Mike Johnson & Anor V. Ifeanyi Ogbujimma (2009)
LawGlobal-Hub Lead Judgment Report
AYOBODE O. LOKULO-SODIPE, J.C.A.
This is an appeal against the judgment delivered on 7th December, 2004 by Honourable Justice S.E. Aladetoyinbo of the High Court of the Federal Capital Territory, Abuja. The High Court of the Federal Capital Territory will hereinafter simply be referred to as “the lower court”.
The Respondent as Plaintiff commenced the instant action against the Appellants as Defendants before the lower court under the Undefended List Procedure. This was sequel to the order of the lower court made on 5/7/2004 granting the Plaintiff leave to enter the suit under the undefended list and for the same to be marked accordingly. As shown at pages 1 – 12 of the Records, the Respondent in initiating the instant proceedings under the undefended list procedure filed a motion ex-parte dated 1/6/2004 in which the leave of the lower court was sought to “issue and enter this suit on the undefended list and for the writ to be so marked”. The following were filed along with the motion ex-parte (i) writ of summons dated 1/6/2004; (ii) a statement of claim equally dated 1/6/2004; and (iii) an affidavit in support of writ with Exhibits ‘A’ – ‘D’ attached. The said affidavit was deposed to on 1/6/2004 by one Miss. Chinyere Odumuko a litigation secretary in the Chambers of Respondent’s counsel. It is however to be noted that consequent to the order of the lower court placing the instant suit on the undefended list, the processes that were apparently served on the Appellants as Defendants were the writ of summons (duly marked “Undefended List”); affidavit in support of writ with Exhibits ‘A’ – ‘D’ attached; and motion ex-parte and supporting affidavit. (See pages 25 – 38 of the Records). The claims of the Respondent as Plaintiff against the Appellants as Defendants as endorsed on the Writ of Summons that issued in the action read:-
“1. The sum of N241, 730 as outstanding balance on the timber products sold to the defendants.
- The sum of N150, 350 being a liquidated sum for materials and work done on the Defendants’ project site at Gwarimpa.
- Damages to the tune of N600, 000 for breach of contract.”
The case of the Respondent as Plaintiff, as can be gathered from the affidavit in support of the writ of summons is that on or about 10th July, 2002, the 1st Appellant who is a director and chairman of the 2nd Appellant purchased some timber products valued at N375, 730.00 from him (i.e. Respondent). The timber products which the 1st Appellant purchased were to facilitate the execution of a building contract project awarded in favour of the 2nd Appellant at Gwarimpa Housing Estate, Abuja. That the 1st Appellant made a part payment of only N134, 000.00 out of the value of the timber products leaving a balance of N241, 730.00 and which balance the 1st Appellant refused to pay despite repeated demands, Sometime in October, 2002 and given the inability of the 1st Appellant to pay the money owed, the said 1st Appellant pleaded with him (Respondent) to take over the contract awarded the 2nd Appellant in order to recoup the debt from the proceeds. This was because the 2nd Appellant lacked the resources to complete the project. The Respondent accepted the offer of the 1st Appellant as he saw no other way of recovering his money. This resulted in the signing of a Memorandum of Understanding (i.e. MOU) on 4/10/2002 by the parties, The MOU amongst other conditions provided (i) that the Respondent would complete the project and recoup the debt of N241, 730.00 and that the remaining profit would be shared by the parties at an agreed ratio: and (ii) that the Appellants would make the Respondent a signatory to the 2nd Appellant’s account with Manny Bank and introduce the Respondent officially to CITEC, The Appellants complied with the first condition (even though in breach) but refused to comply with the second condition at all. Pursuant to the MOU, the Respondent claimed to have committed a total sum of N150, 350.00 in materials and labour towards the execution of the project. The Respondent claimed that because the 1st Appellant refused to introduce him to the interested parties, his workmen were harassed and chased away by some men who claimed to have some interest in the job, some days after his workmen got to the site. The 1st Appellant did nothing about this despite the fact that the Respondent brought the development to his notice. The contract was eventually terminated by CITEC who duly evaluated and paid for all the work done by the Respondent at the stage of termination. The Appellants who agreed to indemnify him (i.e. Respondent) to the extent of any work done on the project in the event the contract was terminated before completion have refused to pay him the sum of “N392,80” even though CITEC had paid for the work done.
