Massken Nigeria Limited & 2 Ors V. Mr Ambile Amaka & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal Holden in Abuja, in appeal No. CA/A/184/2003 delivered on the 16th day of January, 2007 in which the Court dismissed the appeal by the appellants against the decision of the High Court of the Federal Capital Territory, Abuja in suit No. FCT/HC/CV/234/2012 delivered on the 29th day of January, 2003.

The action was commenced under the undefended list procedure in which the present respondents claimed against the appellants as follows:

”Whereas the plaintiffs claim from the defendants jointly and severally the sum of three million six hundred and fifty-five thousand naira plus 21% interest from January 2002 to date of judgment and thereafter same rate until judgment sum is finally liquidated.

The respondents filed an affidavit of eleven (11) paragraphs in support of the writ of summons which it was deposed that the amount of indebtedness arose from an outstanding friendly loan of three million naira and various other sums of money collected by the defendants/appellants. Exhibited to the affidavit in support

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are Exhibits A and B being a cheque for a sum of N3,000,000 and a letter of demand respectively.

The processes were duly served on the appellants who filed a notice of intention to defend and a 40 (forty)paragraphed affidavit of defence. On the return date the learned trial judge heard from Counsel to the parties and in a ruling delivered on the 29th day of January, 2003 held that appellants had not disclosed sufficient defence on the merit to make the Court send the suit for hearing under the General Cause List. The Court relied on Exhibit A the cheque as evidence of the transaction between the parties in giving judgment in favour of the respondents. The claim for interest was however refused by the Court

As stated earlier in this judgment, appellants were dissatisfied with the said judgment and consequently appealed to the lower Court which appeal was dismissed resulting in the instant further appeal, the issues for the determination of which have been formulated by learned Counsel for appellants, JIBO IBRAHIM ESQ in the appellants brief filed on 2/10/09 as follows:-

1. Whether the

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learned justices of the Court of Appeal were right by delving into proof at this stage and stated that there was no satisfactory explanation as to why 3rd appellant issued the cheque Exhibit A and wrongly acceded by not transferring the suit to the General Cause List and affirmed the judgment of the trial Court.

2. Whether the learned justices of the Court of Appeal were right by holding that the learned trial Judge exercised her discretion judiciously and judicially by failing to transfer the suit to the General Cause List when there was no basis for the exercise of that discretion.
3. Whether the learned justices of the Court of Appeal were right in holding that the averments in Paragraphs 3(c), (d) (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the Undefended List are not hearsay evidence and competent and dismissed the appeal.
4. Whether the learned justices of the Court of Appeal were right in holding that the reply brief properly filed by the appellants is superfluous in this case and failed to consider it.

Learned Counsel for respondents, IKHIDE EHIGHELUA ESQ. in the respondents brief

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filed on 22/10/09 also identified four issues as arising from the grounds of appeal for the determination of the appeal. These are as follows:-

1. Whether a defendant who has no real defence to a suit under the Undefended List should be allowed to dribble, cheat and frustrate a plaintiff out of a judgment to which the plaintiff is legitimately entitled.
2. Whether the learned justices of the Court of Appeal were right in holding that the learned trial judge exercised her discretion judiciously and judicially in entering judgment under the Undefended List in favour of the plaintiff/respondent.
3. Whether the learned justices of the Court of Appeal were right in holding that Paragraphs 3(c), (d), (e), 4,5 and 8 of the affidavit in support placing the suit on the undefended list are tenable in law and therefore admissible in evidence.
4. Whether thee learned justices of the Court of appeal were right in not countenancing the reply brief of the appellants before the Court of Appeal.

It should be pointed out that but for respondents issue No.1 all the other three (3) issues are very similar to the issues formulated by

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learned Counsel for appellants. For the purpose of this judgment, I will adopt the issues formulated by learned Counsel for appellants particularly as respondents issue 1 dos not appear to flow from the grounds of appeal.

Before going on to consider the issues on their merit, if need be, it is necessary to consider the preliminary objection of the respondents as argued in the respondents brief.

It is the contention of learned Counsel for the respondents that grounds 1,2 and 3 of the notice of appeal are grounds of fact or at best grounds of mixed law and fact in respect of which no leave was sought and obtained before being file and urged the Court to strike out issues 1 and 2 formulated thereform.

On his part, learned Counsel for appellants submitted, in the reply brief filed on 15/12/09, that the complaint in ground 1 of the notice of grounds of appeal centres on the lower Courts misunderstanding of the law or a misapplication of the provisions of Order 23 Rule 3(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 1989 applicable to Undefended List Proceeding thereby making the complaint one on law relying on First Bank of Nigeria Plc vs Kayode

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Abraham (2008) 12 SCNJ 747 at 755. Bamgboye vs University of Ilorin (1999) 6 SCNJ 295 at 302; A.C.B Ltd vs Gwagwada (1994) 4 SCNJ (Pt. 11) 268 at 270; 277-278.

It is the further contention of learned counsel for appellants that ground 2 of the grounds of appeal is a complaint on the wrong inference of law, misconception of law and misunderstanding of the law which make the ground a ground of law and urged the Court to overrule the preliminary objection.

