Alhaji Nura Ahmadi Kurfi V. Hajia Binta Aminu (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
The Respondent, as Plaintiff before the lower Court, was granted leave to place the suit under the Undefended List. The Appellant, Defendant therein, filed an affidavit in opposition, in support of his Notice of Intention to Defend, to which the Respondent filed a Counter Affidavit and the Appellant a Further and Better Affidavit. The lower Court, in a Judgment delivered on 12th December 2014 by Hon. Justice Sanusi Tukur of the Katsina State High Court, refused leave to the Appellant to defend the suit and entered Judgment in terms of the Respondent’s Writ of Summons. Aggrieved by this decision, the Appellant has appealed to this Court. Two Notices of Appeal were filed, one on 12th November 2014 and another on 15th December 2014.
In compliance with the Rules of Court, the Appellant filed, on 11th December 2015, a Brief of Arguments, settled by Israel Usman Esq and C.U. Kalu Esq of C.U. Kalu & Co. The Appellant’s Counsel, in his Brief, withdrew the first Notice of Appeal filed, placing reliance on the second Notice.
Four issues were distilled by Appellant’s Counsel
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for the Court’s determination, namely:
(a) Whether or not the learned trial judge was right in assuming jurisdiction when the cause of action did not arise in Katsina State and the Defendant/Appellant is not resident in Katsina State. (Ground 6)
(b) Whether or not the learned trial judge could rightly enter judgment on the Undefended List instead of transferring the matter to the General Cause List. (Ground 1,2,3,7 and 8.)
(c) Whether or not the claims awarded to the Defendant/Respondent are multiple compensation on a matter arising from a contract. (Ground 4)
(d) Whether or not the learned trial judge was right to treat an agreement for investment and profit sharing in the same manner as a loan needs to be repaid. (Ground 5)
The Respondent’s Counsel, A.S. Yarima of Baban Zahrah & Associates, formulated two issues for determination, to wit:
1. Whether or not the learned Trial judge was right in Law when he assumed Jurisdiction over the Plaintiff’s Claim and;
2. Whether or not the learned Trial Judge was right in Law when he placed this Matter under Undefended List and entered judgment in favour of the
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Plaintiff/Respondent.
Before proceeding to the issues which I consider arise for determination, it is necessary to first dispense with the competence of the 1st issue raised by the Appellant, which is the same as the 4th issue for determination raised by the Respondent, being whether the lower Court was right to have assumed jurisdiction over the claim.
Arguing the issue, the Appellant’s Counsel has contended that both parties reside and carry on business in Abuja and that by the combined effect of Section 270 of the Constitution of the Federal Republic of Nigeria 1999, Section 98 of the Sheriffs and Civil Process Act, Cap S8 Laws of the Federation 2004 and Order 4 of the Katsina State High Court (Civil Procedure) Rules 1987, it is the High Court in the Federal Capital Territory that has jurisdiction of the Respondents’ claim. The Respondent’s Counsel however contends that the parties reside both in Katsina State and Abuja and that the title documents given by the Appellant to the Respondent as security, are in respect of property at Katsina.
I note, from the processes filed by the Appellant’s Counsel at the lower Court and at the hearing of
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the application before that Court, that this issue was never raised at or pronounced upon by the lower Court.
The law is that an issue of law or fact which was not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court without the leave of the appellate Court. Such an issue or argument made is not competent and goes to no issue. See Idulueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC (lead); Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 1459 Page 577 at 591 Para G per Rhodes-Vivour JSC.
Ground 6 of the Appellant and the 1st issue raised thereon by him, are accordingly incompetent, I hold.
The sole issue, from the facts of this case, which arises for determination and which encapsulates the other issues by the Appellant, is the 2nd issue formulated by the Appellant, and also raised by the Respondent as her 2nd issue, namely:
Whether the learned trial Judge rightly entered Judgment in the Undefended List rather than transfer the suit to the General Cause List for Hearing.
