Alhaji Abdul Yahaya Bawa V. Sheleba Phenias (2006)

LawGlobal-Hub Lead Judgment Report

TSAMIYA, J.C.A.

This is an appeal against the ruling/decision of Dakyen J. sitting at Plateau State High Court, holden at Jos dated 24th June, 2002.

The respondent as plaintiff instituted an action against the dependent/appellant. The claim was for:

1. The sum of N270,000.00 (Two hundred and Seventy thousand Naira only) being money outstanding in favour of plaintiff from the proceeds of the sale of the plaintiff’s vehicle.
2. 21% interest per-annum from June, 2001, till judgment and thereafter 10% interest till the whole sum is liquidated.
3. Cost of this action.

The particulars of claim together with the affidavit in support were placed on the undefended list pursuant, to Order 23 of the Plateau State High Court (Civil Procedure) Rules, 1987. The facts relied on are set out in the affidavit in support of the claim together with exhibits attached thereto, i.e. exhibits ‘A’ and ‘A1’.

On being served with the plaintiff’s claim, the defendant filed a notice of intention to defend together with an affidavit in which he denied the plaintiff’s claim. These can be found at pages 12-13 of the printed record of proceedings of the trial court.

The crux of the plaintiff’s case in the trial court was to be found in paragraphs 3 – 9 and 11 of the affidavit in support of the particulars of claim contained on p. 8 of the record of proceedings. The paragraphs read as follows:

“3. That sometime in April, 2001, the defendant and I entered into a business transaction whereby I gave the defendant my Toyota Carina I vehicle to sell for me.

4. That the defendant and I agreed that the defendant will give me the sum of N370,000.00 (Three hundred and Seventy thousand Naira) after selling off the vehicle.
5. That the defendant successfully sold off the vehicle but refused, failed or neglected to pay the sum of N370,000.00 agreed at, to me.
6. That I made repeated demands for my money to the defendant, he still failed to pay the sum owed to me.
7. That I consequently laid a complaint of criminal breach of trust and cheating against the defendant to Nigeria Police, Plateau Command.
8. That the defendant was consequently arrested and detained and that it was only at this point that the defendant paid me N100,000.00 leaving a balance of N270,000.00.
9. That the defendant still refused to pay the balance, he was charged to court for offence of cheating and criminal breach of trust.
10. That the defendant have no defence to the suit and it will be in the interest of justice to put the matter under the “undefended list. ”

The defendant’s case was hinged on paragraphs 3 – 10, 11, 12, 14 and 16 of his affidavit in support of notice of intention of defend the action.

They read as follows:

3. That contrary to his averment that he gave me only one Carina car to sell for him, he gave me four cars namely:
4. One Nissan Primers.
5. One Toyota 4 Wheel Drive.
6. One Opel Omega 2.4.
7. One Toyota Carina.

To sell for him.

4. That while he gave me these cars to sell or look for buyers for him in my ordinary course of business as a car dealer, I could not sell them in his absence because his names were in all the particulars.
5. That while two of the cars Nissan Premira and Toyota 4 Wheel Drive were sold in his presence and was paid N450,000.00; and N350,000.00, to him the other two cars were left unsold.
6. That after about one week interval a buyer came for the Toyota Carina car but since he said he was only going to be able to pay the purchase price of N470,000.00 installmentally, I had to call the plaintiff who is the owner of the car.
7. That when the plaintiff came and saw the buyer, they agreed that the buyer should pay N100,000.00 and liquidated the remaining installmentally.
8. That I was present when he paid the plaintiff N100,000.00 and the balance be liquidated in the subsequent installment payment.
9. That it was the plaintiff who signed the purchase agreement since the particulars were in his name.
10. That I was not the buyer’s surety but the plaintiff only directed that he the buyer should pay me so that I bring it to him.
11. That after sometimes, the plaintiff came to me demanding the balance of N370,000.00 but I told him that the buyer had not brought anything to me for onward transmission to him.
12. That the plaintiff became angry and reported the matter to the police and I was detained whereupon the buyer heard about it from a source I do not know and brought N100,000.00 which I promptly gave to the plaintiff.
13. That even at the police station it was agreed that when the subsequent payments are made to me, I should pay it over to the plaintiff.
14. That I am not in anyway indebted to the plaintiff and I have people who can testify to that, since the agreement between the buyer and the plaintiff was made in people’s presence.

