Alh. Abdullahi Haido & Anor V. Alh. Sikiru Usman (2003)
LawGlobal-Hub Lead Judgment Report
JOSEPH JEREMIAH UMOREN, J.C.A.
By a writ of summons, dated 9th June, 1999, the plaintiff/ respondent claimed from the defendant/appellant, on the undefended list as follows:
“1. The plaintiff claims against the defendants jointly and severally the sum of N2.8m (Two million, eight hundred thousand Naira) only, being the balance outstanding debt against the defendants, interest accruing thereto and thereafter, the plaintiff claims 10% interest on the judgment sum until the entire debt is liquidated.
The defendants have inspite of several oral and written demands through the 1st defendant, refused or neglected to liquidate the debt.”
The writ of summons was supported by an 18 paragraph affidavit. The relevant paragraphs are reproduced hereunder as follows:
“5. That the first defendant is the Managing Director of the 2nd defendant.
- That the second defendant is a company incorporated in Nigeria, under the Companies and Allied Matters Act, 1990.
- That sometime around September, 1995, the deceased Alhaji K.O. Usman had a transaction with the defendants, to buy a Mercedes Benz 300 SEL for the sum of N5.5m (Five million, five hundred thousand Naira).
- That the deceased made a deposit of N300,000.00 (Three hundred thousand Naira) and a Honda Accord 1994, model, valued at N2.5m, and promised to pay the balance of N2.7m to the defendants.
- That the said balance was not paid to the defendants before the deceased died.
- That the defendants later sold the said Mercedes Benz 300 SEL, but did not refund the deposit made by the deceased.
- That several demands both oral and written were made on the defendants to pay the sum of N2.8m deposited for the said car, but the defendants have refused and or neglected to pay the said debt.
- That some of those demands were made on my behalf by my then solicitor – Omolade Makaojuola & Co.
- That the defendants never denied owing the said debt, but always giving flimsy excuses and sometimes, asking for time to pay; through my then solicitor referred to in paragraph 12 above. Some of those letters are marked exhibits ‘B’ and ‘C’.
- That sometimes around the 29th day of May, 1997, the defendants attempted to make a part payment of N500,000.00, through one Alhaji M.A. Shittu, but I refused to accept it on the ground that, the entire debt be paid in full.
- That since then, the defendants have still not done anything to liquidate the debt.”
On service of the writ of summons on the defendants/appellants, pursuant to the provisions of the rules of the court below, the defendants/appellants filed a notice of intention to defend together with a supporting affidavit; the important averments which are as follows:
“4(a) That one Alhaji K.O. Usman (now deceased), agreed with the second defendant sometime in September, 1995, to purchase a Mercedes Benz car (300 SEL) at a price of N5,500,000.00 (Five million, five hundred thousand Naira) out of which he paid the sum of N2,800,000.00 (Two million, eight hundred thousand Naira) leaving a balance of N2,700,000.00 (Two million, seven hundred thousand Naira) to be paid as soon as possible. Time was stressed by the second defendant to be of essence in the contract of sale with the said Alhaji K.O. Usman.
(b) The part payment of purchase price comprised of cash in sum of N300,000.00 (Three hundred thousand Naira), and a Honda Accord Car (1994 model mutually valued at N2,500,000.00 (Two million five hundred thousand Naira only).
(c) That Alh. K.O. Usman (deceased) never came back and the said balance of N2.7m (Two million, seven hundred thousand Naira only) remained unpaid from September 1995 to June 1997, when the said K.O. Usman died.
(d) That during the period from September 1995 to June 1997, the vehicles – Mercedes Benz (300 SEL) and Honda Accord, lied in the custody of the second defendant redundant.
The suit was heard on the undefended list and judgment delivered on 21/10/99, in favour of the plaintiff/respondent. Part of the concluding paragraph of the learned trial Judge’s judgment ran thus:
“It is my further view that the requirement of Order 22 rule 3 (1) of the HCCP rules have not been satisfied in that I am unable to find from the affidavit in support of the notice of intention to defend, such disclosed facts that are sufficient to warrant my granting the defendants leave to (sic) defend this suit. .. I hereby, enter judgment for the plaintiffs against the defendants jointly and severally in the sum of Two million, eight hundred thousand Naira only (2.8 million), being outstanding debt against the defendants…”
Dissatisfied with the judgment of the court below the defendants/appellants appealed to this court. The defendants shall hereinafter be referred to as the appellants while the plaintiff shall be called the respondent in this appeal. The appellants filed notice of appeal with two grounds which are reproduced thus:
“1. The learned trial Judge erred in law, when he held that the defendants had not made out a defence on the merit to justify transferring the case to the general cause list.
