SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU (2013)

SMAB INTER-TRADE LIMITED v. BUKAR ALI BULANGU

(2013)LCN/6275(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2013

CA/K/126/2011

RATIO

IMPLICATIONS OF A FAILURE TO DEFEND A SUIT

The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet vs. INEC (2011) All FWLR (pt. 565) 203 “The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.” Nzeribe vs. Dave Engr. Co. Ltd (1994) 8 NWLR (pt. 361) 124.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

SMAB INTER-TRADE LIMITED Appellant(s)

AND

BUKAR ALI BULANGU Respondent(s)

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kano State High Court in suit no K/339/2010, delivered by Hon. Justice Amina Adamu Aliyu on 5/1/2011.
The case at the Court below was heard on the Undefended List Procedure and at the end the Learned trial Court dismissed the claim. The Court held:
“From the Exhibit A1 (sic) the defendant is not a party to the contract, and apart from Exhibit A5 (sic) there is nothing to show that the defendant was part of the contract, Exhibit A5 (sic) could best be undertaking to repay the misappropriated sums which still does make the defendant liable to his employees and union members who entrusted him with the responsibility of collecting the payments. It has been held in the case of ALADE v. ALIC NIG LTD. (2010) LPELR SC 169/2011 that a person who is not a party to a contract cannot be held liable. See also CHUBA IKPEAZU V. ACB (1965) NMLR 374, where it was held that a contract cannot be enforced by a person not a party to the contract, even if made for his benefit. The case against the defendant fails as he was never a party to the contract. The suit is accordingly dismissed for lack of merit.”
(Page 75 of the Records)
That is the judgment Appellant appealed against, as per his notice of appeal on pages 77 to 79 of the Records, where the following 2 grounds of appeal were formulated:
GROUNDS OF APPEAL
GROUND ONE
The Learned Trial Judge erred in Law when he held that “From the Exhibit, exhibit 1A1 the Defendant is not a party to the contract and apart from exhibit 1A5 there is nothing to show that the Defendant was part of the contract. Exhibit 1A5 could best be undertaking to repay the this (sic) appropriated sums which still does not make the Defendant liable to the Plaintiff but liable to his employee and Union members who entrusted him with the responsibility of collecting the payment”.
PARTICULARS
1. That from the facts deposed to in the supporting affidavit the plaintiff’s action was not based on exhibit 1A-1 but on exhibit 1A-5
2. That contents of exhibit 1A-5 is enough to create a quasi – contractual relationship between the Plaintiff/Appellant and the Defendant/Respondent.
3. That the quasi – contractual relationship created between the parties by exhibit 1A-5 is enough to empower the Plaintiff/Appellant on the basis of the acknowledgement of the claimed amount to institute action against the Defendant/Respondent independent of the initial agreement to which the Defendant/Respondent was not a party – see the case of SHAMIA v. JOORY (1958) All E.R. 111.
GROUND TWO
The Learned Trial Judge erred in Law when he held that, “if at all the monies collected are being held by the Defendant, it is not for the Plaintiff to sue the Defendant for the balance of the contract sum which he was not a party to, the matter to my mind is an administrative matter which does not exonerate the buyer from liability to pay the sum…”
PARTICULARS
1. That the Plaintiff/Appellant has equally a right of action against the Defendant/Respondent for money had and received.
2. The relationship between the parties came into being at the very movement of the payment to the Defendant/Respondent by the principal debtor the balance due to the credit of the Plaintiff/Appellant.
3. That the Plaintiff/Appellant has the right of RESTITUTION against the Defendant/Respondent for the sum which he acknowledged paid to him.”
Appellant filed its Brief of argument on 2/6/2011 and distilled two issues for determination, namely:
“(1) Whether Notification of undertaking dated 9th January 2006 from Respondent to the Appellant is not enough to confer right of action to the appellant to sue the Respondent in this matter (Ground one).
(2) Whether on the strength of the acknowledgement of the debt by the Respondent, the Appellant has no right of Restitution against the Respondent, independent of the main contract agreement (Ground two)”
The Respondent filed no Brief in this appeal and so Appellant brought an application praying that this appeal be determined on its (Appellant’s) Brief alone. That prayer was granted on 8/2/12, when the appeal was adjourned for hearing. When the hearing finally came up on 7/5/13, there was proof that the Respondent had been served with the hearing notice on 3/5/13. He did not come to Court and was not represented by Counsel. Appellant’s Counsel moved us, accordingly, after adopting the Appellant’s Brief of argument, praying that the appeal be allowed, the judgment of the trial Court set aside, and judgment entered for Appellant.
