Chief B. C. Morah V. Mrs. P. N. C. Okoye (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the judgment delivered on 7/12/2006 by Hon. Justice C.J. Okoli, then Chief Judge of Anambra State of Nigeria.

The Respondent herein as Plaintiff filed a suit under the Undefended List against the Appellant as Defendant at the High Court of Justice, Awka Judicial Division. The claims of the Respondent against the Appellant are for (i) Refund of the sum of N2,860,000.00 being money received and used to the benefit of the defendant for a consideration that failed completely; and (ii) 10% interest per annum from the date of judgment till liquidation of judgment sum. The Respondent’s claims were supported by a 30 paragraph “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE” to which Exhibits marked A, B, C and D respectively were attached.

The Appellant duly filed a Notice of Intention to Defend the suit and an Affidavit in support of the Notice of Intention to Defend.

The Respondent reacted to the Appellant’s Affidavit in support of Notice of Intention to Defend the suit, by deposing to a Further Affidavit on 20/11/2006. The said Further Affidavit was filed on the same day. See pages 37-40 of the Record. The Appellant equally reacted to the Respondent’s Further Affidavit by deposing on 21/11/2006 to a Further Affidavit in support of Notice of Intention to Defend the suit. The process was filed on the same day. See pages 41-43 of the Record.

The suit was heard by the lower court on 21/11/2006 and judgment delivered on 7/12/2006. In its judgment the lower court having first held that “the affidavit of the defendant in support of the notice of defence” did not disclose facts which will throw some doubt on the case of the plaintiff requiring further investigation and that it was not satisfied that the defendant has made out any bona fide triable issue duly entered judgment for the plaintiff in the sum claimed. The lower court also ordered that the judgment sum shall bear interest at the rate of 5 per centum per annum until the full amount of the judgment debt is paid.

The Appellant being dissatisfied with the judgment of the lower court lodged an appeal against the same by a Notice of Appeal dated 22/2/2007 and filed on 5/3/2007. The Notice of Appeal contains three (3) grounds of appeal. The grounds of appeal without their particulars read thus: –

“Ground 1: – Error in Law

The learned Trial Chief Judge erred in law when he held as follows: –

“The law is now well settled that before the defendant’s application for transfer of the action from the undefended list to the general court list could succeed, he must show that he made a (sic) triable issue in his affidavit in support (sic) the notice of defence as required by Order 24 Rule 9(2) of the High Court Rules, 1988. In view of the admission by the plaintiff in paragraph 36 of his said affidavit in support of notice of defence that he issued two Guarantee Trust Bank Cheques for the total sum of N2,800,000.00 to the plaintiff, the story of N360,000.00 being money deposited with him by the plaintiff for providing security to the land sold to her, which the defendant did spend for that purpose can only be seen as a sham defence.

Ground 2: – Error in Law.

The Learned Trial Chief Judge erred in law when he held that there was no averment or deposition by the appellant that he obtained the statutory right of occupancy over the five plots of land allegedly sold to the respondent or that he obtained the consent of the Governor of Anambra State to effect the transfer or sell of (sic) the said plots of land to the plaintiff.

Ground 3: Error in Fact:-

The judgment of the lower court is against the weight of evidence.”

The appeal was heard on 29/10/2008. Chudi Nwankwor of counsel for the Appellant in urging this Court to allow the appeal relied on and adopted the Appellant’s brief of argument dated 10/4/2008 and filed on 15/4/2008. Likewise Obiora Udeoba of counsel for the Respondent in urging that the appeal be dismissed relied on and adopted the Respondent’s brief of argument filed 12/5/2008.

The Appellant set out three (3) Issues for the determination of the appeal in his brief of argument. The Issues are as follows: –

“1. Whether the appellant made out or showed a triable issue or question which threw some doubt on the claim of the respondent which would have made the Learned Trial Chief Judge (as he then was) to transfer the suit to the general cause list for hearing and determination.

2. Whether there was a prima facie defence on the merit made out by the appellant to warrant the Learned Trial Chief Judge (as he then was) to transfer the matter to the general cause list.
3. Whether at the stage of considering the appellant’s notice of intention to defend, the court was right to have inquired into the validity or propriety or otherwise of the appellant’s title and that of his vendor.”

The Respondent likewise formulated three (3) Issues for the determination of the appeal in her brief of argument. Issues 1 and 2 formulated by the Respondent are the same with the Appellant’s Issues 1 and 2 hereinbefore re-produced. Respondent’s Issue 3 however reads thus: –

“Whether upon the totality of evidence (affidavit evidence) in the lower court, the Judgment would have been any different or the case could have been transferred to the general cause list without the Trial Chief Judge (as he then was) inquiring into the validity or propriety or otherwise of the Appellant’s title and that of his vendor.”

The appeal will be decided on the Issues formulated by the Appellant as I consider them to be more germane given the grounds of appeal.

APPELLANT’S ISSUES 1 AND 2

Appellant’s Issues 1 and 2 will be treated together as the Court in the resolution of the two Issues must necessarily consider and come to a decision as to whether or not the Affidavit in support of Appellant’s Notice of Intention to Defend the suit discloses a triable issue or question which throw some doubt on the claim of the Respondent. This is against the backdrop that it is a settled position of the law that before a court could admit a party/defendant to defend a suit on the undefended list, by transferring the same to the general cause list, the party’s affidavit in support of the notice of intention to defend must disclose a defence on the merit by showing that there is a triable issue or some reason why the matter ought to be heard.

