Addax Petroleum Development (Nig) Ltd. V. Chief J. L. E. Duke (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Hon. Justice S. M. Anjor, of the High Court of Cross River State, holden at Calabar, delivered in Suit NO.HC/65/2001 on the 4/5/2007.

The facts of the case are as follows: Sometimes in the year 2002, the appellant, through her Base Manager requested the respondent to procure a piece of land in Calabar for its pipeyard. The respondent did so and obtained the consent of the sub-lessor (Micky-buildsco Ltd) for a ten years lease to the appellant with an initial down payment of three years rent only. Thereafter the respondent drew up a ten years sub-lease agreement incorporating into it the two features in the agreement.

On 8/8/2002, the respondent sent an interim bill of costs to the appellant amounting to N10,800,000.00. The said bill was accepted and paid by the appellant without any qualification.

Subsequently, the respondent in compliance with Section 16(1) of the Legal Practitioners Act, 1975, served the appellant a one month’s notice requesting for payment of the sum of N13.9 million being the outstanding bill for professional fees and agency services rendered by the respondent to the appellant. The respondent sent a letter of reminder to the appellant on 15/1/2007. Not having received any response from the appellant, the respondent instituted proceedings by way of the undefended list procedure for his action under Order 23 of the High Court (Civil) Procedure) Rules of Cross River State, 1987. The claims are as follows:

1. The sum of N10,900,000.00 (Ten Million Nine Hundred Thousand Naira), being the plaintiffs outstanding fees and commission for services rendered and excepted.
2. Interest upon the judgment sum of the rate 10% from the date of judgment until full and final satisfaction of the judgment sum. On being served with the writ, the appellant in accordance with the Rules filed a notice of intention to defend the suit supported with an affidavit disclosing a defence on the merit filed on 18/4/2007 with three exhibits attached. After perusing the respondent’s claim and the appellant’s notice of intention to defend the trial Judge entered judgment for the respondent.

Dissatisfied with the judgment of the trial Judge, the appellant appealed to this court on 5 grounds in her notice of appeal filed on the 7/5/2007.

The appellant in his brief dated 28/1/2008 and filed the same day but deemed properly filed and served by this court formulated two issues as follows:

1. Whether or not in the light of the affidavit evidence before the court, the learned trial Judge was right to grant the Respondent’s claim under the Undefended List Procedure.
2. Whether the learned trial Judge was right in proceeding to rule in favour of the Respondent after the Appellant had given notice of intention to object to the Respondent’s bills of charges on the ground that the said bill breached Section 16 of the Legal Practitioners Act.

The respondent’s brief dated 1/4/08 was filed on the same day. In the brief the respondent raised a preliminary objection to the competence of the appeal mainly on two grounds. In the alternative the respondent formulated three issues in the brief. The three issues are as follows:

1. Whether there was an admission of the Respondent’s case. (Grounds 1 and 2)
2. Whether the court below was right in holding that the Appellant’s affidavit in support of the intention to defend did not disclose a defence on the merit. (Ground 4 and 5)
3. Whether there was non-compliance with the provisions of Section 16(2) of the Legal Practitioners Act 1975 by the Respondent.

(Ground 3).

Upon being served with the respondent’s brief, the appellant filed a reply brief dated 3/5/08 and filed on the 5/5/08.

In the appellant’s brief of argument, it was contended that in her affidavit disclosing defence on the merit, the appellant in paragraphs 4 – 5 vehemently denied that she owes the respondent in respect of the transactions. Though the appellant admitted that there was a transaction between herself and the respondent, she however denied ever coming to an agreement with the respondent to pay the amount claimed. It was also contended that in an undefended list procedure, one of the important factors that a trial Judge takes into consideration in deciding whether to enter judgment for the Plaintiff or transfer such a case to the general cause list is, whether between the affidavits of the two parties (i.e. the plaintiff and the defendant) there is a triable issue raised and/or dispute as to facts before the court. The appellant referred to Socfin Consultants Services vs. Arumah (2002) FWLR (Pt. 130) 1729 at 1759.

The appellant referred to paragraphs 18, 19, 20, 21 of the respondent’s affidavit in support of the writ and paragraphs 4(a) and 4(b) of the affidavit in support of the intention to defend. Quite apart from the denial of the respondents paragraphs 11-24, the appellant put forward set of facts which cast serious doubt as to the claim of the respondent under paragraphs 4(d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) and (o).

