YUSUF TIJANI v. MARK UGORJI
(2018)LCN/11159(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of March, 2018
CA/A/151/2016
RATIO
WHAT A CREDITOR SHOULD DO WHEN A DEBTOR HAS NO DEFENCE
When a plaintiff envisages that the defendant has no defence to his claim for a debt or liquidated money demand in a specific amount, then the most appropriate way of recovering same, is by filing a Suit on the Undefended List. It saves time, energy and resources for the Court and the litigants. The Writ on the Undefended List is supported by an affidavit which must show on its face, that the defendant has no defence to the action per ABUBAKR DATTI YAHAYA, J.C.A
DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
It is trite, that it is the duty and responsibility of a trial Court, which has the advantage of hearing and watching the demeanour of witnesses, to evaluate the evidence led and arrive at findings of facts and conclusions. The trial Court discharges this responsibility by considering the entire evidence before it and showing so, in its judgment per ABUBAKR DATTI YAHAYA, J.C.A
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
YUSUF TIJANI Appellant(s)
AND
MARK UGORJI Respondent(s)
ABUBAKR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)
This appeal is against the decision of the High Court of the Federal Capital Territory Abuja, delivered on 18th January 2016, by Justice A. M. Idris.
The respondent as plaintiff took out a Writ of Summons on the Undefended List, claiming against the appellant as respondent
(i) Immediate payment of N6,000,000.00 (Six Million Naira) being balance of N9,000,000.00 received from the plaintiff and used by the defendant for execution of a contract.
(ii) Cost of prosecuting this action assessed at N500,000.00 only.
The affidavit in support of the Undefended Suit, deposes to the fact that the respondent and the appellant agreed to contribute the sum of N12 million each, totalling N24 million, to enable the appellant execute two contracts for the renovation of barracks and for them to share a profit of N36,974,635.00. On the strength of this, the respondent gave the appellant an initial amount of N6 million and then another N3 million, totalling N9 million. As time went by, the respondent had the distinct feeling that the appellant was not truthful in the whole affair, as he refused to show him the contract site. The respondent then demanded for a refund of the N9 million he gave to the appellant which he acknowledged via Exhibit P1. The appellant then deposited N1 million into the account of the respondent at Zenith Bank. He also paid him N2 million in cash, totalling N3 million. He refused to refund the balance of N6 million in spite of repeated demands. Hence the Suit on the Undefended List, where he deposed to the fact that the appellant had no defence on the merit.
The appellant filed a Notice of Intention to defend the Suit and a counter-affidavit (should have been an affidavit in support of the Notice of Intention to defend). In the said counter-affidavit, the appellant deposed to the facts that the parties indeed agreed that the appellant would pay N12 million or N29,066.43 and take over the execution of the contract. The respondent later paid N9 million to the appellant in pursuance of the agreement, but did not pay the balance of the N20,066.480 as agreed. The appellant further averred that he did not defraud the respondent and that the respondent never demanded for the refund of the money. He specifically deposed, that the respondent is indebted to his company Techno International Company Limited, in the said balance of N20,066,480.00 as shown in Exhibit P1. He said he had a defence to the action.
The trial judge considered the documents before him and gave judgment to the respondent. As the appellant felt aggrieved in that vein, he appealed to this Court. His appellant’s brief was filed on 3rd May, 2016, and in it, his counsel, Mr. Emmanuel Okeke, identified two issues for determination to be ?
1. Whether having regard to the applicable law vis–vis the document which is Exhibit P1, the learned trial judge was not wrong not to consider same in all its entirety in arriving in his judgment, as it is relevant to the agreement of the parties.
OR IN THE ALTERNATIVE
Whether without having regard to Exhibit P1, the judgment of the learned trial judge or conclusion drawn from same can be justified.
2. Whether failure of the respondent to controvert, or contradict or challenge the appellant position as contained in paragraphs 10 and 13 of appellant affidavit does not amount to admission.
