Knightsbridge Limited & Anor V. Nathaniel Atamako (1999)
LawGlobal-Hub Lead Judgment Report
AKINTAN, J.C.A.
The respondent, Nathaniel Atamako, was the plaintiff in this case instituted at Wari High Court of Delta State as Suit No. W/584/98. The claim was against the two appellants as defendants jointly and severally. His claim as endorsed on the writ of summons is as follows:
‘The plaintiff’s claim against the defendants jointly and for severally is for the sum of N676,827.00 being the balance of the Commission of N853,600.00 due payable by the defendants to the plaintiff as per contract. Some times in the month of July, 1998 at the N.P.A. Yard, Wani, within the jurisdiction of the Honourable Court, the 1st defendant (through the 2nd defendant, its Base Manager and representative/agent) contracted with the plaintiff to pay the plaintiff the commission of N2.00 per litre of Diesel oil (A.G.O) if the plaintiff secured or procured from Messrs Julius Berger Nigeria Plc, N.P.A. Yard, Warri an L.P.O. in favour of the 1st defendant to enable 1st defendant supply the said Julius Berger Nigeria-Plc, some quantity of Diesel oil.
In accordance with the contract the plaintiff procured the L.P.O. No.011950 of 9/7/98 from Julius Berger Nigeria Plc for 1st defendant to supply Julius Berger 426,800 litres of Diesel oil.
The 1st defendant paid the plaintiff the sum of N176,772.50 only out of the total commission of N853,600.00 due on the 426,800 litres (although by its deliberate default 1st defendant supplied only 204,200 litres to Julius Berger) leaving the balance or commission of N676,827. 50 due to plaintiff unpaid in spite of repeated demands. The contract between Plaintiff and the Defendants took place at N.P.A. Yard, Warri within the jurisdiction of the Honourable Court in the month of July, 1998.
The 1st defendant has a principal place of business at and the 2nd defendant resides at Gateway Estate, Airport Road, Warri within the jurisdiction of the Honourable Court.
WHEREFORE the plaintiff claims from the defendants jointly and/or severally the sum of N676,827.50 as above.”
The writ was dated 30/11/98 and filed on 3/12/98. Also filed on the same day along with the writ is an ex parte motion in which the plaintiff prayed the court for an order of the court to enter this suit for hearing in the undefended list and mark the summons as undefended and enter thereon in the writ of summons a date for hearing suitable to the circumstance of the case. The motion was supported by a 29 paragraph affidavit in which the plaintiff/respondent deposed to the circumstances that led to the institution of the claim and gave reasons in support of his request. Paragraphs 6, 9, 11, 13 and 24 of the affidavit adequately set out the facts relied on by the plaintiff/applicant. The said paragraphs 6, 9, 11, 13 and 24 of the affidavit read as follows:
“6. That it was agreed between the 2nd defendant and I that the 1st defendant would pay me the commission of N2.00 for every litre of Diesel oil so ordered by the said Julius Berger Nigeria Plc, from the 1stt defendant.
- That in accordance with the terms of the oral contract between the parties, the 1st defendant would pay me the total sum of N8S3,600.00 for the 426,800 litres of diesel so ordered.
- That the 1st defendant was able to deliver only 204,200 litres out of the 426,800 litres ordered to Julius Berger due to the 1st defendant’s inability to perform.
- That Julius Berger Nigeria Plc. paid the 1st defendant the sum of N1,859,380.00 on 29/9/98: that the cheque was personally collected by the plaintiff and handed over to the 2nd defendant for the 1st defendant: that in return the 2nd defendant issued his personal cheque for the sum of N120,000.00 to the plaintiff as part payment of the commission due the plaintiff which plaintiff collected.
- That after narrating the above facts to my counsel, Chief J.O. Ighrude, my said counsel advised me and I verily believe him that the defendants have no tenable nor good defence on the merits to my claim against them and as such it is a claim that can be brought under the “Undefended List” of the Honourable Court.”
The matter then came up before Akpomudjere J. The learned Judge granted the prayer and entered the case on the undefended list. The appellants reacted to this development by filing a notice of intention to defend the suit along with a 24 paragraph affidavit disclosing their defence. The affidavit was sworn to by the second defendant/respondent. Paragraph 22 of the affidavit reads as follows:
“22. That Defendants only agree with the plaintiff to pay commission based on the quantity of the product supplied subject to other financial constraints.”