It is the appellant’s contention that in the absence of an agreement on the amount of money due between the parties, such claim for money due cannot be brought under the undefended list procedure. Appellant relied on Aruwa vs. Abdulkadri (2002) FWLR (Pt. 115) 681. It was contended that where under the undefended list procedure triable issues are raised, which need to be resolved the only way they can be resolved is by calling oral evidence, which implies trial on the merit. See Nya & Anor vs. Edem (2000) 8 NWLR (Pt. 669) 349 at 360.

Lastly on this issue, it was submitted that a defence on the merit is not the same thing as success of the defence in litigation. All that is required is to lay the foundation for the existence of a triable issue (s). See Ataguta & Co vs. Gura (Nig.) Ltd. (2000) 8 NWLR (Pt. 927) 429 at 436.

On issue No.2, learned counsel for the appellant pointed out that in paragraph 4(p) of the affidavit disclosing defence on the merit, the appellant stated as follows:

“That the Defendant shall at the trial of this suit, object to the Bill of charges (Exhibit 13) in that nature of the service rendered and the cost of rendering the same were not sufficiently particularized as to render the services understandable.

He then submitted that a successful prosecution of the objection would have been an absolute and total defence to this action because the said bill of charges is usually the foundation of any legal practitioner’s action for his fees. Once the foundation is destroyed the case will come to an end. He relied on Owena Bank Plc vs. Adedeji (2000) 7 NWLR (Pt. 666) 609 at 619.

Despite the notice of objection, the learned trial Judge proceeded to conclude this action without giving the appellant the opportunity to raise his objection, this runs contrary to the settled legal principle that the duty of court is to consider and decide on the preliminary objections raised before it, before deciding, the substantive issue. He relied on Aruwa vs. Abdulkadri (supra) on this point.

Learned counsel for the respondent, began this argument with the preliminary objection which is based or predicated on two main grounds and they are:

1. On the grounds of appeal of the appellant’s Notice and Grounds of Appeal are prolix, argumentative and conclusive; and
2. Issues for determination are not based on any of the Appellant’s Notice and Grounds of Appeal.

In respect of ground 1, counsel submitted that all the grounds of appeal of the appellant’s Notice and grounds of appeal are conclusive, argumentative, narrative Prolix, and contrary to Order 6 Rule 2(3) of the Court of Appeal Rules, 2007 and urge the Court to strike out the grounds of appeal. Counsel referred to Okudo vs. IGP (1988) 1 NWLR (Pt. 533) 335 at 340; Andong vs. Ayi & Ors (2004) ALL FWLR (Pt. 227) 464 and Okumodi vs. Sowuni (2004) 2 NWLR (Pt. 856) 1 at 23. Secondly, counsel contended that the arguments of the appellant in the appellant’s brief proffered under issues for determination are disjointed and unrelated to the issues and they do not flow from the issues raised therein in the grounds of appeal and are therefore incompetent and ought to be struck out. He referred to many cases, notable of which are Emespo J. Cont. Ltd. vs. Corona S and Co. (2006) 11 NWLR (Pt. 991); Olowosogo vs. Adebanjo (1988) 4 NWLR (Pt. 88) 253; Alh. Kokoro-Owo & Ors vs. Lagos State Govt. & 4 Ors. (2001) 11 NWLR (Pt. 723) 237.

In the alternative, Mr. Duke argued the 3 issues formulated.

On issue 1, counsel contended that contrary to the appellants contention that the appellant did not admit owing the respondent as there was never any agreement between the respondent and the appellant on the fees claimed, the services offered by the respondent to the appellant were accepted when the latter executed Exhibit 2 and part paid the rent as per Exhibit 4. The bill of costs submitted, Exhibit 3, dated back to that offer which was accepted along with the original offer without any qualification whatsoever. Counsel submitted that the offer stated clearly in Exhibit 3; that respondent’s fees for the services rendered would be ten percent of the annual rent and the appellant accepted it. The offer and acceptance created a legally enforceable and binding contract between the respondent and appellant. Counsel relied on Amana Suites Hotels Ltd vs. PDP (2007) 6 NWLR (Pt. 1031) 453 – 456.

