Alhaji Garba Tobacco V. Dr Bello Dangaji (2000)

LawGlobal-Hub Lead Judgment Report

MAHMUD MOHAMMED, J.C.A. 

T

he action that gave rise to the appeal was instituted at the High Court of Justice of Kaduna State under the undefended list procedure. The claim of the respondent who was the plaintiff at the Court below against the appellant who was the defendant in the action was for:-
“1. The sum of N500,000.00 (Five Hundred Thousand Naira) only being the amount paid by the plaintiff to the Defendant as consideration for the assignment of plot No.BR2 Unguwan Kudu Kaduna, which consideration failed.

2. Interest on the said amount at prevailing bank rate from the 13th day of September, 1994 until judgment, and 10% (ten percent) interest from the date of judgment until the judgment is liquidated.”

Upon being served with the writ of summons accompanied by the affidavit setting forth the grounds upon which the claim was based, the appellant, in compliance with Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987 filed his Notice of intention to the dated the action together with an affidavit which he claimed had disclosed his defence on the merit to the respondents claim and urged the lower court to grant him leave to defend the action.

The lower court however, upon considering the facts averred in the affidavit of the appellant came to the conclusion that it had not disclose any defence on the merit to the Respondent’s claim to justify granting the appellant leave to defend the action. Accordingly the learned trial judge Yahaya J. proceeded under Rule 4 of the same order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 and entered judgment for the respondent as claimed in the writ of summons. Dissatisfied with this judgment which was entered on 14-9- 95, the appellant against whom the judgment was delivered had appealed against it by his Notice of Appeal dated 15 – 9 – 95 and filed at the lower court on 19 – 9 – 95 containing two grounds of appeal.
Briefs of argument were duly filed and served between the parties before the appeal came up for hearing in this court on 19 – 1 – 2000 when learned counsel on both sides duly adopted their respective briefs of argument. The only issue for determination formulated by the appellant in his brief of argument from the two grounds of appeal and which issue was also adopted by the respondent in his own brief of argument is whether the learned trial judge was right in holding that the appellant’s affidavit in support of his Notice of intention to Defend did not disclose a defence on the merit and in entering judgment for the respondent.
It was argued for the appellant by his learned counsel that the procedure under the undefended list as provided under Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1987 was not designed to exclude a defendant who can show in his own affidavit that there are triable issues in the action. That it was not necessary for the trial judge at that stage to decide if the defence had been established. That taking in to consideration the decisions in a number of cases particularly the latest case of Agromilers Ltd. v. Continental Merchant Bank (Nigeria) Plc (1997) 10 NWLR (pt 525) 469, what was required was simply to look at the facts averred in the defendants affidavit in support of the Notice of intention to defend and see if those facts could prima facie support a defence to the action on the merit.

Learned counsel finally contended that having regard to the contents of paragraphs 2, 3. 4. 5, 6, 7, and 8 of the appellant’s affidavit in support of his Notice of intention to defend the action, the facts could not be regarded as general or mere sham but on the authority of Okeke v. Nicon Hotels Ltd (1999) NWLR (pt 586) 216, had disclosed a defence to the action.
Learned counsel to the respondent however observed that taking into consideration of the facts averred by the respondent in paragraph 4 of the affidavit in support of his claim for the sum of N500,000.00 against the appellant, the facts averred in the appellants affidavit in support of his defence did not raise any triable issue warranting the transfer of the action to the general cause list for hearing on the merit as stated in the case of Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Part 144) 283 at 306. That for that reason, the lower court was right, in line with the decision in case of Franchal (Nig) Ltd v. N.A.B. Ltd (1995) 8 NWLR (Part 412) 176 in entering judgment for the respondent.

Indeed it is true as rightly argued by the appellant in his brief of argument that by the procedure laid down under the provisions of Order 22 Rules 1 to 5 of the Kaduna State High Court (Civil Procedure) Rules 1987, that procedure was not designed to exclude a defendant who can show in his affidavit in support of his Notice of intention to defend the action that there are triable issues in the action. It is also settled Law that in determining whether a defendant has a good defence to the action on the merit, it is not necessary for the trial court to decide at that stage whether or not that defence had been established. What the court is required to do at that stage is simply to look at the facts averred in the defendant’s affidavit in support of his Notice of intention to defend the action and see if those facts can prima facie support a defence to the action on the merit. Whether that defence will ultimately succeed in defence of the action is totally irrelevant at that stage. See Nishizawa Ltd v. Ethwani (1984) 1 SC 234. In other words where a defendant in an action placed under the undefended list of a trial court raises substantial question of fact or law which ought to be tried, leave should be granted to such a defendant as required by Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987, to defend the action and consequently transfer the action to the general cause list of the court for hearing on the merit. Such leave to defend will also be granted where there is an alleged misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such nature as to entitled the defendant to interrogate the plaintiff or cross examine the plaintiff’s witnesses on the accompanying affidavit in support of the claim placed on the undefended list. See University of Nigeria of Nigeria Nsukka v. Orazulike Trading Co. (1989) 5 NWLR (part 119) 19 at 29.