The above are the essential facts placed before the trial court on 24/4/2002, when the learned trial Judge took submissions from the counsel for the parties he reserved his ruling till 24/6/2002. On the said 24th June 2002 the learned trial Judge delivered the ruling and entered judgment for the plaintiff and granted the reliefs sought.

The arguments of counsel for the parties and the court’s ruling can be found at pages 17 – 27 of the record.

Aggrieved by the decision of the trial court, the appellant, thereafter appealed to this court. He filed four grounds of appeal, which, without particulars are as follows:

(a) The decision of the lower court is unwarranted and cannot be supported having regard to the weight of evidence before it.

(b) The learned trial Judge erred in law when, in declining to grant the defendant, leave to defend the suit, he held that “on the whole, I hold that the defendant has not disclosed any defence on the merit in his affidavit accompanying the notice of intention to defend the action”, and entered judgment for the plaintiff thereby occasioning a miscarriage of justice.

(c) The learned trial Judge erred in law when, in the suit filed on the undefended list, he held that “the purported defence is an after thought from his clear admission of debt in exhibits ‘A’ and ‘A1′ to the plaintiff’s affidavit in support of the claim”, and relied on same to enter judgment for the plaintiff thereby occasioning injustice.

d. The learned trial Judge erred in law when he refused to grant the defendant, leave to defend, and to transfer the suit to the general cause list thereby occasioning a miscarriage of justice.

At the hearing of this appeal, the appellant’s counsel, Mr. E. T. Attah, Esq., adopted his brief of argument filed on 6/12/2002. He urged this court to allow the appeal. The counsel for the respondent V. U. Jackdonmi (Mrs.) Esq., also adopted the respondent’s brief filed on 14/4/2003 out of time but deemed filed within time by the order of this court granted on 26/2/2004. She urged this court to dismiss the appeal.

The appellant formulated three issues for determination from the four grounds of appeal. The issues read as follows:

“1. Whether the appellant’s notice of intention to defend and the accompanying affidavit disclose a defence on merit as to warrant the suit been transferred to the general cause list and whether the trial court was right when it held otherwise.

2. Whether the trial court properly evaluated the affidavit evidence in support of notice of intention to defend.

This is distilled from the third ground of appeal.

3. Whether in view of the respondent’s failure to deny that the defendant was not privy to the contract as to make him liable, he was given fair hearing by the failure of the trial court to transfer the suit to general cause list which will enable it take oral evidence. This issue is distilled from ground four of the ground of appeal.”

The respondent also formulated two issues for consideration in this appeal, and they are as follows:

“I. Whether the appellants’ notice to defend and the affidavit in support of notice to defend disclose a defence on the merit.

2. What is the purpose of notice of intention to defend?”

From the briefs of both paries in this appeal and the issues formulated therein, the crucial issue for determination is issue No. 1 of the appellant’s issues which is identical with issue No. 1 of the respondent. The question is whether the defendant’s/appellant’s affidavit in support of the notice of intention to defend the claim disclosed a defence on the merits as envisaged by Order 23 rule 3(1) of the Plateau State High Court (Civil Procedure) Rule 1987. I shall treat together both issues in the briefs in view of their identical nature.

I shall thereafter, if there is need, deal with the appellant’s No.2 and 3 issues and then respondent’s No.2 issue separately.