Appellant’s submission in respect of his Issues 1 and 2 in the main, is that a defence was disclosed on the merit given the depositions in the Affidavit in support of his Notice of Intention to Defend the suit and Further Affidavit; and that the learned trial Chief Judge ought to have transferred the case to the general cause list for hearing and determination. Many cases dealing with the undefended list action/procedure were cited by the Appellant to show that the learned trial Chief Judge ought to have placed the case on the general cause list. The cases include UBN Plc vs. Edamkue (2005) 7 NWLR (Pt. 925) 520; SPDC(Nig) Ltd vs. Allaputa (2005) 9 NWLR (Pt. 931) 475; ACB Ltd vs. Gwagwada (1994) 16 LRCN 89; Osifo vs. Okogbo Community Bank Ltd (2006) 15 NWLR (Pt.1002) 260; Onadeko vs. UBN Plc (2005) 4 NWLR (Pt.916) 440; NIPOST vs. Insight Engineering Company Ltd (2006) 8 NWLR (Pt. 983) 435; and Ifeanyichukwu Trading Ventures Ltd vs. Onyesom Community Bank Ltd (2005) 5 NWLR (Pt. 917) 94.

The Respondent in the main argued that the Appellant’s Affidavit in support of his Notice of Intention to Defend the suit did not disclose any fact that threw some doubt on her case. That the Appellant therefore did not make out or show a triable issue or question which should have made the learned trial Chief Judge transfer the case to the general cause list. The Respondent equally cited many cases dealing with undefended list procedure and they include Agwuneme vs. Eze (1990) 3 NWLR (t. 137) 242; China Geo Engr. Co. Ltd (CCC) vs. Nambativ (2001) FWLR (Pt. 44) 466 at 478; Enye vs. Ogbu (2003) 10 NWLR (Pt. 828) 403; Bank of the North Ltd vs. Inter Bank SA (1996) ANLR 88 at 91; ACB vs. Ezeniwa (2004) 7 NWLR (Pt. 872) 326; Agromiller Ltd vs. Continental Merchant Bank (1997) 10 NWLR (Pt. 525) 469-480; Okoli vs. Morecab Finance Ltd (2007) 30 NSCQR 453 at 456 & 457; and Danfulani vs. Shekari (1996) 2 NWLR (Pt. 443) 723 at 739.

The law reports are replete with cases dealing with Undefended List action/procedure of various States of the Federation decided by the appellate courts, particularly this Court. The concept of the Undefended List procedure under Order 23 of the High Court (Civil Procedure) Rules 1988, Oyo State was considered by this Court in the case of CHIEF AKIN AKINYEMI V. GOVERNOR OF OYO STATE & ANOR (2003) FWLR (pt. 140) 1821. At page 1831 Tabai, JCA (as he then was) stated thus: –

“The undefended list procedure under Order 23 of the High Court (Civil Procedure) Rules 1988, Oyo State is a peculiar summary form of procedure designed to facilitate the quick determination of a claim for the recovery of a debt or liquidated money demand which is incontestable in law and the facts in the affidavit evidence in support thereof is undisputed. It is a procedure in aid of a claim against which there is no defence put forth at all or the affidavit evidence put forth by the defendant raises no credible defence in law and in fact. Once the affidavit evidence discloses a defence on the merit the court will necessarily grant the defendant leave to defend and consequent thereof the matter would be removed from the undefended list and placed on the ordinary cause list for full trial and determination….. And to constitute a defence to warrant the removal of the matter from the undefended list to the ordinary cause list for trial, the affidavit of the defendant must disclose either facts which raise substantial issues of law or disputed material facts which can only be resolved after a full trial….

Thus the principles embodied in the undefended list procedure is firstly to enable a plaintiff who has a genuine incontestable claim for a debt or liquidated money demand to obtain quick justice and thus protect him from incurring further losses and frustration by the delay tactics of a defendant who has no real defend on the merit. The second principle is the corresponding need for the defendant to be given a fair hearing guaranteed by section 36 of the Constitution. The undefended list procedure therefore involves a balancing of these principles which alone ensures that justice is done and injustice averted.”

The concept of the Undefended List procedure under Order 24 Rule 9 of the Anambra State HCR 1988 in my respectful view is in no way different from that stated by this Court in the above cited case as it relates to Order 23 of the High Court (Civil Procedure) Rules 1988, Oyo State.

“It must be stressed that the authorities are very clear to the effect that a defendant need not disclose a complete defence to a plaintiff’s case in the undefended list before he can be allowed to defend; it is sufficient if he shows a prima facie defence or that there is a triable issue or question that for one reason or the other there ought to be a trial. Leave to defend is therefore always granted unless it is abundantly clear that there is absolutely no defence in law or there is no real defence on question of facts at all. In this regard see the cases of BAUCHI LOCAL GOVERNMENT COUNCIL V. ABDUL-GHANIYU ABDUL-SALAMI (2003) FWLR (Pt. 151) 1868; MR. JOHN AKALONU V. MR. S.O. OMOKARO [2003] FWLR (Pt. 175) 493; EDET LUKE UYOETTE V. IBIONO IBOM LOCAL GOVERNMENT [2003] FWLR (Pt. 178) 1126; and DR. MAURICE A. EBONG V. FRANCIS S. IKPE [2002] 21 WRN 56.