Counsel pointed out that while the sub-lease procured by the respondent for the appellant was for 10 years, the fees paid for the services rendered were based on the rent paid for three years only. Based on the cash payment of three year’s rent amounting to N9m and in keeping with the universal principle that an agent should normally receive commission only if he effects an actual sale or on the contract sum received, the respondent submitted his bill calculated on the sum of N9m received. The next payment made by the appellant for the unpaid portion of the sub-lease (Exhibit 2) was on 23/12/2005 for N47m (Exhibit 6). In keeping with the above legal position, the respondent on 23/12/2005 submitted his bill of costs for the balance of the agency and legal fees in respect of Exhibit 2. (sub-lease agreement of 15/8/2002). Counsel explained that the execution of Exhibit 8, i.e. Sub Lease Agreement of 23/5/2005 and exhibit “10”, i.e. Sub-lease Agreement of 1/5/2006 and the rents paid per exhibits 6 and 11 by the appellant marked the unqualified acceptance of the services offered by the respondent to the former, upon the earlier request of the appellant. The bills of cost that followed were the Agency and Solicitors fees that were based on a contractual relationship that arose on 13/8/2002.

On issue No.2, counsel submitted, that the learned trial Judge was right in holding that the affidavit in support of the intention to defend, did not disclose a defence on the merit. He relied on UBA Plc & Anor. vs. Jargaba (2007) 11 NWLR (Pt. 1045) 247 – 252 and Okoli vs. Morecab Finance (Nig) Ltd. (2007) 14 NWLR (Pt. 1053) 37 – 42.

On Issue No.3, counsel submitted, that the respondent complied with the provisions of Section 16(2) of the Legal Practitioner’s Act, 1975. He referred to Oyekanmi vs. NEPA (2000) 15 NWLR (Pt. 690) 414 at 420; Okoli vs. Morecab Finance (Nig) Ltd. (supra); Mantec Water Treatment Nigeria Ltd. vs. Petroleum (special) Trust Fund (2002) 15 NWLR (Pt. 1058) 451 – 461. Counsel then urged the court to dismiss the appeal and uphold the judgment of the lower court.

Whenever a preliminary objection is properly raised attacking the competence of an appeal, it should be considered and determined or resolved first by the court at the preliminary or initial stage before going into the merits of the appeal. Where an objection is raised as to the competence of an appeal, the jurisdiction of the court to entertain it becomes an issue. In such a situation, it becomes fundamental for the court to deal with it first before deciding on the merit of the appeal. See UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt. 962) 1 at 16; Gwoji vs. Ewete (2001) 15 NWLR (Pt. 736) 275; Nigerian Navy vs. Garrick (2006) 4 NWLR (Pt. 969) 69 at 94 – 95; Onyekwuluje vs. Animashaun (1996) 3 NWLR (Pt. 439) 637 and NNB Plc vs. Imonikhe (2002) 5 NWLR (Pt. 760) 294.

In respect of the first ground of objection it is my firm view that the 5 grounds of appeal subscribed in the notice of appeal are in accordance with the provisions of Order 6 Rules 2 (2) and (3) of the Court of Appeal Rules, 2007, therefore they are very competent. For the avoidance of doubt and ease of reference, I have chosen to reproduce the grounds of appeal shorn of their particulars herein below:

Ground No. 1

The Learned Trial Judge erred in Law when he held as follows:

“What this court can deduce from the Defendant’s depositions in paragraph 4 (a) of its affidavit in support of Notice to Defend is an admission in the main of the transaction between the Plaintiff and them. And the law has since become trite that in Civil Proceedings that which is admitted need no further proof.”

Ground No. 2

The Learned Trial Judge erred in Law in giving judgment to the Plaintiff under the undefended list proceedings when there was no evidence before him that the Plaintiff and the Defendant agreed on the fees claimed by the Plaintiff in this action.

Ground No. 3

The Learned Trial Judge erred in law when he gave judgment for the Plaintiff after the Defendant had given notice of his intention to object to the Plaintiff’s bill of charge on the ground that the same was not sufficiently particularized as to render it understandable.

