2010) 14 NWLR (PART 1213) 169 AT 186 F-H, 188 F – H.
That in the case of Macaulay V. Nal Merchant Bank Ltd (1990) 4 NWLR (PART 144) 310 283 at 310 D-G the Supreme Court held that where there is dispute as to the facts which ought to be tried the case should be transferred to the general cause list.
He urge the court to resolve issue 1 in favour of the Appellant.
Now ORDER 23 of the plateau State High Court (Civil Procedure) Rules 1987 as amended provides as follows:-
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for nearing suitable to the circumstance of the particular case.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.
3. (1) If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the court may give him leave to defend upon such terms as the Court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed form the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and Judgment given thereon, without calling upon the plaintiff to summon witness before the court to prove this case formally.
5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”
It is thus clear that the whole essence of Undefended List procedure is to enable a claimant or Plaintiff to obtain Judgment against a defendant in a liquidated demand action or suit without recourse to any trial where it is patently and unarguably clear that the Defendant is actually indebted to the Claimant or the Plaintiff on a settled sum of money and the Defendant cannot justifiably deny the existence of such debt or claim. It is put in place to obviate unnecessary waste of valuable time of the court, litigants and lawyers where it is demonstrably obvious that the Defendant cannot in law and equity dodge or escape liability to the claimants. See
(1) U.B.A. PLC V. JARGABA (2007) 11 NWLR (PART 1045) 247 at 270 G-H where the apex court in the land per T. T. MOHAMMAD JSC said:-
“A summary Judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applied to cases where there can be no reasonable doubt that a Plaintiff is entitled to Judgment and where it is inexpedient to allow a defendant to defend for mere purpose of delay. It is plain and straight forward, not for the devious and crafty. See SODIPO V. LENIKAINEN (1986) 1 NWLR (pt 15) 229….”
(2) MC INVESTMENTS LTD & ANOR V. CORE INVESTMENTS & CAPITAL MARKETS LIMITED (2012) 8 167 at 180 F-I per RHODES-VIVOUR JSC who said:-
“The procedure under ORDER 3 Rules 9-13 of the Federal High Court (Civil Procedure) Rules 1979 is designed to prevent delay in cases where the Plaintiff has a clear case and the defendant has no defence. So, where the Plaintiff satisfies the court with affidavit evidence which the defendant cannot answer, the court would enter judgment for the Plaintiff thereby avoiding a full blown trial with the usual expense, frustrations and delay. If a defendant files an affidavit disclosing a defence on the merit he would be granted leave to defend by the court, and if there are conflicts in the Affidavits of both parties the suit would be taken out of the undefended list and placed in the general list for a hearing in the well known way. It prevents worthless and sham defences. See UTC (Nig) Ltd V. Pamotu (189) 2 NWLR (part 103) p. 244 Jammal Engineering Co. Ltd Vs Misr (Nig) Ltd 1972 Vol NSCC p. 216; Olubusola Stores V. Standard Bank Nig Ltd 1975 Vol. 9 NSCC p. 137.”
3 BONA V. TEXTILE LTD V. A. T. M. PLC (2013) 2 WLR (PART 1338) 357 at 372 F-G per ARIWOOLA JSC who said;
“Summary judgment is a judgment granted on a claim or defence about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law. For summary judgment, the court considers the contents of the pleadings, the motions, and additional evidence adduced by the parties to determine whether there is a genuine issue of material fact rather than one of law. This procedural device allows the speedy disposition of a controversy without the need for trial. See, Black’s Law Dictionary, Ninth Edition, page 1573.”
Therefore defendant to an action in the undefended list procedure is under a bounden duty and obligation to file a Notice of intention to defend together with an affidavit disclosing a defence on the merit otherwise the plaintiff would be entitled to Judgment without being asked to call any evidence to prove his case formally. See PRINCE PAULLY IKPONG & ANOR V. OBONG INI UDUBONG (2007) 2 NWLR (PART 1017) 184 at 204 E-H & 205 A-C per OMOKIRI J.C.A. of blessed memory.