I have carefully gone through the grounds of appeal filed herein and note that the appeal arose from an action instituted under the Undefeated List procedure as provided under Order 23 Rule 3(1) of the High Court of Federal Capital Territory (Civil Procedure) Rules 1989 which is a specialized procedure crafted to aid expeditious recovery of a debt or liquidated money demand particularly where the facts are not in dispute and it is apparent to the Court that the defendant has no defence to the claim. From the grounds of appeal complained of it is clear that they are rooted on the provisions of the said Order 23 Rule 3(1) etc of the said Rules of Court and consequently grounds of law for which

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appellants need no leave of either the lower Court prior to filing same.

When one looks at ground 3 of the grounds of appeals, it is clear that the complaint, as crafted, is against the judicial and judicious exercise of discretion of the Court by not agreeing with appellants to transfer the suit commenced under the Undefended List Procedure to the General Cause List for adjudication and determination. It is clearly a wrong judicious and judicial exercise of discretion which is a ground of law.

In the circumstances I find no merit whatsoever in the preliminary objection which is consequently dismissed.

On issue 1, it is the contention of learned Counsel for appellants that the lower Court was in error when it delved into the issue of proof at the stage of determining whether appellant had disclosed a defence to the action to make it necessary for the suit to be transferred from the Undefended to the General Cause List and that the Court wrongly affirmed the judgment of the trial Court on the matter. It is the argument of Counsel that Paragraph 18 of the affidavit of defence disclosed that the 2nd respondent had appellants cheques for telegraphic

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transfers and that the 2nd respondent wrote the particulars in the cheque-Exhibit A particularly the name Mr. Ambile Amoaka 10th December 2001. Three Million Naira only and N3,000,000.00k as contained in Paragraph 22 of the said affidavit which facts were not considered by the lower Court; that it was not expected, at the stage, for appellants to establish their case; that appellants also raised the defence of fraud and forgery; and filed a conditional appearance arising from substituted service of processes on appellants contrary to the provisions of Section 78 of the Companies and Allied Matters Act, 1990 and relying on Mark vs Eke (2004) 5 NWLR (Pt. 865) 54 at 60, 78-79.

Learned Counsel urged the Court to resolve the issue in favour of appellants.

On his part, it is the submission of learned Counsel for the respondents that the claim of the respondents before the trial Court is on the Undefended List Procedure and involves a liquidated money demand to which appellants had no disclosed defence, relying on Olusola Stores vs Standard Bank (NIG) Ltd (1975) 4 S.C 51, (1975) ALL NLR

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125, (1975) SCCC 137; John Holt & Co (Liverpool) Ltd vs Fajemirokun (1961) All NLR 513, that the lower Courts made concurrent findings of fact that the affidavit of appellants did not disclose a defence to the action and urged the Court not to disturb same, relying on Ibikunle vs State (2007) ALL FWLR (Pt. 354) 209 at 238; Eholor vs Osayande (1992) 6 NWLR (Pt. 249) 524; Yusuf vs Tohim (2008) ALL FWLR (Pt. 437) 34 at 39.

It is settled law that Undefended List Procedure is designed and adopted for speedy trial for the recovery of any debt or liquidated money demand. Particularly, where it is clear to the Court that the defendant has no defence on the merit for the claim of the plaintiff. Where a defendant is served with a writ of summons entered under the Undefended List together with an affidavit deposed to by the plaintiff, as required by the Rules of Court, and he desires to defend same. It is his duty to file a notice of intention to defend the suit together with an affidavit disclosing his defence on the merit of the claim for the liquidated money demand.

On the return date, the duty of the Court is to consider the affidavits of claim and

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defence in order to determine whether the defendant has disclosed any defence to the claim of the plaintiff so as to decide whether the action should be transferred to the General Cause List to be dealt with according to the Rules of Court or enter judgment for the debt or liquidated money deemed for the plaintiff, where it comes to the conclusion that no defence, on the merit has been disclosed in the affidavit of defence.

It is very clear from the above description that the decision of the trial judge on the matter on the return date is strictly based on the facts as disclosed in the affidavits filed before him. The judge cannot therefore go outside the affidavit evidence in determining the matter.

From the record, including the judgments of the lower Courts, the case of the respondents, then plaintiffs, is to the effect that sometime in 2001, the 2nd and 3rd defendants/appellants while operating under the name of 1st appellant approached the respondents for a friendly loan of N3,000.00 and issued a post dated cheque drawn on Union Bank of Nigeria Plc, Exhibit A to the respondents; that the appellants also collected various other sums

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amounting to N655,000 only, that appellants failed and or neglected to repay the loans inspite of demand.

On the other hand, the appellants denied that 1st appellant ever approached 1st respondent through the 2nd respondent for any loan of three million naira neither did 1st appellant enter into any loan agreement with the respondents; the 2nd appellant stated that sometime in the year 2000 she went to the 2nd respondents office in Union Bank of Nigeria Plc, Ajaokuta branch and the cheque of the 1st appellant got missing, so another cheque was issued for a transaction and that the 1st respondent is not known to the appellants; that the 2nd respondent lured the appellants to buy 17 plots of land at New Karu and Old Karu which turned out to be fake after collecting N1,775,000 as a result of which Exhibit 5, a letter of demand was written to the 2nd respondent.