First Issue:

The position taken by the appellant on this issue is that by virtue of Order 23 rule 3(1) of the Civil Procedure Rules, 1987 all that the appellant needed to establish in his affidavit in support of his notice of intention to defend the suit is that, his affidavit discloses a defence on the merits, and this defence on the merits would be fully established during the full trial of the suit. He submitted further that the learned trial Judge ought to have transferred the suit to the general causes list for hearing and determination. This appears to be gravamen of the appellant’s case.

To fully, appreciate the support of this issue, it is, I think, necessary to have recourse to the relevant rules of Order 23 of the High Court (Civil Procedure) Rules of Plateau State, 1987.

“Rule 3(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.

(2) Where leave to defend is given under this rule, the action shall lie removed from the undefended list and placed on the ordinary cause list: and the court may order pleadings, or proceed to hearing without further pleadings.

(4) Where any defendant neglects to deliver the notice and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be headed as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witness before the court to prove this case formally.”

A close look at Order 23 rule 3(1) reveals that a defendant who is served with a writ of summons with an affidavit pursuant to this rule has some bridges to cross. Firstly, he has to file a notice of intention to defend. Secondly, he has to file an affidavit along which must disclose a defence on the merits. (italics mine for emphasis).

Where leave to defend is given under this rule, the suit shall be transferred to the general cause list. The court may order pleadings or proceeds to hearing without further pleadings. But where any defendant neglects to deliver the notice of intention to defend together with an affidavit pursuant to rule 3(1) i.e. disclosing a defence on the merits or is NOT given leave to defend by the court, the suit shall be heard as undefended suit, and judgment given therein without calling on the plaintiff to summon witnesses before the court to prove his case formally.

It must be noted that the affidavit in support of intention to defend must disclose a defence on the merits. As to what amount to a defence on the merits, the rule does not say so. But I think, with the utmost respect, that this is within the discretion of the court of trial, which must be exercised judicially, and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defence. For, a case is not transferred to the general cause list as a matter of course, but on proper scrutiny of the averments in the affidavit in support of the notice to defend. As a result of this requirement, no flimsy, fanciful or frivolous defence adduced to prolong the case or play for time, will suffice or be tolerated. It must be a real defence on the merits. For this I put heavy reliance on the decision in U.T.C. (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 102) 244 at 299 paras. A-C; E-F; per Nnameka – Agu, JSC (as he then was). His Lordship did not mince his words in stating the rules governing suits in the undefended list. His Lordship stated thus:

“Under the undefended list, an application is made to the court for issue of a writ of summons in respect of a claim to recover a debt or liquidated demand. The application is supported by an affidavit which is filed along with the writ, and which sets out the grounds of claim and states that in the deponents belief the defendant has no defence to the action. Once the court is satisfied that there are good grounds for believing that there is no defence there unto. it shall enter the suit for hearing under undefended list and it will be marked accordingly. A copy of the affidavit is served with each copy of the writ. If the defendant is not disputing the claim, he does not need to do anything. In that case, on the date fixed for hearing, judgment will be given for the plaintiff without him calling evidence in proof of his claim, unless the court, in its own discretion, and in the interest of justice, calls for oral evidence or documentary evidence. Even if the defendant is present in court he cannot take part in the proceedings at the hearing. ”

In U.A.C. (Technical) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR 349, Ikpeazu J. (as he then was) said:

“Where a defendant who has been served with the writ and the affidavit of the plaintiff delivers to the Registrar not less than five days before the date fixed for hearing a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence, then the case shall be entered in the general cause list for hearing. See: Olubusoya Stores v. Standard Bank of Nigeria Ltd. (1975) 4 SC 51. The Supreme Court there held: Where the defendant gives notice of his intention to defend but his affidavit does not show reasonable grounds of defence the case will still be heard under undefended list. (E.N.D.C. v. Durunma (1966-7) 10 ENLR 201 referred to, p. 299 para. F).”

(italics mine).

Now having stated the rules on the undefended suit procedure, the question that arises is, did the trial Judge apply those rules judiciously and judicially to the affidavit evidence before him?