See also BONA V TEXTILE LTD & ANOR VS ASABA TEXTILE MILL PLC (2013) 2 NWLR (PART 1338) 357 at 371 A-E per ARIWOOLA JSC. It must be stated that the trial Judge in considering whether or not to grant leave to the Defendant to defend in an undefended list matter, he is enjoined to consider the totality of the case put forward by the claimant/plaintiff including all the processes filed by the Defendant in opposition to the Plaintiff’s application for Judgment without trial.
The Appellant in this case has strongly contended that this matter on appeal ought to have been allowed to go for full blown trial in view of serious and triable controversies involved. This position was articulated on pages 4-5 of the Appellant’s brief of argument wherein he stated and submitted:-
“The Appellant had averred that there was no supply of building materials but a matter of money lending. This is a clear dispute between the Appellant and Respondent to necessitate a full trial in the general cause list. See Ogbaebe V. FBN PLC (2005) 18 NWLR Part 957 page 357 at 387 paras B-C. Where the affidavit in support of notice of intention to defend is such that the Respondent will be required to explain certain matters with regard to his claim a triable issue is said to have been mode out see UBA PLC V. Mode (Nig) Ltd (2001) 13 NWLR part 730 page 335 at 364 paras E-F.
In this case the Respondent needs to explain why he did not give credit sales invoice for the transaction that took place in 2007. He needs to explain why he did not put prices and quantity and type of the building materials supplied. The Respondent needs to explain why he did not exhibit the evidence of payment of N51, 520,800.00. This amount is not small that it could be paid without evidence and the date of payment. Why was the Respondent in possession of the Certificate of Occupancy No. BP2779 belonging to the Appellant’s wife? Where affidavit evidence placed before the court by both parties to an action conflict on material facts oral evidence must be called to resolve the conflict by a full trial.
In order to do justice to the sundry complainants of the Appellant it is apposite to reproduce the salient paragraphs of the Affidavit of the Plaintiff now Respondent and the Appellant as defendant at the trial court under the undefended List. The Respondent in his Affidavit in Support of Judgment on the Undefended List deposed to 14 paragraph Affidavit as follows:-
“I, MR LINUS OKPARAONU, Nigerian citizen, businessman, residing at Rukuba Road, Jos do hereby make oath and state as follows:-
1. That I am the Plaintiff in this case by virtue of which position I am very conversant and familiar with the facts of this case.
2. That I a businessman and I sell different types of building materials including rods, sheets and wires.
3. That sometimes in 2007 I supplied different types of building materials including iron rods, building sheets and wires on credit to the defendant at his request in Jos.
4. That the total value of the building materials I supplied to the defendant on credit is a sum of N67,520,800.00,
5. That the defendant agreed to pay me the sad sum N67,520,800.00 and issued me his post dated cheques for the money he owed me.
6. That I presented the cheques but they were dishonoured due to lack of fund in the defendant’s account. Annexed hereto as a Exhibits A1 to A4 are the cheques which were issued to me by the defendant but were dishonoured while Exhibit B is a promise made by the defendant to pay the balance after issuing the cheques.
7. That the defendant later paid me q part payment of N51,520,800.00 leaving a balance of N16,000,000.00.
8. That I made several demands to the defendant to pay me the balance of the N16,000,000.00 but the defendant failed.
9. That on 26th June, 2009, the defendant pleaded with me to allow him pay the N16,000,000.00 in two installments as follows:- (a) a first of installment N6,000,000.00 to be paid on or before 03/07/2009 and (b) a sum of N10,000,000.00 to be paid by the end of September 2009. Annexed hereto as Exhibit C is an agreement signed by the defendant for that purpose.
10. That I agreed with the defendant that if he fails to pay the first installment as agreed, then the total debt becomes due.
11. That the defendant failed to pay the first installment or any part thereof as agreed.
12. That up till now the defendant has not paid me the said sum of N16, 000,000.00 or any part thereof and same is still due but unpaid.
13. That I know as a fact that the defendant has no defence to this suit and it will be in the interest of justice to place this suit under the UNDEFENDED LIST.
14. That I make this oath in good faith believing all its contents to be true to the best of my knowledge, information and belief and in accordance with the Oath Act.”
