Job S. Akingbade V. African Paints (Nig.) Plc (2008)
LawGlobal-Hub Lead Judgment Report
ABOKI, J.C.A.
This Appeal is against the judgment of the F.C.T. High Court of Justice, Bwari Judicial Division, Zuba, delivered on 22/7/2004 by O.O. Goodluck, J.
The lower court on 5th February, 2004 granted leave to the plaintiff/respondent to issue the writ of summons in this matter under the Undefended list pursuant to Order 3 rule 1 of the High Court of FCT, Abuja (Civil Procedure) Rules. The matter was adjourned to 29th March, 2004 for hearing. The defendant/appellant after acknowledgement of service of the court process filed a memorandum of appearance dated 20th April, 2004. On the hearing date, the matter was adjourned at the instance of the defendant/appellant. The court granted two further adjournments to enable the parties settle their differences out of court. When settlement out of court became impossible, parties agreed on 27th May, 2004 to take a date, 29th June, 2004 for hearing. On the said date, counsel for the defendant/appellant asked for another adjournment to 13th July, 2004 to enable him file his defence. The court ordered that the plaintiff was at liberty to move his application for judgment on the adjourned date if the defendant did not take appropriate step to regularize his defence. Instead of filing his defence, the defendant/appellant filed a notice of preliminary objection dated 1st July, 2004.
On 13th July, 2004, the court heard arguments on the notice of preliminary objection and same was overruled. The plaintiff/respondent renewed its application for judgment and it was heard pursuant to Order 21 rule 4.
It was only after the matter had been heard on 13th July, 2004 and adjourned to 22nd July, 2004 for judgment that the defendant/appellant filed on 15th July, 2004 a motion on notice for extension of time to file his defence out of time.
The learned trial Judge granted in the judgment all the claims of the plaintiff/respondent. The trial court specifically stated that the defendant/appellant did not file his notice of intention to defend as prescribed by Order 21 rule 3 of the High Court (Civil Procedure) Rules of FCT.
It is against the judgment that the defendant/appellant has now appealed.
A lone issue has been formulated for determination on behalf of the defendant/appellant and it reads:
“Was the learned trial Judge right in entering judgment for the plaintiff despite the weighty notice of intention to defence filed by the defendant?”
The respondent submitted one issue also for determination in this appeal thus:
“Whether the learned trial Judge was right to have entered judgment in this case in favour of the respondent herein all the circumstances?”
Both issues presented by the parties are similar in content, I will however prefer to adopt the issues as couched by the respondent with a little modification to read as follows:
“Whether in the circumstance of this case the learned trial Judge was not right to have entered judgment in favour of the respondent.”
It has been argued on behalf of the appellant that after the learned trial Judge had verbally granted the appellant an order that notice of intention to defend be deemed as properly filed and served, the court never alluded, in the final judgment, to the notice of intention to defend filed by the defendant/appellant, let alone the supporting affidavit which contained a counter-claim against the respondent. Learned counsel for the appellant argued that this approach of the trial court is tantamount to an outright rejection of the notice of intention to defend.
The learned trial Judge, it was further argued, erred in entering judgment. Learned counsel submitted that by not considering the defence of the appellant, the learned trial Judge violated the appellant’s right to fair hearing as guaranteed by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
Learned counsel for the appellant contended that the learned trial Judge was in error to have made volte-face. He contended that the learned trial Judge cannot in one breadth grant the appellant’s permission to defend, and in another, enter judgment against the same litigant under the Undefended List. Learned counsel insisted that since the notice of intention to defend has succeeded, what the learned Judge ought to have done was to direct the parties to call evidence in the wake of placing the suit on the General Cause List. He argued the failure of the learned trial Judge to do this before proceeding to judgment for the respondent immediately has denied the appellant the right to fair hearing.
Learned counsel for the appellant contended that the refusal by the learned trial Judge to determine the said motion on notice was another breach of the appellant’s constitutional right to fair hearing and this contravened section 36 (c) of the constitution of the Federal Republic of Nigeria. He referred the Court to the cases of: Okoro v. Okoro (1998) 3 NWLR (Pt. 540) pg 65; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) pg 587; Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) pg 909; Adigun v. A-G. Oyo State (1987) 2 NWLR (Pt. 56) pg 197; Nigeria Arab Bank Ltd. v. Comex Ltd. (1999) 6 NWLR (Pt.608) pg 648; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt. 594) pg 170.