The plaintiff/respondent in paragraphs 2, 3, 4, & 5 of the affidavit in support of the particulars of claim reproduced above, deposed in substance:

“2. That the defendant is a car dealer having his office at Bauchi Road, Jos, within the jurisdiction of this court.

3. That sometime in April, 2001, the defendant and I entered into a business transaction whereby I gave the defendant my Toyota Carina I vehicle to sell for me.
4. That the defendant and I agreed that the defendant will give me the sum of N370,000.00 (Three hundred and seventy thousand naira) after selling off the vehicle.
5. That the defendant successfully sold off the vehicle but refused, failed or neglected to pay the sum of N370,000.00 agreed at, to me.”

The defendant/appellant in his paragraphs 3, 4, 7, 9, 10, 15 and 16 of the affidavit in support of his notice of intention to defend; denied:

“3. receiving from the plaintiff/respondent only one Carina car to sell – but four cars, namely;

(1) One Nissan Primera;

(2) One Toyota 4 Wheel Drive;

(3) One Opel Omega 2.4;

(4) One Toyota Carina.

to sell for him.

4. Selling the cars in the plaintiff’s absence on ground that it was the plaintiff’s names that were on the particulars of the vehicles.
5. Entering agreement with the buyer, but when the plaintiff saw the buyer, both agreed between themselves.
6. Signing an agreement but it was the plaintiff who signs the purchase agreement since the particulars were in his name.
7. Being surety to the buyer but plaintiff only directed that the buyer should pay through the appellant so that the appellant will bring the sum to the plaintiff.
8. Any payment being made by the buyer to the appellant since then (i.e. since the plaintiff reported him to the police whereupon the buyer heard about it and brought N100,000.00 which was promptly given to the plaintiff).
9. Being in anyway indebted to the plaintiff.”

Based on the material evidence before the trial court, the trial Judge observed that, the requirements under the undefended list, are, that the defendant should, in the notice of intention to defend and its accompanying affidavit, show a defence to the action on the merits. If these are not met, the affidavit does not comply with the provisions and leave to defend should be refused. The learned trial Judge relied on the case of Fed. Administrator General v. Daniel (1958) NSCC 108 at 110; (1958) SCNLR 472. The learned trial Judge also went ahead and held that:

“the defendant in this case at paragraphs 6 – 13 of his affidavit in support of notice of intention to defend, made a general denial and he laboured himself about the issue of a 3rd party to the contract, which as I have stated earlier on, he never provided the name and the particulars of the 3rd party, even when he was detained by the police …

The defendant purported defence is an after thought from his admission of the debt owed in his exhibits A and A1 to the plaintiff’s affidavit in support of the claim. On the whole, I hold that the defendant has not disclosed any defence on the merit in his affidavit accompanying the notice of intention to defend the action. The same is refused … ” (Italics mine).

The learned trial Judge at the end entered judgment in favour of the respondent.

The principle of law cited by the learned trial Judge is correct.

I am in agreement with the learned trial Judge on the principles of law so enunciated above.

But was there no defence on the merits in the affidavit of the appellant? A defence on the merits may encompasses a defence on law as well as on a fact. See Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987)4 NWLR (Pt. 65) 472 at 485. For this I draw a tremendous inspiration from the decision in Fresco (Nig.) Ltd. v. NASCO Rice & Cereal Processing Co. Nig. Ltd. (1998) 11 NWLR (Pt. 573) 227 at 230 – 234, where this court per R.D. Muhammad, JCA stated thus:

” …. leave to defend will only be given when the defendant raises substantial question of fact or law which ought to be tried or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such nature as entitled the defendant to interrogate the plaintiff or to cross-examine the plaintiff’s witnesses on the accompanying affidavit.”