In his AFFIDAVIT IN SUPPORT OF NOTICE OF INTENTION TO DEFEND the Appellant states as follows:-
“I Rev. Joseph Sunday Kehinde, Male, Christian Clergyman, Nigerian Citizen of 25 Dogon Dutse, Jos, hereby make oath and state as follows:-
1. That I am the Defendant in this case and by virtue of this position I am conversant with the facts deposed to herein.
2. That I am a full time Clergyman with the Anglican Church, Jos and I pastor the Church at Eto Baba Area of Jos.
3. That I am not a dealer in building materials nor a supplier and I am not building any house anywhere in Nigeria.
4. That I know the Plaintiff as a moneylender and the Plaintiff has no building materials shop and does not sell any building materials of any kind.
5. That I know that in 2007 the Plaintiff did not supply any iron rods, building sheets and wires on credit to me.
6. That I know that I did not sign any credit sales invoice for the Plaintiff where the process of the building materials were stated.
7. That I know that the Plaintiff did not supply me any building materials worth N67,520,800.00,
8. That I know that I did not sign any credit sales invoice for the supply of building materials worth N67,520,800.00.
9. That I know that I did not freely agree to pay the Plaintiff the sum of N67,520,800.00 and the cheques I gave to the Plaintiff were given to him under the threat of death by the Plaintiff and one Boniface Asika.
10. That I know that the cheques in exhibits A1 to A4 in support of the claim have nothing to do with prices of building materials but cheques issued in 2008 under threat of death by the Plaintiff and one Boniface Asika as interests on money I borrowed from the Plaintiff as a money lender.
11. That I know that exhibit ‘B’ in support of the claim was written in 2007 and was also written under threat of death by the Plaintiff and Boniface Asika and the money mentioned in the Exhibit was interest on the money the Plaintiff lent to me.
12. That I know that I did not pay the Plaintiff the sum of N51,520,800.00 what I paid to the Plaintiff was N1,500,000.00 being the total money I borrowed from the Plaintiff and N90,000.00 being interest on the loan.
13. That I know that I am not owing the Plaintiff the sum of N16,000,000.00 or any money at all.
14. That I know that the Plaintiff and Boniface Asika had before the 26/6/2009 been threatening my life that the contractor who built the National Film Institute warehouse borrowed money from them but failed to pay interest to them and that the contractor died as a result.
15. That I know that I received several telephone calls purporting to be speaking from Edo State the headquarters of the cult the plaintiff and Boniface Asika purported to belong threatening to kill me and my family unless I signed Exhibit ‘C’.
16. That I know that on 26/6/2009 the Plaintiff and Boniface Asika came with Exhibit ‘C’ and I singed it for them so as to have my peace.
17. That I know that the Plaintiff knows that there is no truth in the affidavit in support of the claim. I did not report Plaintiff to the Police because of the good he did to me by borrowing the money to me at my time of need.
18. That I know that the true facts about this case started in 2005 when my wife late Mrs. Grace Modupe Kehinde was ill, she had high blood pressure and diabetes which later developed into stroke and blindness.
19. That I know that my late wife was recommended for treatment abroad and I did not have enough money to foot the bill and I sought for place to borrow money. My friend, one Shina as he is popularly called introduced me to the plaintiff who lives along Rukuba Road.
20. That I told the Plaintiff that I needed N500,000.00 and he agreed to give me the money but requested for collateral and I gave the Plaintiff my late wife’s Certificate of Occupancy No. BP 2779.
21. That I know that the Plaintiff is still in possession of the Certificate of Occupancy till date.
22. That I know that the Plaintiff told me that apart from the collateral I was to pay N40% of the amount I borrowed as interest on the loan.
23. That I know that I borrowed the N5,000,000,00 sometime in March, 2005, and after one month I paid it back and added N40,000.00 as interest.
24. That I know that the initial N500,000.00 was not enough to secure visa, air ticket, medical bill for my wife and another person who would take care of her, I went back to the Plaintiff and borrowed another N500,000,00 and later another N500,000.00 which the Plaintiff paid to me in two installments of N300,000.00 and N200,000.00 in two different occasions.
