UBOSI & ANOR v. KAKATAR CE LTD
(2022)LCN/16542(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/A/830/2017
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
1. CHUKWUDI S. UBOSI 2. CHUKWUEMEKA D. ELEH (Both Defendants Are Proprietors Of And Carrying On Business Under The Registered Business Name And Style As Ubosi Eleh & Company) APPELANT(S)
And
KAKATAR CE LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE UNDEFENDED LIST PROCEDURE
It is to be noted that, the Undefended List procedure is a peculiar or special procedure under our Rules of Court meant for quick determination of claims for debt or liquidated money demands without subjecting such claims to usual rigours and cumbersomeness of a full trial. It is therefore sui generis and provided for in our Rules of Court to give speedy disposal of claims wherein, the defendant has no valid or reasonable defence to the claim, which is for a debt or sum certain (Liquidated sum). The Undefended List procedure is therefore, usually adopted where there is no doubt about the Plaintiff’s claim, such that it will be unconscionable to allow a defendant to put up a sham defence more of a subterfuge meant to dribble the plaintiff thereby delaying the proceedings. It is not meant to shut-out the defendant who may otherwise have a valid defence on the merit but is designed to secure quick justice and avoid injustice that may occur where the defendant has no genuine defence on the merit against the claim. It saves the time and resources of the litigants, as well as that of the Court. See Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1057) 37 at 70; Imoniyame Holdings Ltd. V. Soneb Enterprises Ltd. (2010) 4 NWLR (Pt. 1185) 561; Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425 and Massken (Nig.) Ltd. & Ors. V. Amaka & Anor. (2017) LPELR-42360 (SC). Thus in International Trust Bank Plc. V. Okoye (2021) 11 NWLR (Pt. 1786) 163 at 197, the Supreme Court held that:
“The Undefended List procedure is employed where the plaintiff has a liquidated money demand. It is designed to afford the plaintiff a quick judgment in clear cases where the defendant has no defence to the claim. It saves judicial time and expense because the case is dealt with summarily and it obviates the need for a full trial. It is not a procedure to be employed where the facts or issues are contentious. In order to be let in to defend the suit, the defendant must show that he has a genuine defence„ He must be specific as to what his defence is. The Court will also examine very closely all the facts before it, the averments of the parties and any documents relied on to determine whether a defence on the merit is disclosed …”PER TSAMMANI, J.C.A.
THE DUTY OF OF THE COURT WHERE IT FINDS THAT THE AFFIDAVIT OF A DEFENDANT HAS DISCLOSED A DEFENCE ON THE MERIT
Where the Court finds that the affidavit of the defendant has disclosed a defence on the merit, he may grant leave to the defendant accordingly; and in that case, the Court may order that the suit to be transferred to the general cause list to be heard on pleadings. However, where the defendant fails to deliver any notice of intention to defend, or the affidavit filed does not disclose any defence on the merit, judgment may be given in the claim as an undefended suit. See David v. Jolayemi (2011) NWLR (Pt. 1258) 320; S.P.D. (Nig.) Ltd. V. Arho-Joe (Nig.) Ltd. (2006) 3 NWLR (pt. 966) 173 and Alhaji Muktari Uba & Sons Ltd. V. Lion Bank of Nigeria Plc. (2006) 2 NWLR (Pt. 964) 288. PER TSAMMANI, J.C.A.
THE POSITION OF LAW WHERE THE CLAIM FOR A DEBT OR LIQUIDATED MONEY DEMAND IS MADE
It should be noted that, where the claim for a debt or liquidated money demand is made, for the defendant to be let in to defend, he must file an affidavit accompanying his Notice of Intention to Defend, which must disclose a valid defence on the merit. A defence on the merit is not a sham defence or one intended to dribble the claimant and thereby engage him in a futile and long drawn legal battle merely for the sake of delaying the course of justice. The affidavit of the Defendant must establish reasonable grounds of defence; and thereby show that there is a dispute between the parties worthy of enquiry by the Court. It has been held by a long list of decisions that, the defence required, must condescend upon particulars and should as far as possible, deal specifically with the plaintiff’s claim. The affidavit in support of the notice of intention to defend must necessarily disclose facts and exhibit documents (where necessary) which will at least through some doubt on the plaintiff’s claim(s). Mere general denials will, therefore, not be sufficient defence on the merit. See Osifo v. Okogbo Community Bank Ltd. (2006) 15 NWLR (Pt. 1002) 260; Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429 at 448; Pan Atlantic Shipping & Transport Agencies Ltd. V. Rhein Mass GMBH (1997) 3 NWLR (Pt. 493) 248 and Tahir v. Kapital Insurance Ltd. (2006) 13 NWLR (pt. 997) 452. See also Amede v. UBA Plc. (2018) 6 NWLR (Pt. 1614) 29. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): The suit leading to this appeal was initiated before the High Court of the Federal Capital Territory under the Undefended List. Therein, the Respondent who was the Claimant or Plaintiff sought the following reliefs:
1. An ORDER of this Hon. Court directing the Defendants to refund and pay back to the Plaintiff a cumulative sum of $59,125.00 (Fifty-NIne Thousand, One Hundred and Twenty-Five Dollars) being sum paid to the Defendants by the Plaintiff for one-year rent, Agency and Legal fees in respect to the unoccupied 3- bedroom apartment at A3, Ancestors Court, Maitama, Abuja.