(Italics mine)

Another favourable principle to a defendant in action under the undefended list procedure wherein he filed a notice of intention to defend is that, if there are disputed issues of fact disclosed from a comparison of the plaintiff’s affidavit and defendant’s affidavit, then the court must transfer the suit to the general cause list for determination. See Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538. It should be remembered that it is not the duty of the trial court at the point of considering the affidavit in support of the defendant’s notice of intention to defend, to determine whether the defence being put up will ultimately succeed or whether the defence has been proved. The trial court should simply look at the facts deposed to, and determine if they prima facie afford a defence, not necessarily a complete defence but one which shows a triable issue.

This is the stand of the Supreme Court in the cases of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; and F.M.G. v. Sani (1990) 4 NWLR (Pt. 147) 688. From the affidavit evidence of parties in the instance case, it is common ground that both parties agreed to the fact that respondent’s car, Toyota Carina, was to be sold, and was actually sold within the premises of the appellant. There is no dispute over the sum to be paid. The appellant’s case as shown in the affidavit in support of notice of intention to defend is that, he entered into a business transaction, whereby the appellant received the respondent’s Toyota Carina to sell. That the particular vehicle in question was sold by the respondent himself under an agreement entered between the respondent himself and the purchaser in the presence of the appellant and other people (who the appellant alleged will be his witnesses), on the condition that the balance of the purchase price will be paid to the respondent through the appellant. That, respondent was not a surety to the purchaser. This to my mind is the thrust of the appellant’s defence. Therefore, there was a dispute as to who actually sold the said vehicle and who was to be held responsible for the payment of the said sum of N370,000.00. Also, there was dispute as to the parties to such agreement allegedly entered between appellant and respondent on one hand and on the other hand, between the appellant and the purchaser. If the appellant’s allegation as to the fact that it was respondent himself who sold the vehicle in question and entered into an agreement with the purchaser on condition that the sum of N370,000.00 be paid to him through the appellant, and that the appellant did not become a surety to the purchaser (whoever he is), then that would constitute a defence to the respondent’s action. These issues cannot be determined on the conflicting affidavits evidence of parties. For it is well established principle of law that when a court is faced with affidavits which are irreconcilably in conflict, the court in order to resolve such conflict properly, should first hear oral evidence from the parties and their witnesses if any. See Joseph Falobi v. Elizabeth Falobi (1976) 10 SC 1. But it is equally the law that it is not only by calling oral evidence that such a conflict in affidavit evidence can be resolved. Such a conflict can be resolved by authentic documentary evidence which support one of the affidavits in conflict with another. Where the court has enough documentary evidence at its disposal, it can suo-motu resolve conflicting affidavit evidence by resorting to the documentary evidence. See Ezegbu v. First African Trust Bank Ltd. & Or. (1992) 1 NWLR (Pt. 220) 699 at 720.

As noted above, the appellant’s main defence relates to the fact that he neither sold the vehicle nor entered into agreement with the purchaser when the vehicle was sold, or that he was a surety to the purchaser. He specifically alleged that the respondent sold the vehicle in question by himself and entered the agreement by himself while, he, the appellant was present. It is difficult to conceive what further particulars are required of him to substantiate the defence. In my view, the appellant’s affidavit in support of his notice of intention to defend disclosed a prima-facie case under Order 23(3)(1) of the said High Court (Civil Procedure) Rules, 1987, that should have persuaded the trial court to transfer the case from the undefended to the general cause list and I so hold.

Having arrived at this conclusion, there is no need for me to consider the other issues raised in this appeal. The appeal has merit and it is hereby allowed on issue No.1 on the appellant issues and its related ground two on the appellant’s grounds of appeal. Ground two of the grounds of appeal therefore succeeds. The ruling/judgment of the trial Court in suit No. PLD/J/11/2002 delivered on 24/6/2002 is hereby set aside. In its place, the case is hereby remitted to the Chief Judge, Plateau State High Court of Justice, Jos, for trial denovo before another Judge upon pleadings to be filed by the parties.

I award the sum of N10,000.00 costs to the appellant against the respondent.

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Other Citations: (2006)LCN/1998(CA)