Ground No.4

The Learned Trial Judge misdirected himself on the evidence when he held that the affidavit in support of the intention to defend did not disclose a defence on the merit.

Ground No. 5

The Learned Trial Judge erred in law when he held as follows:

“But in all these Defendant has not exhibited any Document showing that the N3m earlier paid the Plaintiff was not part payment, but full and final settlement for services rendered by the Plaintiff to her.”

A cursory glance at the 5 grounds of appeal reveals that they are set forth concisely, clearly, succinctly and they are under distinct heads clearly stating the grounds upon which the appellants intend to rely at the hearing of this appeal. I am of the firm view that the 5 grounds of appeal are without any argument or narration. They are not vague or in general terms and the disclose very reasonable grounds of appeal. Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit stand for its being understood. It may also be considered vague when the complaint therein is not defined in relation to the subject or it is not particularized or that the particulars are clearly irrelevant. In the instant case on appeal, the 5 grounds of appeal are concise and it is easy to recognize or identify the complaint of the appellant. See God’s Little Tannery vs. Nwaigbo (2005) 9 NWLR (Pt.924) 298 at 317; Nwabueze vs. Nwora (2005) 8 NWLR (Pt. 926) 1 at 20; Sosanya vs. Onadeko (2003) 11 NWLR (Pt. 677) 34; CBN vs. Okojie (2002) 8 NWLR (Pt. 768) 48; Etaluku vs. NBC Plc (2004) 15 NWLR (Pt. 896) 390. The 5 grounds of appeal are competent.

Learned counsel also submitted that the arguments proffered under the issues for determination are disjointed and unrelated to the issues and they do not flow from the issues raised there under. This submission is very unmeritorious and misconceived. The arguments the appellant proffered under issues for determination are relevant and related to the issues for determination in the instant appeal. The issues raised or formulated by the appellant arose from the proceedings and judgment of the trial court. I also find that the issues for determination formulated by the appellant flow from the grounds of appeal. For instance Issue No. 1 is formulated from grounds of appeal 1, 2 and 3 in the notice and grounds of appeal at pages 69-70 of the record, this is glaringly clear. I see no merit whatsoever in this ground of objection. The case of Emespo J. Cont. Ltd vs. Corona Sam Co. (supra) though very instructive, is not relevant to the facts of this case on appeal. It is important that I state here that each case must or should be decided according to its peculiar facts and circumstances. An issue for determination in any appeal is derived from the grounds of appeal filed by the appellant. This is what the appellant has done in this appeal. See Eke V. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Ehuwa vs. O.S.I.E.C (2006) 18 NWLR (Pt. 1012) 544.

In respect of the fourth ground argued under the preliminary objection, I find no merit in it and it is merely repetive. It is important to note that the hey days of technicalities and arid legalism are gone for good. The courts now are more interested in doing substantial justice and shorn crass technicalities.

The purpose of rules relating to the formulation of grounds of appeal is to ensure that the respondent is not taken by surprise. Therefore once a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, it cannot be described as bad and therefore incompetent. Curiously enough, the respondent did not complain that he was embarrassed, misled or prejudiced by the nature and manner of the complaints in any of the said grounds of appeal. Surprisingly, the respondent had indeed formulated more issues than the appellant herself, on all the grounds of appeal and proffered arguments in respect there of. See Imam vs. Sheriff (2005) 4 NWLR (Pt. 914) 80 at 134 – 135. So what is the respondent talking about? Court should always strive to do substantial justice in each and every case. The nature of the preliminary objection is in the realm of technicalities. Courts should not give undue prominence to technicalities at the expense of justice. Substantial justice cannot be done unless courts of justice strive to ensure that the appeals are heard on the merit. In the instant case, it is important that this appeal be heard on the merit. See Usani vs. Duke (2006) 17 NWLR (Pt. 1009) 610; Oghoru vs. Ibori (2006) 17 NWLR (Pt. 1009) 542. I see no merit in the preliminary objection and it is hereby overruled. I shall consider the substantive appeal presently.

I have carefully considered the issues for determination formulated by the parties in this appeal and in my respectful view, the two issues formulated by the appellant are succinct, concise and more derivable from the grounds of appeal filed. In the circumstance, I shall adopt and rely on them in the determination of the present appeal.