(a) The subject matter of the suit is supply of Mercedes Benz car type 300 SEL by the defendants to the plaintiff.
(b) The plaintiff’s claim is for sum of N2.8m (Two million eight hundred thousand Naira) only made up of cash of N300,000.00 (Three hundred thousand Naira) and his used vehicle (Honda Accord) valued at N2.5m (Two million five hundred thousand Naira) both of which were taken as part payment of defendant’s Mercedes Benz 300 SEL agreed to be sold to plaintiff at N5.5m (Five million five hundred thousand Naira).
(c) The defendants in depositions attached to their notice of intention to defend, particularly in paragraph 4 a-h and 5 a-d, denied plaintiff’s claim and deposed to plaintiff’s breach of contract for failure to pay balance of purchase price for period of more than two years, on Mercedes Benz car he agreed to buy, resulting into loss to themselves (defendants). Defendants also alleged that payment of N500.000.00 (Five hundred thousand Naira) had earlier been made to the agent representing the plaintiff in the contract of purchase.
(d) The plaintiff neither denied defendant’s allegation of breach of contract nor payment of N500,000.00 (Five hundred thousand Naira) to agent on his behalf.
(e) The learned trial Judge went ahead to hold that all these facts raised by the defendants in their notice of intention to defend do not disclose triable issue warranting a full trial of the matter under general cause list.
“2. The learned trial Judge erred in law, when he found that defendants had not shown time to be of essence in the contract of sale of vehicle with plaintiff.
(a) The defendants outlined in their depositions before the trial court that contract of sale of vehicle to plaintiff was breached by latter’s inability to pay balance of purchase price for a period of more than two years culminating into loss to defendants which has outweighed the plaintiff’s deposit.
(b) The plaintiff in paragraph 9 of his affidavit in support admits that “said balance was not paid…”
(c) The learned trial Judge erred when at that stage of matter being heard under undefended list he held as thus: “On the issue of time, I am without any disclosed specification as to when the time was to lapse to make it an arguable issue. All that the defendants’ paragraphs 4(a) says is that “to be paid as soon as possible.” This in my opinion is no reference to any period of time that is determinable.”
(d) The learned trial Judge erred by finding that defendants failed in establishing that time was of essence and resolving that against the defendants at that stage of proceeding without benefit of full trial. The error is further compounded by the fact that the plaintiff did not even join issue with the defendant’s allegation of breach of contract not even denied same.
(e) The finding of the learned trial Judge on lack of specificity of time in the contract of purchase to discountenance the allegation of breach as made by defendant amounted to requiring proof of their defence at that stage and thereby, placed a legally unacceptable hurdle on defendant’s path to securing leave to defend under the undefended list procedure.
(f) The learned trial Judge ought not to disregard the defendant’s allegation of breach of contracts as basis of their defence without benefit of trial to determine whether or not, time was of essence in the circumstances of the parties’ contract of sale and whether or not period of two years of non-payment of balance was reasonable or not in the circumstances of the parties transaction.”
In accordance with the rules of this court, the appellants filed their brief of arguments through their learned Counsel. There is nothing on record before me to show that the respondent filed his brief of arguments or any paper at all in this appeal in this court.
When this appeal came up for hearing on the 18/11/02 and no brief of argument was filed by the respondent, the court, on application of the appellants counsel pursuant, to Order 6 rule 10 of the Court of Appeal, Rules 2002, heard the appeal without the respondent’s brief. In the appellant’s brief two issues for determination were distilled.
The two issues are reproduced hereunder:
“2. The appellants contend that there are two issues arising for determination in this appeal, to wit:
(a) Whether the appellants’ affidavit in support of notice of intention to defend raised a defence on the merit such that the appellants ought to have been given leave to defend the suit on the merit.
(b) Whether the learned trial Judge’s finding of appellants’ lack of time specification in contract between the parties in their depositions placed undue burden of proof on appellants, and, if so, whether such burden/hurdle were tenable and right in denying the appellants leave to defend the suit.”