A brief fact of the case, at the Court below, shows that the Appellant (a company) entered into a contract agreement with Local Government Education Authority of Kafin Housa Local Government of Jigawa State in 2003, where-of Appellant supplied 54 units of Suzuki (A x 100) to the Local Education Authority at the cost of N 5,670,000.00, out of which the Local Education Authority paid the sum of N 2,688,000.00, only leaving the balance of N 2,982,000.00, unsettled. On demand for the balance as per Appellant’s letter (through its Counsel) dated 21/12/2005, the Secretary of the Local Education Authority wrote to the Appellant on 4/1/2006 to acknowledge the debt and to say that the said balance had been deducted (from the salaries of the beneficiaries) and was in the custody of the Respondent – Union Chairman of the employees of the Local Education Authority who benefited from the supply of the motorcycles. The letter showed that all the beneficiaries had finished payment for the motorcycles as at May 2005 and the proceed was kept by the Respondent, who had also written an undertaking (as sales and marketing officer) to the Education Authority “that every affairs of the contract is left to him, for any information they should contact him.”
The Respondent then wrote a letter (Exhibit 1A-5) to the Appellant’s Solicitors, titled NOTIFICATION FOR UNDERTAKING, admitting responsibility “for the payment of the outstanding amount of the purchase price – N2, 982,000.00 – as remittance of the monthly deduction …”
Appellant’s Counsel then wrote to the police, complaining against the Respondent, and the police, according to Appellant, advised them to seek civil remedy.
On Issue 1, whether the Notification of undertaking written on 9/1/2006 by Respondent to Appellant’s Counsel was enough to confer right of action on the Appellant against the Respondent on the contract, Appellant’s Counsel answered this poser in the affirmative. He submitted that the letter, as per the content, had created a binding agreement between the Appellant and the Respondent, independent of the main contract agreement. He relied on the meaning of the word “undertaking” as defined in the Law Lexicon, the encyclopedic Law dictionary with legal maxims, Latin terms and words and phrases by P. Ramanathma Aiyar, 3rd edition reprint 2009 page 4809 as,
“a promise, engagement or stipulation”.
He also relied on the definition in the Black’s Law Dictionary:
“a promise, engagement, or stipulation. An engagement by one of the parties to a contract to the other, as distinguished from the mutual engagement of the parties to each other. It does not necessarily imply a consideration…”
Counsel submitted that from the above definitions, the words used in Exhibit 1A-5 have created a definite obligation upon the Respondent to pay to the Appellant the agreed balance of the contract price. He relied on the case of RE F.G. (FILMS) LTD (1953) 1 ALL ER 515 at 616 where the word ‘undertake’ was said to mean:
“be responsible for, especially in the financial sense, but also generally”
Counsel submitted that, independently of the contract agreement between the Appellant and Local Government Education Authority, as contained in Exhibit 1A-1, the Appellant can directly sue the Respondent on the basis of the undertaking, as contained in Exhibit 1A-5; that the relationship between the parties, that is, Appellant and the Respondent, came into existence from the fact of the payment of the balance remaining, by the Local Education Authority to the Respondent for the benefit of the Appellant and receipt of the said sum by the Respondent; that by that relationship the Respondent was liable to account to the Appellant as to the where about of the money. He relied on the case of Shamia vs. Joory (1958) 1 ALL ER 111 at 114 where the Court adopted the dicta of Blackburn J in the case of Griffin vs. Weatherby:
“Ever since the case of WALKER v. ROSTRON (2) (1842) 9 M. & W. 411, it has been considered as settled law that, where a person transfers to a creditor on account of a debt, whether due or not, a fund actually existing or accruing in the hand of a third party, and notifies the transfer to the holder of the fund, although there is not a legal obligation on the holder to pay the amount of the debt to the transferee, yet the holder of the fund may, and if he does promise to pay to the transferee, then that which was merely an equitable right becomes a legal right in the transferee, founded on the promise, and the money becomes a fund received or to be received for and payable to the transferee, and when it has been received, an action for money had and received to the use of the transferee lies at his suit against the holder;”
And the Court went further to say:
“In my judgment, all that the law requires is that there must be in the hands of or accruing to the third person, either a sum of money, or a monetary liability, over which the transferor has a right of disposal. It matters not from what source the liability arises and I see no reason why it should not include a debt for money lent or good sold, or services rendered, or a debt of any other kind, nor do I think that the situation can be altered if the debt is of a temporary nature, which in the ordinary course of things would shortly be extinguished by items of contra account, provided that the debt still exists at the date of the transfer and of the debtor’s promise of payment made to the transferee.”
Counsel submitted that the facts of the case of Shamia v. Joory (Supra) is very germane to this case, as both deal with a case of money in a third party hands and the third party has acknowledged the existence of such amount, and the amount, so acknowledged, by means of undertaking to pay to the beneficiary; that in the light of the above authority, it is completely wrong for the trial judge to say that the Appellant could only succeed to recover the amount claimed on the basis of the contract agreement – Exhibit 1A-1, – not on the strength of the letter of undertaking – Exhibit 1A-5, – which has created an enforceable agreement between the parties, independent of the main contract agreement. He urged us to so hold for the Appellant.
On Issue 2, whether on the strength of the acknowledgement of the debt by the Respondent, the Appellant has no right of Restitution against the Respondent, independent of the main contract agreement, Counsel submitted that the Appellant, on the basis of quasi – contract or restitution, can equally claim against the Respondent for the acknowledged amount as contained in exhibit 1A-5; that at common law the Appellant has the right of action to reclaim the claimed amount from the Respondent; that this is illustrated by Lord Wright in the famous case of FIBROSA SPOLRA AKCYJNA vs. FAIRBAIRN LAWSON COMBE BARBOUR LTD (1943) AC 32 at 61 (as stated in paragraph 29 – 001 of CHITTY ON CONTRACT Vol. 1, 27th Edition, page 1388):
“It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichments or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which it is against conscience that he should keep, Such remedies in English law are generally different from remedies in contract or in tort within a third category of the common law which has been called quasi – contract or restitution.”
Counsel submitted that on the basis of the above principle, the trial Court was completely wrong to say that, for Appellant to claim the amount from the Respondent, it must be shown that the Respondent was party to the agreement contained in Exhibit 1A-1.
He urged us to so hold, and relied on the views of the learned author of Chitty on Contract (Supra) pages 1388 – 1389, to say that it is not only the Common law that provides remedy for unjustifiable enrichment, that Equity, independently, developed some principles which are aimed at the same result – to force a man to disgorge property in his possession, which rightly belongs to the claimant; that based on the position of the law, both at equity and at the Common law, it was an error for the trial Court to hold that:
“If at all monies collected were being held by the Defendant, it is not the plaintiff to sue the Defendant for the balance of the contract sum which he was not a party to; the matter, to my mind, is an administrative matter which does not exonerate the buyer from liability to pay the sum, The Local Government should sort out that with the Defendant.”
Counsel submitted that the issue before the Court was not that of exoneration of the buyer from liability, but rather that of the right of the Appellant to proceed against the Respondent for money had and received on behalf of the Appellant. He urged us to hold that both at Common law and at Equity, the Appellant has right of action against the Respondent for the acknowledged amount and to resolve this in favour of the Appellant.
He urged us to invoke the provisions of Order Rule 1(4) of the Court of Appeal Rules 2007, and give judgment to the Appellant, in line with his claim, which the trial Court should have made. He also relied on the case of Rabiu Hamza vs. Peter Kure (2010) 3 SCNJ (pt. 11) 554 at 571 – 572.
As he did at the trial Court, the Respondent did not file any process to defend or contest this appeal, despite evidence of the service of the processes of Court on him. Of course, the ready inference is that the Respondent is deemed to have admitted the case of the Appellant as presented at the lower Court and even on appeal, as there is no contrary position on which to urge this Court.
The law is trite that failure to defend a suit is an implied admission of the case presented by the adverse party. Efet vs. INEC (2011) All FWLR (pt. 565) 203 “The law is well settled that any fact which has not been categorically denied by a party is deemed admitted in law by the other party.” Nzeribe vs. Dave Engr. Co. Ltd (1994) 8 NWLR (pt. 361) 124.