On issue No.1, the question is whether or not in the light of the affidavit evidence before the court, the learned trial Judge was right to grant the respondent’s claim under the undefended list procedure.

In order to bring the salient issues in the said issue No. 1 into proper perspective, it is necessary and imperative that I reproduce the affidavits of the parties filed and presented before the trial court. I shall begin with the respondent’s affidavit in support of the Writ of Summons, paragraphs 1- 24.

1. That I am the Plaintiff in this action and thus familiar with the facts of the case.
2. That I am the Executive Chairman of Duke, Duke, Duke & Co., Barrister-At-Law and Solicitors of No. 32A Nelson Mandela Road, Calabar.
3. That the Defendant is an oil mineral exploration and exploitation Company with head office in Victoria Island, Lagos State.
4. That, based on the request of Mr. Joe Ogbeide, Calabar Base/Branch Manager of the Defendant, I secured a piece of land measuring 16,990 square meters at Ikot Ansa, Calabar in August, 2002 for the Defendant to serve as its pipeyard at Calabar. Securing the land involved initiating a lawsuit to eject Mobil Producing Nigeria Unlimited who previously occupied the said land. Attached and marked Exhibit “1” is a copy of the Order of Ejectment.
5. That, after procuring the said piece of land for the Defendant, I drew up a ten-year sub-lease Agreement on 15/8/2002 between Michybuildsco Limited (the sub-lessor) and the Defendant. Attached and marked Exhibit “2” is a copy of the sub-lease Agreement.
6. That, upon the execution of the sub-lease Agreement by the parties, the Defendant made an initial payment of N9m (nine million naira) for the first 3 years and undertook in Clause “D” of Exhibit “2” to pay for the remaining seven years of the sub-lease thereafter.
7. That, base on the cash payment, I, on behalf of my firm, submitted the following bill of costs on 8/8/2002 to the Defendant:

(1) Agency commission (Ten percent of N9m paid) 900,000

(2) Solicitors fees (Ten percent of N9m paid) 900,000

N1,800,000

8. That on 14/8/2002, I received a cheque of N10.8m (ten million, eight hundred thousand naira) covering 3 year’s rent of N9m on the land leased, Agency commission of N900,000 and Solicitors fee of N900,000 for the procurement of the land and the preparation of the sub-lease Agreement respectively. Our bill of costs dated 8/8/2002 and the Defendant’s payment advice and cheque dated 8/8/2002 and the Defendant’s payment advice and cheque dated 13/8/2002 are attached and marked Exhibits “3” & “4”.
9. That on 21/10/2005, the Defendant wrote to me requesting to:

(a) extend the residue of the existing sub-lease from 7 years to 10 years with effect from 1/10/2005;

(b) lease the adjoining undeveloped piece of land of about 9,000 square meters for a period of 10 years.

Copy of the said letter is attached and marked Exhibit “5”

10. That after a review of the annual rent pursuant to Clause “D” of the sub-lease Agreement dated 15/8/2002 (Exhibit “2”), the Defendant remitted the sum of N47m (forty-seven million naira) to us on 23/12/2005 to cover the rent on the 16,990 square meters of land for 10 years from 1/10/2005.

The breakdown was as follows:

(i) Rent for the 1st 3 years at N4m p.a N12m

(ii) Rent for the next 4 years at N5m p.a. N20m

(iii)Rent for the additional 3 years at N5m p.a. N47m

Copies of Citigroup Bank cheque for N47m and our receipt dated 4/1/2006 are attached and marked Exhibits “6” and “7”.

11. That on 23/12/2005, I prepared and forwarded another sub-lease Agreement to the Defendant to cover the additional 3 years. Attached and marked Exhibit “8” is a copy of the said agreement.
12. That having accepted and benefited from these services, we submitted the following bill of costs to the Defendant for settlement:

A. Sub-Lease Agreement of 15/8/2002 (Exhibit “2”)

(1) Solicitors fee (10% of N32m being balance of the rent payable on the sub-lease Agreement dated 15/8/2002) N3.2m