The error committed by the learned trial Judge, learned counsel maintained has gone into the fundamental issue of jurisdiction of the trial court. Learned counsel argued that this procedural error was thus invested with the attribute of divesting the trial court of jurisdiction. He submitted that it is trite law that if a court lacks jurisdiction and proceeds to adjudicate on the matter placed before it, the proceedings, no matter how well concluded, will thereafter be a nullity. The court was referred to the cases of: Ajakaiye v. Military Governor of Bendel State (1993) SCNJ 242; (reported as Omakhafe V. Esekhomo (1993) 8 NWLR (Pt.309) 58; Macfoy v. U.A.C. (1961) 3 All ER 1169; Madukolu v. Nkemdilim (1962) 1 SCNJ 341; (1962) 2 SCNLR 341; Ogbanu v. Oti (2000) 8 NWLR (Pt. 670) pg 582.
Learned counsel for the appellant urged the court to allow the appeal and set aside the judgment of the trial court.
In response on behalf of the respondent, learned counsel argued that the judgment was a thorough consideration of the suit on its merit, as the appellant had failed to file any defence despite the series of adjournment granted him to do so. Learned counsel referred the court to Order 21 rules 1-4 of the High Court of FCT (Civil Procedure) Rules, 2004 and submitted that the law dealing with Undefended List procedure is trite that a defendant served with a writ of summons filed under the Undefended List and an affidavit in support, who desires to defend is expected to deliver to the Registrar at least 5 days to the date fixed for hearing, a notice in writing of his intention to defend together with an affidavit disclosing a defence on the merit.
He contended that the conduct of the appellant in the matter was deliberately intended to defeat the aim of the Undefended list procedure, a procedure aimed at quick and summary disposal of cases where the facts so permit. He maintained that the conduct of the appellant was not in tandem with the spirit and intendment of Order 21 rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
Learned counsel referred the Court to the case of Agueze v. Pan African Bank Ltd (1992) 4 NWLR (Pt. 233) page 76.
He argued that under the Rule, a defendant on whom a writ of summons and affidavit have been served, where he considers he has a valid defence to the suit, is under a duty to file and serve on the plaintiff, a notice of intention to defend with supporting affidavit at least 5 days to the day fixed for hearing of the suit.
Learned counsel for the respondent maintained that the appellant failed to comply with the provisions of Order 21 rules 1 to 4 of High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 and that he filed a motion on notice seeking for extension of time to file the defence after the suit has been heard and the court had adjourned for judgment. He referred the court to the case of Ben Thomas Hotel Ltd. Sebi Furniture Co. Ltd (1989) 5 NWLR (Pt.123) pg 523.
It has been submitted on behalf of the respondent that if the appellant had filed the motion on notice with the attached notice of intention to defend and affidavit in support before the date the application was heard, the court would have rightly in entering judgment for the plaintiff on the date the case was adjourned for judgment, as there was no validly filed notice of intention to defend before it.
Learned counsel for the respondent contended that assuming but without conceding that the trial court failed to consider the notice of intention to defend and the affidavit filed by the appellant, he urged the court to invoke its powers under section 16 of the Court of Appeal Act, to consider the contents of the said affidavit and determine if it disclosed a defence on the merit to the respondent’s suit. He urged the court to also examine the conduct of the appellant all through the proceedings and determine whether he was not given opportunity to be heard and he fluffed it away. Learned counsel further urged the court to hold that the averments in paragraphs 4 and 5 of the appellant’s affidavit in support of his proposed notice of intention to defend has not disclose a defence on merit as required by the Rules.
The averments in the said affidavit, he argued, raised as defence to the suit a counter-claim founded on alleged wrongful dismissal.
Significantly, he maintain that the defence of wrongful dismissal does not fall within the purview of Order 21 rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules which provide for claims founded on liquidated money demands. The Court was referred to the cases of: Maley v. Isah (2000) 5 NWLR (Pt. 658) pg 651; Kabiru v. Ibrahim (2004) 2 NWLR (Pt.857) pg 326 at 351.