I need to re-emphasis the point that the Undefended List Procedure is fashioned to take care of cases relating to simple, uncontested debt or liquidated money demand or monetary claims. Where, however serious disputes arose in the affidavits on points of law relating to the claim(s), the

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trial Court ought to exercise caution in entering judgment under the Undefended List Procedure and should transfer the matter from the Undefended List to the General Cause List to be dealt with by pleadings etc.

In the instant case, the trial Court, at pages 84-85 of the record found/held as follows:-

”The defendants have not successfully shown how the plaintiffs came about their cheque worth N3m.

The Defendant in their 40 paragraphs affidavit have brought in a lot of matters unrelated to the suit.

The defendants have not disclosed sufficient defence on the merit to persuade the Court to send this suit to the General Cause List.

On appeal against the above decision/finding, the lower Court, in its judgment at page 127 of the record found/held thus:

I have looked at the affidavit filed by the appellants attached to the notice of intention to defend on the merits on pages 13-17 of the Record and I conclude that the facts amount to a mere denial of the respondents claim. This is no satisfactory explanation as to why the 3rd Appellant issued the cheque Exhibit A. Most of the facts deposed to are

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irrelevant and extraneous in terms of the matter before the trial Court. The facts deposed to are equally frivolous they do not support or disclose a clear dispute or any triable issue between the parties which would necessitate full trial in the General Cause List. All the issues introduced about the relationship between the appellants and respondents are calculated to delay the trial. It is my conclusion that the learned trial judge had judiciously and judicially exercised her discretion in not acceding to transfer the suit to the general cause list.

It is the submission of the learned counsel for appellants in the reply brief filed on 15/12/09 that concurrent findings of the lower Courts reproduced above are perverse as a result of a misunderstanding of the provisions of Order 23 Rule 3(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 1989; that whereas the trial Court held that appellants have not disclosed sufficient defence on the merits to persuade the Court to send the matter to the General Cause List, the lower Court held that there is no satisfactory explanation as to why the 3rd appellant issued

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the cheque Exhibit A that the affidavit of defence disclosed a defence to the claim of the respondents and urged the Court to set aside the concurrent findings.

To begin with, I have carefully gone through the findings of the trial Court and its affirmation by the lower Court and find no difference, in substance, between the two as argued by learned Counsel for appellants in the reply brief. The lower Courts are emphatic that Exhibit A, a post dated cheque of the appellants, is evidence of a transaction giving rise to the claim under the Undefended List and that appellants have not disclosed sufficient explanation by way of defence, as to the existence of appellants cheque, Exhibit A in the possession of the respondents.

These findings, to me are concurrent on the fact that Exhibit A is appellants post dated cheque evidencing a loan transaction of N3 million between the parties. Being a document, it is the best evidence of the transaction it relates to.

My view that the findings by the lower Courts are concurrent is reinforced by the submission of Counsel for appellants in

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which he invited the Court to interfere with same on the ground that the said findings are perverse!. The said submission can only be relevant if the findings it relates to are concurrent- which learned counsel had clearly admitted.

As stated earlier in the judgment, I have gone through the record and the judgment of the lower Courts and have come to the conclusion that the above concurrent findings of fact by the lower Courts are very much supported by the facts on record and are consequently not perverse.

It is now trite law, that an appellate Court will not disturb concurrent findings of fact of the Courts below unless there is substantial error apparent on the record of proceedings or are shown to constitute a miscarriage of justice or in any way amount to a violation of some principles of substantive law or procedure.

In the circumstance, I resolve issue 1 against appellants.

On issue 2 which is:

Whether the learned justices of the Court of Appeal were right by holding that the learned trial judge exercised her discretion judiciously and judicially by failing to transfer the suit to the General Cause List when there was no basis for the

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exercise of that discretion. It is clear that my consideration of issue 1 has disposed of issue 2 and in fact the other issues as formulated. Having agreed with the lower Courts that Exhibit A is evidence of a debt owed by appellants to the respondents and that appellants have not disclosed any defence to a claim for its recovery which would have necessitated the trial Court transferring the matter from the Undefended List to the General Cause List for Adjudication, it follows that the trial Courts exercise of its discretion not to so transfer the matter but enter judgment for the respondents in the circumstance, is a judicious and judicial exercise of discretion which cannot be disturbed by this Court.

It is therefore my considered view that the decision reached in issue 1 is the pivot on which the case of appellants rests and the Courts having held that appellants have no defence to the claim as constituted, the matter ends there. In the circumstance, I hold that issues 2, 3 and 4 be and are hereby discountenanced.

In conclusion, I find no merit whatsoever in this appeal which is accordingly dismissed with costs of N250,000 in

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favour of the respondents and against appellants.

Appeal dismissed.

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SC.266/2009