(2) Agency commission as per (1) above N3.2m

B. Sub-Lease Agreement of 23/12/2005 (Exhibit “8”)

(1) Solicitors fee (10% of N15m) N1.5m

(2) Agency commission subsumed in (A) above

Total of A & B N7.9m

13. That, following the request of the Defendant for a lease of the adjacent 9,000 square meters of land (Exhibit “5”), I began an investigation of the Ikot Ansa Qua Clan Council, had already seized the land and sold it to another person. The unfortunate development brought about many long and difficult meetings between the Clan Council and me right up to 10/4/2006 when I succeeded in retrieving the said land. The written confirmation dated 10/4/2006 signed by the Clan Head and the General Secretary of the Clan Council that the portion of land in question is tree again is attached and marked Exhibit “9”.
14. That, thereafter, the said land was leased to the Defendant for ten years with effect from 1/5/2006 on a rent of N3m (three million naira) per annum.
15. That on 1/5/2006, I prepared and forwarded another sub-lease Agreement in respect of this land to the Defendant. Attached and marked Exhibit “10” is a copy of the said Agreement.
16. That on 17/7/2006, the Defendant forwarded its Citigroup Bank cheque for N30m (thirty million naira) to me to cover the 10 year’s rent on the 9,000 square meters of land. Attached and marked Exhibit “11” is a copy of the cheque.
17. That, having accepted and benefited from these services, we on 14/11/2006 submitted our bill of costs as follows to the Defendant:

(a) Agency commission (Ten per cent of N30m) – N3m

(b) Solicitors fee (Ten per cent of N30m) – N3m

N6m

Attached & marked Exhibit “12” is a copy of the letter of demand.

18. That the total sum owned us by the Defendant as at 14/11/2006 for services rendered and accepted was N13.9m (thirteen million, nine hundred thousand naira) as shown in Exhibit “12”
19. That on 19/12/2006, the Defendant made part payment of N3m (three million naira) less a withholding tax of N150,000.

Attached and marked Exhibit “13” is a copy of our receipt and Defendant’s cheque dated 14/12/2006.

20. That the Defendant is now owing us a total sum of N10.9m (ten million, nine hundred thousand naira) which is due and payable.
21. That this debt has been outstanding between 2002 and now.
22. That the Defendant has so far failed/refused to respond to our demand of 14/11/2006 (Exhibit “12”) and the reminder of 15/1/2007 that followed. Attached and marked Exhibit “14” is a copy of the reminder
23. That the Defendant does not have any valid defence to our claim.
24. That I swear to this affidavit in good faith believing the contents herein to be true and correct and in accordance with the Oaths Act 2004.

I shall now reproduce the appellant’s affidavit disclosing defence on the merit:

1. That I am a counsel in the Law firm of Messrs Ferd Orbih and Company, the solicitors retained by the defendant in this suit to conduct its defence.
2. That I have the consent and authority of the defendant to depose to this affidavit.
3. That all the facts deposed to herein are within my personal knowledge, except as otherwise stated.
4. That Olufemi Otegbade, General Manager Legal, Insurance/Corporate Secretary of the defendant Company has informed me and I verily believe him as follows:

(a) That paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the writ of summons are true.

(b) That paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24 of the affidavit in support of the writ of summons are false.

(c) That Plaintiff in this suit was fully paid for the services she rendered in respect of Exhibit “B”. The Plaintiff was paid N1,800,000.00 for her services i.e. N900,000.00 as agency fee and N900,000.00 as solicitors’ fee.

(d) That when the defendant wrote Exhibit’ 5′ in response to the Plaintiff’s letter of 21st October, 2005, it was understood that no fresh agency or solicitors’ fee would be paid to the Plaintiff because Exhibit ‘2’ had already created a 10-year lease in favour of the defendant. The instruction to renew the 3-year residue of the lease at N4,000,000.00 per annum and a subsequent 4-year residue of the lease at N5,000,000.00 per annum, came squarely within the 10-year lease that was already in existence by virtue of Exhibit ‘2’ attached to the affidavit in support of the writ of summons.

(e) That it was also understood between the Plaintiff and the defendant that no fee would be paid in respect of the issues covered by the defendant’s letter of 21st October, 2005; because the Plaintiff was acting for the sub-lessor.

(f) That in consonance with the understanding that the Plaintiff was not entitled to any fee in respect of the transaction of 21st October, 2005, the Plaintiff did not send any bill of charges to the defendant after the transaction was concluded.