The learned Counsel for the appellants started off with issue No. 1 which he related to ground 1 of the grounds of appeal. He attempted to review the relevant law governing actions on the undefended list. He agrees that the defendant is required to file a notice of intention to defend supported by an affidavit disclosing a defence on the merits. Learned Counsel argued that the supporting affidavit to the notice of intention to defend must of necessity show “facts which in their totality reveal cogent, triable, arguable issues and point (s) of law.” At the stage of notice of intention to defend, the law is that it is not necessary, to consider whether the defence has been proved, neither does the defendant need to reveal complete defence. An outline of this defence here learned Counsel submits.
He cites the case of F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688 at 689. Where the Court of Appeal followed Habib Bank v. Oyebanji (1998) 13 NWLR (Pt. 580) 71 at 78 paras. C – F. On the strength of the authorities, learned Counsel submits that the requirement of a “defence on the merit” synonymous with “proved” or successful” defence which the trial court may only pronounce upon after hearing evidence at the time of evaluating the totality of the evidence adduced by the defendant after a due trial is performed. Refers to Nishizawa Ltd. v. Jethwani Ltd. (1984) 12 SC 234 and Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283. He reproduces paras. 4 (c) (d), 5 (a) and (b) of his affidavit to substantiate his arguments. He further submitted that undefended list procedure can only be meant for straight forward, incontestable claims where the legal position is too clear. He refers to U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) 244 at 283. He contends that the appellants had disclosed a defence on the merit to be entitled to have to defend the action and the court to so hold.
It is my very humble view and with respect to the learned Counsel for the appellants, that the only issue that calls for determination in this appeal on issue No.1 is whether the affidavit in support of the notice of intention to defend filed by the appellants disclosed a “triable issue” or “a defence on the merit.”
Before going into the analysis of fact and law in search for justice, I shall first reproduce the relevant portion of the High Court of Kaduna State (Civil Procedure) Rules 1987, Order 22 rule 3(1), 4 and 5 stipulate as follows:
“1. If the party served with the writ of summons and affidavit delivers to the Registrar, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.” (Italics is mine and for emphasis).
“4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed in rule 3 (1) or is not given leave to defend by the court, the suit shall be heard as undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
“5. Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of proceeding under rule 4.” (Italics is mine and for emphasis).
Before progressing further, I would like to have a close look at three phrases in the rules under reference.
The first one occurs in rule 3 (1) and is “disclosing a defence on the merit.” This is to say that the defendant, who conjectures he has a defence shall file a notice to defend together with an affidavit
disclosing a defence on the merit or a triable issue. The defendant is wasting everybody’s time if his affidavit does not disclose a defence on the merit or triable issue. Who determines if an affidavit discloses a defence on the merit or a triable issue? The answer is in rule 3 (1) and that is “the court may (not shall) give him leave to defend …”
In rule 4, the clause “or is not given leave by the court.” This to my mind postulates that delivering a notice together with an affidavit is not all. The court may in its discretion, not like a father Christmas, dish out leave to defend. The court has a discretion in appropriate case to refuse leave to defend and in that case hear the suit as an undefended suit and give judgment without calling on the plaintiff to summon witnesses before the court to prove his case formally. This can be done even if the defendant is present in court.
The phrase in rule (r) 4 makes hearing and/or oral evidence in a suit in the undefended list discretionary. “Should it think it” is not a mandatory term and it would be unfortunate if it is so held. I now return to deal with what a “triable issue or a defence on the merit is.” In the first place, what is a triable issue or a defence on the merit in the con of an undefended list proceeding? In my very respectful view a defendant’s affidavit in support of the motion of intention to defend raises a triable issue or a defence on the merits where the affidavit is such that the plaintiff will be expected to explain certain matters with regard to his claim, or where the affidavit throws a doubt on the plaintiff’s claim. I will examine the appellants’ affidavit to essay to identify a triable issue or a defence on the merit vis-a-vis the respondent’s affidavit in support of his writ of summons.
I have already attempted to reproduce some of the paragraphs of the affidavit of the appellants and respondents here in this judgment. I shall examine a few of them to identify a triable issue or a defence on the merit, if any. In this attempt, certain questions will call for answers, for example: Are there certain matters in the plaintiff’s claim of N3.8 m that needs to be explained? Or did the defendants’ affidavit “throw a doubt on the plaintiffs’ claim of N3.8m?