25. That I know that the second N500,000.00 I borrowed from the Plaintiff he gave me a spring Bank cheque for N500,000.00 which I cashed at the Bank.
26. That I know that having paid the plaintiff the initial N500,000.00 I borrowed with interest of N40,000.00 the outstanding balance was N1,000,00.00. The payment of the first loan of N500,000.00 with interest of N40,000,00 was made to the plaintiff in the presence of Mr. Shina who introduced me to the Plaintiff.
27. That I know that my wife travelled abroad for medical treatment and later came back without improvement on her health.
28. That I know that I continued to battle with this illness and the additional burden of looking alter my children alone and my pastoral work.
29. That I know that I paid bock the N1,000,000,00 loan as follows:-
a. That I paid the second N500,000.00 on August, 2005.
b. That balance of N500,000.00 I paid in three installments of N300,000.00 and N100,000,00 in two separate instalments.
c. That I paid additional N50,000.00 to the Plaintiff as interest.
30. That I know that by the end of 2005 I had finished paying the money I borrowed from the Plaintiff.
31. That I know the plaintiff continued to calculate interest on the loan I had completed payment and kept on threatening my life and blackmailing me; and on 9/7/2007 the plaintiff came with one Mr. Bonice Asika to my house as I was cleaning up my wife and disturbing my family and I had to sign exhibit ‘B’ so they could leave the house, and not let my sick wife know what was happening.
32. That I know that the Plaintiff reported this matter to Igwe Joseph Ejimbe, the Ezeigbo of Jos, who invited me to his Palace and in the presence of the plaintiff I narrated the story to the Igwe who told the Plaintiff to settle this matter since I was not owing him.
33. That I know that it was in one of the visits of the Plaintiff to threaten me that he met me carrying my wife out of the room dead on 22/8/2008.
34. That I know that the Plaintiff told me that he does not have licence to lend money.
35. That I know that all the cheques I gave to the Plaintiff and all the agreements refer to the 40% interest on the loan I had paid bock to the Plaintiff.
36. That I do not know how the plaintiff came about his calculation of interest.
37. That I know that I have counter-claim against the Plaintiff who has refused to return my wife’s certificate of occupancy No. BP 2779.
38. That I know that the Plaintiff wants to defraud me or take my money unjustly through the Court.
a. By saying that he supplied me building materials worth N67,520,800.00,
b. By saying that I paid him N51,520,800.00 leaving a balance of N16,000,000.00.
39. That I know that the Plaintiff used undue influence on me when I signed the cheques and agreements for the Plaintiff, as he threatened me with death.
40. That I know that I am not owing the Plaintiff any money and I have a defence to this case.”
It is true that where there is direct conflict of affidavits on crucial and material facts before a trial court it is expedient to hear oral evidence from the deponents or witnesses to resolve the conflicts See FALOBI VS FALOBI (1976) 9 10 SC 1 at 13 -14.
However where there are documents annexed or exhibited to one or more Affidavits evidence before the court the court is entitled to make use of such documents to resolve material conflicts in the Affidavits evidence before it.
See B. v. MAGNUSSON VS K. KOIKI & ORS (1991) 4 NWLR (PART 183) 119 at 129 D-E per NIKI TOBI JSC who said:-
“In this application, there are conflicting affidavits evidence which this court and indeed any other court for that mater is not competent to resolve suo motu See PHARMACISTS BOARD V. ADEBESIN (1976) 55C 49 FALOBI VS FALOBI (1976) 9-10 SC 1, EBOH v. OKI (1974) 1 SC 179 UKU VS OKUMAGBA (1974) 3 SC 35 I will not make any effort to resolve the conflicting affidavit evidence as that is a futile exercise. But all I should do is to use the documentary evidence outside the depositions in the Affidavit and come to a conclusion one way or the other as to the true position. The law does not require the calling of oral evidence to resolve conflicting affidavit evidence if there is sufficient documentary evidence to resolve the conflict.”