2. Further Order of this Hon. Court directing the Defendants to refund to the Plaintiff the sum of N3,000,000.00 (Three million Naira) only being the sum paid by the Plaintiff to the Defendants as service charge in respect to the lease of the unoccupied 3- bedroom apartment at A3, Ancestors Court, Maitama, Abuja.
In compliance with the Practice and Procedure Rules of the lower Court, the Writ was supported by an Affidavit of 25 paragraphs to which were attached nine (9) documents marked as Exhibits KCA, KCB, KCC, KCD, KCE, KCF, KCG, KCH and KCI respectively. Upon being served, the Defendants/Appellants filed a Notice of Intention to Defend supported by an Affidavit of 21 paragraphs. Attached to the Affidavit were six (6) documents marked as Exhibits CC1, CC2, CC3, CC4, CC5 and CC6 respectively.
In a nutshell, the case of the Respondent before the trial Court was that, it paid the sum of $59,125.00 (Fifty- Nine Thousand, One Hundred and Twenty- Five U. S. Dollars) for the rent of an apartment at A3, Ancestors Court, Maitama, Abuja and the sum of N3,000,000.00 (Three Million Naira) being service charge. That, the Respondent later found the apartment unsuitable and demanded a refund of the sums of money paid. The Appellants then filed a Notice of Intention to defend the suit. The Appellants contended that the Respondent fully inspected the apartment and found it satisfactory before payments were made. The Appellants also contended that the Three Million Naira (N3,000,000.00) paid to them, was earned as agency fees rendered and therefore, non-refundable. The trial Court, upon consideration of the facts, found that the Appellants failed to disclose a defence on the merit; and accordingly entered judgment for the Plaintiff/Respondent.
The Notice of Appeal consisting of three (3) Grounds of appeal was filed on 24/3/2017. The parties then filed Briefs of Arguments as demanded by the Rules of this Court. The Appellants’ Brief of Arguments settled by Dr. Onyechi Ikpeazu, SAN was filed on 27/3/2019 but deemed filed on 7/12/2021. Three (3) issues were distilled therein for determination as follows:
1. Whether the learned trial Judge was wrong when he heard the case under the Undefended List Procedure. [Ground 3]
2. Whether having regard to the facts disclosed in the Affidavit in support of the Notice of Intention to Defend, the trial Judge was wrong when he held that the Appellants did not disclose a defence on the merit. [Ground 1]
3. Whether the trial Judge was wrong when he failed to accord due weight to Exhibits CC2, CC3, CC4, CC5 and CC6 with respect to their factual and legal consequences.
The Respondent’s Brief of Argument settled by Darlington C. Owhoji; Esq. was filed on 31/3/2021 but deemed filed on 7/12/2021. Only one issue was raised therein for determination as follows:
“Whether the learned trial Judge was right in his finding that the Appellants’ affidavit in support of Notice of Intention to Defense on the merit in accordance with Order 21 Rule 3 of the High Court of the FCT, Abuja (Civil Procedure) Rules, 2004 now Order 35 Rule 3 of the High Court of the FCT, Abuja (Civil Procedure) Rules, 2018”.
I have carefully reflected on the issues raised by the parties; and I am of the view that, the three issues formulated by the Appellant can be adequately be subsumed in the sole issue distilled by the Respondent. In that respect, this appeal shall be determined on the lone issued raised by the Respondent. The three (3) issues distilled by the Appellants shall, therefore, be treated together.
In arguing the appeal, learned Senior Counsel began by contending that, the undefended list procedure is a special procedure meant for quick dispensation of justice; but that such procedure must be maintained within a circumscribed limit of the rules governing it. That, it is strictly set for clear cases of liquidated money demands. The case of Muhammad v. Maglodan (Nig.) Ltd. (2017) LPELR-43191 (CA) per Wambai, JCA was cited in support. That, the Appellants clearly established the existence of a dispute in the Affidavit in support of the Notice of Intention to Defend, which must be resolved before their liability can be determined.
Learned counsel for the Appellants then referred to paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Affidavit in support of the Notice of Intention to Defend, to submit that, those depositions raised issues which needed to be tried and resolved before the extent of liability of the Appellants could be determined. That, the issues to be resolved are:
(1) Whether or not the Appellants acted as agents of a disclosed principal in which case, the Appellants cannot bear liability.