Pursuant to the leave of the lower court granted in that regard, the Appellants as Defendants duly filed a Notice of Intention to Defend and Affidavit in Support, These processes would appear to be the ones at pages 40 – 42 of the Records. Also at page 45 of the Records is a motion on notice filed on 22/9/2004 in which the Appellants sought for (i) order to file memorandum of appearance out of time; (ii) order to file notice of intention to defend out of time; (iii) order deeming the processes in question to have been properly filed, It is in the affidavit in support of this motion that the Appellants deposed to facts in response to those in the ‘affidavit in support of writ’ filed by the Respondent. Also attached to the affidavit in question are Exhibits ‘A’ – ‘D’, Exhibit ‘D’ is a joint statement of defence.
The case of the Appellants, as can be gathered from the affidavit in support of the motion dated 22/9/2004, is that the 1st Appellant is a director of the 2nd Appellant which is a limited liability company incorporated under the Companies and Allied Matters Act, 1990. That sometime in October, 2002, the Respondent entered into a memorandum of understanding (MOU) with the 2nd Appellant. That pursuant to the MOU, the Respondent agreed to finance and execute the contract awarded to the 2nd Appellant by CITEC International Estates ltd for the construction of “a unit 32 Maiwa building type at Gwarimpa House Estate, Team 5 A, Abuja”. The value of the contract was N10, 273, 482.66 and payment was to be made in three stages of completion level as stipulated by the awarding company – CITTEC International Estates Ltd. The first stage of the contract had already been performed by the 2nd Appellant before the Respondent came into the picture and the Respondent was to take over the second and third stages of the contract. It is a condition in the MOU that the Respondent is not entitled to be indemnified in the event of non-performance or under performance. The Appellants claimed that the Respondent displayed lack of seriousness after he took over the job. This is because the Respondent refused to carry out the job as promised. This development, according to the Appellants, led to the revocation of the contract by CITTEC International Estates Ltd. The revocation of the contract, the Appellants also claimed have resulted in the 2nd Appellant losing all its expected gains as well as investment earlier put into the contract. The Appellants said that sometimes in April, 2004 the Respondent wrote to demand for the sum of N241, 730.00 and N150, 720.00 for a purported indebtedness by the 1st Appellant to him (i.e. Respondent) and that his (i.e. 1st Appellant) lawyers immediately responded, The 1st Appellant was appalled when the Respondent served himself and the 2nd Appellant with court processes under the Undefended List sometimes in July, 2004. The Appellants claim to have a good defence and counter-claim on the merit, to the Respondent’s action and for this purpose exhibited a joint statement of defence.
Page 70 – 72 of the Records, show that the lower court heard the case on 7/12/2004 and adjourned Ruling therein to 7/12/2004. The Judgment/Ruling of the lower court starts from page 72 of the Records and ends at page 74. The said Judgment/Ruling on its face shows the date of delivery as 7/12/2004. In its Judgment/Ruling the lower court at pages 73- 74 of the Records said thus: –
“The Defendants by not denying that the plaintiff expended the sum of N150, 000.00 on the project are deem (sic) to have admitted same, and by virtue of paragraph 12 of the Memorandum of Understanding Exhibit B attached to the plaintiffs affidavit, the plaintiff is entitled to be reimbursed by the defendants. The affidavit of the defendant did not disclose enough evidence to suggest that the contract was terminated by CITEC International Estates Limited because of non-performance of the plaintiff.
The plaintiff having satisfied this court that the defendants (sic) outstanding balance of debt to him stood at N241, 730 before the memorandum was executed, and after the memorandum of settlement, the plaintiff equally satisfied the court that the work he carried out on the project stood at N150, 000.00, the only conclusion drawn is that the defendant actually has no defence to the plaintiffs claim, See Tank V FBN PLC 2003 51 WRN Pg. 54 at 56
Where it is apparent that the defendant actually has no defence to the plaintiff’s claims, the court will or should enter a summary judgment without necessarily proceeding to full trial.
