Anambra Home Ownsership Co. Ltd. V. Peter N. Enumelu (2008)
LawGlobal-Hub Lead Judgment Report
MOHAMMED L. TSAMIYA, J.C.A.
This is an appeal against the ruling of the High Court of Anambra State delivered on 25/4/2007 in suit No. A/358/2006.
On the undefended List action, commenced on 27/11/2006 from the State High Court of Anambra, sitting in Awka Judicial Division (herein referred to as the trial Court) the appellant (as defendant) was sued under the undefended list action by the respondent (as plaintiff) claiming as follows:
- The sum of N301,815.36 (Three hundred and one thousand, Eight hundred and fifteen Naira Thirty six Kobo) being the balance of Money deposited with the appellant by the respondent as at 2003 excluding the accrued interest from 2004 till date, which money the appellant has refused to pay the respondent from 2000 till date.
- Interest on the sum claimed at the rate of 5% monthly from September, 2004 till date and 5% interest monthly on the judgment debt till the judgment debt is liquidated.
From the record of the appeal the sum claimed represents the balance of money he deposited with the appellant who operates a saving account outfit. The appellant has refused to pay the money to the respondent despite repeated demands. The respondent also claims 5% interest monthly from September 2004 to date and also 5% monthly interest on the judgment sum from the date of judgment until the judgment debt is liquidated.
The respondent’s application for the issue of the writ of summons in respect of his claim was supported by an affidavit of 21 paragraphs. The respondent also attached Exhibits ‘A’ – ‘E’ to his affidavit. Exhibit ‘A’ is his identity card as customer of the appellant. Exhibit ‘B’ is the letter dated 15/3/2004 written by the respondent’s Solicitor to the appellant demanding payment of the respondent’s money. Exhibit ‘C’ is the petition written by the respondent to the Commissioner of Police complaining about non-payment of the respondent’s money by the appellant. Exhibit ‘D’ is an Agreement concluded between the respondent and the appellant whereby the appellant agreed to pay the respondent N15,000.00 per month for 4 months toward liquidating the debt. It was agreed therein that after 4 months the installment should be reviewed upwards for faster liquidation of the amount involved. Exhibit ‘E’ is another letter written by respondent’s solicitor to the appellant reminding the appellant that he had reneged on Exhibit ‘D’. When all these steps failed to make the appellant liquidate the sum owed the respondent, the respondent brought the action asking to be paid his money.
On the service of the above mentioned documents on the appellant, he filed a notice of intention to defend the suit with an affidavit. In the appellant’s affidavit in defence, he admitted that Exhibit ‘D’ was reached between the parties but said that after the payment of N5,000.00 per month for 4 months, the respondent failed to approach the appellant as stipulated in the said Exhibit to agree on another reviewed monthly payment. He said also that the appellant does not owe the respondent and that the trial Court should transfer their matter to the general cause list for full hearing.
The trial court, after studying the appellant’s affidavit, refused him leave to defend the suit, thus heard as undefended one and judgment was given thereon without calling upon the respondent to summon his witnesses to prove his case formally.
The learned trial judge in her ruling, relying on order 11 rule 5(2) of the Anambra State High Court Rules stated as follows:
“The defendant (appellant) has no defence at all how much more ground defence in this suit. There is no basis to transfer the matter to the general cause list as the defendant (appellant) has not disclosed any triable issue. Judgment is hereby entered in favour of the plaintiff (respondent) in the sum of N301,815.36 (Three hundred and one thousand, Eight hundred and fifteen Naira, and thirty -six Kobo) being the balance of Money deposited by the plaintiff with the defendant (appellant) as at 2003 excluding the accrued interest from 2004 till date.”
As for the claim for 5% interest the learned trial judge further stated:
“However I do not see the need to transfer the issue of interest to the general cause list. Legally there are two ways by which a claim for interest on a sum of money claimed as a debt arise: Firstly, as of right – under a contract. Secondly, where there is power conferred by Statute to do so in the exercise of the court’s discretion, see Himma Merchants Ltd Vs. Alhaji Inuwa Aliyu (1994) 6 SCNJ (Pt.1) 87 at 88.”