(g) That the Plaintiff s bill of cost dated 14/11/06, wherein she included for the first time the demand for N7,900,000.00 for services purportedly rendered in respect of the sub-lease agreement of 15/08/02 and 23/12/05 was at best, an afterthought and definitely contrary to the agreement between the Plaintiff and defendants, that the Plaintiff would not send any bill of charges in respect of those services.

(h) That the practice in the property industry is that agency fees and solicitors’ fees are usually negotiated and agreed between estate agents and/or solicitors and parties to any property agreement.

(i) That agency fees and solicitors’ fees are not unilaterally fixed by the solicitors or estate agents.

(j) That the reason why the defendant agreed to pay N1,800,000.00 in respect of services rendered for Exhibit ‘2’ was the understanding that Exhibit ‘2’ would require further action on the part of the Plaintiff.

(k) That the Plaintiff is not a party to any of the sub-less agreements that constitute the subject matter of this suit.

(l) That the defendant admits that the Plaintiff prepared Exhibit ’11’, the sub-lease agreement in respect of the land adjacent to the Plaintiffs property at Calabar, but denies that the payment of N3,000,000.00 less a withholding tax of N150,000.00 referred to in paragraph 19 was a part-payment. The said N3,000,00.00 was what the defendant agreed and approved as being reasonable agency and solicitors’ fee for services rendered by the Plaintiff.

And the Plaintiff is aware that this was the amount that was approved for her services by the defendant.

(m) That the defendant considers the N3,000,000.00 as adequate if not gratuitous because in that transaction, the Plaintiff acted mainly for the sub-lessor.

Attached herewith and marked as Exhibit ‘1’, ‘2’, ‘3’ are the letters written by the plaintiff to the defendant where the Plaintiff stated clearly that he was acting for the sub-lessor in respect of that transaction.

(n) That even though the defendant was taken aback by the bills subsequently sent by the Plaintiff in respect of those services, it nevertheless reluctantly agreed to make the gratuitous payment of N3,000,000.00 to the Plaintiff because of the cordial relationship that had hitherto existed between them.

(o) That the disputed charges that constitutes the subject matter of this suit were unilaterally fixed by the Plaintiff.

(p) That the defendant shall, at the trial of this suit object to the bill of charges (Exhibit ’13’) in that nature of the services rendered and the cost of rendering the same were not sufficiently particularized so as to render the charges understandable.

5. That the defendant has a good defence to this action.
6. That the defendant is not indebted to the Plaintiff in any manner whatsoever in respect of all the transactions material.
7. That I swear to this affidavit in good faith believing the contents to be true to the best of my knowledge and under the Oaths Act, 1990.

The central issue in this appeal is the ruling of the trial Judge at page 9 of the record where he said:

“What this court can deduce from the defendant’s deposition in paragraph 4 (a) of its affidavit in support of the Notice to defence (sic) is an admission in the main of the transaction between the Plaintiff and them. And the law has since become trite that in Civil Proceedings that which is admitted need no further proof.”

After a calm and sober reflection on the respondent’s affidavit reproduced above in this judgment, it is crystal clear that paragraphs 2 – 10 of the said affidavit did not deal with the debt owed or the sum which is the subject matter of the claim at the trial court. The claims of the respondent are clearly stated in paragraphs 18, 19, 20 and in particular 21.

The appellant in paragraph 4(b) of her affidavit admitted that the averments in paragraphs 2 – 10 of the respondent’s affidavit are true but in paragraph 4(b) the appellant denied paragraphs 11 – 24 of the respondent’s affidavit.

It follows from the above that though the appellant admitted the transaction, she denied owing the respondent the amount of the money claimed in paragraphs 18 – 21 of the respondent’s supporting affidavit. It is also important to note and observe that the appellant did not just stop at the general denial in paragraph 4 (b), rather she went further to put forward facts which dispute the claim of the respondent in paragraph 4 (d) – (o) reproduced above. In my respectful view the issues raised under paragraph 4(d) – 4(o) in the appellant counter-affidavit could only be resolved by transferring the case to the general cause list and adducing oral evidence.