In the case of LAFIA LOCAL GOVERNMENT V THE EXECUTIVE GOV. NASARAWA STATE & ORS (2012) 17 NWLR (PART 1328) 94 at 129 F-G The Supreme Court per RHODES VIVOUR, JSC said:-
“Even if there are conflicts in affidavit but there are authentic documentary evidence supporting one of the affidavits in conflict with the other the trial court ought to examine it before applying it in coming to a fair decision. See NWOSU VS IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PART (1990) 2 NWLR (PART 135 p 688: CHAIRMAN NPC V CHAIRMAN, IKERE LOCAL GOVERNMENT (2001) 13 NWLR (Pt 370) p. 540.”
Another corollary to that is that where the alleged conflicts in the Affidavit is before the court are not material to the case before the court or are not germane to the real issue in contest before the court the need to call oral evidence is thereby obviated.
See LAGOS STATE DEVELOPMENT AND PROPERTY CORPORATION V. ADOLD STAMM INTERNATIONAL NIGERIA LTD & ANOR (2005) 2 NWLR (PART 910) 603 AT 616 G-H to 617 A-F where Akintan, JSC held thus:-
“The question to be resolved in the appellant’s first issues is whether there are conflicts in the affidavits filed by the parties. The two affidavits are already reproduced earlier above. The sum total of the appellant’s case as set out in the affidavit filed by it was that there was no need for n new interest to be determined outside the one awarded earlier by Desalu, J.
On the other hand, the respondent sought the assistance of Afribank, a commercial bank, on the rate of interest payable on the Judgment debt had the sum been placed in a fixed deposit in a commercial bank within the time specified in the request made to the bank. The reply from the bank was exhibited as an annexure to the affidavit filed by the respondent. The second document also produced by the respondent is another calculation made by a Chartered Accountant but based on the same principle adopted by the bank and it was aimed at covering the period not covered by the calculation made by the bank. This was the document later produced in court. But it was also exhibited with the respondent’s motion as exhibit 2.
The question in this case therefore is whether one can say that the contents of the two affidavits filed by the parties can be said to be conflicting. In deciding whether or not the contents of the two documents are conflicting, one must look at the issue in controversy in the particular case before the court. This is because where, for example, the conflicts in affidavits are not material to the case before the court or where the facts are inadmissible, or are flimsy and are on an issue irrelevant and alien to the matter before the court, the need to call oral evidence to resolve the conflicts would not arise: See Falobi V. Falobi (1976) 9 – 10 SC 1: Okupe V. F.B.I.R. (1974) All NLR 314 (Reprint); Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550; L.S.D.P.C. v. Adold/Stamm Int. Ltd. (1994) 7 NWLR (pt. 358) 545. As already shown above, while the facts set out in the respondent’s affidavit relate to the interest due on the judgment debt which was what the Supreme Court directed Ilori, J. should determine, the appellant on the other hand, did not controvert or challenge the accuracy or otherwise any of the figures put forward in the affidavit filed by the respondent. Instead, it was claiming that there was no need for the appellant to pay any other interest other thon the one based on the judgment of Desalu, J. It is therefore correct to say that there was infact no conflict in the affidavit evidence placed before the trial court since the allege conflict are infact not relevant to the case before the court. There is therefore no merit in the appeal as it relates to that issue.”
I have myself examined critically the affidavit evidence before the court and I found no material conflicts in the Affidavits evidence before the trial court requiring any oral evidence before the trial court could take decision on the matter. All the documentary evidence exhibited to the Affidavit in Support of the Plaintiff’s application point irresistibly to the obvious fact that the Appellant was truly indebted to the Respondent.