But because a plaintiff has the duty to prove his claims on the strength of his own case, the Court is enjoined to review and evaluate the evidence presented by a claimant, even if not challenged, to establish whether the same has proved the claim, as required by law. Elias vs. Omo – Bare (1982) LPELR – SC 41/1981; (1982) ALL NLR 75; Shittu v. Olawumi (2011) LPELR – CA/AE/38/2010; Alao v. Akano (2005) 11 ALL NWLR (pt. 935) 160; see also Ogunyomi v. Ogundipe (2011) All FWLR (pt. 594) 188, where it was held. “It is the duty of the Appellants as plaintiffs in the lower Court to prove their case … and it is a notorious principle of law that in so doing, they must rely in order to succeed on the strength of their own case and not on the weakness of the defendants”.
In considering this appeal, I shall take the two issues raised by the Appellant together, and review the appraisal of the one- sided evidence by the trial Court.
The learned trial Court had taken upon itself to dig into the affidavit evidence and documents supplied by the Appellant to determine, suo motu, whether the Appellant had a right of action against the Respondent or not, and whether the Respondent was a party to the contract agreement between the Local Government Education Authority and the Appellant for the supply of the motorcycles.
I think that was a stray into the “deep waters” of controversy, touching on an issue not before the Court, and not raised by any party for consideration. The Court had earlier placed the matter on the Undefended List Procedure, for hearing and determination, having been satisfied that it was a matter which no defence could be envisaged. By Order 23 Rules 1, 2, and 3 of the Kano State High Court (Civil Procedure) Rules 1988, on which the application to place the suit on the Undefended List was predicated, the Respondent had a duty to file a Notice of intention to defend the suit, if he had any defence. He did not file any.
The Respondent, having failed to file a notice of intention to defend the suit, as provided by Order 23 Rule 3 of the High Court (Civil Procedure) Rules, the learned trial Court, in my view, having been satisfied that the Respondent had been duly served, had no business digging deep into the case, to raise issue(s) of contract and privity of contract, as if the Court was an advocate for the Respondent, to find a reason to refuse the claim of the Appellant. I think this is another good example of a frolic by a trial judge into the arena of the conflict and being blinded by the dust generated therefrom, to come to a wrong conclusion. See the case of John Ayode vs. Spring Bank Plc & Anor, an unreported decision of this Court in CA/K/297/2006, delivered on 19/4/13, where we said
“A Court decision must be founded on law and evidence before the Court, and in keeping with sound legal principles and tradition. It is not at the whims and caprices of the judger as per the waves of his brain and feeling! See Ogolo vs. Ogolo (2003) LPELR 2300 SC”