(2) Whether or not the Respondent physically inspected the property and accepted same by paying the rent in which case the Respondent would be stopped from making the claim.
(3) Whether or not the Respondent was put in possession of the property in which case, the Respondent cannot claim a refund of the one year rent and the service charge in the claims claimed
That the above issues raised in the Affidavit in support of the Notice of Intention to defend, completely contradicted and negated the Respondent’s claim and rendered the suit untenable for determination under the undefended list procedure. That in the circumstances, there was no basis for disbelieving the depositions of the Appellants as done by the learned trial Judge. Furthermore, that the Affidavit of the Appellants presented issues that call for further investigation before the determination of the liability of the Appellants. The case of I. H. Ltd. v. Soneb Ent. Ltd. (2010) 10 NWLR (Pt. 1185) 561 at 577 Paras. F-H was cited in support.
Learned counsel for Appellants went on to submit that, Exhibit CC5 (Letter of Demand for Refund) did not only come months after the commencement of the tenancy, it gave a reason for demanding a refund as follows:
“I write to inform your office that the above apartment offered to me does not suit my convenience anymore”.
That by the use of the term “anymore”, the Respondent gave a clear indication that the apartment was earlier suitable for his purpose, thereby giving credence to the Appellants’ defence that the Respondent did not only inspect the property but also took possession of same. That, this fact also means that the suit was unsuitable for determination under the undefended list procedure. The cases of Osigwe v. PSPLS Management Consortium Ltd. (2009) 3 NWLR (Pt. 1128) 378 at 399 Paras. F-H and Okafor v. Ezenwa (2002) 13 NWLR (Pt. 784) 319 at 340 Paras. A-F were cited in support and to submit that, the Affidavit evidence of the Appellants show that the rent was paid to Odoh Holdings Ltd, while the agency fee was paid to the Appellants. In other words, the affidavit and documentary evidence disclose that, the Appellants were acting as agents for a disclosed principal who is the owner/landlord of the property, which fact was not denied. That in the circumstances, the claim for refund of the rent paid, cannot lie against the Appellants personally.
Learned counsel for the Appellants went on to submit that, the learned trial Judge granted reliefs to the Respondent which included, a refund of the agency fees paid. That the Respondent having rented the apartment, the Appellants were entitled to their fees having discharged their services. That the said fees do not form part of the rent but payment for preliminary service rendered by the Appellants.
To demonstrate that the claim of the Respondent is not liquidated, learned counsel for the Appellant contended that, the claim in relief 1 is inconsistent as to the sum of money claimed. That the sum claimed as $59,125.00 is written in words as Fifty-Five Thousand, One Hundred and Twenty-Five Dollars. That in Relief 2, the Respondent claimed N3,000,000.00 in figures but three thousand naira in words; and that at paragraph 21, the Respondent claimed that the rent paid was $55,000.00 while the sum of $5,500.00 was paid as agency fees. It is thus contended that, those figures are contradictory or inconsistent, and there is no explanation of the inconsistency. The cases of Maja v. Samouris (supra) and Akpan v. Akwa Ibom Property & Investment Co. Ltd. (2013) LPELR-20753 (SC) were cited in support and to further submit that, the inconsistencies show that, the money demand is not liquidated. Furthermore, that apart from the inherent inconsistencies, the Affidavit in support of the Notice of Intention to Defend, disclose a defence on the merit necessitating a transfer of the case to the general cause list.
Learned counsel for the Appellant went on to submit that, in determining the issue, the learned trial Judge failed to evaluate Exhibits CC2, CC3, CC4, CC5 and CC6 but merely concluded that, the Appellant did not disclose a defence on the merit. That those documentary evidence ought to have been evaluated, and that, failure to do so, led to a miscarriage of justice. The cases of Whyte v. Jack (1996) 2 NWLR (Pt. 431) 407 and Fashanu v. Adekoya (1974) 6 SC 83 were then cited to submit that, in law, documents serve as veritable aids for assessing oral evidence. The cases of Brawal Shipping Ltd. v. F.I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387 at 403 Paras. D-H and Harriman v. Harriman (1989) 5 NWLR (Pt. 119) 6 at 16-17 were also cited to submit that, the approach adopted by the trial Court amounted to a denial of fair hearing against the Appellants. The cases of Adebayo & Ors. V. Shogo (2005) 2-3 S.C. 60 at 67 and MTN (Nig.) Communications Ltd. v. C-soka (Nig.) Ltd. (2018) LPELR-44423 (CA) were then cited in urging us to resolve the issues in favour of the Appellant.