The respondent’s brief was settled by Mr. E. I. Nwude and was filed on 13th September 2017, but deemed filed on 25th January 2018. The suggested issues are:-
1. Whether the learned trial judge gave copious consideration on exhibit P1 before arriving at his judgment?
2. Whether the respondent’s affidavit in support of the application for the Undefended List, contained at paragraphs 17-19 of the record gave detail explanation and traversed all the paragraphs of the appellant’s counter affidavit contained at pages 38-40.
As the issues are similar, I will utilize the issues suggested by the appellant, to resolve this appeal.
ISSUE No. 1
Whether having regard to the applicable law vis–vis the document which is Exhibit P1, the learned trial judge was not wrong not to consider same in all its entirety in arriving in his judgment as it is relevant to the agreement of the parties.
OR IN THE ALTERNATIVE
Whether without having regard to Exhibit P1, the judgment of the learned trial judge or conclusion drawn from same can be justified.
Learned counsel for the appellant referred to Exhibit P1 as relevant to the conduct of the parties and therefore relevant to the proceedings which ought to, but was not considered in its entirety, by the trial Court. He referred to Section 5, 6(1) and 13 of the Evidence Act 2011; and the cases of BUHARI v. I.N.E.C. (2008) 36 NSCQR (Pt. 1) 475 at 640; UDORO v. AKWA IBOM STATE (2010) 11 NWLR (Pt. 1205) 322 at 336-337; and OGUAMIHU v. CHIEGBOKA (2015) EJSC 89 at 100. Learned counsel contended that when the appellant?s counsel made reference to Exhibit P1 in the appellant counter-affidavit at paragraphs 10 and 13 (page 40 of the record), the respondent did not deny the paragraphs, to prove that the parties neither made nor agreed on the said Exhibit. It was his view, that the trial judge should have considered Exhibit P1, in respect of the sum of N9 million, and evaluate the meaning or balance of the said sum – YADIS LTD v. GNIC LTD (2007) 30 NSCQR (Pt. 11) 495 at 518-519. Counsel urged us to hold that the non-evaluation of Exhibit P1 affected the fundamental issues in the claim of the respondent and so the conclusion reached, was perverse.
?Learned counsel for the respondent countered, by submitting that the trial judge analyzed and considered Exhibit P1 in detail before arriving at the decision. He referred to pages 56, 57, 62-64 of the record. He argued that even if there is any ambiguity in Exhibit P1, the admission of the appellant in paragraphs 5-11 of Exhibit P3 (page 8 of the record) has resolved it – Section 123 of the Evidence Act 2011, ATANDA v. ILIASU (2013) 18 WRN 1 at 20; and APA v. I.N.E.C. (2015) 3 WRN 1 at 62. He argued further, that Exhibit P1 did not state that the respondent was to pay N20,066,480 to the appellant as the amount was written only as a balance without comment and since the document speaks for itself, and must be given its strict and plain meaning – JUKOK INT’ LTD v. DIAMOND BANK PLC (2015) 7 WRN 1 at 40 and KWARA POLYTECHIC v. SHITTU (2013) 17 WRN 78 at 112. He urged us to resolve the issue in favour of the respondent.
When a plaintiff envisages that the defendant has no defence to his claim for a debt or liquidated money demand in a specific amount, then the most appropriate way of recovering same, is by filing a Suit on the Undefended List. It saves time, energy and resources for the Court and the litigants. The Writ on the Undefended List is supported by an affidavit which must show on its face, that the defendant has no defence to the action – HAIDO v. USMAN (2004) 3 NWLR (Pt. 859) 65.