A Court of law should not set up for the parties a case different from the one set up by the parties in their pleadings. Skye Bank PLC vs. Akinpelu (2010) 9 NWLR (pt. 1198) 179; Baliol (Nig) Ltd vs. NAVCON (Nig) Ltd (2010) 16 NWLR (pt 1220) 619.

It is also the law that the Court must confine itself in its judgment to the determination of the issues raised on the pleading, and as apparent on the evidence adduced. See First Bank of Nigeria PLC vs. Olaleye (2013) 1 NWLR (pt. 1334) 102, cited with approval in the case of Ayode vs. Spring Bank PLC (supra) per ABIRU, JCA in his contributory judgment.
As earlier stated in this judgment, I think the trial Court veered off the case that was before, it and went on a frolic, which brought about this appeal. The case before the trial court, as per the writ of summons, was for:
“(1) The sum of N2, 982.000 (Two Million Nine Hundred and Eighty two Thousand Naira only) being the outstanding balance of the purchase price of the (54) fifty four units of motorcycles the plaintiff supplied to the Local Government Education Authority, Kafin Housa. Which amount the Defendant collected from the beneficiaries but refused to remit same to the plaintiff.
(2) Ten percent court interest until when the judgment sum is fully liquidated.
(3) The cost of filing this action, See page 20 of the Record.”
I think that was a simple case of debt and demand for payment, and it raised no issue of contract and enforcement of contract for supply of motorcycles! What was in issue was whether the Respondent was owing the Appellant that amount (N2, 982,000.00) as money “the Defendant collected from the beneficiaries (of a contract), but refused to remit same to the plaintiff.” And since the case was placed on the Undefended List procedure, it was, obviously, an issue of money had and received (debt), to be paid to the claimant, and once there was evidence to establish the debt due from the Respondent to the Appellant, or admission of same, a claim was established – that is, a right of action by the claimant against the Respondent, notwithstanding how the debt was incurred, especially as the way the debt was incurred was not an issue before the court. The court was not asked to interpret or enforce the terms of the contract agreement for the supply of the motor cycles. Rather, it was asked to order the Respondent, who had written to the Appellant admitting keeping the Appellant’s N2, 982,000.00 (collected from the beneficiaries of the contract between Appellant and the Local Government Education Authority), to pay the said amount to the Appellant. The Respondent’s letter to the Appellant – Exhibit 1A-5, was an undertaking by the Respondent admitting keeping Appellant’s money, and opting to pay same to the Appellant. In the letter, the Respondent also explained that he served as the middle man, between the Local Government and the Appellant, over the supply contract, and accepted responsibility for payment of the outstanding balance – of N2, 982,000.00.
The Full of Exhibit 1A-5, which was addressed to the Law firm of Appellant’s Counsel, reads:
“Dear Sir,
NOTIFICATION FOR UNDERTAKING
With reference to your letter sent to Kafin Housa LGA on 4/1/2006 demanding the outstanding amount of purchase price N2, 982,000.00 I, Bukar Ali Bulangu, the middle man between the Kafin Housa LGA and SMAB INTERTRADE LTD, I am responsible for the payment of outstanding amount of the purchase price N2, 982,000.00 as non remittance of monthly deduction, this happened due to certain reasons and put me in a continue failure. The payment of monthly remittance will continue and ready to cover up with serious concern (sic).”
I believe that letter established an enforceable commitment, on the part of the Respondent, to the Appellant, with respect to the outstanding balance, which the Respondent admitted responsibility to pay to the Appellant.
By the letter, the Respondent should be understood to be telling the Appellant that:
He (Respondent) was aware Appellant was looking for the balance of the deductions by the Local Government Education Authority from account of the beneficiaries of the (54) motorcycles on the supply contract; that he was in custody of the amount – N2, 982,000,00 as the middle man, between the Local Government and the company (Appellant); that Appellant should not bother the Local Government as he (Respondent) was responsible for the payment, and therefore undertook to pay!
Of course, failure of the Respondent to refund the said admitted amount to the Appellant made him liable to the Appellant, in trust, and the Appellant had a right of action to recover the same.
The Respondent was also criminally liable, for conversion of the said amount, which he collected from the beneficiaries (Local Government Education Authority) for onward transmission to the Appellant, and it was the Local Government Education Authority (or Kafin Housa Local Government Council) that had the duty of reporting the criminal act of the Respondent to the police for prosecution, not the Appellant (since it was the business of the Local Government Education Authority to pay the Appellant). The police may have down-played the criminal aspect of the entire transaction, because of the undertaking by the Respondent, accepting responsibility, to pay the amount, but that did not diminish the criminal element of the act of conversion.
Appellant, in my humble view, had a right to ignore the Respondent and sue the Local Government Education Authority, directly, to recover the balance of the contract sum and/or to sue the Local Government Education Authority, jointly, with the Respondent for the same purpose, to enforce the contract and collect the balance of the contract sum.
That Appellant opted to sue the Respondent, alone, for debt recovery in my opinion, was an excellent legal wisdom, in view of the Respondent’s Exhibit 1A-5, which confined the entire case to an issue of debt by the Respondent – acknowledgement of collection of money meant for the Appellant (from the Local Government Education Authority) and responsibility to pay the same to the Appellant!
Appellant’s Counsel had relied on the Common law and Equitable principles to fault the decision of the lower court, when he cited the authority of the English case of Shamia vs. Joory (1958) 1 ALL ER 111 at 114, which accepted, with approval, the dicta of Blackburn J. in GRIFFIN vs. WEATHERBY, to the effect that:
“Ever since the case of WALKER v. ROSTRON (2) (1842) 9 M, & W. 411, it has been considered as settled law that where a person transfers to a creditor on account of a debt, whether due or not, a fund actually existing or accruing in the hand of a third party and notifies the transfer to the holder of the fund, although there is not a legal obligation on the holder to pay the amount of the debt to the transferee, yet the holder of the fund may, and if he does promise to pay to the transferee, then that which was merely an equitable right becomes a legal right in the transferee, founded on the promise, and the money becomes a fund received or to be received for and payable to the transferee, and when it has been received an action for money had and received, to the use of the transferee lies at his suit against the holder;”
The Court went further to say:
“In my judgment, all that the law requires is that there must be in the hands of or accruing to the third person, either a sum of money, or a monetary liability, over which the transferor has a right of disposal. It matters not from what source the liability arises and I see no reason why it should not include a debt for money lent or good sold, or services rendered, or a debt of any other kind, nor do I think that the situation can be altered if the debt is of a temporary nature, which in the ordinary course of things would shortly be extinguished by items of contra account, provided that the debt still exists at the date of the transfer and of the debtor’s promise of payment made to the transferee.”
I think, the law would do itself a great deservice, and would advance injustice, if it allows undue technicalities to rob a claimant of recovery of a debt from an undertaker, who acknowledges the debt, and accepts responsibility to pay same, having received and kept the money due to the claimant, from a third party, for onward payment to the claimant. I do not think the issue of privity of contract can be pleaded and/or invoked, in such circumstances, to deny the claimant right of recovery of the debt, directly from the Respondent, who has undertaken to pay! That, certainly, is not a case of a third party trying to enforce a contract he was never a party, (even if he is a beneficiary), as shown in the case of Alade vs. Alic (Nig) Ltd (2010) LPELR SC 169/2001 and Chuba Ikpeazu vs. ACB (1965) NMLR 374, which the lower court relied on, to dismiss Appellant’s case.