In response, learned counsel for the Respondent submitted that, this Court has the duty to re-evaluate the findings of the trial Court in order to determine whether evidence tendered before the Court weighs in favour of the Appellant as required by the law. The case of Lewis v. UBA (2016) LPELR-40661 (SC) was cited to submit that an affidavit showing cause why a defendant should be granted leave to defend an action, must disclose such a defence on the merit supported by the details and particulars of the defence. Order 35 Rule 3(1) of the F.C.T. High Court (Civil Procedure) Rules, 2018 was cited in support. That in the instant case, the Respondent averred in paragraphs 10-17 of the Affidavit, the particulars of the specific terms, the amount claimed with exhibits, the evidence of the receipt and acknowledgment of the said sums paid by the Appellants.
Learned counsel for the Respondent then argued that, the Appellants filed their Affidavit in support of the Notice of Intention to Defend. Referring to the findings of the trial Court at page 105 of the record of appeal learned counsel contended that, the import of the ruling is that the Appellants failed to adduce credible or any material fact disputing in specific and particularised manner, their defence to the Respondent’s claim. That, particularly, the Appellants admitted at paragraph 9 of the Affidavit in support of the Notice of Intention to defend, the sums paid by the Respondent. The cases of Sunday Adegbite Taiwo v. Sarah & Adegbero & Anor. (2011) 11 NWLR (Pt. 1259) 562 at 583 and Alahassan & Anor. V. Mr. Darius Dickson Ishaku & Ors. (2016) 2 SCN at 57 Paras. B-D were cited in support. Further, that Appellants also deposed that, the act of receiving the money paid by the Respondent gave them the right which precludes them from refunding the ascertained sum received from the Appellants on an unexecuted agreement nor consummated as deposed in paragraph 21 of the Appellants’ affidavit.
Learned counsel for the Respondent went on to submit that, the above admissions do not in any legal standard constitute a defence on the merit. That the manifest failures on the particular facts do not constitute defence on the merit weighty enough to grant them any right to defend the claim. That, the only reason given by the Appellants why they should be allowed to defend the action did not meet the requirements of the law. Furthermore, that the Appellants failed to appreciate the deficiencies in their Affidavit even on their arguments that the sum claimed by the Respondent is imprecise and ascertainable, the Respondent’s depositions in paragraphs 11, 12 and 13 of the Affidavit in support of the Writ of Summons are clear, unambiguous and specific as to the sums received by the Appellants. The case of Muhammed v. Maglodan (supra) was then cited to submit that, in any case, the Appellants admitted receiving specific sums from the Respondent.
On the argument of the Appellants that they acted as agents of a disclosed principal, it is the contention of the Respondent that, the Appellants received the money without disclosing that they were acting for a principal. That as deposed in paragraph 14 of the Affidavit in Support of the Writ, the Respondent only knew of Odoh Holding’s Ltd. when they were served with the unexecuted Tenancy Agreement after the Appellants had received the sums of money. That, the Respondent did not execute any agreement with the said Odoh Holding Ltd. and therefore, had no contractual relationship with Odoh Holding Ltd. It was then submitted that, in any case, the Appellants did not depose to any material facts showing that they are agents of a principal at the time of receiving the sum claimed. We were accordingly urged to hold that, the learned trial Judge was right in his findings that the Appellants had no defence on the merit, and to uphold the judgment of the trial Court.
Now, Order 35 Rules 1, 2, 3, 4 and 5 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 stipulated that:
1(1) Where an application in Form 1 as in the Appendix is made to issue a Writ of Summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the Judge in chambers shall enter the suit for hearing in what shall be called the undefended list.
(2) Writ of Summons for a suit in the undefended list shall contain the return date of the writ.
2. A claimant shall deliver to the registrar on the issue of the Writ of Summons, as many copies of the supporting affidavit as there are parties against whom relief is sought for service.
3(1) Where a party served with the writ delivers to registrar before 5 days to the day fixed for hearing, 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 from 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 a defendant neglects to deliver the notice of defence and an 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 accordingly.
5. A Court may call for hearing or require oral evidence where it feels compelled at any stage of the proceedings under Rule 4.
By the above stated rules, a plaintiff may apply for the issuance of a writ of summons for the recovery of a debt or liquidated money demand. Such writ must be accompanied by an affidavit stating the grounds upon which he bases the claim. The Plaintiff must depose in the affidavit that, in his belief, the defendant has no defence to the claim on the merit. Where the writ is so marked and served on the defendant, he is expected to file in the Registry and serve the Plaintiff, a notice that he intends to defend the suit. Such notice shall be accompanied by an affidavit which discloses a defence on the merit. Where the Court finds that the affidavit of the defendant has disclosed a defence on the merit, he may grant leave to the defendant accordingly; and in that case, the Court may order that the suit to be transferred to the general cause list to be heard on pleadings. However, where the defendant fails to deliver any notice of intention to defend, or the affidavit filed does not disclose any defence on the merit, judgment may be given in the claim as an undefended suit. See David v. Jolayemi (2011) NWLR (Pt. 1258) 320; S.P.D. (Nig.) Ltd. V. Arho-Joe (Nig.) Ltd. (2006) 3 NWLR (pt. 966) 173 and Alhaji Muktari Uba & Sons Ltd. V. Lion Bank of Nigeria Plc. (2006) 2 NWLR (Pt. 964) 288.
