THE INCORPORATED TRUSTEES OF AMERICAN INTERNATIONAL SCHOOL OF ABUJA v. ECHEIPU ODOH OKLOBIA
(2018)LCN/12338(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of December, 2018
CA/A/732/2016
RATIO
INTERPRETATION: DEFENDED PROCEDURE LIST
“The procedure under the undefended list is geared towards preventing delay in cases where the Plaintiff has a clear case of debt or for liquidated money demand and the Defendant has no defence. If the Court finds out that the Defendant from his Notice of Intention to Defend has any defence disclosed from his affidavit. The Defendant would be granted leave by the Court to defend the Claim brought by the Plaintiff. Where there is no defence disclosed or a triable issue disclosed by the Defendant, the Court certainly would enter Judgment for the Plaintiff, thereby freeing the Court and the parties from the attendant rigours of a full blown trial. See also U.B.A PLC & ANOR V. JARGABA (2007) 11 NWLR (PT. 1045) 247. Instructively, the Court handling the Undefended List procedure must carefully look at the affidavit of the Defendant to see if facts disclosed therein at least throw some doubt on the case of the Plaintiff. See WEMA SECURITIES & FINANCE PLC V. NIGERIA AGRICULTURAL ASSURANCE CORP. (2015) LPELR- 24833 (SC).” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
THE INCORPORATED TRUSTEES OF AMERICAN INTERNATIONAL SCHOOL OF ABUJA Appellant(s)
AND
ECHEIPU ODOH OKLOBIA (Suing through his next friend Mrs. Florence Omadachi Oklobia) Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of the Federal Capital Territory in Suit No: FCT/HC/C/2541/2016 decided on 25/11/2016 O. A. Musa, J.
Before the trial Court, the Respondent commenced this case by a Writ of Summons under the undefended list seeking the following three reliefs:
(a) The sum of N4, 500, 000 (Four Million Five Hundred Thousand Naira) only being the advance payment made for the 2016/2017 academic session on behalf of the Plaintiff.
(b) 10% interest on the judgment sum from the date of judgment till full liquidation of the judgment sum.
(C) Cost of this suit in the sum of N5, 000, 000 (Five Million Naira only).
The facts of the case are not tedious. The facts are as follows:
“The Appellant is a school operating in Abuja, in April 2016, it informed all parents/guardians that deposits would be required to reserve and secure the places of the children in the forthcoming academic year. It was also expressly stated that any deposit paid was nonrefundable. Finally it notified parents that late payment of fees would require a 10% surcharge.
The Respondent, through his parents’ in furtherance of that call by the appellant paid a deposit of N4, 500, 000 (Four Million Five Hundred Thousand Naira). He called for the refund of this sum later but the Appellant refused on the grounds that refunds were expressly excluded under the terms of the contract between the Parties.
Respondent consequently instituted an action in Suit No. FCT/HC/2541/2016 at the Lower Court under the undefended list procedure. The Appellant filed a Notice of Intention to Defend with an Affidavit in Support.
The Court refused to allow the Appellant to defend the suit saying that the Appellant had no defence. The Court then entered judgment for the plaintiff in terms of relief A. Aggrieved by this decision, the defendant appealed to this Court.
The record of appeal was compiled and transmitted to this Court on 23/12/2016 by Emonye Adekwu of Counsel for the Appellant. The appellant’s brief of Argument was filed on 2/2/17 while the Respondent filed his own brief on 12/12/17. The brief was however deemed properly filed and served on 30/4/18.
At the hearing of this appeal, the parties through their respective counsel adopted their briefs and their respective reliefs.
Two issues were distilled for determination by the Appellant while the Respondents also framed two issues for determination. The issues framed by the Appellants are:
i. Whether from the state of the affidavit evidence before the trial Court, the Court was right when it held that the appellants Notice of Intention to Defend together with the Affidavit in Support did not disclose any defence on the merit or a triable issue warranting the transfer of the matter to the general cause list (Grounds 1 and 2 of the Notice of Appeal)
ii. Whether the Honourable Court is empowered to rewrite the terms of the contract between the parties (Ground 3)
The two issues framed by the Respondents for determination are framed as follows:
1. Whether in view of the fact and circumstances of this case the appellant’s notice of intention to defend disclosed any defence on the merit.
2. Whether the appellant’s no-refund policy is not a penalty clause designed to terrorise and intimidate a party into performance?