Judgment is hereby given in favour of the plaintiff. The two defendants to pay the plaintiffs (sic) jointly and severally the sum of N392, 080.00 (Three Hundred and Ninety two Thousand Eighty Naira) only being outstanding balance of timber sold to the defendants by the plaintiff and the value of the work carried out by the plaintiff on the defendant’s (sic) project.
The Defendants to pay 10% annual interest on the judgment sum with effect from 7th day of December, 2004 until the whole judgment sum is liquidated”.
The Appellants being dissatisfied with the judgment of the lower court; lodged a Notice of Appeal against the same on 20/12/2004. The Notice of Appeal contains five grounds of appeal. The grounds of appeal shorn of their particulars read: –
“1. The learned trial Judge erred in law when he wrongly assumed jurisdiction to try the plaintiffs claim under the undefended list.
- The learned trial judge erred in law when he granted to the plaintiff reliefs not sought by him.
- The learned trial judge misdirected himself when he held that the affidavit of the defendant did not disclose enough evidence to suggest that the contract was terminated by CITEC Investment Estate Ltd because of non performance or sub standard performance of the plaintiffs”,
- The learned trail judge misdirected himself when he held that the defendants by not denying that the plaintiff expended the sum of N150, 000 on the project are deemed to have admitted same, and by virtue of paragraph 12 of the memorandum of understand (sic) Exh B attached to plaintiffs (sic) affidavit the plaintiff is entitled to be reimbursed by the defendant.
- The learned trial judge misdirected himself when he held “that both the plaintiff and the defendants agreed that the outstanding balance for the timber purchase (sic) by the 1st defendant on behalf of the 2nd defendant on the 10th day of July 2002 stood at N241, 730.00 and that this outstanding balance is yet to be paid by the defendants to the plaintiffs.”
In accordance with the Rules of this Court, parties duly filed and exchanged briefs of argument. The appeal was heard on 6/4/2009, Miss P.E. Omughele, learned lead counsel for the Appellants, in urging that the appeal be allowed, relied on and adopted Appellants’ brief of argument dated 14/9/2005 filed on 17/1/2006 but deemed as properly filed and served on 18/9/2006. S.M. Allah learned counsel for the Respondent in urging the Court to dismiss the appeal and affirm the judgment of the lower court relied on and adopted Respondent’s brief of argument dated 29/11/07 filed on 5/12/07 but deemed as properly filed and served on 24/6/2008.
The Appellants formulated two Issues for the determination of the appeal in the brief of argument settled by Sam T. Ologunorisa. The Issues read: –
“(1) whether it was right as the lower court did, to have placed a matter partly liquidated and partly unliquidated under the “undefended list” and went ahead to give judgment under the undefended list procedure.
(2) Whether the trial court in considering the affidavit in support of the Notice of Intention to Defend viz-a-viz (sic) the Affidavit in Support of application for undefended list can at that stage determine whether any of the allegations or counter allegations are proved and enter judgment for the Respondent.”
The Respondent’s brief was settled by Okwudili Alagbu Esq, Learned counsel aside from formulating two Issue of his own for the determination of the appeal, also adopted the second of the two Issues formulated in the Appellant’s brief. The two Issues formulated by learned counsel read:-
“1. Whether the Appellants are entitled to raise for the first time on appeal, issues of facts that were not canvassed at the trial stage.
- Whether an order for retrial is appropriate where it is only intended to offer an opportunity to a party to correct mistakes he made at the trial court.”
The appeal will be determined upon the Issues formulated in the Appellants’ brief of argument as they are undoubtedly more rooted in the grounds of appeal than those of the Respondent.
APPELLANTS’ ISSUE NO. 1
The Appellants submitted to the effect that reliefs (b) and (c) out of the three reliefs claimed by the Respondent do not qualify as claims for “liquidated sums” by any stretch of imagination, Reference was made to paragraphs 12, 13, 14, 15, 16, 17 and 21 of the Statement of Claim. It was the contention of the Appellants that the sums which the Respondent claims under the said claims (b) and (c) can only be resolved by an ordinary writ of summons, as the said claims are not only contentious, but also disputed by them. In this regard, reference was made to paragraphs 5 and 6 -18 of the Affidavit in Support of Notice to Defend; paragraphs 7-15 of the joint statement of defence and the fact that the Respondent did not reply to the counter-claim of the Appellants. The Appellants submitted that the lower court ought to have transferred the case to the general cause list at that stage. The cases of NSC Ltd v. MOJEC International Ltd 2005 ALL FWLR (Part 262) 475 at 498; Dalko v, Union Bank Nig Plc 2003 FWLR (Part 180) 1500; Aruna v. Abdulkadir 2002 FWLR (Part 115) 677 at 687 Macaulay v. NAL Merchant Bank Ltd 1990 4 NWLR (Part 144) 283; Jipreze v. Okonkwo 19873 NWLR (Part 62) 737; and Effanga v. Rogers 2003 FWLR (Part 157) 1058 at 1071-1072 all dealing with undefended list matters were cited in aid.