It is to be noted that, the Undefended List procedure is a peculiar or special procedure under our Rules of Court meant for quick determination of claims for debt or liquidated money demands without subjecting such claims to usual rigours and cumbersomeness of a full trial. It is therefore sui generis and provided for in our Rules of Court to give speedy disposal of claims wherein, the defendant has no valid or reasonable defence to the claim, which is for a debt or sum certain (Liquidated sum). The Undefended List procedure is therefore, usually adopted where there is no doubt about the Plaintiff’s claim, such that it will be unconscionable to allow a defendant to put up a sham defence more of a subterfuge meant to dribble the plaintiff thereby delaying the proceedings. It is not meant to shut-out the defendant who may otherwise have a valid defence on the merit but is designed to secure quick justice and avoid injustice that may occur where the defendant has no genuine defence on the merit against the claim. It saves the time and resources of the litigants, as well as that of the Court. See Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1057) 37 at 70; Imoniyame Holdings Ltd. V. Soneb Enterprises Ltd. (2010) 4 NWLR (Pt. 1185) 561; Obaro v. Hassan (2013) 8 NWLR (Pt. 1357) 425 and Massken (Nig.) Ltd. & Ors. V. Amaka & Anor. (2017) LPELR-42360 (SC). Thus in International Trust Bank Plc. V. Okoye (2021) 11 NWLR (Pt. 1786) 163 at 197, the Supreme Court held that:
“The Undefended List procedure is employed where the plaintiff has a liquidated money demand. It is designed to afford the plaintiff a quick judgment in clear cases where the defendant has no defence to the claim. It saves judicial time and expense because the case is dealt with summarily and it obviates the need for a full trial. It is not a procedure to be employed where the facts or issues are contentious. In order to be let in to defend the suit, the defendant must show that he has a genuine defence„ He must be specific as to what his defence is. The Court will also examine very closely all the facts before it, the averments of the parties and any documents relied on to determine whether a defence on the merit is disclosed …”
It should be not that, for a claim to merit consideration under the undefended list, it must be a claim for debt or liquidated money demand. A liquidated money demand includes a debt; and it therefore means a specific amount which has accrued in favour of the plaintiff. It also includes an amount certain, which had previously been fixed or agreed by the parties as payable under a contract. It includes money had and received, or capable of being ascertained as a matter of arithmetic without the need for further investigation. It therefore means that, where the Court has to quantify or assess the amount to be awarded, such as damages or loss, whether of peculiar nature or not, such claim is unliquidated. Similarly, when the amount to be recovered will depend on the facts and circumstances of the case; and is to be fixed by opinion or estimate in order to determine what may be adjudged reasonable, it will not qualify as a liquidated claim or money demand. See NNPC (Retail) Ltd. V. Murtala & Anor. (2014) LPELR-22911 (CA); Abayomi v. A. G of Ondo State (2007) All FWLR (Pt. 391) 1683 at 1694 and Akpan v. Akwa Ibom Property & Investment Co. Ltd. (2013) LPELR-20753 (SC). In Maja v. Samouris (2002) LPELR-1824 (SC), The Supreme Court per Iguh; JSC held that:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be “Liquidated” or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a “penalty” and is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute”.
Now, it is not in doubt that the Plaintiff/Respondent’s claim as endorsed on the Writ of Summons, and also paragraphs 11, 12 and 13 of the Affidavit in Support of the Writ of Summons, that the claim is payment made for one year’s rent and Agency/Legal fees in respect of a 3- bedroom apartment situate at A3, Ancestors Court, Maitama, Abuja. The sums claimed are certain and determinable and need no other assessment by the Court to determine same. The documents exhibited to the Affidavit in Support of the Writ clearly support the fact that, the Plaintiff/Respondent’s claim is for a liquidated money demand.