There is nothing in the Appellant’s Affidavit in support of Notice to defend to establish the allegations that he did not freely agree to pay the plaintiff the sum of N67, 520,800.00 or that he was induced or threatened in any manner whatsoever in writing. All the cheques and documents he wrote in favour of the Appellant on various dates within the years 2007 – 2009. Notwithstanding the various threats to his life and to kill him the Appellant stated on oath that he did not report the Respondent and his ‘cohorts’ to the police. This is the reason he gave for abiding with the threats to his person including threats to terminate his life and those of his family members:-
“…did not report the plaintiff to the Police because of the good he did to me by borrowing the money to me at my time of need”
The Appellant stated in paragraph 30 of the Affidavit in support of his Notice of Intention to defend:
“that I know that by the end of 2005, I had finished paying the money I borrowed from the plaintiff”
If he had finished paying the money would he have thereafter continued to issue cheques and promissory Notes in favour of the Respondent? The facts in the Affidavits evidence before the trial court and the documentary evidence belied the allegations of the Appellant. All the facts contained in the Appellant’s affidavit when looked at closely did not and do not prima facie afford a defence to the Respondent’s action. No true or real disclosure of facts from which the court can readily discern a good defence. The defendant now Appellant was unable to meet specifically, allegations and facts placed in the Respondent’s affidavit to support the case being determined on the undefended list. That being the case there was no defence for the trial court to consider. The trial court had no option than to enter Judgment for the Respondent.
See SANUSI BROTHERS (NIGERIA) LIMITED COTIA COMERCIO EXPORTACAO IMPORTACAO S. A. (2000) 11 NWLR (PART 679) 566 AT 576 D-H to 577 A-B per WALI, JSC who held:-
“Since it is a specially endorsed writ, it is for the defendant/appellant to support his counter-affidavit with the particulars of the relevant lows, rules and regulations referred to in his statement of defence. They would have afforded the trial court an opportunity to consider whether he has raised a prima facie defence on the merit. The defendant’s affidavit must condescend upon particulars and as far as possible deal specifically with the plaintiff’s claim and affidavit, and should also clearly and concisely state that the defence is. A mere denial by the defendant of the plaintiff’s indebtedness is not enough: Wallingford v. Mutual Society (1990) 5 APP. CAS. 685 at 704. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay: Besant v. Towansend 22 L. R. Ir 389. In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence. Where legal objection is raised, the fact and the point of law arising there form must be clearly and adequately stated. See Macaulay v. NAL Merchant Bank (1990) 4 NWLR (pt. 144) 283. The fact that a defendant has served a statement of defence can only be sufficient to allow him defend the claim if it is not a sham defence. See Mclardy V. Slateum (1890) 24 Q.B.D, 504.
On the materials placed before him, it is my view that the conclusion arrived at by the learned trial Judge earlier referred to, cannot be faulted.
Similarly the Court of Appeal rightly concluded after considering the defendant/appellant’s statement of defence and the counter-affidavit when it opined thus-
“The learned trial Judge (as he then was) has been fair in his approach to issues raised in the statement of defence.
Both counsel addressed his extensively on the defences raised by the appellant in their proposed statement of defence which he discovered to be a sham defence.
The essence of proceedings under order 10 is to give Judgment for admitted claim, on the facts of this case and having regard to the exhibits tendered the learned trial Judge found that the appellant received the goods and admitted the claims of the respondent. The appellant was unable to show that he had defences on merit to the action. In circumstances such as this, the court should give judgment to the plaintiff as was rightly done by the learned trial Judge in this case.”
All relevant facts pleaded by the plaintiff/respondent have been adequately supported by relevant documentary evidence which does not require calling any oral evidence to resolve any inconsequential conflict in the affidavit evidence.”
The same is true in this appeal.
I am not unmindful of the learned Appellant’s Counsel’s submission attacking the learned trial Chief Judge for his failure to ask:-
“If the Respondent had the license (sic) to engage in that kind of business “having held that” whether it is money lending or supply of goods there had been monetary transaction between them leading to the Defendant issuing the cheques for the following amount to the Plaintiff.”