Indeed in the case of DR. MAURICE A. EBONG V. FRANCIS S. IKPE (supra) at page 77 this Court per Ekpe, JCA; said thus: –

It is now a well established principle that when a court is proceeding under the undefended list procedure, it is desirable that the court must call into play a measure of liberality when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed. See V.S. Steel (Nig.) Ltd v. Govt., Anambra State (supra); Jos North L.G. v. Daniyan (2000) 10 NWLR (Pt. 675) 281.”

Before now, I have said that Appellant’s Issues 1 and 2 will be treated together as the Court in the resolution of the two Issues must necessarily consider and come to a decision as to whether or not the Affidavit in support of Appellant’s Notice of Intention to Defend the suit discloses a triable issue or question which throws some doubt on the claim of the Respondent. I now proceed to do this.

The processes filed by the Respondent at the stage this suit was placed on the Undefended List are the writ of summons at page 1 of the Record; the process titled “SUIT ON THE UNDEFENDED LIST PURSUANT TO OR. 24 R.9 OF HCR (1988)” at pages 2-3 of the Record; and another process titled “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE” at pages 4-7 of the Record. The claims of the Respondent are set out in sub-paragraphs (1) and (2) of paragraph 12 of the process titled “SUIT ON THE UNDEFENDED LIST PURSUANT TO OR. 24 R.9 OF HCR (1988)”.

They are as follows: –

“(1) Refund of the sum of N2,860,000.00 (Two million, Eight Hundred and Sixty thousand Naira) being money received and used to the benefit of the defendant for a consideration that failed completely.

(2) 10% interest per annum from the date of Judgment till liquidation of Judgment sum.”

In the first 12 paragraphs of the process, the Respondent disclosed that she is a retired public officer and that she hails from Awka. It was averred that the Appellant at a point in time represented to the plaintiffs (sic) in the presence of others among who was late Ajulu Mottoh that he had some parcels of land at Agucha Area of Amikwo Awka which he (Appellant) wanted to sell. The Respondent claimed that she paid the Appellant a total sum of N2,860,000.00 for five plots of land each measuring 100ft by 50ft following the representation. That she (i.e. Respondent) went unto the plots of land to take possession immediately after payment was made as directed by the Appellant; but that she and her workmen were manhandled and driven away by people from Amawbia town numbering over fifty and who claimed that the land never belonged to the Appellant. The Respondent claimed to have reported the incident to the Appellant immediately thereafter and that the Appellant pleaded with her for time to enable him sort out the dispute with the rival claimants from Amawbia town. The Respondent claimed that she demanded for the refund of the money she paid for the plots of land, as the Appellant was always evasive whenever she went to him to find out the progress made in respect of the matter and as she also noticed from the conduct of the Appellant that he had no valid title to the plots of land he purported to have sold to her. According to the Respondent, after series of meetings and intervention of some well meaning persons, the Appellant issued two post dated cheques of the Guarantee Trust Bank (G.T.B.) Awka Branch in her favour; but the cheques were not honoured by the Bank on presentation. The Respondent further averred that though she contacted the Appellant about the returned cheques, the Appellant has resorted to avoiding contact with her (i.e. Respondent) despite his promise to ensure payment of the value of the cheques.

In the process titled “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE” the Respondent disclosed that she bought five plots of land from the Appellant consequent to his representation that he was the absolute and beneficial owner in possession of a vast area of land at Agucha of Amikwo Awka and which vast area of land was shown to her and some of her relations by the said Appellant. That she negotiated for the purchase of five plots of the land at a total sum of N2,860,000.00 as a result of the representation made by the Appellant; and that the Appellant duly acknowledged the receipt of the said sum in writing. It was after this that the Respondent engaged the services of some workmen who she took to the land for clearing and digging of foundation works for the fencing. The Respondent also disclosed that she concluded that the Appellant had no valid title to the five plots of land which he sold to her and demanded for the refund of the money she had paid for the same, because of what happened when she and her workmen were on the land to dig the foundation for its fencing; and the evasive conduct of the Appellant in resolving the dispute he had over the land with the rival claimants from Amawbia. In respect of the two post-dated Guarantee Trust Bank Cheques issued by the Appellant, the Respondent disclosed that the said cheques were issued after much pressure on the Appellant for the refund of her money and went further to also disclose how the Appellant failed to ensure that there was sufficient money in his account to meet the value of the cheques despite the intervention of prominent people including the Eze-Uzu II of Awka who pleaded on his (i.e. Appellant’s) behalf that the cheques should not be presented on their due dates.

The Affidavit in support of Notice of Intention to Defend the suit filed by the Appellant is at pages 19-25 of the Record while the Exhibits which the Appellant rely on are at pages 26-33. The Appellant while agreeing that he sold a total of five plots of land all situate at Agucha Amikwo village, Awka to the Respondent however stated the total purchase price of the plots of land as N2,500,000.00 and also claimed that the said five plots of land were not sold to the Respondent at the same time. He disclosed his vendor in respect of three of the five plots to be one Chief Ubalutu Okoli who in turn bought the said plots of land from Chief Sunday Morah of Igweogige village, Amikwo, Awka. The Appellant claimed that he sold two of the three plots of land to the Respondent in 2004 for the purchase price of N1,000,000.00 which the Respondent paid in two instalments of N600,000.00 and N400,000.00 on 2/1/04 and 19/1/04 respectively. The remaining one plot the Appellant further disclosed was sold to Mr. Chukwumah Okoli of Isiagu, Amikwo, Awka who has been in exclusive and undisturbed possession of the same ever since it was sold to him on 14/2/2004. The Appellant also claimed that his two predecessors in title were respectively in exclusive possession of the three plots of land before they vested in him.