It should be noted that, where the claim for a debt or liquidated money demand is made, for the defendant to be let in to defend, he must file an affidavit accompanying his Notice of Intention to Defend, which must disclose a valid defence on the merit. A defence on the merit is not a sham defence or one intended to dribble the claimant and thereby engage him in a futile and long drawn legal battle merely for the sake of delaying the course of justice. The affidavit of the Defendant must establish reasonable grounds of defence; and thereby show that there is a dispute between the parties worthy of enquiry by the Court. It has been held by a long list of decisions that, the defence required, must condescend upon particulars and should as far as possible, deal specifically with the plaintiff’s claim. The affidavit in support of the notice of intention to defend must necessarily disclose facts and exhibit documents (where necessary) which will at least through some doubt on the plaintiff’s claim(s). Mere general denials will, therefore, not be sufficient defence on the merit. See Osifo v. Okogbo Community Bank Ltd. (2006) 15 NWLR (Pt. 1002) 260; Ataguba & Co. v. Gura (Nig.) Ltd. (2005) 8 NWLR (Pt. 927) 429 at 448; Pan Atlantic Shipping & Transport Agencies Ltd. V. Rhein Mass GMBH (1997) 3 NWLR (Pt. 493) 248 and Tahir v. Kapital Insurance Ltd. (2006) 13 NWLR (pt. 997) 452. See also Amede v. UBA Plc. (2018) 6 NWLR (Pt. 1614) 29.
In determining whether or not, the Defendants/Appellants’ affidavit in support of their Notice of Intention to Defend disclosed any defence on the merit, the learned trial Judge found at page 104 line 1-105 line 6 of the record of appeal as follows:
“It has been held by the Supreme Court in the case of Ed-of Nigeria Limited v. SNIG Nigeria Limited (2013) LPELR-19888 (SC) that beyond disclosing an ex-facie defence, the defendant in an action under the undefended list must supply full details of the actual defence he intends, if given lease, to place before the Court. I have considered the above averment (sic: depositions) of the defendants. The allegation that the plaintiff has taken possession of the property immediately after payment is not supported by any of the attached exhibits of the defendants. Infact, the exhibits CC2 and CC4 state that the term of one year was effective from the date of handover of keys to the plaintiff (Exhibit CC2) and the commencement date of the tenancy was 15th July, 2015, Exhibit CC5 and reply as contained in Exhibit CC6. It is clear that the plaintiff did not take possession of the property as at the time it declared intention to rescind from the agreement and demand (sic) for refund of the consideration paid. Therefore, from the exhibit before the Court and the averments (sic: depositions) in the affidavit in support of intention to defend, nothing is placed before the Court to show that the plaintiff has taken possession and had spent time on the tenancy as averred (sic: deposed) in paragraph 18 of the affidavit of intention to defend.
An affidavit in support of Notice of Intention to defend must not contain general statements which are not supported by particulars. See Alh. Abubakar Sadik Dantama v. Unity Bank Plc. (2015) LPELR-24448 (CA). The defendants at paragraph 9 of their affidavit averred (sic: deposed) that payments into the state accounts were made by the Plaintiff. But exhibits KCB and KCC detached to the affidavit in support of the Writ of Summons show that the defendants received payments and issued receipt Nos. 0001953 and 0001823 in the name of UBOSI ELEH & CO. By exhibit KCB, the plaintiff made a cash payment of $59,125.00. The averment (sic: deposition) in paragraph 14 of the defendant’s affidavit and Exhibit CC6 that the plaintiff could be refunded the unexhausted rent and service charge upon successful reletting of the property by either executing the Tenancy Agreement and the Keys handed over to the Plaintiff”.
The learned trial Judge then concluded by holding at page 105 line 13-25 of the record of appeal as follows:
“I have taken consideration of the claim of the plaintiff/ affidavit in support of the claim and the defendants’ affidavit in support of Notice of Intention to defend as well as the exhibits attached to the two affidavits, my conclusion is that the defendants have disclosed no defence on the merit. The defence is devoid of any merit. It has been held by the Supreme Court in the case of Ezekiel Okoli v. Morecab Finance (Nig.) Ltd. (2007) LPELR-2463 (SC) that, a defendant who has no real defence to an action under the undefended list should not be allowed to disable and frustrate the plaintiff and cheat him out of judgment by delay tactics.
The defendants having failed to disclose a defence on the merit in accordance with Order 21 Rule 3 of the Rules of this Court, 2004. Accordingly, leave to defend not granted by this Honourable Court”.
I wish to point out that, before the Court can reach a conclusion whether or not the defendant has a defence to the plaintiff’s claim, it must carefully scrutinise the contending affidavits of the parties judicially and judiciously. It is not sufficient to merely reproduce and/or restate the depositions of the parties without more. A critical evaluation of the affidavit evidence including the documents exhibited thereto, must be embarked upon by the Court. To arrive at a decision whether or not the learned trial Judge arrived at the right conclusion, I propose to consider the relevant paragraphs of the affidavits of the parties.
Now, the plaintiff had deposed in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 of the Affidavit in Support of the Writ of Summons as follows:
9. That the plaintiff expressed its interest to take the lease of the property known as A3, Ancestors Court, Maitama, Abuja, the Defendants were leasing out to members of the public.
10. That pursuant to the expression of interest, the Defendants through the aforesaid MACBEN V NWAWUBA and EZEAGU NNAMDI and on the 29th April, 2015 delivered payment instruction to the Plaintiff. The said payment instruction contains all banking details of the Defendants and the amount payable as rent, agency fees and service charge. A copy of the said payment instruction is annexed as Exhibit “KCA”.