The defendant (appellant) operates a saving accounts Scheme. Normally savings account attracts interest. Judicial notice should be taken of the fact that bank and other institutions such as the defendant who operates saving accounts Schemes pays interest on deposits. The plaintiff (respondent) is therefore entitled to his interest at 5% per annum from the year 2004 until the money fully paid.
Plaintiff (respondent) is also entitled to 5% judicial interest on the judgment sum from the date of this judgment until the entire money is liquidated. I fix costs at N10,000.00 in favour of the plaintiff(respondent) inclusive of out of pocket expenses. (italics and words in brackets mine).
Being dissatisfied with the ruling of the learned trial judge the appellant by Notice of Appeal dated 11/5/2007 appealed to this Court on 5 Grounds of appeal.
In compliance with the rules of this court, the parties filed and exchanged briefs of arguments,
In the appellant’s brief of argument only one issue was distilled for determination a rising from all the 5 grounds of appeal. The lone issue reads:
“Was the trial judge not wrong when she held that she believed that the Respondent was speaking the truth and proceeded thereafter to enter judgment in this suit with evidence that was wholly inconsistent”?
In the respondent’s brief 3 issues were formulated for consideration of this court as follows:
- Whether the Evidence relied on by the trial judge in entering judgment in this suit was inconsistent.
- Whether Exhibit ‘D’ was actually entered into by the appellant.
- Whether the respondent shall be bound by the terms of payment in Exhibit ‘D’ where the appellant has reneged from the terms of repayment (settlement) in Exhibit ‘D’,
At the hearing of the appeal, Counsel to the parties adopted and relied on their respective briefs of arguments filed on 6/6/2007 and 11/7/2007 respectively. However, on receipt of the respondent’s brief the appellant filed a Reply brief on 20/7/2007.
In his reply brief, the respondent submitted that non of the respondent’s issues formulated covers any of the appellant’s grounds of appeal, therefore it is deemed to have been that the respondent has no answer to them and the issues must be struck out.
I have examined all the issues purportedly formulated from the 5 grounds of appeal and non is married to any ground of appeal by the respondent. It is trite law that an issue which is not formulated from any ground(s) of appeal must be struck out. See Chief Timothy Agbaka & Ors. Vs. Chief Jeremiah Amadi & Anor. (1998) 7 S.C.N.J. 367.
Going through the appellant’s issue No.1 vis-a-vis respondent’s three issues, both, in my view are the same in principle even though worded differently. For both issues are covering the 5 grounds of appeal which are on evaluation of evidence. Therefore, the respondent’s issues in my view are competent.
In his brief of argument, the appellant submitted that the learned trial judge was totally wrong when she held that the respondent was speaking the truth in the matter when the entire trial was conducted on affidavit evidence only without taking oral evidence to clarify the contradictions in the respondent’s affidavit evidence. He further submitted that throughout Exhibits ‘B’, ‘D’, and ‘E’, no nexus was shown linking the said Exhibits to the same banker/customer relationship as they are not in any way tied to the alleged account of the respondent with the appellant.
In response, the respondent submitted that the trial judge carefully evaluated the affidavit evidence of the parties before coming to his decision, that the respondent was speaking the truth having seen that the appellant does not have any defence on merit. He also submitted that there is no discrepancy regarding the amount being owed to the respondent by the appellant.
The summary of the appellant’s argument in this appeal is where a trial judge leave to a defendant to defend the suit, such a judge would be perfectly wrong to enter judgment for the plaintiff with his evidence that was inconsistent.
Having stated the submissions of both parties to this appeal, the main issue, centers on undefended list procedure. This procedure is straightforward and well contained in the procedure of High courts in this country. See High Court Rules of Anambra State 1988, order 24 rules 9(1) – (5) therein. The position of the law is that, on the service of the writ of summons, supported by an affidavit setting forth the grounds upon which the claim is based and stating in the belief of the deponent there are no defence to the claim, the defendant has two options, either concedes the claim if he has no defence as maintained by the plaintiff or may wish to defend the action.
If the defendant is challenging the claim, he should file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. 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 the defence has been established. What is required is simply to look at the facts averred in the defendant’s affidavit in support of the notice of intention to defend and see if these facts can prima-facie support a defence to the action on the merit. Whether that defence will ultimately succeed is totally irrelevant at that stage. See Nishizawa Ltd. vs. Jethwani (1984) 1 S.C. 234.