The
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Appellant’s Counsel has contended that principles regarding the entertainment of suits in the Undefended List are that the claim must be for a liquidated money demand, which does not leave much to be determined by the trial Court or subject to meritorious arguments. In addition, a claim for profits, as this claim, requires evidence. Counsel referred to the conflict between the affidavits of the parties, which, he submits, necessitates the calling of evidence to resolve the same. He cited Ed-of Nigeria Ltd v S Nig Nigeria Ltd (2013) 2 SCNJ 62 at 76; Akpan v Akwa Ibom Property & Investment Co Ltd (2013) 6 SCNJ 400 at 418- 419. Once the Defendant casts a doubt on the claims of the Plaintiff, there is a triable issue and the matter ought to be transferred to the General Cause List for hearing. He cited David v Jolayemi (2011) NWLR (sic) part 1258 Page 320 at 368 Para F-H and Gambo v Ikechukwu (2011) 17 NWLR Part 1277 Page 567 at 565-566 Para A-C. He alleged that the lower Court awarded multiple compensation to the Respondent.
Learned Counsel to the Respondent, answering the issue in the affirmative, submitted that the claim of the Respondent is for a
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liquidated money demand. He impugned the account of the facts as put forward by the Appellant’s Counsel. Citing the cases of Ekeiloanya v Anya (2003) 7 NWLR Part 819 Page 259 at 273 Para C-D and Akpan v Akwa Ibom Property & Investment Co Ltd (2013) 6 SCNJ 400 at 418-419, he submitted that triable issues must be disclosed in the affidavit in support of the Notice of Intention to Defend.
The Undefended List procedure was expansively discussed by the Supreme Court in the case of Wema Securities And Finance Plc V. Nigeria Agricultural Insurance Corp (2015) 16 NWLR Port 1484 Page 93 at 140-141 Para B-C per Nweze JSC, as follows:
“…. the Undefended List Procedure is a truncated form of the civil litigation process peculiar to the adversarial judicial system. Under the said procedure, ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried….Essentially, therefore, it is designed to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiff’s case…. It is, usually, meant to shorten the hearing of a suit where the claim is for a liquidated
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sum…Put differently, the object of the rules relating to actions on the Undefended List is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims.
Such rules are, thus, designed to relieve the Courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to because the case is, patently, clear and unassailable….. In such a case, it would be inexpedient to allow a defendant to defend for the mere purpose of delay.
As also held in the case of Nishizawa v. S. M. Jethweni Ltd (1984) 1-2 SC 234 at 278 lines 5-25 per Aniagolu, JSC, on this procedure:
“1. a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiffs and cheat him out of the judgment he is legitimately entitled to by 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; and
2. that, on the other
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hand a plaintiffs should not be permitted to shut out real (not a sham) defence to an action by his clinging to the assertion that once the defendant has failed to show cause against such plaintiffs application by affidavit ….he is out of Court and must have a judgment signed against him no matter how genuine a defence he has disclosed by means other than by affidavit under that rule of the order.
See also United Bank for Africa v Jargaba (2007) 11 NWLR Part 1045 Page 247 at 270 Para B-D per Mohammed JSC; Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR Part 114 Page 283
In the instant case, the claim of the Respondent, in her Writ of Summons, was for the following:
ENDORSEMENT ON THE WRIT
The Plaintiffs claims against the Defendant is for the payment of the Total Sum of N15,000,000,00 being the Purchase Price of the Plaintiffs House sold by the Defendant and the total Sum of USD 93,500.00 being the balance of the Sum of N15,000,000.00 paid by the Plaintiff to the Defendant for investment, which is not invested and is clearly stated as follows:
1. An Order for the Payment of the Total Sum of N15,000,000.00 (Fifteen
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Million Naira Only) being the proceeds of the Purchase Price of the House of the Plaintiff sold by the Defendant and the total Sum of USD 93,500.00 being the Balance of the total Sum of USD N150,000.00 (One Hundred and Fifty Thousand USD) collected by the Defendant for investment which he intentionally refused and or neglects to pay despite several demands.
2. An Order for the payment of 10% interest of the judgment Sum, until same is fully liquidated by the Defendant.
3. The Cost of filling this Suit, to be assessed by the Registrar of this Hon. Court”.
In her affidavits setting out facts upon which she believed that the Appellant has no defence, she alleged that sometime on the 10th of October 2008, she gave the sum of N8 Million to the Appellant to invest in his business for the purpose of shared profit. In 2009, she gave the sum of $100,000 also for the same purpose, in respect of which they signed an “MOU” dated 31st day of July 2009. She subsequently gave him an additional sum of $50,000, he having alleged that the sum of $100,000 was not enough, as there was a requirement for registration at the CAC and also obtaining of Forex trading
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from CBN. The profit was to be shared on 80/20% and the MOU was subject to renewal after 6 months from the commencement date of 31/7/09. Rather than pay up the profit, he requested that she surrender the original copy of her document of title to her house situate at Gwarimpa Village Abuja, which he thence sold at an undervalue of N15 Million, which sum he also did not give to her.