The Appellants said to the effect that damages are said to be unliquidated when the amount to be recovered depended on all the circumstances of the case and conduct of the parties and is fixed by opinion or by estimate. In the circumstances the Appellants submitted that the lower court erred when it held that they, jointly and severally should pay the Respondent the sum of N392, 080.00 only being the outstanding balance of the timber sold to them by the Respondent and the value of the work carried out by the Respondent on their (i.e. Appellants) project. The lower court was equally said to have erred in granting the Respondent 10% annual interest on the judgment sum with effect from 7/12/2004 until the whole judgment sum is liquidated
In his brief of argument, the Respondent said that the Appellants’ Notice of Intention to Defend was supported by an affidavit of 4 paragraphs which is at pages 40-42 of the Records and that nowhere in the said affidavit was the writ of summons challenged or controverted. Indeed the Respondent made the point that the affidavit in question contains no paragraphs 14 and 15. The Respondent submitted that reliance by the Appellants on the affidavit at pages 46-48 of the Records as being the affidavit in support of their notice to defend is misconceived. The case of Aikabeliv v. AP (2001) 3 WRN 140 at 141-142 was cited as showing that undefended list procedure is fought on affidavit evidence: while that of A-G Ondo v. A-G Ekiti (2001) “50 W.R.P.1 at 16 Ratio 14” was cited as deciding that uncontroverted and “undenied” depositions in an affidavit are deemed as admitted, The Respondent submitted that the Appellants at this stage of appeal could not now rely on any other affidavit different from the one at pages 40-42 of the Records particularly the one at pages 46-48 in opposing the application for summary judgment under the undefended list procedure, Furthermore, the Respondent submitted that to allow this will violate his right to fair hearing as it would amount to raising facts and issues deposed to therein for the first time on appeal. The case of Egesimba v, Onuzuruike (2003) 13 WRN 78 at 87 was cited as deciding that a party can only raise fresh points or issues on appeal with the leave of court; while that of Amusa v. The State (2003) 18 WRN 105 at 111 was cited as deciding that fresh points or issues raised without the leave of court are to be discountenanced.
It was submitted by the Respondent that what is required of an appellate court is not to inquire into the matter before it, but into the way or manner the disputes have been tried and settled by the trial court. The case of Ngwu v. Ozougwu (2001) 4 WRN 28 was cited in aid, The Respondent also submitted that at any rate there was a proper evaluation of the facts and evidence in this case by the lower court and no irregularity in procedure which occasioned a miscarriage of justice. This is against the backdrop that the lower court considered all the facts and evidence before it including the one at the aforementioned pages 46-48 of the Records and its accompanying exhibits (even though not properly before it) before entering judgment in his favour.
The Issue under consideration questions the correctness of the decision of the lower court in entering the instant suit on the undefended list given the nature of two out of the Respondent’s three claims which are for both liquidated and unliquidated damages.
The Respondent has argued in his brief of argument that there is nowhere in the Appellants’ Affidavit in Support of Notice of Intention to Defend that the writ of summons was challenged or controverted. In this regard he further argued that the Appellants cannot rely on the affidavit in support of the motion at pages 46 – 48 of the Records. In another breath, the Respondent, while acknowledging that the lower court made use of the said affidavit at pages 46 – 48 of the Records, said to the effect that there was a proper evaluation of evidence by the lower court (though it wrongly countenanced the said affidavit) and that there was no irregularity in procedure which has occasioned a miscarriage of justice.