It was submitted on behalf of the respondent that the claim being a clearly defined debt in respect of which the circumstances leading to it have been clearly stated with documentary evidence in the respondent’s affidavit, to raise a valid defence to it, the appellant is under a duty to condescend to particulars in denial of the debt in his affidavit. He argued that that is the expected form of denial under the Undefended List Procedure. The court was referred to the cases of: Diamond Bank (Nig.) Ltd. v. GSM Agro Allied Ltd. (1999) 8 NWLR (Pt. 616) pg 558; Jos North L. G. v. Daniyan (2000) 10 NWLR (Pt. 675) pg 281.
Learned counsel for the respondent argued that the issues raised in the counter-claim as defences namely wrongful dismissal from employment, alleged failure of Police to investigate the appellant over the respondent’s misappropriated monies, all allegation of the respondent being vicariously liable for the negligence of the appellant in his official duties, claim for general damages and special damages for wrongful dismissal from service are tortuous/contractual wrongs that ought to be ventilated in a distinct civil action and therefore not cognisable as defence under Order 21 rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
It has been contended on behalf of the respondent that the defence raised by the appellant in his affidavit shows a defence that was half-hearted, vague and sweeping assertions aimed at drawing the respondent into an improper time wasting hearing and against the spirit and intendment of Order 21 rules 1 to 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
Learned counsel maintained that the intention of the appellant to waste the time of the court becomes more glaring when it is remembered that the appellant after being served with the respondent’s writ of summons and affidavit, rather than defend the suit squarely by filing his notice of intention to defend with the affidavit as required by the Rules embarked upon time wasting antics, like asking for adjournments and when this could no longer avail, he embarked upon voyage of preliminary objection and that it was only when he lost out this too, that he reluctantly filed the motion on notice for extension of time after the suit has been heard.
Learned counsel maintained that the kind of attitude demonstrated by the appellant has been deprecated by the court in the case of: Alale v. Olu (2001) 7 NWLR (Pt. 711) pg 119 at 129.
Learned counsel for the respondent urged the court to find that the failure of the trial court to consider the notice of intention to defend and affidavit in support does not in anyway lead to a miscarriage of justice as the supporting affidavit does not disclose a defence on the merit as required by Order 21 rule 1 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004.
He maintained that the conduct of the appellant during the proceedings in the trial court was that he never wanted the case to be heard.
He insisted that all the opportunities given/available to the appellant to file his defence on 29th June, 2004 and 13th July, 2004 before the application for judgment to be entered for the respondent was heard, were glossed over by the appellant. Learned counsel submitted that it is trite that a party who is given an opportunity to be heard in a case but chooses or fails to make use of the opportunity cannot turn back later to complain of denial of fair hearing. He referred the court to the cases of: Abia State Transport Corporation v. Quorum Consortium Ltd. (2004) 1 NWLR (Pt. 855) pg 601; Mohammed v. Kano Native Authority (1968) 1 ALL NLR 424.
Learned counsel for the respondent urged the court to discountenance the reliefs sought in this appeal and dismiss the appeal with heavy cost.
The matter giving rise to the appeal was commenced under the undefended list procedure pursuant to Order 21 rule 3 (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules.
Order 21 rules 3 (1) and 4 are pertinent and they are adumbrated as follows:
“3(1) Where a party served with the writ delivers to a Registrar, within 5 days to the day fixed for hearing, 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.
- Where a defendant neglects to deliver the notice of defence and an affidavit prescribed by Rule 3 (1) or is not given leave to defend by the Court, the suit shall be heard as an undefended suit and judgment given accordingly.”
In the present case, the defendant/appellant after receiving the writ of summon together with an affidavit stating the grounds in which the claim is based and stating that the deponent’s belief, there is no defence to it, the defendant/appellant instead of filing a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, choose to file a memorandum of appearance dated 20th April, 2004. Therefore on 13th July, 2004, he again filed a notice of preliminary objection.
The trial Court heard the preliminary objection on 15th July, 2004 and same was dismissed, an application for judgment was moved immediately by plaintiff/respondent which the trial court entertained and judgment was adjourned to 22nd July, 2004.
After the court adjourned for judgment, the defendant/appellant filed a motion on notice seeking for the following reliefs:
“1. LEAVE of Court to file NOTICE OF INTENTION TO DEFEND and the supporting AFFIDAVIT out of time.