When the defendant is served with the Writ and he is desirous of defending the action, he has to file a Notice of Intention to defend, together with an affidavit disclosing a defence on the merit, or a triable issue. On the returned date, the Court will peruse the documents to seek to know whether a defence on the merit has been disclosed. If it has been, then the suit will be transferred to the general cause list for hearing and pleadings may be ordered. If there is no defence on the merit, judgment will be entered for the plaintiff in the sum claimed – BEN THOMAS HOTEL LTD v. SEBI FURNITURE LTD (1989) 5 NWLR (Pt. 123) 523. When serious conflicts are disclosed in the affidavits of the parties and no documents are produced before the Court that will tilt the facts to one side, the suit is usually transferred to the general cause list. Again, where the defendant in his affidavit in support of his intention to defend the action, counter-claims or sets-off, the Suit should be transferred to the general cause list for hearing – BISONG v. EKPENYONG (2003) 5 NWLR (Pt. 812) 156.
Learned counsel for the appellant has forcefully argued that the trial judge did not consider in its entirety, Exhibit P1, in his judgment. This is not correct. For at page 62 of the record, which is part of the judgment of the trial Court, the trial judge held –
“… The defendant…. has not countered the fact that the plaintiff has paid the sum of N9 million which was acknowledged as received by him, through Exhibit P1…. I have scrutinized Exhibit P1 which the defendant also relied on, but I cannot see where the defendant stated that he received the two deposits on behalf of the said company.”
It is trite, that it is the duty and responsibility of a trial Court, which has the advantage of hearing and watching the demeanour of witnesses, to evaluate the evidence led and arrive at findings of facts and conclusions. The trial Court discharges this responsibility by considering the entire evidence before it and showing so, in its judgment – OLALOMI INDUSTRIES LTD v. N.I.D.B. (2009) 7-9 Volume 39 NSCQR 240. Unless the exercise has produced perverse conclusion, or some compelling reasons, an appellate Court would not interfere with the findings of the trial Court – NNEJI v. CHUKWU (1996) 10 NWLR (Pt. 378) 265; EBBA v. OGODO (1984) 1 SCNLR 372.
Here, the trial judge painstakingly evaluated the evidence led before him including the entirety of Exhibit P1, before arriving at the conclusion that the appellant did not disclose a defence on the merit. The trial judge was right. Exhibit P1 is a document and this Court is in a position to construe it, as the trial Court could do. The first part is an acknowledgment by the Appellant, that he had received the sum of N3 million from the respondent, “as deposit for the partnership execution of the contract awarded to us by PC BR.” This was on 31/10/13 and he signed it.
The second part of Exhibit P1 is another acknowledgment for the receipt of N6 million by the appellant, from the respondent “for the partnership execution of the Contract awarded to us by PC BR” making the total amount received by the appellant from the respondent to be N9 million. This was on the 1/10/13. The appellant signed it.
Then at the bottom, it is stated “BALANCE N20,66420,000”
This last bit of balance of “N206648.000” which does not make sense as to whether it is “N20,066,480” or it is “N2,066,480,000”, was not signed and was not dated. There is no explanation as to what balance it is. It is therefore an unworthy insertion. No responsibility can be attributed to anybody. No date is affixed. It has no legal worth whatsoever, and is not worth considering. The trial Court was right in ignoring it, but it had considered the other parts signed by the appellant acknowledging the sums he received from the respondent and their purpose. The trial judge had thus evaluated the relevant and authentic part of Exhibit P1 and had reached the right conclusion.