After several demands, he paid only N8 Million from the sum of N23 Million and a total of $56,500 out of the total balance of $150,000. In an attempt to amicably settle the matter, the Appellant deposited three title documents, original copies of his C’s of O in respect of his houses in Katsina. The Appellant refused to attend an arbitral panel to resolve the matter, as provided in the Agreement. The parties have agreed to dispose of the properties and settle the outstanding debt of $93,500 and N15 Million. It was with the intervention of the EFCC to whom she filed a complaint in Abuja, that settlement was effected for sale of the three houses, in consequence of which a Power of Attorney, a letter of consent and an “MOU” were prepared, but which he refused to execute. The
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Appellant informed her that he does not have the money to pay him the outstanding balance.
Exhibited to the affidavit are a number of documents, inclusive of a Memorandum of Understanding made on the 31st July 2009 between the parties in which it was agreed that the Respondent shall grant to the Appellant the sum of $100,000 for forex trading with a profit sharing ratio of 80/20%. Included in the agreement was a clause for arbitration in the event of any dispute. Also exhibited are 3 C’s of O in the name of the Appellant. Exhibited, in addition, are an unexecuted power of Attorney and Memorandum of Understanding. Further exhibited is a letter of invitation from the EFCC to the Appellant and also a letter from the Respondent to the EFCC requesting for the release to her of the sum of $10,000 and the sum of N1.5 Million paid to them by the Appellant.
The contention of the Appellant in his Notice of Intention to Defend, is however, that the money provided by the Respondent for the business is $100,000 as contained in the Memorandum of Understanding. The parties are still to share the profits when the same is made. He denied having collected any title
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document from the Respondent or selling the same for N15 Million. He alleged that, contrary to the Respondent’s assertions, he had given to her various sums at different times, including the sums of N8Million and $56,000, which exceeds the sum of $100,000 given by the Respondent. His title documents in the possession of the Respondent were merely given as a guarantee that he would repay. Having overpaid the sum given, he has demanded the return of his documents of title, without success. He denied that there was an arbitration panel set up. He further denied that any Power of Attorney was donated to the Respondent by him over his said properties. He also denied that there was any sum of $93,500 outstanding. He alleged that not only does he have a defence but also a counterclaim for the excess sum paid by him to the Respondent.
The trial Judge in determining whether to transfer the suit to the general cause list for hearing held:
The nature of the claim is of paramount importance and the claim in the instant case is money liquidated demand putting reliance in the claims as contained in the writ and even in the affidavit of the Defendant in
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support of his intention to defend.
It is also my considered view that the Defendant has failed woefully to show cause why this Court should transfer this matter to the General Cause list in line with the decisions in
i. I.T.B Ltd v O.C.B Ltd
ii. Ekeilonye v Anyanwu (also supra)
The Defendant has certainly failed to show a good defence on the merit looking both at the affidavit and notice of intention to defend. A careful reading of Paragraph 3 F of the Further Affidavit as contained in the Notice of Intention to Defend, the Defendant merely informed this Court of his intention to raise a Counter Claim which there is none before this Court. A matter under the Undefended List is clearly proved by affidavit evidence and sufficient evidence exists even in the notice of intention to defend as filed by the Defendant where he clearly admitted that he collected only $100,000 and not $150,000 and the three title documents were submitted by the Defendant himself in lieu of the liquidated sum from the Plaintiff. Thus facts admitted need no further proof. Im further in complete agreement with learned Counsel to the Plaintiff that in view of
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this overriding evidence it will amount to allowing oral evidence override documentary evidence which is not within the spirit of Section 128 of the Evidence Act accordingly, I hereby enter judgment in favour of the Plaintiff as per the Plaintiff Writ (sic) against the Defendant.”
The question from the foregoing is thus whether, as contended by the Appellant, triable issues were raised by him or whether the lower Court was justified in refusing the Appellant leave to defend the suit.
In the determination of when a Notice of Intention to Defend contains triable issues and when the Defendant should be granted leave to defend, it was held in the case of Wema Securities And Finance Plc v Nigeria Agricultural Insurance Corp Supra per Nweze JSC at Page747 Para C, as follows:
However, this procedure is not designed to shut out a defendant who can show in his affidavit in support of intention to defend that there is, indeed, a triable issue….