- AN ORDER that the NOTICE OF INTENTION TO DEFEND be deemed as properly filed and served.
- AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstance.”
The defendant/appellant concedes that he was out of the 5 days which he was required by Order 21 rule 3 (1) to file his notice of intention to defend. He was to file the notice of intention to defend on 24th March, 2004 which is five days to the day fixed for hearing of the suit. The suit was earlier fixed for hearing on 29th March, 2004.
The defendant/ appellant only filed an application for leave to file the notice of intention to defend, 15th July, 2004.
The defendant/appellant was in default in filing his notice of intention to defend for 112 days calculated as follows:
March – 6 days
April – 30 days
May – 31 days
June – 30 days
July – 15 days
Total – 112 days
The reason for the default in filing a defence was given in the affidavit in support of the application for leave to file the notice of intention to defend out of time at page 12 of the record of appeal as follows:
“4 In the course of the performance of my duties on 13/7/07, at about 4.00 p.m., the applicant and Femi Wewe, Esq. of the above mentioned chambers informed me and I verily believed them to believe to the best of my knowledge that:
(a) Suit No CV/722/04, served on the applicant on 14/4/04 was delivered to the chambers on 19/4/04 for necessary action so as to defend the suit.
(b) The litigant’s counsel immediately went into a fairly protracted negotiation, in consultation with and on behalf of their principals for the purpose of settling dispute out of Court, but the negotiation has latterly broken down irretrievably.
(c) Femi Wewe, Esq. of counsel to the applicant specifically informed me, and I verily believe him, that there was need to seek leave of this Honourable Court to file the notice of intention to defend out of time.
(d) And such Intention to Defend and the supporting Affidavit will be incompetent if leave is not sought and obtained in accordance with the FCT High Court (Civil Procedure) Rules.
(e) The proposed Intention to Defend and the supporting Affidavit are hereby marked as exhibits A and B.”
I am of the opinion that these depositions are not sufficient and cogent enough reason to entertain the defendant/appellant’s application to rectify a default for which he had neglected for 112 days.
I am not unmindful that the submission of counsel however brilliant and inviting it may be, cannot occupy the seat or take the place of evidence in adjudication. However, because of an important legal issue raised by counsel, it will be pertinent to reproduce the submission of counsel to the appellant on page 2 paragraphs 4.03 and page 3 paragraphs 5.03.
“4.03: On the following adjournment date, i.e. 221712004, after the appellant’s counsel had moved the motion on notice with leave of court, the learned trial judge granted both reliefs verbally.
5.03: .. In the instant case, the afore-mentioned motion on notice, seeking leave to file and served the notice of intention to defend, was actually moved and granted by the learned trial Judge on 22/7/2004.
Learned counsel for the appellant had not indicated in the appellant’s brief of argument where the trial Judge entertained the said motion on notice seeking leave to file and serve the notice of intention to defend out of time. I have searched and clearly perused all the 29 pages of the record of proceedings of this appeal to see where the said proceeding mentioned by counsel was recorded but in vain.
The irresistible conclusion I have arrived is that nothing of such happened at the trial court.
There is no provision in any law or rule of court that grants any court of law in Nigeria, the discretion to deliver its decision or grant any relief verbally.
In fact, the provisions of section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 emphatically states:
“Every Court established under this constitution shall – deliver its decision in writing … ”
It follows therefore, that any court established under the constitution of the Federal Republic of Nigeria, 1999 which delivers its decision or grant any relief verbally will be violating the provision of the Constitution.
In the judgment of the trial court at page 23 of the record of appeal, the learned trial Judge was correct in his view when he said:
“Lastly, it is my view that this Court was acting within duty and pursuant to Order 23 rule 3 and 4 High Court FCT, Civil Procedure Rules when it proceeded to judgment herein. It was in this regard that I slated this case for hearing following the failure of the defendant’s counsel to file his notice of intention to defend as prescribed by Order 21 rule 3 of the High Court (Civil Procedure) Rule.”
This opinion of mine is supported by decision of the Supreme Court in Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt. 123) pg 523 at 529 Eso JSC said:
” When a case entered on the “Undefended List” comes to court on the return date, the court has one and only one duty: namely to see whether the defendant has filed a notice of intention to defend and an affidavit. If no such notice and affidavit has bee filed within five days before the return date, the court has no choice on the matter but to proceed judgment.”