As rightly pointed out by the learned author of Chitty on Contract, Vol. 1 27th Edition page 1388, quoting Lord Wright, in the famous case of Fibrosa Spolra AKCYJNA vs. Fairbairn Lawson Comba Barbour Ltd (1943) AC 32 at 51:
“It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another, which it is against conscience that he should keep…”
Section 396 of the Criminal Code says:
“When a person receives, either a loan or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of the debtor and creditor only shall exist between the parties in respect of it”
Section 397 of the Criminal Code provides punishment for any person that “takes or converts anything capable of being stolen, in such circumstances that would amount to stealing”
By Section 311 of the Penal Code,
It is a criminal breach of trust, where somebody dishonestly misappropriates or converts to his own use, property, or dishonestly uses or disposes of property, in violation of any direction of law prescribing the mode in which such trust was to be discharged.
Such are the frowning by our criminal laws against any conduct by a party, like the Respondent, who fails to pass on to the owner, property he received on trust, on behalf of the owner.
Even where there may be no express Civil remedy, stipulating how to recover such unjust enrichment or benefit from one appropriating or retaining the same, the Court, I think, should be rather vigilant and quick to deny the unjust and the crafty the opportunity of unjust enrichment, or of reaping any unjust benefit, and should be quick to purge a person, in unjust enrichment, of the benefits thereof. And where, the person has undertaken, as the Respondent did, to relinquish the unjust enrichment, by returning or paying the money to the owner, the Court should encourage him, and not look for or devise a technical grounds/reasons to allow the person to continue to keep the loot (money), unjustly.
I hold that the learned trial Court was wrong in its reasoning and conclusions, and I resolve the two issues in favour of the Appellant. I hold that the appeal is meritorious and should be allowed. It is accordingly, allowed and I set aside the judgment of the lower Court, in suit No. K/339/2010, delivered on 5/1/2011.
Appellant had prayed that we enter judgment for it as the trial Court ought to have done, in the circumstances, the Respondent having not contested the claim by filing any notice of intention to defend the suit, and affidavit disclosing a defence on the merit.
I think this is an appropriate situation to invoke the powers of this Court, under Section 15 of the Court of Appeal Act, 2004, and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2011, to give the order which the justice of the case required the trial Court to do.
I have already reproduced the claim of the Appellant at the lower Court, and the content of Exhibit 1A-5, whereof the Respondent undertook to pay the said sum of N2, 982,000.00 to the Appellant.
In paragraph 15 of the affidavit in support of the application to place the suit on the Undefended List, the Appellant had stated (through the deponent):