The two issues distilled by the Appellant represent more the grievances in the notice and grounds of appeal. I therefore set down the two issues distilled by the Appellant for determination.
Issue One
This issue is whether from the state of the affidavit evidence before the Court, the trial Court was right to have that the Notice of Intention to defend together with the affidavit in support did not disclose any defence on the merit or any triable issue.
The Learned Counsel for the Appellant canvassed that the Appellant’s Affidavit in Support of its Notice of intention to Defend satisfied the requirement of disclosure of a defence on the merit vide paragraphs 5-18 thereof where Appellant clearly showed that its contractual relationship with the Respondent clearly excluded any refunds including the refund of N4, 500, 000 (Four Million Five Hundred Thousand Naira) which the Respondent demanded. He relied on the cases of DELTA HOLDINGS (NIG) LTD V. OBORO (2014) 13 NWLR (PT. 1425) 590, 610. He submitted that an exclusion clause Is binding on the parties. He relied on the decision of the Supreme Court in the case of NARUMAL & SONS LTD V. NBTC LTD (1989) 2 NWLR (PT. 106) 730, which he said reiterated, that the exclusion clauses are a valid and binding legal Principle in Nigeria regardless of how wide or far reaching the exclusion clauses may be.
He contended further that if the trial Court had noted the contractual nature of the parties’ relationship and taken the view that the Appellant’s defence of exclusion of refunds was unfair or likely to fail, it was inappropriate and improper for the Honourable Court to refuse to give the Appellant the leave required to defend the suit. That this is because the obligation on a Defendant intending to defend a summary judgement procedure is merely to disclose a triable issue. That it is not necessary for the defence to be such that must succeed or which the Court should find to be fair. He referred to UNITY BANK PLC V. OLATUNJI (2013)15 NWLR (PT.1378) 503 AT 546-547.
The Respondent on this issue one canvassed that the Undefended List Procedure, is a special procedure designed for quick dispensation of justice that by the rules of the trial Court, the Court had a duty to assess facts presented before it and satisfy itself that a triable issue or a defence on merit has been disclosed to warrant that the matter be transferred to the general cause list. He relied on Order 21 Rule 3(1) of the High Court of the Federal Capital Territory (Civil Procedure) 2004.
The learned Counsel for the Respondent relied and the case of OBITUDE V. ONYESOM COMM. BANK LTD (2014) 5 NWLR (PT. 1412) 352 and urged the Court to hold that the Appellants Affidavit fell short of the required facts needed for consideration.
The Courts have over the years set out the requirements of the law as to the issue of a Defence to the Undefended List Procedure. ln IMONIYAME HOLDINGS LTD & ANOR V SONEB ENTERPRISES LTD & ORS (2010) 4 NWLR (PT. 561), ADEKEYE JSC, Explained the nature of the Undefended List as follows:
“The Undefended list Procedure now well established under our Civil Legal System, is defined in the High Court Civil Procedure Rules and numerous decided authorities by our Courts of record. It is made in respect of a claim to recover a debt or a liquidated money demand. The applicable law here is Order 23 Rules 1, 3(1) and (2) Cross River State High Court Civil. Procedure Rules 1987. Proceedings under these rules are conducted on Affidavit evidence. The Court must first scrutinize the affidavit evidence of the defendant attached to the Notice of Intention to defend and come to the conclusion that a defence had been disclosed on the merit and thereafter transfer the Suit to the general cause list. It is not necessary for the Court to decide at that stage whether a defence has been established in other to determine whether a Defendant has a good defence on the merit to an action on the undefended list. What the Court has to decide is whether or not a defence had indeed been made out prima facie on the affidavit evidence. It is only in the absence of compelling facts that triable issue or bonafide issue for trial has been made out in the Defendant’s affidavit in support of his notice of intention to defend, or in the absence of any such notice of intention to defend that a trial Court can enter judgment in favour of the Plaintiff on the Undefended list.”
This elucidation of his lordship is necessary to clear from our practice any misconception about the nature of the undefended list procedure.
The procedure under the undefended list is geared towards preventing delay in cases where the Plaintiff has a clear case of debt or for liquidated money demand and the Defendant has no defence. If the Court finds out that the Defendant from his Notice of Intention to Defend has any defence disclosed from his affidavit. The Defendant would be granted leave by the Court to defend the Claim brought by the Plaintiff. Where there is no defence disclosed or a triable issue disclosed by the Defendant, the Court certainly would enter Judgment for the Plaintiff, thereby freeing the Court and the parties from the attendant rigours of a full blown trial. See also U.B.A PLC & ANOR V. JARGABA (2007) 11 NWLR (PT. 1045) 247.