According to the Appellant, the Respondent went into immediate possession of the first two plots of land sold to her without let or hindrance and it was the quiet possession which she enjoyed that made her approach him (i.e. Appellant) to purchase three other plots of land and which were duly sold to her. The Appellant stated his vendors in respect of other 3 plots of land at Agucha Layout to be the Umuonyiora/Igweogige family of Amikwo, Awka. He said he bought the 3 plots of land from the said family on 15/3/2002 and that a purchase receipt was duly issued to him. The Appellant said that two of the three plots of land were sold to the Respondent at the purchase price of N1,200,000.00, while one of the said three plots had earlier been sold to one Chief Leonard Ezeanya via a purchase receipt of 19/11/03. The said Chief Leonard Ezeanya the Appellant further disclosed has erected a concrete Church structure on the land and had been in undisturbed possession of the same since the date of purchase. The Appellant disclosed the last plot of land he sold to the Respondent to be one out of the 5 plots of land he bought from late Deacon Peter Nweze vide a purchase receipt dated 15/4/02. This plot of land was said to have been sold to the Respondent on 16/1/2006 at the purchase price of N300,000.00.The Appellant claimed to have earlier sold three of the said plots to one Mr. Sunny Muoneke of Umuanaga village, Awka and that he has walled the said plots round with concrete wall fence and has built thereon without let or hindrance from anybody. The Appellant not only claimed that the Respondent investigated his title to the plots of land and found the same to be satisfactory before making the purchase but also that the said Respondent at the time of the purchase was aware that Agucha land had been a troublesome area hence the low prices at which she bought the plots of land.

The Appellant further disclosed that the Respondent deposited a sum of N360,000.00 (which was never part of the purchase price) with him for the purpose of providing security for the Respondent’s development and workers on the land and that he duly engaged the services of eight persons for this purpose and duly paid them about N200,000.00 out of the N360,000.00 provided for this purpose by the Respondent. He (i.e. Appellant) also disclosed to the effect that with the consent of the Respondent he later used about N400,000.00 of his personal money in erecting a dwarf cement wall fence (which is still on the land) round the land. The Respondent the Appellant further disclosed reneged from the agreement concerning the fencing of the land and demanded for the refund of the money she had paid for the plots of land. The Appellant while disclosing that he did issue the Respondent with two cheques of Guarantee Trust Bank Plc in the total sum of N2,860,000.00 however made it clear that he did so as a result of pressure mounted on him by the Respondent.

The Respondent reacted to the Affidavit in support of Notice of Intention to Defend the action. This the Respondent did by deposing to a Further Affidavit on 20/11/2006. See pages 37-40 of the Record. In the said Further Affidavit, the Respondent while admitting that a total of five plots of land were sold to her by the Appellant however now disclosed that the negotiation for the plots of land was done in 2005 on her behalf by her late cousin – Ajulu Muottoh and that the initial purchase price was in the sum N2,500,000.00. The Respondent further disclosed that it was when she came around in 2005 to conclude the deal in respect of the plots of land that she had to pay an additional sum of N360,000.00 as the Appellant insisted that the land had appreciated in value. The Respondent equally disclosed that it was after she and her workmen were manhandled on the plots of land that she discovered that the land which the Appellant sold to her had been the subject of a pending suit at the High Court, Awka between the Appellant’s family (i.e. Umuonyiora/Igweogige family) and the Amawbia people. The Respondent also alleged that all the Exhibits the Appellant attached to the affidavit in support of the Notice of Intention to Defend the suit were prepared for this suit. Indeed, the Respondent made specific reference to Exhibits AA and BB dated 2/1/04 and 19/1/04 respectively relied upon by the Appellant as having been made in anticipation of this suit and also as being fraudulent. The Respondent denied discussing anything with the Appellant about engaging security for the plots of land she bought from him and also denied authorizing the Appellant to fence any land for her. Indeed she said that the Appellant had not fenced any part of the land which he sold to her till date. The Respondent equally denied having mounted pressure on the Appellant for any purpose.

On 21/11/2006 the Appellant deposed to a Further Affidavit in support of Notice of Intention to Defend the action. See pages 41-43 of the Record. Therein he denied all that the Respondent deposed to in her Further Affidavit sworn to on 20/11/2006.

The claims of the Respondent against the Appellant have been earlier re-produced in this judgment. It is my respectful view from the processes hereinbefore considered that the parties are ad idem that the claim of the Respondent for N2,860,000.00 said to be the purchase price she paid for the five plots of land she bought from the Appellant is one for a liquidated money demand. The Respondent instituted the instant action under the undefended list procedure to the recover the purchase price of N2,860,000.00 in question as she has alleged that the consideration for the transaction between her and the Appellant has failed completely. This is because she has not been able to take possession of the plots of land she bought from the Appellant as he (i.e. Appellant) has no valid title to the plots of land which he sold to her. It is not the case of the Respondent in the processes hereinbefore considered that the Appellant never sold her land.