“The Defendant particularly made an undertaking admitting responsibility to pay the outstanding sum of N2,982,000,00 …The undertaking dated 9th day of January 2006 was shown to me …”
In the absence of denial of that, and of any Notice to defend the suit by the Respondent the learned trial Court had a duty to enter judgment for the Appellant as per Order 23 Rule 4, which says:
“Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (7) 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 witnesses before the Court to prove his case formally.”
See also the case of Ikpong vs. Udobong (2006) LPELR – CA/24/2005 or (2007) 2 NWLR (pt. 1017) 184; Ben Thomas Hotels Ltd vs. Sebi Furniture Ltd (1989) NWLR (pt. 123) 523; Ilorin East Local Government vs. Alasinrin (2012) ALL FWLR (pt. 645) 226, or (2012) LPELR – 8400 (CA); Olalekan vs. IMB Ltd (2011) 5 NWLR (pt. 1239) 183.
I, therefore, enter judgment for the Appellant in the said sum of N2, 982,000.00 (Two million, nine hundred and eighty two thousand naira) only as per the claim. The Respondent shall pay interest on the judgment sum, at the rate of 10% per annum, from the date of this judgment until the same is fully liquidated.
The Respondent shall also pay the cost of this appeal, assessed at thirty thousand naira (N30, 000.00) only.

DALHATU ADAMU, CFR, J.C.A.: I have gone through the lead judgment of my learned brother Ita G. Mbaba JCA in this appeal. I agree with the reasons given and the decision arrived at in the lead judgment. I allow the appeal and enter judgment for the appellant as done in the lead judgment. The respondent shall also pay the costs of this appeal which is assessed at N30, 000.00 only.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had the opportunity of reading before now the leading judgment of my learned brother, Mbaba, J.C.A, and I agree that this appeal succeeds.
The record of this appeal shows that following the Appellant’s letter of Demand for Payment of the sum of N2,982,000.00 being the outstanding sum for the supply of 54 units of Susuki AX100 to the Kafin Hausa Local Government Education Authority, Jigawa State dated the 21st December, 2009, via its Solicitors, M.A Bulama & Co., the Secretary to the L.G.E.A., Kafin Hausa replied by a letter dated 4/1/06 acknowledging the debt and stating that all the beneficiaries of the contract had finished their payments and the same was handed over to Bukar Ali, the Union Chairman. The same Bukar Ali Bulangu, the Respondent herein, wrote Exhibit 1A5 titled ‘Notification For Undertaking’ to the Appellant’s Solicitors identifying himself as the middleman between the Kafin Hausa LGEA and the SMAB Inter Trade Ltd, the Appellant herein, and stating that he is the one responsible for the payment of the outstanding amount of the purchase price of N2,989,000.00.
It is clear in this appeal that the Respondent received the sum of N2,982,00.00 that was intended to be used for the benefit of the Appellant, i.e. for payment of the outstanding balance for the purchase of the 54 pieces of Suzuki by the Kafin Hausa L.G.E.A., Jigawa State. It is equally manifest that the said sum received by the Respondent has not been paid over to the Appellant, the Respondent has not given him the money. It is necessary to note that no privity of contract between the Appellant and the Respondent is required for this action to succeed except that which results from the fact of one man is having the money of another, which he cannot conscientiously retain. In general, action of this nature lies only where money has been received by the defendant. It will lie to recover money to which the Plaintiff is entitled, and which in justice and equity, when no rule of policy or strict law prevents it, this defendant ought to refund to the Plaintiff and which he cannot with a good conscience retain, on a count for money had and received.
It ought to be further stressed that in the case of moneys paid to the defendant by a third party, the Plaintiff has to establish the basis on which he is entitled to the money. This he does by showing that the money is his legal property. If he can do so, he may be entitled to succeed in a claim against the third party for money had and received to his use. In the instant appeal, the Appellant clearly established the basis on which it is entitled to the said sum of N2,982,000.00. This type of action is founded simply on the fact that the Respondent cannot in conscience retain the money or Respondent to retain the money would result in his unjust enrichment at the expense of the owner of the money i.e., the Appellant. The Appellant is entitled to the said sum of N2,982,000.00.
Accordingly, I allow this appeal and abide by the order made in the leading judgment.

Appearances

M. A. Bulama Esq.For Appellant

AND

Respondent: Not RepresentedFor Respondent