11. That pursuant to the payment instruction on the 28/5/2015, the plaintiff paid the Defendants a cumulative sum of $59,125.00 United States Dollars (Fifty-NIne Thousand, One Hundred and Twenty-Five US Dollars) as payment for one-year, Agency and Legal fees in respect to the unoccupied 3- bedroom apartment at A3, Ancestors Court, Maitama, Abuja.
12. That the Plaintiff further paid to the Defendants additional sum of N3,000,000.00 (Three Million Naira) for service charge. All payments made in respect to the lease of the unoccupied 3 bed-room apartment at A3, Ancestors Court, Maitama, Abuja.
13. That all these sums were duly received by the Defendants. Receipts were issued to the Plaintiff in acknowledgment of the receipt of the said sums. Receipt No. 0001953 was issued in respect of the payment of the sum of $59,125.00 (United States Dollars), a photocopy is herein annexed as exhibit “KCB”. Another receipt with No. 0001823 was given by the Defendants to the Plaintiff in respect to the payment of the sum of N3,000,000.00 (Three Million Naira), a photocopy of which is annexed as exhibit “KCC”.
14. That on June 9th, 2015, the defendants forwarded to the Plaintiff, Tenancy Agreement in the name of ODOH HOLDINGS LIMITED and KAKATAR CE LIMITED. A copy of the letter forwarding the Tenancy Agreement and the unexecuted tenancy agreement are annexed as Exhibits “KCD” and “KCE” respectively.
15. That the parties never executed the aforesaid Tenancy Agreement.
16. That the Plaintiff upon payment of the said sum and prior to the receipt of the Tenancy Agreement carried out an inspection of the said property situate and described as Three bedroom flat with one room services quarters and appurtenances known as Flat No. 3, Block “A”, Ancestors Court, Osun Crescent, Maitama, Abuja.
17. That after the inspection, the Plaintiff found out that the property was not suitable for its purpose and requirements. Plaintiff was dissatisfied and promptly requested for a refund of the sums already paid and received by the Defendants. copy of the Defendant’s reply letter dated the July 14th, 2015 is annexed as Exhibit “KCG”.
18. That having waited for a period of close to one year and exhausted all oral entreaties and amicable options to persuade the Defendants to refund the said sum to them, the Plaintiff on the 2nd June, 2016 made a formal demand for the refund of the said sum of money paid to the Defendants. A copy of the demand letter is annexed as Exhibit “KCB”.
19. That the Defendants on July 20th, 2015 replied the said letter and therein admitted that the said apartment was vacant and uninhabited by the Plaintiff since the payment of the sum aforesaid. The said letter is annexed as exhibit “KCI”.
20. That the Defendants have deliberately refused and failed to refund the aforesaid sums of money paid to it for an apartment the Defendants knew the Plaintiff never took possession of and was never occupied by the Plaintiff despite the Plaintiff’s timely and quick notification of its intention not to continue with the leasehold agreement.
21. That the total money paid to the Defendants are Fifty-Five Thousand US Dollars ($55,000.00 as rent per annum, (in Naira denomination); Three Million Naira (N3,000,000.00) paid as service charge, and the sum of Five Thousand, Five Hundred US Dollars ($5,500.00) paid as agency fees. That in my belief, the Defendants have no defence to this claim.
As I noted earlier, the Defendants/Appellants filed a Notice of Intention to Defend together with an Affidavit in Support. Therein, the Appellants deposed in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 as follows:
5. That the defendants at all material times relating to the transaction giving rise to this suit were agents of a disclosed principal, i.e. Messrs. Odoh Holdings Limited, the bonafide owners of the property lying, situate and known as A3, Block A Ancestors Court, Maitama, Abuja. That the identity of the principal was fully disclosed to the plaintiff and its authorized representatives prior to the lease contract. After appointing the defendants as agents of the Odoh Holdings Limited is attached as Exhibit CC1.
6. That the lease of property No. A3, Block Ancestors Court, Maitama, Abuja by the Plaintiff was preceded by series of negotiations between the defendants and authorized representative/appointed agent of the plaintiff i.e. the firm of Messrs. Mohammed Salihu & Co.
7. That sequel to the negotiations, were series of inspections by the Defendants and plaintiff’s representatives to the plaintiff’s satisfaction, pursuant to which an offer letter embodying the terms of the lease contract was made by the defendants and accepted by the plaintiff. The offer letter dated 28th April, 2015 is attached as Exhibit CC2.