This cannot be an answer to the positive findings of the learned trial Chief Judge showing the Appellant was indebted to the Respondent. The Appellant benefitted from the loan and he did not accuse his friend the Respondents herein of running an illegal money lending business when he was borrowing the money. It will be unconscionable for the Appellant to now turn round and contend that Respondent had no licence to borrow him money so as to renege on his promise to pay back the loan. The Apex court in the land has a piece of advice for persons of his ilk in the case of BEN E. CHIDOKA & ANOR v. FIRST CITY FINANCE COMPANY LIMITED (2013) 5 NWLR (PART 1346) 144 at 162 F-H to 163 A-G per MUNTAKA-COOMASSIE, JSC who said:-
“However, even if it was raised, can the respondent be said to be a Money Lender or licenced Money Lender as to make the provisions of the Money Lender Law applicable to it. The appellants cannot admit in his brief of argument that the respondent was not a money lender or a registered Money Lender. In this respect I find the view expressed by Okoro JCA useful, in Alhaji Abdullahi Ibrahim Mallam Zangina Abubakar Bokori Suit No. CA/K/299/2006 (unreported) delivered on 2/7/2009 (Court of Appeal Kaduna Division) and I wish to adopt it in this Judgment. At pages 27- 23, the learned Justice of the Court of Appeal held as follows:-
“A person engaged in other businesses who out of sympathy or pressure as in this case lends money to his friend to resuscitate his ailing business should not by any stretch of imagination be termed Money Lender under the law aforesaid. I seem to agree with the view expressed by Farewell J. In Lintch Filed V. Dreyful (1906) 1 K. B. 554 at 559 that –
The Act was intended to apply only to persons who are really carrying on the business not to person who lend money as incidental business or to a few friends.”
He continues and says:-
“though not binding authority, I agree that the view so expressed represents the correct position of the law in this matter. I am always not comfortable at the practice where a party after seeking and obtaining money from a friend for resuscitation of his ailing or dwindling business will turn around to rely on technicalities or loopholes in the law as a cover to absolve himself from contractual obligations by putting up a defence under Money Lenders Law, as done by the appellants in this case. This is per-simi exempli of business relations and this court would not lend support for such a party to bite the finger that fed him and deprive him of his hand earned money. A man who, with his eyes open and without the other party committing any fraud against him, enters into an agreement with another, should be prepared to abide by the terms of the agreement illegal or other wise un-enforceable in law, I cannot allow the appellants, after collecting money from the respondent to do business, to now turn around to plead the Money Lenders law in order to escape the refund of the said money as governed by Exhibit ‘A’ between them. It is on this note that I agree with the learned trial Judge that based on the pleadings and the evidence before the court the respondents are not Money Lenders under the Money Lenders Law of Kaduna State (Supra). Accordingly, Exhibit ‘A’ is not governed by the Law.”
My Lord, though I am not bound by the above exposition of the law, I agree that the statement represents the law and as such permit me to adopt same as mine”
I hold that the learned trial Chief Judge was right when he held that the Appellant’s Affidavit in support of Notice of intention to defend did not disclose a triable issue to warrant transfer of the case to the general cause list for trial. ISSUE 1 IS HEREBY RESOLVED AGAINST THE APPELLANT.
ISSUE 2
WHETHER THE TRIAL COURT WAS RIGHT TO HAVE ENTERED JUDGMENT TO THE RESPONDENT NOTWITHSTANDING THAT THE APPELLANT AVERRED THAT HE HAD A COUNTER-CLAIM AGAINST THE RESPONDENT TO CLAIM THE CERTIFICATE OF OCCUPANCY THAT WAS GIVEN TO THE RESPONDENT AS SECURITY FOR THE LOAN (GROUNDS 2).
The learned appellant’s counsel, L. E. MANULU ESQ., drew the attention of this court to paragraph 37 of the Affidavit in support of Notice of Intention to defend wherein it was averred that Appellant has counter-claim against the Plaintiff for his failure to return his wife’s Certificate of Occupancy No. Bp 2779 used as collateral requested by the Respondent before the sum of N500, 000.00 was loaned or borrowed to appellant.
Appellant accused the learned trial Chief Judge of failing to make any finding on the issue when he made allusion to it in his Judgment. To the Appellant, all the learned trial Judge was saying is:-
“Plaintiff continue in possession of the Certificate of Occupancy and in addition receive N16, 000,000.00 from the Appellant”
The learned counsel to the appellant saw it a miscarriage of justice. That the law is settle that where there is a set-off or a counter claim in an action under the undefended list procedure, the action should be removed from undefended list and placed on the ordinary cause list. He relied on the case of BISONG V. EKPEYONG (2003) 5 NWLR (PART 812) PAGE 156 at 164 A – D. He urged the court to resolve the issue in favour of the Appellant.