When the case came up for hearing before the learned trial Judge on 8/1/99, learned counsel for each of the parties addressed the court and the Judge thereafter delivered his judgment in the case. He held, inter alia, that the defendants failed to disclose any defence on the merit. The application to transfer the claim from the undefended list was therefore refused and judgment was entered for the plaintiffs as per his claim with N1,000.00 as costs.
The defendants were dissatisfied with the judgment of the Court and they have appealed against it to this Court. Five grounds of appeal were filed. The parties filed their briefs in this court. The appellants formulated the following issue as arising for determination in the appeal:
“Whether it was proper for the learned trial Judge to have entered judgment for the respondent under the undefended list procedure in the circumstances of this matter.”
A similar issue was also formulated in the respondent’s brief which I consider unnecessary to reproduce in this judgment.
The main submission of the appellants in their brief is that it was erroneous of the learned trial Judge to have come to the conclusion that the defendants had no defence to the action on the merit having regard to the glaring disclosure in both the plaintiff’s affidavit in support of the application and the defendants’ affidavit. There, it is shown that while the plaintiff was claiming N2 per litre commission on every litre of diesel ordered, the defendants claimed that the agreement was N2 per litre of diesel supplied. It is therefore argued that that disagreement alone is sufficient to hold that the defendants had a defence to the action which would warrant the case being transferred from the undefended list.
The facts of this case are that by oral agreement between the parties, the appellants were to supply diesel oil to Julius Berger Nigeria PlC. The role of the respondent in the agreement was to procure the local purchase order (L.P.O.) from Julius Berger Nigeria PLC by which order for the diesel oil would be made. For that role, the respondent was to be paid N2.00 per litre commission. The respondent claimed that his commission was to be N2.00 per litre of diesel orderd on the L.P.O. whether the appellant eventually supplied them and got paid for them or not. The appellants’ contention, on the other hand, is that the N2 per litre commission was to be paid for every litre of diesel supplied and paid for by Julius Berger Nig. Plc. This discrepancy is clearly established in the two affidavit evidence placed before the learned trial Judge, the relevant paragraphs of which I have reproduced above.
The law is trite that it is not the aim of undefended list procedure, to shut out a defendant from contesting the suit brought thereunder. The position is that where a defendant can show in his affidavit that he has a defenec on the merit, he will be granted leave to defend the suit: See Fesco Nig. Ltd. v. Nasco Rice & Cereal Processing Co. Ltd. (1998) 11 NWLR (Pt.573) 277; and U.N.N. v. Orazulike Trading Co. (1989) 5 NWLR (Pt.119) 19. All that a defendant seeking to defend a case placed on the undefended list needs show in his affidavit is that what he regards as his defence is not a mere general statement that he has a good defence to the action. Rather, he must, as far as possible, deal specifically with the plaintiffs claim and state clearly what his defence is and what facts and documents he relied on. It is not the duty of the court, at that stage, to consider that the defence will ultimately succeed. All that is needed at that stage is to determine whether a good defence has been disclosed in the defendant’s affidavit in support of his application to defend the action. See Nishizawa Ltd. v. Jetlnvani (1984) 12 S.C. 234; F.M.G. v. Sani (1990) 4 NWLR (Pt.147) 688; Fesco Nig. Ltd. v. Nasca Rice & Cereal Processing Co. Ltd. supra; Daniel v. Samad Nig. Ltd. (1997) 7 NWLR (Pt.514) 673; Franchal Nigeria Ltd. v. Nigeria Arab Bank Ltd. (1995) 8 NWLR (Pt.412) 176; and Danfudani v. Shekari (1996) 2 NWLR (Pt.433) 723.
In that instant case, it has been shown by the defence that his agreement was to pay to the plaintiff a commission based on the number of litres supplied and for which he was paid. He also showed in his affidavit that what the appellants had paid to the respondent covered all that was due to him based on the number of litres he supplied and as such he was no longer liable to pay any more money to the respondent. It was wrong of the learned trial Judge to hold that the above facts disclosed were insufficient to warrant granting the appellants’ request for a transfer of the case from undefended list. The question whether the appellants’ defence would eventually succeed did not arise at that stage.
In the result, I hold that there is merit in the appeal and I accordingly allow it. I therefore set aside the judgment and orders made by the learned trial Judge in the case, including that on costs. In their place, I hereby order that the case be transferred from the undefended list to the general cause list and should be heard on its merit before another Judge in the same jurisdiction. The appellants are awarded N3,000.00 costs.
Other Citations: (1999)LCN/0583(CA)