At this junctions it is rather apparent that the learned trial Judge fell into a grave error when he entered judgment on the basis of the appellants admission in paragraph 4(a) which did not relate to the amount allegedly owed to the respondent. An admission of a transaction is not an admission of the amount allegedly owed. Under the undefended list procedure, where triable issues are raised, which need to be resolved, the only way they can fairly and reasonable be resolved, is by calling oral evidence which implies trial on the merit. See: Nya & Anor vs. Edem & anor. (supra). Where a defendant to a suit on the undefended list files a notice of intention to defend in good time together with an affidavit in support of same, the court should as a matter of duty subject the affidavit to close scrutiny. If it discloses even the slightest defence on merits, the judge is duty bound to have the suit transferred from the undefended list to the ordinary cause list for a full trial to take place. In other words, where from the generality of the deposition of the defendant in the affidavit in support of the notice of intention to defend a suit on the undefended list, there is obviously some reasonable contest, it is better for the trial court to play safe and have the matter transferred from the undefended list to the general cause list. No party is at disadvantage by such a decision as the adducing of evidence makes for a fair and more proper adjudication of the case. In the instant case on appeal the trial Judge failed in that duty. See Intercity Bank Plc vs. F.T.A Ltd. (2006) 4 NWLR (Pt. 971) 504; Mbahi vs. Fixity Investment Ent. Co. Ltd. (2005) 3 NWLR (Pt.912) 384.

In this instant case on appeal, the question of whether or not the parties had agreed on the quantum of fees to be paid by the appellant to the respondent for providing legal and agency services, is indeed a triable issue in the dispute between the parties to justify granting the appellant leave to defend the respondent’s claim against him by having the same transferred to the general or ordinary cause list for hearing on the pleadings.

It is important to note that the affidavit disclosing a defence on the merit, a defendant does not need to show a cast iron defence, what is required in the Counter-affidavit disclosing defence on the merit is that prima facie there is a defence to the action. At this stage a complete defence need not be shown. It will suffice if the defence set up shows that there is a triable issue. The defence should not be at large, it must be a defence which if proved, would exonorate the defendant from the Plaintiff’s claim.

See: FMG vs. Sani (1990) 4 NWLR (Pt. 147) 688. The defendant’s affidavit need not show a cast iron defences but it must condescend upon particulars and should as far as possible deal specifically with the Plaintiffs claim and state clearly and concisely what the defence is and the facts relied on to support it. The case of the appellant is not a mere denial of respondent’s claim. See: God’s Little Tannery vs. Nwaigbo (supra); Nva vs. Edem (Supra); Jipreze vs. Okonkwo (1987) 3 NWLR (Pt. 62) 737.

Though Learned counsel for the respondent submitted that the learned trial Judge was right in holding that the affidavit in support of the intention to defend did not disclose a defence on the merit, it is my respectful view that a dispassionate appraisal of the affidavit of the appellant shows that she condescended upon the particulars and dealt specifically with the respondent’s claim and it stated glaringly, clearly, concisely and unambiguously what the defence is and what facts are relied on to support it. The case of the appellant is not a mere denial of the respondent’s claim. The defence of the appellant is not devoid of evidential value. See: UBA Plc & anor. vs. Jarguba (supra) and Okoki vs Morecab Finance (Nig) Ltd. (supra).

In Macaulay vs. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283, the Court held thus:

“That it is not the intention of the undefended list procedure to send out the defence of the defendant or drive him away from the judgment seat before hearing him.”

It is for the above reasons that I find merit in issue No. 1 and I resolve it in favour of the appellant. Having resolved issued No. 1 in favour of the appellant; issue No.2 now becomes merely academic.

Furthermore, whatever view I express, on Issue No.2 will be prejudicial to either of the parties. It will also amount to my handing down a fiat accompli, to the trial court. I shall therefore restrain myself from going into the merits of issue No. 2 presently.

From the foregoing, it is my considered view that there is merit in this appeal and it deserves to be allowed.

Accordingly, this appeal be and is hereby allowed. The judgment of S. M. Anjor, J, in suit No. HC/65/2007 delivered on 4/5/2007 be and is hereby set aside. The matter is therefore transferred into the general cause list for trial before another judge of the Cross River State.

The appellant is entitled to cost of N20,000.00.

Appeal allowed.

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Other Citations: (2009)LCN/3301(CA)