It is my humble view that the Appellants can properly rely on the affidavit at pages 46 – 48 of the Records, on the Respondent’s showing as stated above. In any case, I cannot but note that the issue as to the correctness of the decision of the lower court in placing the instant suit on the Undefended List, in the light of the claims of the Respondent, as raised in the Issue under consideration, is jurisdictional in nature. The said Issue actually does not require whatever the Appellants have stated in the affidavit in support of their notice to defend for its resolution, What is required for the resolution of the Issue is an examination of the claims of the Respondent and the facts deposed to in the affidavit in support of writ and documents attached thereto.
The Respondent’s motion ex-parte dated 1/6/2004 for the order of the lower court that the instant suit be placed on the Undefended List and for the writ to be so marked was brought pursuant to Order 23 Rules 1 and 2 Rules of the High Court of the Federal Territory Abuja, then in operation and not the present Rules of the same court that came into operation on the 14th day of October, 2004. The provisions of Order 23 of the Rules of the lower court pursuant to which it granted the order placing the instant suit on the Undefended List required as follows: that there must be a “debt or liquidated money demand” and the application must be supported by an affidavit setting out the grounds upon which the claim is made, The content of the affidavit must show that there is no defence to the claim, It is only then that the trial Judge can properly enter the suit on the Undefended List. The court is therefore not expected to enter a suit on the Undefended List for the mere asking or routinely. Also not all types of case or claim can properly be entered on the Undefended List. Only suits for debt or liquidated money demand and in respect of which it is shown that there is no defence that can properly be entered on the Undefended List.
A debt or liquidated money demand is money which is ascertainable without further investigation or which is indeed ascertained. See FLEMINGDON DEVELOPMENT (NIGERIA) LTD V. ANAEMENE [200] All FWLR (Pt. 301) 1915 at 1947. Therefore if the sum claimed in a suit on the Undefended List or to be adjudged as due to the plaintiff, goes beyond arithmetical calculation, it cannot qualify as a debt or liquidated money demand. See also NIGERIAN SUGAR COMPANY LTD V. MOJEC INTERNATIONAL LTD (2005) All FWLR (pt. 262)475 at 497. I consider it necessary to set out the claims of the Respondent again. They are as follows: –
“1. The sum of N241, 730 as outstanding balance on the timber products sold to the defendants.
2, The sum of N150, 350 being a liquidated sum for materials and work done on the Defendants’ project site at Gwarimpa.
3, Damages to the tune of N600, 000 for breach of contract.”
The Appellants have no grouse against Claim (1) above. They no doubt agree that it is clearly a claim for debt given the manner it is couched and the facts deposed to by the Respondent in relation to the said claim.
Claim (2) though couched as one for the liquidated sum of N150, 35000; in my humble view definitely is not one for debt or a liquidated money demand given the fact that the said sum of N150, 350.00 is for “materials and work done on the Appellants’ project site”. This is particularly so in the light of the case presented in the Affidavit in Support of the Writ of Summons and the Exhibits attached thereto. In this regard I cannot but say that it is clear from the facts deposed to in the Affidavit in Support of the Writ that the three receipts exhibited by the Respondent at pages 30 – 32 of the Records relate to the timber products said to have been purchased by the 1st Appellant on or about 10/7/2002. This is particularly so given the dates on the said receipts.
It must be appreciated from the facts deposed to in the affidavit in support of the writ of summons that Claim (2) rests or is anchored on the MOU. The MOU is dated 4/10/2002. The Respondent relied on a credit sales invoice marked Exhibit ‘C’ in relation to some of the materials he deployed to the site, in the proof of the fact that he used some materials for the purposes of the Appellants’ project. I cannot but say that there is no document marked Exhibit ‘C’ in the documents exhibited to the affidavit in support of the writ at pages 30 – 38 of the Records, Such invoice necessarily cannot pre-date the MOU, so it cannot be said that the receipts at pages 30 – 32 of the Records are what the Respondent rely upon in this regard. Claim (2) under consideration as can be seen is for a lump sum in respect of “materials and work done”.