Similarly, 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 offering any real defence to the action, but at gaining time within which he may continue to postpone meeting his obligation and indebtness. See Macaulay Vs. Nal-Merchant Bank Ltd (1990) 4 NWLR (Pt.144) 283. Equally for the trial court to grant leave to defend the suit, the defendant’s affidavit in support of the notice of intention to defendant must of necessity disclose facts which will at least throw some doubts on the case of the plaintiff. See Jipreze Vs. Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744.
In the present case, the appellant as defendant was relying specifically on Exhibits ‘B’, ‘D’, and ‘E’ attached to the respondent’s affidavit, as well as the facts averred in paragraph 4 of the respondent’s affidavit as being inconsistent. The facts averred in paragraph 4 state:
“4. That I was transacting with the defendant(appellant) until early 2004 when I had a mishap and went to the defendant to withdraw N70,000.00 I had about N300,000.00 the defendant (sic.).
In Exhibit ‘B’ the respondent had purported the said indebtedness to be N296,000.00. See p.8 of the record.
In the Exhibit ‘D’ the indebtedness reads N321,815.36 (sic).
In Exhibit ‘E’ the indebtedness increased to N400,000.00. ”
The learned trial judge in her decision duly considered all the facts averred in the appellant’s affidavit in support and came to conclusion that:
“The defendant has no defence at all how much more good defence in this suit. There is no basis to transfer the matter to the general cause list as the defendant has not disclosed any triable issue. Judgment is hereby entered in favour of the plaintiff in the sum of N302,815.36 being the balance of money deposited by the plaintiff with the defendant as at 2003 excluding the accrued interest from 2000 till date.”
Indeed, the appellant having admitted in paragraph 4 of its affidavit in support of notice of intention to defend the suit that it had entered agreement to be paid N5,000.00 every month for 4 months and in paragraph 5 it stated that the respondent was paid as agreed by the parties, this is an admission that Exhibit ‘D’ was reached between the parties. And on Exhibit ‘D’, the appellant was shown to have been indebted to the respondent the sum of N321,815.36, out of which the sum of N20,000.00 i.e. N5,000.00 per month for 4 months was paid back to the respondent. The burden was on the appellant to show in affidavit that the balance totalling N296,815.36 had been paid back to the respondent in whole or in part thereof. Certainly, for the appellant to simply say that the appellant is not in any way indebted to the respondent as claimed is not a defence to the action upon which leave could be granted to defend.
On the complaint of the appellant that there were conflicts in the Exhibits attached to the affidavit of the respondent, regarding the nature and value of the appellant’s indebtedness, which necessitated the hearing of oral evidence when the case is transferred to the general cause list for hearing. I must say that the procedure for the determination of an undefended suit under Order 24 Rules 1 – 5 does not permit the resolution of conflicts of Exhibits attached to the affidavit by hearing oral evidence as a means of allowing a defendant leave to defend. What infact is provided by the rules governing the procedure is that the plaintiffs case and the defendant’s defence to it on the merit are to be determined on each of the parties affidavit alone. Similarly, the question of whether a defendant has a defence to the undefended suit is determined solely from the affidavit filed by the defendant in support of the notice of intention to defend as provided in Rule 9 of Order 24 of the High Court Rule 1988. The learned trial judge was, in my view, right in not even attempting to examine the alleged conflicts in the exhibits warranting resolution by oral evidence, let alone use the same as the basis for transferring the case to the general cause List for hearing in clear violation of the rules.
From what I have said above on the lone issue raised by the appellant for determination in this appeal, I cannot but entirely agree with the learned trial judge that appellant’s affidavit in support of its 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. This is because the facts deposed in the appellant’s affidavit do not contain enough facts and particulars to satisfy any reasonable tribunal that a defence on the merit to the action had been disclosed warranting the transfer of the case to the general Cause List for hearing.
In the circumstance of the case, having regard to the affidavit evidence with all the relevant documents in support of the claim in the writ of summons, the lower court was right in entering judgment to the tune of N301,815.36 for the respondent against the appellant.
In the final analysis, this appeal fails and is dismissed.
No costs ordered.
Other Citations: (2008)LCN/2860(CA)