As it can be seen from the facts in the Affidavit in support of Notice of Intention to Defend filed by the Appellant, he denied not having a valid title to the plots of land which he sold to the Respondent. He disclosed the identities of his vendors and the other people to whom he has sold other plots of land he owned in the same area where the plots of land he sold to the Respondent are situate. He claimed that these persons are in undisturbed possession of their respective parcels of land. He equally denied selling the 5 plots of land the Respondent bought from him at the same time. He further went on to disclose that the Respondent not only deposited with him the sum of N360,000.00 to be used to procure security for her development and workers on the plots of land she bought from him, but that she also consented that he should use part of the deposited money and his own money to construct a dwarf wall fence made of cement blocks round the land. The Appellant claims that the dwarf wall he constructed is still on the land.

I have said before now that the Respondent filed a Further Affidavit in reaction to the Affidavit in support of Notice of Intention to Defend.

Suffice it to say that it is clear from the record of proceedings for 21/11/2006 at pages 46-48 of the Record, that the said Further Affidavit was used at the hearing of the case before the lower court.

In the light of the affidavit evidence as hereinbefore highlighted, the lower court at pages 50-51 of the Record having first set out the settled position of the law as to when a defendant’s application for the transfer of a case from the undefended list to the general cause list can succeed, thereafter said thus: –

“In view of the admission by the plaintiff in paragraph 36 of his said affidavit in support of the notice of defence that he issued two Guarantee Trust Bank cheques for the total sum of N2,860,000.00 to the plaintiff, the story of N360,000 being money deposited with him by the plaintiff for providing security to the land sold to her, which the defendant did spend for that purpose, can only be seen as a sham defence. The defendant was merely putting up something just for the purpose argument…..”

Still on page 51, of the Record, the lower court proceeded to give its attention to the depositions in paragraphs 10, 12, 15 and 17 of the Affidavit in support of Notice of Intention to Defend and the Exhibits attached thereto which the Appellant relied upon as evidence of his title to the plots of land he sold to the Respondent. Relying on the provisions of the Land Use Act, Cap. 202, LFN 1990, the lower court pronounced the defence of the Appellant that he had valid title over the 5 plots of land which he sold to the Respondent to be a sham defence. This was sequel to the finding by the lower court that that there was no affidavit evidence of any grant of statutory rights of occupancy by the Government of Anambra State to the Appellant’s vendors thereby rendering the vendors with nothing that they could sell to the Appellant which also rendered the purported agreement for sale by the Appellant to the Respondent a nudum pactum.

It is in my respectful view most glaring from the judgment of the lower court particularly the portions thereof referred to hereinbefore, that the said court appreciated the fact that the consideration in respect of the land transaction the Respondent and Appellant entered into, could not be said to have failed once the Appellant’s title to the plots of land remained unimpeached. In other words, it is glaring from the judgment of the lower court that the said court realized that the failure of consideration in respect of the contract for the purchase of land between the Respondent and Appellant which was predicated on the inability of the Respondent to take or acquire quiet possession of the 5 plots she purchased from the Appellant could not be resolved in favour of the Respondent without the title of the Appellant being investigated and found to be invalid. And it is equally glaring that the lower court in coming to a decision that the Appellant’s title to the plots of land in question is a sham did so, only after it had impeached the Appellant’s title to the said plots of land.

The pertinent question then, is whether the lower court was right in not transferring this suit from the undefended list to the general cause list for hearing in the face of the Respondent’s claim that the Appellant could not deliver to her quiet possession of the 5 plots of land she purchased from him because he has no title thereto and the claim of the Appellant to the contrary that he had valid title to the said plots of land (and which claim he supported by documents)?

I am of the respectful view that if the lower court had considered the Appellant’s Affidavit in support of Notice to Defend with the desired measure of liberality and had also adequately averted its mind to the position of the law that the Appellant is only required to disclose a prima facie defence or that there is a triable issue or that for some reason there ought to be a trial, at the stage of deciding whether or not leave to defend should be granted, and not to provide a complete defence to the case of the Respondent, the said court would have seen that the issue of the Appellant’s title to the 5 plots of land which the Respondent purchased but claimed she could not take possession of, is a patently triable issue and sufficiently warranted the case to be placed on the general cause list as it could not be said by any stretch of imagination that the case of the Respondent was incontestable in law and/or that the facts in the Affidavit in support of the Respondent’s claims are undisputed. In other words the case ought to have been placed on the general cause list given the glaring dispute in respect of the title of the Appellant to the plots of land in question and which could be only resolved after a full trial. I cannot but reiterate that the authorities are clear that the undefended list procedure is a peculiar summary form of procedure designed to facilitate the quick determination of a claim for the recovery of a debt or liquidated money demand which is incontestable in law and the facts in the affidavit evidence in support thereof is undisputed. It is a procedure in aid of a claim against which there is no defence put forth at all or the affidavit evidence put forth by the defendant raises no credible defence in law and in fact. The claim of the Respondent that the consideration for the land transaction between her and the Appellant has completely failed as the Appellant has no title to the land he sold to her has been glaringly contested by the Appellant and the facts relied on by the Respondent in support of her claim have been seriously disputed by the Appellant.

In the Affidavit in support of his Notice of Intention to Defend the suit, the Appellant equally threw some doubt on the Respondent’s claim that she could not take possession of the 5 plots of land she bought from him. In this regard are the facts deposed to by the Appellant to the effect that the Respondent deposited with him the sum of N360,000.00 for the provision of security on the land and that she also agreed that he (i.e. Appellant) should construct round the plots of land a dwarf fence made of cement blocks and that he did the same. The Record at pages 50-51 shows that the lower court found the story of the N360,000.00 put up by the Appellant as a sham defence in the face of the admission said to have been made by the Appellant in paragraph 36 of the Affidavit in support of Notice to Defend.