For this purpose, the said 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…. this it
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can achieve by donating facts which, on the face of the affidavit, disclose a reasonable defence …. The affidavit should not, merely, parade general statements that the defendant has a good defence to the action. Such a general statement must be supported by particulars which, if proved, would constitute a defence.
However, it would suffice if the affidavit discloses facts which point to the subsistence of difficult points of law; to a dispute as to the facts which ought to be tried; to a real dispute as to the amount due which could only be resolved by settling accounts or any other circumstances showing reasonable grounds of a bona fide defence … In all, what will constitute a defence on the merit will depend on the facts of the case. This is within the discretion of the trial Court: a discretion which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend …
In effect, where such a defence is disclosed, the justice of the case would demand that the matter be transferred to the General Cause List for hearing on the pleadings…
In the case of
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Ifeanyichukuwu Trading Investment Ventures Limited v Onyesom Community Bank Supra, Ariwoola JSC at Page 25 Para B held
Once the Court discovers in the affidavit, an issue that will require an investigation or explanation from the Plaintiff on the claim, or where the affidavit in support of the Notice of Intention to Defend throws a doubt on the claim, then the parties are said to be brought within the concept of joining issues. In the situation where a triable issue is disclosed, the case can no longer be tried or heard under the Undefended List but must be transferred to the general list for trial on pleadings.”
In the case cited by the Respondent’s Counsel and relied upon by the lower Court, of Ekeiloanya v Anyaonu [2003] 7 NWLR Part 819 Page 259 at 279 Para. C-E, it was held, by Fabiyi JCA (as he then was), reading the lead judgment, that:-
“It has been restated times without number that, for an action to be transferred to the General Cause List from the Undefended List, the Defendant must show triable issue or issues in the affidavit in support of the Notice of Intention to defend that had been filed as dictated by the Rules. The defence
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must not be raked up or half-hearted. ..It should be stressed here that the Rules of Procedure relating to actions in the Undefended List are designed to cater for simple liquidated money demands with no strings attached…”
From the affidavits of the parties, the only admission made by the Appellant is that he collected the sum of $100,000 from the Respondent, which sum he stated in the Memorandum of Understanding executed by both parties, to be “for the Purpose of continuing forex trading. Both parties have agreed to share profit from the above business at the rate of 80/20%
It was further stated in the agreement:
“Now this MOU witnesseth as follows:
The first party shall grant to the second party the sum of One Hundred Thousand Dollars ($100,000) with which the second party will trade continuously in forex.
The transaction shall remain valid form the date first above written and shall continue to remain valid for the purpose of forex trading by the second party.
The profit from the business of forex trading due to the first party shall be paid by the second party in the manner directed by the first party. The
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profit from the business of forex trading shall be shared between the first party and the second party on the ratio of 80/20 percent)”
“Renewal
This Memorandum of Understanding is subject to renewal after the expiration of six months from the date first above written”
The first party in this agreement is stated to be the Respondent, while the second party is the Appellant.
It has however, not been shown by the Respondent that this agreement, which is referred to above, as “continuous forex trading” has been terminated. There is also no agreement exhibited by the Respondent in proof of the extra $50,000 allegedly collected by the Appellant. The Memorandum of Understanding and Power of Attorney in proof of this, I note were not signed by the Appellant.
A document made by a person in whatever capacity ought to be signed by him in order to authenticate it and imbue it with stamp and authority. See Anyaoha v Obioha (2014) 6 NWLR Part 1404 Page 445 at Page 475 Para F-G per Okoro JCA (as he then was)
Furthermore, the Appellant has denied that he was in possession of the title deeds of the Respondent or that he sold the property thereon for
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the sum of N15 Million. It is thus unclear how the lower Court could draw a conclusion from the Appellant’s acceptance of receipt of the sum of $100,000, that this admission was deemed an acceptance of the entirety of the claim, needing no further proof.
The Appellant, I hold, from his defence, has thrown some doubt on the case of the Respondent, calling for explanations, which can only be resolved by a trial on the merits.
This appeal therefore succeeds. The judgment of the lower Court, delivered by Hon. Justice Sanusi Tukur on 12th December 2014 is set aside. This case is remitted to the Hon. Chief Judge of Katsina State for hearing on the merits by another Judge of the Katsina State High Court.
Each party shall bear its own costs.
Other Citations: (2016)LCN/8770(CA)