I have looked at the affidavits of the two parties again. There is no deposition by any of the parties that “Techno International Company Limited” is the appellant or that it is Techno International Company Limited that received the N9 million from the respondent. There is therefore nothing showing that the said Techno International Company Limited awarded any contract to the respondent. Also, if the respondent never demanded for the refund of the money he gave to the appellant (as deposed to in paragraph 12 of the “counter-affidavit” in support of the Notice of Intention to defend) how come, the appellant paid N1 million to the account of the respondent at Zenith bank? The appellant has not denied this deposition contained at paragraph 11 of the affidavit in support of the Writ on the Undefended List. How come also, the appellant gave the respondent N2 million cash as deposed to in paragraph 12 of the affidavit of the respondent which the appellant has not denied? It was not Techno International Company Limited that was shown to have deposited the N1 million in the Zenith bank account of the respondent, or paid the N2 million in cash. Therefore, bringing Techno International Company Limited, to say that the respondent owes it N20,066,480 (as deposed to in paragraph 13 of the ‘counter-affidavit’ of the appellant), is nothing but diversionary tactics which cannot avail the appellant. The respondent has not been connected to Techno International Company Limited in this relationship. After all, the appellant at paragraph 4(iii) of the counter-affidavit in support of the Notice of Intention to defend, deposed that the agreement was based on “friendly relationship.” If that is so, Techno International Company Limited had nothing to do with it. It does not matter, that the appellant may own its majority share holding. He is different from the Company as it is a juristic person and he is a natural person.
Paragraph 6 of the counter-affidavit in support of the Notice of Intention to defend, deposed that the respondent agreed to pay N12,000,000.00. This tallies with paragraph 4 of the affidavit in support of the Writ, where the respondent deposed to the fact that both parties agreed to contribute N12,000,000.00 each, to make up the amount required to execute the renovation contract. Therefore, nothing tangible has been shown in the counter-affidavit in support of the Notice of Intention to defend, to make a case of any balance of N20,066,480 outstanding, let alone that the amount is owed by the respondent to the appellant or Techno International Company. Paragraph 13 of the counter-affidavit has not been supported by any document legally worth consideration. The appellant it is noted, has not proffered any explanation as to how much he deposited as his part of the execution of the contract and when, since ostensibly, he was also to contribute in that vein. There is no document showing that the respondent was to meet the entire cost of the contract, of N29,066,480, as deposed to in paragraphs 5 and 6 of the counter-affidavit.
The trial judge evaluated the evidence, and has reached the correct conclusion. The insertion of N20,066,480 million at the bottom of Exhibit P1, without signature or date has no probative value. We see nothing wrong in the exercise carried out by the trial judge and we decline to interfere.
It is to be noted, that the trial judge did not find that the appellant had set off or counterclaimed any amount against the respondent. The so-called balance of N20,066,480, even if accepted, is not a set off by the appellant against the respondent. Even if there is any set off, once the trial Court found and held that the appellant did not disclose a defence on the merit, then its duty was only to enter judgment in favour of the respondent in the sum claimed, which it did. This is because it will be contradictory, to find that there is no defence on the merit, but yet reduce the claim of a defendant on the basis of a set off. This issue is resolved in favour of the respondent against the appellant.
ISSUE NO. 2
WHETHER FAILURE OF THE RESPONDENT TO CONTROVERT, OR CONTRADICT OR CHALLENGE THE APPELLANT POSITION AS CONTAINED IN PARAGRAPHS 10 AND 13 OF THE APPELLANT AFFIDAVIT DOES NOT AMOUNT TO ADMISSION.
The argument of learned counsel to the appellant on this issue, is that the respondent at pages 17-19, deposed that the appellant has no defence to the sum claimed – N6 million. But the appellant, at page 48 of the record, (paragraphs 10 and 13 of the counter-affidavit), controverted this and raised the issue of the balance sum unpaid by the respondent as contemplated by the parties in Exhibit P1, to the tune of N20,066,480,00. Counsel argued, by referring to OLUBODUN v. LAWAL (2008) 35 NSCQR 570 at 600- 601; SHELL v. EDAMKUE (2009) 39 NSCQR 597 at 628-629 and CAPPA & D’ALBERTO LTD v. AKINTILO (2003) 9 NWLR (Pt. 824) 49 that the respondent should have filed a further and better affidavit to rebut the issues raised and since that has not been done, then the averment of the appellant should have been accepted and acted upon as there is nothing to weigh on the imaginary scale.