The filing of the motion on notice for leave to file his notice of intention to defend the suit out of time, after it has been heard and adjourned for judgment is a deceptive method of inviting the court to set aside its decision.
It is trite that a defendant applying to set aside a judgment in an Undefended action must swear to an affidavit that he has a good defence to the action and should be allowed to defend and give an indication as to what such a defence would be. In the affidavit in support of the motion on notice seeking leave of court to file notice of intention to defend and the supporting affidavit out of time contained in pages 12-13 of the record of appeal, it has been deposed in paragraph 4 (e) of the said affidavit that the proposed intention to defend and the supporting affidavit are marked as exhibits A and B attached to the application,
The said affidavit in support of Intention to Defend marked as exhibit B is on page 15 of the record of appeal.
Learned counsel for the respondent has invited the court to invoke the powers conferred on it by section 16 of the court of Appeal Act to consider the contents of the said affidavit and determine if it disclosed a defence on the merit to respondent’s suit, assuming but not conceding that the trial court failed to consider the notice of intention to defend and affidavit filed by the appellant.
The court is urged to also examine the conduct of the appellant all through the proceedings and determine whether he was not given opportunity to be heard and he fluffed it away. These invitations made by the respondent to the court are very attractive and are accepted by the court. The endorsement made on the writ reads:
“The plaintiff claim:
- The sum of N767,472.00 (Seven Hundred and Sixty Seven thousand, Four Hundred and Seventy Two Naira) being unpaid debt owed by the defendant to the plaintiff.
Interest on the above sum at the rate of 10% per annum from date of judgment till liquidation.
- Cost of this suit.”
The evidence in support of this claim are contained in the affidavit is support of motion ex-parte to place the suit of the plaintiff under the Undefended List at pages 2-3 of the Record of Appeal.
Paragraph 4 of the said affidavit in support is pertinent and it is reproduced thus:
“4 That Mr. Deji Afeni, the Audit Manager to the applicant company informed me in the course of my duties in my office the above mentioned chambers on Friday the 23rd of January, 2004 at about 2.00 p.m. and I verily believe to be true and correct as follows:
(a) That the defendant/respondent was an employee of the applicant wherein he held the post of Resident Stock Manager (North East). –
(b) That in that position, it was his responsibility to oversee the stock of paints of the applicant in their various Depots in the North Eastern part of Nigeria and Abuja.
(c) That in the course of his duty, the respondent misappropriated proceeds realized from sale of stock of paints aforesaid under his care to the tune of N977 ,471.61 (Nine Hundred and Seventy Seven Thousand, Four Hundred and Seventy One Naira, Sixty One Kobo).
(d) That for this, he was made to appear before a disciplinary committee set up by the applicant where he admitted misappropriating the sum aforesaid.
(e) That apart from admitting the misappropriation as aforesaid, he made proposals to the Disciplinary committee on how he hoped to pay off the money. I attach hereto a copy of the proposals as encapsulated in the chairman of committee’s letter to him marked exhibit “A”.
(f) That he subsequently paid to the applicant the sum of N210,000 (Two Hundred and Ten Thousand Naira) in partial liquidation of the money aforesaid leaving unpaid a balance of N764,472.00 (Seven Hundred and Sixty four Thousand, Four Hundred and Seventy Two Naira).
(g) That by a letter to the applicant dated the 24th of March, 2003 he not only further admitted misappropriating the sum said above, mentioned but also to hand over his plot of land at Kuje, Abuja in further liquidation of the debt. I attach hereto a copy of the letter marked exhibit “B”.
(h) That despite these proposals and promises, the respondent has neither handed over the original copy of the title deeds of the land aforesaid nor paid up the balance of the debt as staled in paragraph (f) hereof.
(i) That despite repeated demands, he has failed, neglected and/or refused to payoff the balance aforesaid.
(j) That the respondent has no defence to this suit.”
