Francis Nyiam Bisong V. Okokon Ekpenyong (2001)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A.

In an action filed by the appellant as plaintiff at the High Court of Cross-River State holden at Calabar, the appellant claimed against the defendant/respondent as follows;

“i. The sum of N130,000.00 (one hundred and thirty thousand Naira) only being the balance of N630,000.00 (Six hundred and thirty thousand Naira) only, which the Defendant bought the plaintiff’s 55KVA RA Lister Generator; which the defendant has bluntly refused to liquidate inspite of repeated demands.

ii. A 10% interest on the said N130,000.00 from the day judgment is delivered in the suit until final liquidation of the judgment sum.

iii. The sum of N5,000.00 (Five thousand Naira) only being out of pocket expenses.”

In accordance with the provisions of Order 23 Rule 1 of the Cross-River State High Court (Civil Procedure) Rules 1987, the appellant also filed an affidavit seeking leave of the court to place the suit under the Undefended list and the “Writ of Summons” be marked accordingly and this was granted by the court.

The defendant/respondent was duly served with all the court processes where upon he filed his Notice of Intention to defend and affidavit disclosing a defence on the merit. The matter was then adjourned for ruling on whether or not the respondent should be given leave to defend or judgment entered for the appellant.

On 6/12/99,the learned trial Judge, Odu J., gave his ruling refusing to grant leave to the respondent to defend the suit on the ground that he had no defence on the merit and thereupon entered judgment for the appellant for the sum of N100,000.00 and not the sum of N130,000.00 claimed by the appellant in the writ of summons.

Dissatisfied with the judgment, the appellant has appealed to this court.

The appellant filed his brief of argument in which he formulated one issue which is:

(1) Whether, it was proper for the learned trial Judge to enter judgment for the appellant in the sum of N100,000.00 instead of the sum of N130,000.00 claimed by him after finding and holding that the respondent had no defence to the action?

The respondent was duly served with all the court processes and also the appellant’s brief of argument, but he did not file any respondent’s brief. It was at this stage that the appellant filed a motion praying for an order that the appeal be heard only on the appellant’s brief of argument. The respondent was also served with the said motion which was fixed for hearing on 21\2\2001 and on that day the respondent did not also appear and motion was then argued and the prayer granted.

It is therefore only the appellant’s brief of argument that is before this court.

In the appellant’s writ of summons he had claimed the sum of N130,000.00 as debt owed him by the respondent and the learned trial Judge refused to grant the respondent leave to defend on the ground that he had no defence on the merit; the only issue raised in this appeal is whether he could reduce the appellant’s claim of N130,000.00 to the sum of N100,000.00 after holding that the respondent has no defence to the action.

The learned trial Judge in his ruling at page 27 of the records observed as follows:

“It is my strong view that the defendant has no defence to this suit. I would however, like to give the defendant the benefit of doubt and accept, without proof, that defendant actually spent money to change engine oil and replaced the alternator as reflected in defendant’s first letter to the plaintiff. The defendant is allowed a right of set-off in this action which I asses (sic) at thirty thousand Naira (N30, 000.00)only.”

It can be seen that this finding can be very easily faulted. If the learned trial Judge finds that the respondent has no defence to appellant’s suit which has been placed under the Undefended list under Order 23 Rule 1 of High Court (Civil Procedure) Rules 1987, he has no option other than to enter judgment for the appellant for the sum of money that he claims which is N130, 000.00 and this would have been the end of the matter.

The provisions of Order 23 are very clear and unequivocal.

Order 23 Rule 1 States:

“Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstance of the particular case.”

Order 23 Rule 3 states:

“3(1) If the party served with the writ of summons and affidavit delivers to the registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the Ordinary Cause list and the court may order pleadings, or proceed to hearing without further pleadings.”

If the respondent has no defence to the suit, how can a court give a defendant a benefit of doubt and accept that he had actually spent some money which he had failed to prove. It must be emphasised that a court of law acts on the facts placed before it which are proved by evidence adduced by the party which asserts the affirmative and if such a party adduces evidence which the court finds that it has not met the required standard of proof which is on the balance of probabilities in this matter which is civil, it must refuse the claim as it has not been proved.

It is settled law that it is not proper for a court to draw conclusions other than those based on evidence. See Grace Abraham Akpabio & Ors. v The State (1994) 7-8 SCNJ 429 or (1994) 7 NWLR (Pt. 359) 635.

In Mohammed v. The State (1997) 9 NWLR (Pt. 520) 169 at 223, Iguh, JSC observed:

” … neither in a criminal cause nor in a civil action is it the function of a court, whether a trial or appellate court, by its own exercise or ingenuity to supply or arrive at evidence or work out a possible answer which only evidence tested under cross-examination could supply or to speculate on possibilities which are not supported by evidence. See The State v. Ibong Okoko & Anor. (1964) 1 ALL NLR 423; Iteshi Onwe v. The State (1975) 9-11 SC 23 at 31-32; George Ikenye & Anor. v. Akpala Ofune & Ors. (1985) 2 NWLR (Pt. 5) 1.”

It is pertinent to observe that the expression “the benefit of doubt” is only known in the criminal law and there is nothing like that in the civil procedure and the learned trial Judge was therefore in a very serious error to invoke it as a means to reduce the appellant’s claim when he had already found that the respondent has no defence.

The respondent’s contention is that he had spent the sum of N38, 000.00 but most surprisingly, the learned trial Judge reduced the appellant’s claim by N30,000.00 and not by N38,000.00 which the respondent said that he spent to change the engine oil and to replace the alternator. He did not say how he came about that amount.

Mr Obono-Obla in the appellant’s brief of argument had submitted that the learned trial Judge in his judgment seems to be suggesting that when he reduced the claim of the appellant from N 130,000.00 to N100, 000.00 that it was on the basis that the respondent had established a set-off claim against the appellant and that there was no basis for a set-off as regards the facts and the circumstances of the case. I entirely agree with him because if the learned trial Judge had found that there is a set-off or a counterclaim, he would have removed the action from the Undefended list and place it on the Ordinary Cause list and then order pleadings or proceed to hearing without further pleadings as prescribed by Order 23 Rule 3 (2) of the Rules.

No doubt, the learned trial Judge had contradicted himself because reducing the amount claimed by the appellant shows that the respondent has a counter-claim or set-off while he had already found that the respondent had no defence to the appellant’s claim. I am of the view that there is merit in the appeal and that it ought to be allowed.

In the result, I allow the appeal. I set aside the part of the judgment reducing the appellant’s claim from N130,000.00 to N 100,000.00 and in its place, I hereby enter judgment for the appellant for the sum of N130,000.00. There will be N3,500.00 costs in appellant’s favour.

Other Citations: (2001)LCN/1050(CA)