There is however nothing that was exhibited to the affidavit in support of the writ of summons stating or suggesting the specific amount claimed for “material” and that claimed for “work done” or how the value of work done was quantified, How then can it be said that the “fused” sum claimed in Claim (2) is in respect of a liquidated money demand or a debt? This is particularly so when it is appreciated that though the Respondent stated to the effect in paragraph (r) of the Affidavit in Support of Writ that CITEC evaluated and paid for all the work done by him, but he woefully failed to place before the lower court any documentary evidence in this regard.
I am equally of the considered view, that Claim (3) above, is not one for a liquidated money demand but one for unliquidated damages. This is so despite the indication of a specified sum of N600, 000.00. The damages to be paid to a person for breach of contract is invariably the amount it will entail to put that person in the position he would had been if there had not been any breach of the contract. Accordingly, the burden is always on the plaintiff suing for breach of contract not only to prove the breach thereof, but also to give evidence of what damages he suffered. Where the contract expressly provides for payment of damages for its breach, the court will then award what is reasonable and not punitive, See G. CHITEX INDUSTRIES LTD. V. OCEANIC BANK INTERNATIONAL (NIG) LTD [2005] All FWLR (PT. 276) 610 at 624 – 625. Damages for breach of contract, save where they have been expressly agreed upon by the parties thereto at the time of making the said contract, are therefore at the discretion of the court and the court fixes this in the light of the evidence adduced by the plaintiff in respect of the damages he has suffered, It is for this reason that the authorities have it to the effect that the term ‘special’ and ‘general’ are not appropriate in an action for breach of contract. This is however not to say that parties to a contract cannot by the terms of their agreement bind themselves that a breach of the contract between them under special circumstances would attract damages which the parties have agreed to at the time of making the contract. See G. CHITEX INDUSTRIES LTD. V. OCEANIC BANK INTERNATIONAL (NIG) LTD (supra) at 623 in which the decision in the case of Agbaje v. National Motors Ltd (1971) 1 UILR 119 was applied. There is absolutely no deposition in the Affidavit in Support of the Writ of Summons or evidence in any of the Exhibits attached thereto, remotely suggesting, talk less of expressly showing what the sum of N150, 350.00 in Claim (2) under consideration is about, or that it was agreed upon by the Appellants and the Respondent, either at the time of making the MOU or in the said MOU.
The law requires strict compliance with the requirements of the Undefended List procedure both by a Plaintiff wishing to use same, and the Court that will exercise a discretion on the material brought by the Plaintiff, See UKO V. EKPENYONG [2006] All FWLR (Pt. 324) 1927 at 1947 .1949. The decision of a court to place a suit on the undefended list is an exercise of judicial discretion that must be discharged judicially and judiciously and this must be apparent from the material placed before it. See ONADEKO V. UNION BANK OF NIGERIA PLC [2005] All FWLR (Pt. 57) at 77. From all that has been stated above, I am of the humble, but firm view that the lower court has glaringly not complied strictly with the Undefended List procedure given its decision that placed the instant suit which is glaringly for both a debt and unliquidated sums of money on the Undefended List. The instant action wherein one of the claims is for debt, while the remaining two other claims therein are on their own showing or by their nature contentious are belter suited for trial on pleadings, See NIGERIAN SUGAR COMPANY LTD V. MOJEC INTERNATIONAL LTD (supra) at 498. I therefore find the lower court to be wrong in placing the instant suit on the Undefended list, a fortiori, any other thing predicated thereon including the judgment delivered.
In conclusion Appellants’ Issue 1 is therefore resolved in their favour.
APPELLANTS’ ISSUE NO.2
This Issue raises the question as to whether the lower court at the stage of considering the Affidavit in Support of the Appellants’ Notice to Defend vis-a-vis the Affidavit in Support of the Writ of Summons could determine whether any of the allegations or counter allegations are proved and thereby enter judgment for the Respondent.
Dwelling on this Issue, the Appellants set out the portion of the Judgment/Ruling of the lower court which reads thus: –
‘The plaintiff having satisfied this court that the defendants (sic) outstanding balance of debt to him stood at N24, 730 before the memorandum was executed, and after the memorandum of settlement, the plaintiff equally satisfied the court that the work he carried out on the project stood at N150, 000.00 the only conclusion drawn is that the defendant actually has no defence to the plaintiffs claim.”