Suffice it to say at this stage that, the purport of the undefended list proceeding is to shorten the hearing of a suit where the claim is for a liquidated demand. It is designed to eliminate the technicalities of pleading attendant on a normal hearing in the High Court. It has however, in recent times created more problems than it was intended to obviate. It has become an unruly horse, but with a good man on the saddle, it can jump hurdles and land safely on a designated target.
The unruliness may be due to the language of the rule i.e. Order 22, rule 2(1) etc of the Kaduna State (Civil Procedure) Rules 1987 and at times due to lawyers bringing in extraneous matters in an attempt to pull a wool across the eye of the court, and at times due to the hasty attitude of some Judges of the court below to dispose of a good number of matters before them.
The relevant facts in support of the plaintiffs claim were contained particularly in paragraphs 5 – 15 of the affidavit in support of his writ of summons. They are reproduced above as well as the relevant facts in the appellants’ affidavit in support of notice of intention to defend the suit. For proper appreciation of the facts of this case as in the court below, I shall reproduce exhibits ‘B’ and ‘C’ to affidavit in support of the writ of summons. They are:
“Madunka International Ltd.
7th October, 1997
Omolade Makanjuola & Co.
Legal Practitioners
17/18, Sarkin Arab Street,
Jos, Plateau State.
Dear Sir,
Re: Late Alhaji K.O. Usman Claim of N2.3m
Your letter of 5th August, 1997, that was received on 6th October, 1997 refers.
It is unfortunate that our indebtedness to late Alh. K.O. Usman drag uptill this time. We really feel sorry for our inability to pay this money all this while.
The good relationship we had with the late Alh. K.O. Usman, the family and Alh. Shittu would have prompted us to pay their money especially as the late Alh. K.O. Usman is no more, so that the children can continue with their father’s business. But unfortunately, the economic situation has affected us badly. Payments we expected from some State Governments are not forthcoming. Our properties placed for sale, no possible buyer with cash on hand for them. And business is generally dull.
In all, financial instability had made us not to be able to keep to our various promises as noted in your letter.
In your letter however, you gave us up till 31st October, 1997, to fully settle our indebtedness to the late Alh. K.O. Usman family, we on our part, do not want to keep promising without any meaningful result, hence, we are requesting that you allow us up till 31st December, 1997, to fully settle the debt once and for all.
This request would not stop us to pay any money as settlement to our indebtedness before December, 1997, if we receive payments from our indebtors.
We are sorry for the inconveniences caused by us, and also hope that you will see reasons for your inability to settle this money all along.
Thanks.
Your faithfully,
For: Madunka International Limited
Alhaji Abdullahi Haido
Managing Director.”
Exhibit C
“Madunka International Ltd.
Omolade Makanjuola & Co.
Legal Practitioners
17/18, Sarkin Arab Street,
Jos, Plateau State.
Dear Sir,
Re: Late Alhaji K.O. Usman Claim N3m
We refer to our letter of 7th October, 1997, in respect to our indebtedness.
We are really sorry that we cannot fulfill our promise of liquidating our debt before December ’97, as mentioned in our letter referred above.
We are still pleading that a short while, be given to us to sort things out. However, we wish to assure you that we are not relenting in our efforts to see that your father’s money is being paid to you.
We are really sorry for the inconvenience you might have experienced due to our inability to settle this money up till now.
Thanks.
Yours faithfully,
Madunka International Limited
Alh. Abdullahi Haido.”
N/B
“Our debtors have promised us within two to three months, to settle us, and immediately this is done, we will definitely settle out indebtedness with you.”
I have reproduced these two exhibits because they are in my humble view germane to adjudication in this appeal. They paint the simple picture of this transaction as it was between the parties before lawyers came into the matter to confuse issues.
In addition to these exhibits, a close examination of the appellants’ affidavit shows that facts contained in the two exhibits were not denied or controverted by the appellants. What their learned Counsel did, with due deference to him, was to introduce extraneous matter into it in an attempt to pull wool across the eyes of the court.