In response to the appellant’s submission on issue 2, the Learned Counsel to the Respondent, D. E. ASOGWA ESQ., submitted that a defendant under undefended list cannot set up an entirely different cause of action. That a counter claim is a separate, independent and distinct action and that having a counter-claim is not a defence to the Respondent’s claim to recover debts. He relied on the cases of EPE LOCAL GOVERNMENT V. HON. MATTHEW BISOYE KESHINRO supra 428 A-F and DALA AIR SERVICES LTD V. SUDAN AIRWAYS LTD (2005) 3 NWLR (PART 912) 394 at 410 D – F.
Respondent therefore submitted that the mere mention of a set off or a counter claim in an action under the undefended list is not sufficient to transfer the matter to the ordinary cause list. He urged the court to resolve issue 2 in favour of the Respondent and to dismiss Appellant’s appeal.
Responding on the submission of Respondent’s counsel on issue 2 the Appellant in his Reply to the Respondent’s Brief of Argument conceded that the Respondent was right in the submission that a counter-claim is a separate and distinct claim, but that where the counter-claim arise from the same transaction the counter claimant needs not institute a separate action where the counter claim could be tried together with the claim of the plaintiff. He relied on BISONG V. EKPENYONG supra PAGE 164 A-D.
I am of the settled view in this appeal that the claim of the Appellant that he has a counter-Claim to set up against the Respondent concerning the continuing retention of his wife’s Certificate of Occupancy by the Respondent should be enough to transfer the case to general cause list is unfounded and misplaced. The proposed counter claim is very remote to a claim for liquidated sum of N16, 000,000.00 adjudged due to the Respondent from the Appellant. By his own Affidavit paragraph 2A thereof, he, Appellant gave the Respondent the Certificate of Occupancy as collateral to secure the repayment of the loan. Until he discharges his obligation to repay the loan or the amount borrowed and adjudged due and repayable to the Respondent with interest, his right to retrieve his wife’s Certificate of Occupancy will not crystallize. The claim for return of Certificate of Occupancy is not the same as set-off whereby a Defendant in an action on the Undefended List can claim against the Plaintiff or Claimant that the latter owed him some money which if proved can reduce his own debt to the plaintiff to a certain level and in that case the court will deduct the amount of money proved by the defendant against the Plaintiff from the amount the defendant is owing the Plaintiff. The collateral here was meant to be in possession of the Respondent for as long as Appellant defaults in paying the sums of money due and owing by him to the Respondent. There is no sentiment about it. It is not a triable issue that can give the Appellant a leeway to have the matter on appeal transferred to the general cause list for trial on the merit. Issue 2 is resolved against the Appellant.
In the result the Appellant’s appeal is unmeritorious and the same is hereby dismissed.
The Judgment of the lower court which entered Judgment in favour of the plaintiff now Respondent in the sum of N16, 000,000.00 together with 8% post Judgment interest on the said sum of N16, 000,000.00 against the Appellant is hereby affirmed. The Respondent is entitled to costs which I assess at N30, 000.00 against the Appellant and in favour of the Respondent.
RAPHAEL CHIKWE AGBO, JCA: I have read before now the judgment delivered by my learned brother Ige, JCA and I agree with both the reasoning and the conclusions contained therein. I too dismiss this appeal and abide by all the consequential orders contained in the lead judgment.
IBRAHIM SHATA BDLIYA, J.C.A.: I had the advantage of reading before now the lead judgment just delivered by my learned brother IGE, J.C.A. His reasoning and the conclusions reached therein are at one with mine. I have nothing useful to add thereto than to adopt them as mine. The appeal is adjudged unmeritorious and I also dismiss same. I abide by the orders made therein by the learned Justice, IGE, J.C.A.
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Appearances
L. E. MANULU ESQ.For Appellant
AND
I. E. ASOGWA ESQ., WITH U. I MOKA ESQ.For Respondent