I consider it necessary to re-produce the deposition in the said paragraph 36. It reads: –

“That after sometime again, the plaintiff mounted further pressure on me and insisted that if I have not sold the land that I should issue her a post dated cheque in respect of the sum of N2,860,000.00 (Two million eight hundred and sixty thousand naira) to her. I then issued two post dated Guarantee Trust Bank (GTB) Plc cheques for the sum of N2,860,000.00 (Two million eight hundred and sixty thousand naira).”

The lower court it should be noted had before it both the Affidavit and Further Affidavit the Respondent filed in support of her claims as well as the Affidavit in support of Appellant’s Notice of Intention to Defend the suit. The facts deposed to by the parties in the aforementioned processes in relation to the N360,000.00; whether or not the Appellant constructed a dwarf cement wall fence around the plots of land; and the circumstances that led to the issuance of two Guarantee Trust Bank Plc cheques in the total sum of N2,860,000.00 are so glaringly in conflict that in my respectful view the lower court could not have peremptorily declared the defence of the Appellant as earlier stated as a sham defence. There was every need for the matter to have been placed on the general cause list given the conflict in the affidavit evidence before the lower court.

This conclusion is reinforced by the decisions of this Court in the following cases: –

1. SCOA NIGERIA PLC V. ALHAJI SANI YARO DANBAITA (2003) FWLR (Pt. 179) 1277 at page 1287 where Muntaka-Coomassie, JCA; (as he then was) dwelling on ‘when a case brought under the undefended list should be transferred to the ordinary or general cause list’ said thus: –

” My lords, this court have clearly set out two situations where matters filed on the undefended (sic) should be transferred to the ordinary or general cause list for determination or (sic) full pledged (sic) trial. The two situations are as follows: –

“(a) If there are disputed issues of facts disclosed from a comparison of the plaintiffs and defendants affidavits, then the court must transfer the suit to the general cause list for determination on the merit; or

(b) If a decision on whether or not a defence on the merit is disclosed on the defendant’s affidavit

turns on a consideration of intricate or difficult areas of law or aspects of law requiring full address by counsel and research by the court, then it is important that the defendant be allowed to contest the suit in a trial.”

See the case (sic) of: – (i) Sanitory Co. Ltd vs. Elabed (1998) 12 NWLR (pt. 579) 544; (ii) Jipreze vs. Okonkwo (1987) 3 NWLR(pt. 62) 737; and (iii) Jos North Local Government vs. Daniyan (2000) FWLR 871/884-885.”

2. ALHAJI AHMED YA’U V. CITY SECURITY LIMITED (2003) FWLR (Pt. 165) 498 at page 506 where Omage, JCA; said to the effect that if there is any conflict in the evidence tendered in a case on the undefended list, then proceedings must go to trial; and
3. DR. MAURICE A. EBONG V. FRANCIS S. IKPE (supra) at; page 78 where Ekpe, JCA; applying the decision in Jipreze vs. Okonkwo & Anor (supra) amongst others held to the effect that where there is a conflict in the affidavits of the parties in a suit on the undefended list, the calling of evidence is the only way by which the conflict can be resolved and it is mandatory in such a situation to enter the suit on the general cause list.

The Respondent as earlier stated filed the Further Affidavit at pages 37- 40 of the Record (and which was utilized at the hearing of this suit before the lower court) in reaction to the Affidavit in support of the Appellant’s Notice of Intention to Defend the suit. The step taken by the Respondent in this regard, in my respectful view certainly confirms that facts are in dispute in the instant suit.

From all that has been said before now, it is my respectful view that the Appellant ought to have been granted leave to defend the action of the Respondent and that the lower court was wrong in denying the requisite leave. Appellant’s Issues 1 and 2 (which the Respondent equally adopted in toto) are accordingly resolved in his (i.e. Appellant’s) favour.

APPELLANT’S ISSUE 3

The question raised by the Issue is whether it was right for the lower court to have inquired into the validity or propriety or otherwise of the Appellant’s title and those of his vendors at the stage of considering the Affidavit in support of Notice to Defend filed in the matter. The submission of the Appellant on this Issue in the main, is that it was premature for the lower court to have considered whether or not he (i.e. Appellant) had any statutory right of occupancy in respect of the 5 plots of land he sold to the Respondent or whether he had obtained the consent of the Governor to transfer or sell the said land, at the stage of considering his Notice of Intention to Defend. It was likewise submitted that it was premature for the lower court to have considered whether or not the Appellant’s vendor was granted any statutory right of occupancy or obtained any Governor’s consent which enabled him to sell the said 5 plots of land to the Appellant at the stage of considering the Affidavit in support of his Notice of Intention to Defend. The Appellant stressed the point that what the lower court should have concerned itself with at the stage of considering whether or not the suit should be transferred to the general cause list was whether a defence was disclosed to the Respondent’s claims in that whether there was a dispute between him and the Respondent. The Appellant further submitted that he has a real and good defence to the Respondent’s claims but that despite this, the lower court prematurely considered his documents of title and those of his vendors which should have been done at the trial. The lower court was accused of not acting judiciously and judicially in this regard.