Learned counsel for the respondent has argued that the position taken by the appellant is not correct as there is total contradiction and traverse to the appellant’s counter-affidavit, by paragraphs 17-19 of the respondent’s affidavit and that Exhibit P1 was signed by the appellant alone and no undertaking therein, was made by the respondent. He submitted that since the trial Court had properly evaluated the evidence and no miscarriage of justice has been shown, this Court cannot interfere -ABISI v. EKWEALOR (1993) 6 NWLR (Pt. 302) 643 and AYANRU v. MANDILAS LTD (2007) Vol. 147 LRCN 1036 at 1058.
First of all, it is not correct as submitted by learned counsel for the appellant, that the depositions in paragraphs 10 and 13 of the counter-affidavit, are not controverted and have not been challenged and so should have been accepted and acted upon by the trial Court. It was the respondent that deposed first, that the appellant owed him N6 million and he should pay as the appellant has no defence to the claim. It is after that the appellant deposed to a counter-affidavit (it should have been an affidavit in support of the Notice of Intention to defend) that he had a defence to the action and by paragraphs 10 and 13 therein, the respondent owed Techno International Company Limited, the sum of N20,066,480. The two parties had therefore joined issues and the duty of the trial judge was simply to evaluate the material evidence before him and give judgment, if there is no defence on the merit, or transfer the case to the general cause list for hearing it there is a defence. In an Undefended List procedure, the issue of filing a further and better affidavit to rebut issues does not arise. The cases cited and relied upon by the learned counsel for the appellant do not therefore help him.
Furthermore, it is also not correct to say that there is nothing to weigh on the imaginary scale. There are already two sides and the Court could and did weigh them before reaching a conclusion. At any rate, paragraphs 10 and 13 of the counter-affidavit of the appellant, have not been supported by documents, whereas the respondent’s depositions have been supported by Exhibit P1, which made the trial Court to correctly rely on it as tilting the balance and finding for the respondent.
I have earlier on, whilst resolving Issue No. 1, held that there is no material evidence worthy of consideration legally, showing that the respondent owed the sum of N20,065,480. That figure was not signed by anybody, even the appellant. Certainly the respondent never signed it and so it can never amount to an admission by him, that he owes that sum. This is in contrast with the earlier parts of Exhibit P1, signed and dated by the appellant acknowledging that he received those sums, from the respondent. Further, even if the said sum of N20,066,480 is accepted, it is not owed by the respondent to the appellant who was the defendant and who had the claim made against him, but was allegedly owed to Techno International Company Limited, which was not a party to the case, and which was not shown to have had any agreement with the respondent, supported by any document. The respondent had presented concrete, cogent and credible evidence in support of his case. The appellant presented a sham defence, introducing a non-party into the affair and stating that the respondent owed it N20,066,480. That was not a defence on the merit. He failed, as no authentic evidence was adduced on his behalf that could be acceptable. Issue No. 2 is thus resolved in favour of the respondent and against the appellant.
In sum, this appeal lacks any merit, but was filed apparently, for the appellant to continue to dodge his responsibility and deny the respondent the fruit of his labour. It is dismissed in its entirety. I affirm the judgment of the trial Court delivered on 18th January 2016 in Suit No. FCT/HC/CV/13/2015. Costs awarded to the respondent against the appellant in the sum of N75,000.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, A. D. Yahaya, JCA. I am in agreement with the reasoning and conclusion and orders reached therein.
MOHAMMED MUSTAPHA, J.C.A.: I read a draft copy of the judgment just delivered by my learned brother, Abubakar Datti Yahaya, JCA. My learned brother has in my respectful view properly considered the issues raised for determination of the appeal and I entirely agree with the reasons and conclusions reached therein.
I accordingly dismiss the appeal in its entirety and abide by the consequential orders including the order as to costs.
Appearances
K. V. N Osameha with him, N. OkoroFor Appellant
AND
E. I. Nwunde with him, C. N. NwabukeFor Respondent