The Appellants thereafter submitted that the lower court totally misconstrued its role at this stage of the proceedings considering the affidavit in support of the notice of intention to defend vis-a-vis the affidavit in support of the writ of summons. The Appellants cited the cases of Euro-Bati Concepts SA v. Tropical Industrial Co Ltd 2002 FWLR (Pt. 121) 1913 at 1920-1921; Arewa v, Abdulkadir 2002 FWLR (Pt. 115) 677 at 687; and UBA Plc v Mode Nigeria Ltd 2002 FWLR (Pt. 112) 147 at 165 as showing what is expected of the lower court.
The Respondent, dwelling on this Issue under his Issue No. 3. contended that the lower court did not err in law, or at all by determining the instant case on the affidavit evidence of both parties. The Respondent further submitted that the Appellants misconceived the law and the procedure relating to undefended list given their submission that the lower court misconstrued its role at the stage of considering the affidavit in support of the notice to defend vis-a-vis the affidavit in support of the writ of summons. This according to the Respondent is because by their very nature, claims brought under the undefended list procedure are decided on a balance of the plaintiffs Affidavit in Support of Writ of Summons and the defendant’s Affidavit in Support of Notice of Intention to Defend. The case of Aikabeli v. VAP (supra) was cited in support.
The Respondent under his Issue 2 contended that the prayer of the Appellants that the instant case is remitted to the lower court for retrial is misconceived and should be discountenanced. The order of retrial according to the Respondent is particularly inappropriate as the finding of the lower court did not depend on the credibility or reliability of witnesses but on documentary evidence only. The case of Thompson v. Arowolo (2003) 24 WRN 1 was cited in aid. The Respondent also said it was clear from the facts of the instant case that the only reasons why the Appellants seek for a retrial is to enable them rectify the mistakes they have made in the prosecution of their case.
The concept of the Undefended List procedure was considered by this Court In the case of AKINYEMI V. GOVERNOR OF OYO STATE [2003] FWLR (Pt. 140) 1821. At page 1831, Tabai, JCA (as he then was) stated thus: –
“The undefended list procedure under Order 23 of the High Court (Civil Procedure) Rules 1988, Oyo State is a peculiar summary form of procedure designed to facilitate the quick determination of a claim for the recovery of a debt or liquidated money demand which is incontestable in law and the facts in the affidavit evidence in support thereof is undisputed. It is a procedure in aid of a claim against which there is no defence put forth at all or the affidavit evidence put forth by the defendant raises no credible defence in law and in fact. Once the affidavit evidence discloses a defence on the merit the court will necessarily grant the defendant leave to defend and consequent thereof the matter would be removed from the undefended list and placed on the ordinary cause list for full trial and determination … And to constitute a defence to warrant the removal of the matter from the undefended list to the ordinary cause list for trial, the affidavit of the defendant must disclose either facts which raise substantial issues of law or disputed material facts which can only be resolved after a full trial ….
Thus the principles embodied in the undefended list procedure is firstly to enable a plaintiff who has a genuine incontestable claim for a debt or liquidated money demand to obtain quick justice and thus protect him from incurring further losses and frustration by the delay tactics of a defendant who has no real defence on the merit. The second principle is the corresponding need for the defendant to be given a fair hearing guaranteed by section 36 of the Constitution. The undefended list procedure therefore involves a balancing of these principles which alone ensures that justice is done and injustice averted.
The principles in the above quoted judgment, in my view, clearly disclose what the lower court ought to have borne in mind, in considering the Affidavit in Support of the Notice of Intention to Defend filed by the Appellants vis-a-vis the Affidavit in Support of the Writ of Summons.