The Respondent would appear to have responded to the question raised in the Appellant’s Issue 3 in the second part of her own Issue 3.

The question raised in the second part of Respondent’s Issue 3 is as to whether or not the case could have been transferred to the general cause list without the lower court inquiring into the validity or otherwise of the Appellant’s title and those of his vendors. The submission of the Respondent in the main on the Issue under consideration is that the lower court was very right to have inquired into the validity of the Appellant’s title and those of his vendors to the land sold to her having regard to the great emphasis the Appellant laid on his title to the said land. In this regard the Respondent made reference to paragraphs 10, 11, 12, 13, 15, 16, 17, 18, and 19 of the Affidavit in support of the Notice of Intention to Defend. The Respondent submitted that the Appellant’s quarrel that the matter could have been transferred to the general cause list for him to prove his case is unfounded as it is trite law that undefended list matters are decided on the affidavit evidence of the parties. The case of Abdulkadir vs. Usman (2002) FWLR (pt. 92) 1736 at 1746 was cited in aid. It was submitted by the Respondent that the lower court did not go into the details (i.e. authenticity) of the various exhibits in respect of the Appellant’s title to the plots of land he sold but only pronounced on good title as it concerned valid sale or transfer of land in an urban area. Having referred to the various dates set out in Exhibits AA; BB; and CC; the Respondent submitted that the Appellant sold the plots of land he claimed to have sold to her before he purchased the same from Ubalutu Okoli and submitted that the lower court was right when it termed the line of defence of the Appellant that he has title to the plots of land as a sham defence.

The law is settled that a trial Judge is not to determine whether or not a defendant’s defence has been proved or established or will ultimately succeed at the stage of considering the defence set up in the Affidavit in support of Notice to Defend. All that is required of the trial Judge at the stage is simply to look at the facts deposed to and see if they can prima facie afford a defence to the action. A complete defence to the action need not be proved at the stage. It is sufficient if the defence set up shows a triable issue or that for some reason other reasons there ought to be a trial. See SNIG NIGERIA LIMITED V. ED. OF NIGERIA LIMITED (2003) FWLR (Pt. 171) 1606 at 1624: and THE SHELL PETROLEUM DEVELOPMENT OF NIGERIA LIMITED V. ARHO-JOE NIGERIA LIMITED (2006) All FWLR (Pt. 331) 1330 at 1348.

In paragraph (8) of the process styled “SUIT ON THE UNDEFENDED LIST PURSUANT TO OR. 24 R. 9 OF HCR (1988)” the Respondent averred to the effect that she demanded for the refund of the money she paid to the Appellant on noticing from the conducts of the Appellant that he had no valid title to the five plots of land he purported to have sold to her. Furthermore, in paragraphs 6-10 of the process styled as “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE” the Respondent deposed to facts which made her to conclude that the Appellant had no

title to the five plots of land which he sold to her.

It was in reaction to averment/depositions of the Respondent that the Appellant has no valid title to the 5 plots of land he sold to her because of his evasive conducts, that the Appellant in the Affidavit in support of his Notice of Intention to Defend deposed that he has valid title to the said plots of land. The Appellant not only disclosed the identities of his vendors and some other persons to whom he has sold land in the same area to but also claimed that these persons are still in undisturbed possession of their respective parcels of land. The Appellant equally exhibited the documents evidencing his title to the plots of land to the Affidavit in support of the Notice to Defend. The documents were marked Exhibits AA; BB; CC; DD; EE; FF; GG; and HH. The Respondent reacted to the claim of the Appellant that he has valid title to the plots of land in question in a Further Affidavit. Therein the Respondent having disclosed what happened to her and her workmen when they went to the plots of land and that she duly notified the Appellant of the incident further deposed in paragraphs (23), (24), (27) and (28) as follows: –

” PARAGRAPH 23

That the defendant refused to visit the land which he claimed belonged to him.

PARAGRAPH (24)

That after the incident, I discovered that the land which the defendant sold to me had been the subject of a pending suit at the High Court Awka between his family (the Umuonyiora/Igweogige family) and the Amawbia people.

PARAGRAPH (27)

That Exhibits AA of 2/1/04 and BB of 19/1/04 were merely prepared by the defendant in anticipation of this suit and are fraudulent.

PARAGRAPH (28)

That Exhibits CC, DD, EE, HH, GG and FF were all prepared for this suit.”

Now, in the light of the affidavit evidence as reproduced above, the lower court dwelling on the claim of the Appellant that he has a valid title to the plots which he sold to the Respondent started by first saying that the provisions of the Land Use Act (which it took judicial notice of) had divested radical title over all the land in a State and vested same in the Governor of a State to hold in trust for all Nigerians. The court having also taken judicial notice of the fact that Amawbia town and Awka town are part of the capital Territory of Awka, and within an urban area further said there was no averment or deposition by the Appellant that he obtained the statutory right of occupancy over the five plots of land allegedly sold to the Respondent or that he obtained the consent of the Governor of Anambra State to effect the transfer or sale of the said plots to the Respondent. Also saying that there was no averment or deposition in the Appellant’s affidavit that Chief Ubalutu Okoli from whom Appellant bought the plots of land in question and who issued Appellant with the purchase receipts marked Exhibits EE and FF was granted any right of occupancy in respect of the said parcels of land by the Government of Anambra State, the lower court in the circumstances concluded that there was nothing Chief Ubalutu Okoli could sell to the Appellant and that the purported agreement for sale by the Appellant to the Respondent was a nudum pactum as no one can give that which he has not got. The lower court found that the Appellant never gave title to the Respondent over the five plots of land as his root of title was based on the purported purchase made from Chief Ubalutu Okoli who had no proper title to the said plots of land. The lower court further held that though purchase receipts may be evidence of equitable interest of the Appellant, the fact remained that Chief Ubalutu Okoli from whom he acquired the land had no Legal right of occupancy or estate which the Appellant can transfer to the Respondent.