8. That at the Plaintiff’s request and by a letter dated 29th April, 2015 the defendants delivered a payment advice to the Plaintiff detailing the details of its principal Odoh Holdings Limited for the purpose of receiving the rent for a one year tenancy term as well as the defendant’s bank details for the purpose of receiving the agency and legal fees as well as the agreed service charge. The letter dated 29th April 2015 is attached as Exhibit CC3.
9. That payment on the above heads into the stated accounts were made by the plaintiff having been fully satisfied with the state of the leased property sequel to the physical inspections by its agents Messrs. Mohammed Salihu & Co and subsequently by itself.
10. That the plaintiff was immediately let into possession of the subject property upon payment of agreed rent and fees.
11. That the responsibility of the defendants in respect of property No. 8 Block A, Ancestors Court, Maitama, Abuja extinguished when the plaintiff furnished consideration by payment of the reserved rent and fees and that by this the defendants have lawfully earned their fees which is not subject to a refund.
12. That by a letter dated 9th June 2015 the defendants forwarded a Tenancy Agreement to the plaintiff who though received same and never executed it nor returned it. The tenancy agreement is attached as Exhibit CC4.
13. The Plaintiff by a letter dated Monday July 2015 purportedly from the legal services department of the plaintiff’s company, sought a refund of the rent and fees paid in respect of the lease of property A3, Block A, Ancestors Court, Maitama, Abuja on the ground herein contained in his letter thus:
“…That the above apartment offered me does not suit my convenience”.
14. That by a letter dated July 24th, 2015 the defendants responded the plaintiff’s Exhibit CC5. reminding the plaintiff that the property as leased to it to the exclusion of all other potential tenants and promised to refund the an-exhausted rent and service charge upon successful re-letting of the subject property. The defendants’ letter attached as Exhibit CC5.
15. That I am informed by the defendants and I verily believe them to be true that the property No. A3, Block Ancestors Court, Maitama Abuja was not let out throughout the duration of the un-expired… Of the plaintiff’s tenancy neither was the property taken from her. That the interest of the plaintiff over the property or right to a refund of rent and fees paid, extinguished upon the determination of the tenancy which was determined on 27th May, 2016 i.e. one year after the commencement of the tenancy vide payment of rent.
16. That while the offer of the property was made to the plaintiff on 29th April, 2015, and payment by the Plaintiff on 23th May 2015, the Plaintiff waited until July 2015 to notify the defendant of its intention rescind from the contract and claimed fun sum paid irrespective of the time spent on the tenancy.
17. That if the plaintiff shall be entitled to a refund if any, it shall be on a quantum-meruit basis to which account ought to be taken to determine.
18. That if account ought to be taken to determine the amount due to the plaintiff, then the said sum due is not a liquidated amount and shall not be one determinable under the undefended list procedure that one upon which oral evidence need to be led.
19. That the Defendant has a valid defence to this suit and plaintiff is not entitled to the reliefs claimed, including the cost of action and shall file a notice of counterclaim when the matter is transferred to the general cause list for trial on the merit.
Now, considering the depositions in the respective Affidavits of the parties, was the trial Court right in holding that the Appellants disclosed no defence on the merit? Having carefully studied the Appellants’ Affidavit, I find that the Appellants have raised the issue that they were acting for a disclosed principal; to wit: Odoh Holdings Limited. I note also that in Exhibit “KCA”, (Payment Instruction), the name of the Beneficiary is stated as Odoh Holdings Limited. Similarly, the Tenancy Agreement, though not executed, is between Odoh Holdings Limited and Kakatar Limited (Respondent). Secondly, the Plaintiff claims a refund of the money it paid as rent, it has to be determined whether it is the Appellants or Odoh Holdings Limited that will make the refund. Furthermore, if the money is refundable, is it the whole of it or a part. Furthermore, it is the case of the Appellants that, the Three Million Naira (N3 Million) paid to them, was payment for agency fees and that it is non-refundable. There is also dispute as to whether there was in existence a Tenancy Agreement (despite payment by the Respondent), since the Tenancy Agreement was never executed. The issues pointed out herein, indicate that defence have been disclosed on the merit worthy of trial by the Court.
Having held as above, I am of the view that this appeal has merit. It is accordingly allowed. Consequently, the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 20th day of March, 2017 is hereby set aside. I accordingly order that the Suit No: FCT/HC/CV/465/2016 be remitted to the Chief Judge of the FCT, Abuja High Court to be heard on pleadings by another Judge other than Muawiyah Baba Idris, J.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, HARUNA SIMON TSAMMANI, JCA, which has just been delivered.
I entirely agree with, and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA.
I equally agree with the reasoning and the conclusion that the appeal has merit. I accordingly allow the appeal and abide by the consequential orders therein.
I too set aside the judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 20th day of March, 2017.
Appearances:
Obinna Onya, Esq. For Appellant(s)
A.A. Akaahs, Esq., with him, Darlington Owhoji, Esq. and Peace Theophilus, Esq. For Respondent(s)