Looking at the other side of the law on this matter, it is also equally the law that under the undefended list procedure, a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by the delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See Macaulay v. N.A.L Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283.

It is equally the requirement of the law under the undefended list procedure that to be entitled to be granted leave to defend the action, the defendant’s affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff as stated in the case of Jipreze Okonkwo (1987) 3 NWLR (Pt 62) 737 at 744.

The real issue for determination in the present case is whether the appellant’s affidavit in support of his Notice of intention to defend the action really disclosed defences on the merit to the respondent’s claim to justify the lower court granting him leave to defend the action. In his argument in the appellant’s brief of argument, the learned counsel to the appellant had contended that paragraphs 2, 3, 4, 5, 6, 7, and 8 of the appellant’s affidavit in support of his Notice of intention to defend indeed had disclosed a defence to the respondent’s claim in the action. The facts averred by the appellant in these paragraphs of the affidavit at page 16 of the record of the appeal are:-
“(2) That there was a legal transaction conducted between myself and the plaintiff for the sale of piece of land on the 13th day of September, 1994 which is situated at and known as No. BR2 Unguwan Kudu. Rimi Road Kaduna, covered by certificate of occupancy No.L 014568, dated 12th day of November, 1981, and registered in volume X at page 14 of the lands office. Kaduna L/Government.
(3) That before (sic) advanced his offer of payment the plaintiff himself and in Company of his counsel Mr. Y. Mahmood Esq visited and conducted some necessary inquiries, searches, verification perusal and confirmation for genuineness of my certificate of occupancy No. 014568 at the Kaduna North Local Government land Registry.
(4) That having been fully satisfied with their inquiries as aforesaid above, the plaintiff paid for the price of the piece of land in question and conveyance of title, right, ownership, control and use of the property transferred to the plaintiff since on the 13th of September, 1994 till date.
(5) That sequence to paragraph 4 ante, no body claims to have better Title or right over the said piece of land than the plaintiff, hence no body prevented the plaintiff from clearing the said property.
(6) That there is no court of law (sic) declared the said piece of land to be owned by somebody else and there is no dispute between the plaintiff and myself.
(7) That no agreement reached between plaintiff and myself for the refund of purchase sum whatsoever.
(8) That I have a good defence to this suit.”
The learned trial judge in his judgment at pages 27 – 28 of the record had duly considered all the facts averred in the above paragraphs of the appellant’s affidavit in support and came to the conclusion that the facts had not disclose any defence the merit to the claim of the respondent to justify granting the appellant leave to defend the action. I entirely agree with him. This is because the gist of the respondent’s claim in the undefended action was that although he had paid the appellant fully for the assignment of the appellant’s right over plot No. BR2 Unguwan Kudu Kaduna, he could not take possession of the property following claim of the same property by another party. Certainly, the averment that no body claimed to have a better title over the same property seems to suggest at least the existence of someone who was also claiming title to the same property. Furthermore, there is nothing in these paragraphs of the appellant’s affidavit to show that he had infact put the respondent into possession of the property after the purchase to warrant regarding the averments as a defence to the action.
For the foregoing reasons, I cannot but entirely agree with the learned trial judge that the appellant’s affidavit in support of his Notice of intention to defend the action did not disclose any defence on the merit to justify granting the appellant leave to defend the action under Order 22 Rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987. This is because the appellant’s affidavit in support does not contain enough facts and particulars to satisfy any reasonable tribunal in line with the decision in the case of Pan Atlantic Shipping and Transport Agencies Ltd v. Rhein Mass GMBH (1997) 3 NWLR (Pt.493) 248 at 256 that a defence on the merit to the action had been disclosed warranting the transfer of the action to the Ordinary cause list of the trial court for hearing. In otherwords having regard to the circumstances of this case, I am of the firm view that the lower court was quite right in entering judgment for the respondent in terms of his claim against the appellant.
This appeal must therefore fail and the same is accordingly hereby dismissed. The judgment of the lower court delivered on the 14/9/95 is hereby affirmed.

The respondent shall have N3000.00 costs against the appellant.

Other Citations: (2000)LCN/0702(CA)