The question is whether it can rightly be said as argued by the Respondent that all the lower court did given the portion of its judgment highlighted above, was that it merely pronounced on the position of the law as it concerns a valid sale or transfer of land in an urban area? My answer to the poser is that the lower court glaringly engaged itself in the consideration of the merit of the defence of the Appellant that he has a valid title to the land he sold to the Respondent by the evaluation of the affidavit evidence placed before it by the Appellant and having highlighted what it considered to be the lacuna in the said evidence, the said court further proceeded to pronounce the defence of valid title set up by the Appellant as being a sham defence. This definitely is not expected of the lower court at the stage of considering whether or not the Appellant’s Affidavit in support of Notice to Defend discloses a triable issue and which I have earlier found it to disclose.

I therefore have no difficulty in resolving Appellant’s Issue 3 in his favour.

I had earlier stated in this judgment that Respondent’s Issue 3 raises two questions. The second part of Respondent’s Issue 3 has been considered along with Appellant’s Issue 3. The second part of Respondent’s Issue 3 is as to whether the judgment of the lower court would have been any different upon the totality of evidence (affidavit evidence) in the lower court.

As already stated in this judgment one of the reasons why a court must place a suit on the general cause list is where there is conflicting affidavit evidence of the parties in respect of material facts. I have also earlier stated that the conflict in the affidavit evidence of the parties in respect of question of title of the Appellant to the parcels of land sold by him to the Respondent; the sum of N360,000.00 deposited to the Appellant by the Respondent for the provision of security; and the fencing round of the plots of land with a dwarf wall fence by the Appellant with the agreement of the Respondent sufficed to warrant the placement of the case on the general cause list.

The Respondent (though not conceding) has argued to the effect that even if the lower court at the stage of considering Appellant’s was wrong in inquiring into the validity or propriety or otherwise of the Appellant’s title and that of his vendor, this could not have made any difference as to necessitate the transfer of the case to the general cause list. In this regard the Respondent said that the Appellant in the Affidavit in support of his Notice to Defend admitted the receipt of N2,860,000.00 although his defence was that N360,000.000 out of it was for security.

That the Appellant also admitted that when the Respondent and her workmen were chased away from the land and the Respondent started mounting pressure on him (i.e. Appellant) he issued the two cheques of GTB Plc covering the sum of N2,860,000.00 paid to him by the Respondent. It was submitted that the lower court was right in not transferring the case to the general cause list and to have given judgment in the Respondent’s favour under the undefended list since the consideration for paying the said sum of N2,860,000.00 had failed and as the Appellant admitted the receipt of the money and issuing of the bounced cheques.

I have painstakingly scrutinized the affidavit evidence in this case. I believe it has to be said loud and clear again, that the Appellant having regard to the depositions in the Affidavit in support of his Notice to Defend never admitted expressly or impliedly that the consideration in respect of the agreement or contract for the sale of land between him and the Respondent ever failed. He also never admitted expressly or impliedly that he issued the two GTB Plc cheques to the Respondent in acknowledgment of the fact that the consideration for the sale of land failed. He made it clear in his affidavit that he issued the two cheques as a result of the pressure mounted on him by the Respondent for the return of her money. The Respondent herself would appear to have disclosed that pressure was indeed mounted on the Appellant given the deposition in paragraph 12 of the process styled “AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE”. Therein the Respondent deposed to the effect that the Appellant issued two post-dated GTB Plc cheques made payable to her on 23/2/06 and 10/3/06 respectively after pressure on him for the refund of her money. While I am aware that the Respondent in the deposition in paragraph 33 of her Further Affidavit denied mounting pressure on the Appellant, I do not however understand her by the said deposition to have resiled from her initial deposition that pressure was mounted on the Appellant. I am therefore at a total lose to appreciate how it can be said that the issuance of the two bounced GTB Plc cheques by the Appellant was an admission of anything on the state of affidavit evidence before the lower court. Oral evidence need to be adduced to resolve the circumstances which resulted in the issuance of the said cheques with the lower court at liberty to thereafter make appropriate inference(s) depending on its evaluation of the evidence adduced on the issue.

In conclusion I therefore do not find the totality of the conflicting affidavit evidence before the lower court to have warranted the entering of judgment in favour of the Respondent. The affidavit evidence before the lower court disclosed a triable issue in relation to the title of the Appellant to the plots of land sold to the Respondent and also were in conflict on material issues which could only be resolve in a full fledged trial. Accordingly the first part of the Respondent’s Issue 3 is resolved against her.

This appeal accordingly has merit as the three Issues formulated for its determination by the Appellant have been resolved in his favour.

The appeal therefore succeeds and is allowed. The judgment of the lower court is hereby set aside. It is hereby ordered that the suit be remitted to the Chief Judge of Anambra State for re-assignment to another Judge for trial on pleadings. I award N20,000.00 costs against the Respondent.

---

Other Citations: (2009)LCN/3088(CA)