Instructively, the Court handling the Undefended List procedure must carefully look at the affidavit of the Defendant to see if facts disclosed therein at least throw some doubt on the case of the Plaintiff. See WEMA SECURITIES & FINANCE PLC V. NIGERIA AGRICULTURAL ASSURANCE CORP. (2015) LPELR- 24833 (SC).
Hence, where a Defendant shows that he has a fair case for Defence or reasonable grounds for setting up a Defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend. See NKWO MARKET COMMUNITY BANK (NIG.) LTD V. OBI (2010) 14 NWLR (PT. 1213) 169.
ln the instant case, the matter was originated as an undefended list procedure. The Appellant filed a Notice of intention to defend as reflected at Pages 20 of the Record of Appeal. The Affidavit in support is at Pages 22 to 25 of the Record of Appeal. By Paragraphs 6, 10, 11, 72, 13 and 14 of the Affidavit, the Appellant averred as follows:
“6. That the relationship between the Defendant and its wards through their parents and guardians is contractual and regulated by the policies/terms/conditions/guidelines of the Defendant.
10. That the Plaintiff, who is an adult with all requisite capacity to make an informed decision whether to enter into or refrain from entering into a contract with the Defendant, never objected to the terms/conditions/ guidelines/policies which the Defendant notified it. Indeed, the Plaintiff accepted the said terms/conditions/guidelines/policies and signified same by paying a deposit of Four Million Five Hundred Thousand Naira (N4, 500, 000).
11. That a binding contract was therein formed between the Plaintiff and the Defendant pursuant to the said terms/conditions/guidelines/ policies in respect of the 2016/2017 academic year.
12. That the said terms/conditions/guidelines/policies which the plaintiff accepted having been specifically notified before the contract was formed included, among others, a clear term that deposits would not be refunded in any circumstance including but not limited to withdrawal of a child or ward from the Defendant at any point after the payment of the deposit.
13. That the subsequent demand for refund of the paid deposit is a fundamental breach of the contract between the plaintiff and the Defendant. Attached hereto and marked as Exhibit 42 is a copy of the relevant portion of the Student-Parent’s Handbook, which further details the mentioned non-refund policy at page 26 thereof.
14. That the filing of this suit is an attempt to use the Honourable Court to re-write the binding terms/conditions/ guidelines/ policies, which regulated the contract between the Plaintiff and the Defendant.”
The Appellant in her Affidavit in Support of Notice of intention to Defend indicated that the parties had entered a contract and that a fundamental term of the contract is nonrefundable of fees and deposits.
There was no further Affidavit of the Respondent who was the Plaintiff before the trial Court to counter the averments pleading contractual relationship of the parties. It follows invariably that the parties had contract governing their relationship. It is certainly clear a position that parties in a contract must be guided by their terms of contract. Where therefore there is an Undefended List Procedure and the Defendant put in their terms as a Defence the trial Court is bound to consider that defence, The trial Court in the instant Appeal ignored the Defence which if considered would have sent the case to the general cause list to enable the parties bring out their evidence and have a full trial. From the evidence before the trial Court, it is my view that the Court ought to have allowed the Defence of the Appellant to enable the parties have a full trial at the Court of trial. I therefore resolve issue one in favour of the Appellant.
Having resolved issue one in favour of the Appellant considering issue two will be engaging in the academic exercise. I refrain myself from academic issues. From the foregoing, I am of the view that this appeal is meritorious.
The Appeal is accordingly allowed. The decision of the trial Court in Suit No: FCT/HC/CV/2541/16 is hereby set aside.
The Suit is ordered transferred to the general cause list and remitted back to the trial Court to be heard by another Judge of that Court. Parties are to bear their. respective costs.
PETER OLABISI IGE, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH JCA. I agree with the reasoning and adopt the conclusion and orders reached therein. l too, hold that the appeal has merit and it is hereby allowed by me.
Appearances:
Kenneth lweka, Esq. with him, B. Lawan, Esq. and T. Arowolo, Esq.For Appellant(s)
O Okumbo, Esq. with him, U. Alagwu, Esq.For Respondent(s)