Infact, paragraphs of the affidavit were never denied in the appellants’ affidavit in support of their notice of intention to defend. It is trite that paragraphs of an affidavit not denied are deemed to be admitted. It follows that, in addition, exhibits ‘B’ and ‘C’ were not denied and they amounted to an admission against one’s interest, which must be accepted as true. Infact, I am unable to believe that a person or persons who wrote exhibits ‘B’ and ‘C’ can have the courage to turn round to try to throw a panner into the wheel of this case in order to wriggle out of a tight situation and defeat the ends of justice. I have reproduced exhibits ‘B’ and ‘c’ elsewhere in this judgment. They speak for themselves.
The learned trial Judge in his judgment at page 27 of the record had this to say:
“The defendants in my view have not denied collecting the sum of N300,000.00 in cash and taking custody possession of a Honda Accord, which parties mutually valued at N2.5million Naira.
“On the issue of time, I am without any disclosed specification as to when this time was to lapse to make an arguable issue. All that the defendants paragraph 4(a) says is that “to be paid as soon as possible.” This in my opinion, is no reference to any period of time that is determinable.
“It is my view that the requirements of Order 22, rule 3 (1) of the ECCP rules have not been satisfied in that I am unable to find from the affidavit in support of notice of intention to defend such disclosed facts that are sufficient to warrant my granting the defendants leave to defend this suit”
As the facts are, I have no reason whatever to disagree with the learned trial Judge’s conclusion. But before I call it a day on this issue, it is necessary to throw more light on Order 22, rule 3 of the High Court (Civil Procedure) Rules of Kaduna State, 1987. The provisions in this rule require the trial court to consider only the evidence contained in the affidavit filed by the defendant in support of notice of intention to defend the suit in determining whether or not the affidavit discloses a defence on the merit or a triable issue to the action filed by the plaintiff under the undefended list. Once the trial Judge forms an opinion that the affidavit does not disclose a defence on the merit or triable issue, he is to proceed with the hearing of the suit as an undefended suit and enter judgment accordingly, without calling on the defendant, even if present in court, to answer, or be heard. See A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) 25 at 36, where Olatawura, JSC said:
“The significance of the notice to defend is borne out by the affidavit, accompanying the notice that the grounds for asking to be heard in defence are not frivolous, vague or designed to delay the trial of the action and must show that there is a dispute between the parties. See Olubusola Stores v. Standard Bank of Nigeria Ltd. (1975) NSCC 137, (1975) 4 SC 51. John Holt Co. (Liverpool) v. Fajemirokun (1961) All NLR 518. When the trial Judge is satisfied that there is a prima facie defence, then leave is granted.”
This is my respectful view in the law as enshrined in Order 22 of the High Court (Civil Procedure) Rules of Kaduna State, 1987. Consequently I am unable to hold otherwise that this appeal fails on this issue. The non-participation of the respondent is irrelevant. This is so because in any suit, the plaintiff wins by the strength of his own case and not by the weakness of the defendant’s case. So that as in this appeal where respondent filed no brief, the appellant will indeed, win by the strength of his own case not by the weakness of the respondents case. See Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97; Chiroma v. Suwa (1986) 1 NWLR (Pt. 19) 751 Akinola v. Oluwo (1962) 1 All NLR 224 at 227; Edu v. Obe (1953) WACA 57 at 60.
On issue two, it is my view, after reading the record of appeal that time was never made to be of essence in the friendly agreement between the parties. This is the impression I distill from exhibits ‘B’ and ‘C’ written by the defendants themselves. Infact, this issue had been discussed in extension in issue one and I will not waste time repeating all I had said earlier. Time was never made of essence by the parties. If a counsel imports it into an agreement in an action in court, then that is counsel’s evidence and not that of the parties.
I had said earlier that an affidavit in support of notice of intention to defend, must disclose a triable issue which is a material allegation contained in the affidavit in support of intention to defend. Such material allegation requires further investigation. It must portray a strong defence which should not just be given a wave of back-hand.
See Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620. In the appeal, the material fact i.e. “Time Being of Essence” is nowhere to be identified in the transaction between the parties and therefore amounts to fishing by the appellants. It must be deprecated.
Again I am unable to resolve this issue in favour of the appellants. On the whole, all the issues fail and the appeal fails and I hereby dismiss it. I make no order as to costs.
Other Citations: (2003)LCN/1344(CA)