it must be stressed that the authorities are very clear to the effect that a defendant need not disclose a complete defence to a plaintiffs case in the undefended list before he can be allowed to defend; it is sufficient if he shows a prima facie defence or that there is a triable issue or question that for one reason or the other there ought to be a trial. Leave to defend is therefore always granted unless it is abundantly clear that there is absolutely no defence in law or there is no real defence on question of facts at all. In this regard see the cases of BAUCHI LOCAL GOVERNMENT COUNCIL V. ABDUL-GHANIYU ABDUL-SALAMI [2003] FWLR (Pt. 151) 1868; MR. JOHN AKALONU V. MR. S.O. OMOKARO [2003] FWLR (Pt. 175) 493; EDET LUKE UYOETTE V. IBIONO IBOM LOCAL GOVERNMENT [2003] FWLR (Pt. 178) 1126; and DR. MAURICE A. EBONG V. FRANCIS S. IKPE [2002] 21 WRN 56
Indeed in the case of DR MAURICE A. EBONG V. FRANCIS S. IKPE (supra) at page 77 this Court per Ekpe, JCA; said thus: –
“It is now a well established principle that when a court is proceeding under the undefended list procedure, it is desirable that the court must call into play a measure of liberality when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed, See V.S. Steel (Nig.) Ltd v. Gov. Anambra State (supra); Jos North L.G. v. Daniyan (2000) 10 NWLR (PI 675) 281”
The pertinent question then, is whether the lower court was right in not transferring the instant suit from the undefended list to the general cause list for hearing in the face of the Appellants’ depositions in the Affidavit in Support of the Notice of Intention to Defend to the effect (i) that the Respondent is not entitled to indemnity in the event of non-performance or under performance pursuant to the terms of the MOU; (ii) that the Respondent, after he took over the job, displayed lack of seriousness as he refused to carry out the job as promised; (iii) that the contract was revoked by CITEC International Estates Ltd as a result of the non-performance or under performance of the Respondent on the job. This is aside from the counter-claim of the Appellants for damages as claimed in the joint statement of defence and counter-claim attached to the affidavit in support of the notice of intention to defend.
I have painstakingly perused the Judgment/Ruling of the lower court delivered on 7/12/2004. The settled impression I have gathered therefrom is that the lower court has deliberately refused to abide by the decisions of the appellate courts in a plethora of cases on the undefended list procedure, to the effect that a defendant is not expected to raise a total defence to the plaintiffs case but is only required to disclosed the existence of some triable issue in relation to the claim before it. It is either this, or that the lower court was under a misapprehension of the nature of the defence raised by the Appellants in their Affidavit in Support of the Notice of Intention to Defend.
If the lower court had not misapprehended the nature of the defence of the Appellants as highlighted hereinbefore, and also appreciated the position of the law that the Appellants are not required at the stage of “affidavit in support of notice to defend” to establish a complete defence in the case, I do not believe that it would have proceeded to hold, as it did that: “The affidavit of the defendant (sic) did not disclose enough evidence to suggest that the contract was terminated by CITEC International Estates limited because of non-performance of the plaintiff,” Also, if the lower court appreciated the position of the law as hereinbefore stated and properly applied same, it would not have held that “the plaintiff equally satisfied the court that the work he carried out on the project stood at N150, 000.00, the only conclusion drawn is that the defendants actually has (sic) no defence to the plaintiffs claim.”
If the lower court have allowed itself to be guided by the authorities, it would have seen that issues raised by the Appellants and which are material to the resolution of the case required the case, at the stage to have been placed on the general cause list for hearing. In order words, the lower court, if it had realised that the Appellants need not establish a complete defence to the action at the stage of “affidavit in support of notice of intention to defend” and that it is sufficient if the defence set up shows a triable issue or that for some reason, or other reasons there ought to be a trial, it would have seen that it was duty bound to transfer the case to the general cause list for hearing. See SNIG NIGERIA LIMITED V. ED. OF NIGERIA LIMITED [2003] FWLR (Pt. 171) 1606 at 1624; and THE SHELL PETROLEUM DEVELOPMENT OF NIGERIA LIMITED V. ARHO-JOE NIGERIA LIMITED [2006] All FWLR (Pt. 331) 1330 at 1348.
In the light of all that has been said, Appellants’ Issue 2 is therefore resolved in their favour.
This appeal accordingly has merit as the two Issues formulated for its determination by the Appellants have been resolved in his favour. The appeal therefore succeeds and is allowed. The judgment delivered by the lower court in the instant case on 7/12/2004 is hereby set aside. It is hereby ordered that the suit be remitted to the Chief Judge of the High Court of the Federal Capital Territory, Abuja for re-assignment to another Judge for trial on pleadings.
I award N15, 000.00 costs against the Respondent and in favour of the Appellants.
Other Citations:(2009)LCN/3364(CA)
