Dr. Basil Ejidike V. Lionel Oguejiofor (2007)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The plaintiff/respondent instituted this Suit in Onitsha High Court under the undefended list against the Defendant/Appellant for the s urn of N750,000.00 being money paid to the Defendant/Appellant for five plots of land at the Akpaka Layout, Onitsha and also 20% interest per annum on the said sum from January 2002 until judgment is delivered in the Suit and 5% interest per annum from judgment until the entire sum is liquidated.
On 22/12/2003, the defendant/appellant filed a Notice of Intention to defend with a 37 paragraph affidavit setting out his grounds of defence. The court entertained arguments from both parties on 12/5/2004, 26/5/2004 and 27/7/2004 and thereafter reserved for ruling.
On 29/9/2004, the court delivered its judgment and found as a fact that the defendant had not satisfied the court that there was a triable issue raised by his Notice of Intention to defend and accordingly entered judgment in favour of the plaintiff as per his claim.
The appellant being dissatisfied with the said judgment had appealed to this court.
The learned counsel for the appellant filed a brief on his behalf and formulated 3 issues for determination as follows:
“1. In view of the affidavit in support of the Defendant/Appellants Notice of Intention to defend was the learned trial Judge right in refusing to transfer the suit (which was placed on the Undefended List) to the General Cause List.
- In view of the fact that the Defendant/Appellant is a disclosed agent of Anambra State Government, is Anambra State Government not a necessary party to this suit for the fact that it is the disclosed principal of the Defendant/Appellant.
- Was the order of the learned trial Judge right when he entered judgment for the plaintiff/respondent appropriate in view of the conflicts of affidavit evidence of both parties before the learned trial Judge.”
The learned counsel for the respondent also filed a brief and formulated one issue for determination as follows:
“Was the learned trial Judge right in holding that the Defendant’s Notice of Intention to defend has failed to raise any triable issue and accordingly refused to transfer the suit to the general cause list.”
The sole issue formulated by the respondent is the only issue that arises for the disposal of this appeal.
The learned counsel for the appellant in a lengthy submission tried to argue that the appellant in his affidavit of his intention to defend the suit raised a triable issue namely that he collected the disputed amount for Anambra State Government as its agent, and he should not be held personally responsible.
The learned counsel for the respondent on the other hand submitted that the appellant raised no triable issue in his affidavit in support of his Notice of Intention to defend the suit. There was clear evidence that the appellant received the disputed sum from the respondent and failed to allocate him the plots of land requested.
The learned counsel also argued that there, was nothing to show that the money was paid into the account of Anambra State Government, rather it was paid into a private account operated by the appellant and two others.
The facts of this case are relatively simple. The appellant collected the sum of N750,000.00 (Seven hundred and fifty thousand Naira only) from the respondent to help him secure 5 plots of land at Akpata Layout Onitsha.
The appellant was unable to provide the respondent with the plots of land and the respondent then demanded the refund of his money. The appellant has not denied collecting the money from the respondent. His only defence is that he was an agent of the Anambra State Government. There was nothing in his affidavit to show that he was acting as the agent of Anambra State Government in collecting that money which was paid to a personal account. Even ifhe was an agent of Anambra State Government it was his duty to collect the money back from Anambra State Government and pay the respondent who transacted the business directly with him and not with any other person.
In the case of Frank Muobuike V. Nwigwe (2000) 1 NWLR (Part 642) 620 at page 636 my learned brother Fabiyi JCA had this to say on a triable issue:
“The pertinent question which calls for an answer at this stage is: what is a triable issue in relation to an action filed under the undefended list? I strongly feel that a triable issue is an uncontroverted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the Undefended List. Such material allegation requires further investigation by the court to unearth the veracity or otherwise of the same. Such must portray a strong defence which cannot and should not be given a wave of the back-hand.”
In the case of Kenfrank (Nig.) Ltd. V. V.B.N. PLC. (2002)15 NWLR (part 789) 46 at page 7 my learned brother Ikongbeh JCA of blessed memory opined as follows:
“It is the easiest thing for a very shrewd Defendant or counsel to raise purported triable issues or prepare a conflicting affidavit in support of a notice of intention to defend. But a Court has to be wary, to separate the wheat from the chaff. Ajudge must not allow a Defendant draw a wool over his eyes, even where the facts of a particular case are clear and really incontestable. This is why in the said rules as regards the matter placed on the undefended list, the Court must be satisfied that the Defendant has deposed to facts, which disclose a prima facie or reasonable defence in order to be let in to defend the suit.”
I have studied this case very carefully, it is very clear to me that the appellant had no genuine defence to the respondent’s claim. His affidavit of his Notice of intention to defend raised no triable issue that would necessitate the trial judge to transfer the case to the General Cause List.
I see no merit whatsoever in this appeal and I hereby dismiss it and affirm the decision of the trial court.
The appellant shall pay costs of N7,500.00 to the respondent for this appeal.
Other Citations: (2007)LCN/2588(CA)