Exhibit “A” referred to in paragraph 4 (e) reads as follows:
AFRICAN PAINTS NIG. PLC
IKEJA
FROM: Chairman, Disciplinary Committee
TO: RSM (N/E) – Mr. Job Akingbade
CC: Chairman, MD, ED, GMO
DATE: 12th December, 2002
RE: MISAPPROPRIATION OF STOCK
We refer to your last appearance before the Disciplinary Committee of African Paints Nig. Plc on allegation of misappropriation of stock at the Abuja Depot to the tune of N977,47 1.61.
Under cross-examination you pleaded guilty to charge and subsequently requested the management to give you another chance to amend your ways and repay the total sum involved. Consequently, the management has accepted your repayment proposals as follows:
a. Salary deduction 6 months at November, 2002 – April 2003 – N120,000.00
b. Contribution from your relative between December and January, 2003 – N40,000.00
c. January, 2003 cash payment – N200,000.00
d. March 2003 ” ” N200,000.00
e. Sale of property (Land) N150,000.00
f. April 2003 cash payment N50,000.00
g. May, 2003 cash payment N100,000.00
h. June, 2003 ” ” N117,471.71
N977,471.61
You are therefore enjoined to abide strictly with the payment proposal and ensure that you do not give any wrong impression.
Moreover, you are advised to henceforth conduct yourself properly so as not to allow a repeat performance of such gross misconduct.
SGD:
S.O. ELLIOT
Exhibit “B” is a letter from the appellant to the respondent referred to in paragraph 4 (g) of the affidavit in support and it is reproduced thus:
AFRICAN PAINTS (NIG.) PLC
Cc: M.D. file Date: 24/3/03
ABUJA
To: GM (Finance & Admin)
From: RSM NIE: J.S. Akingbade
Cc: Chairman, MD, ED, File
RE-N977,471.00 MISAPPROPRIATED STOCK AT ABUJA
DEPOT
Following the situation in the country which affected me to meet up the payment, I suggested to release my landed property in Kuje so as to reduce the payment. The land is in Kuje; an estate surveyor has costed it to be 200,000 – 300,000. It is of my opinion to hand over and for the company estate agent to qualify the said amount. I enclosed the attached document for immediate action.
Thank for your consideration.
Sgd:
J.S. Akingbade
I have earlier said in the judgment that the defendant/appellant’s defence to the claim is contained in exhibit “B” attached to the supporting affidavit of the proposed notice of intention to defend.
Paragraph 4 is in pari materia to this appeal and it is adumbrated as follows:
AFFIDAVIT IN SUPPORT OF INTENTION TO DEFEND
I, Adunbi Ahgo, a Nigerian, female and Christian, of FEMI CHAMBERS, plot 1235, Sapele Street, Garki 2 – F.C.T., hereby make oath and solemnly declare that:
- I am the Litigation Secretary in FEMI CHAMBERS, solicitors to the defendant.
- By virtue of my official duties in the Chambers, I am conversant with the facts of this suit.
- I have the consent of both the defendant and my employer to depose to this affidavit.
- Femi Wewe, Esq., of counsel to the defendant, informed me and I verily believe him to be true to the best of my knowledge, that:
(a) The defendant has a counter-claim against the plaintiff.
(b) The particulars of the counter-claim are:
(i) Wrongful dismissal arising from the letter of dismissal, dated 23rd September, 2003. This letter is hereby attached as annexure A.
(ii) That the allegation against the defendant is criminal in nature.
(iii) That the defendant was not investigated by the Police or by any other law enforcement agency, regarding the alleged misappropriation of his.
(iv) That the defendant has been surcharged to the tune of N210,000.00 without any Police investigation or any other law enforcement agency regarding the alleged misappropriation.
(v) That the defendant did not misappropriate any company funds; he was, in fact, never in charge of funds see, e.g., annexure B and C.
(vi) That it was the plaintiff that unilaterally accused him and started deducting his monthly entitlements. Here, the defendant relies on the maxim Ilema judex ill causa sua.
(vii) That the plaintiff is vicariously liable for the negligence of the defendant in the course of his official duties – respondent superior.
(viii) The defendant hereby claims refund of his N210,000.00. The defendant also counter-claim the sum of N1.5m as general damages, and N1m as special damages for his wrongful dismissal from service.
A suit under the Undefended List procedure is a claim founded on liquidated money demands.
In Maley v. Isah (2000) 5 NWLR (Pt. 658) pg 651, liquidated money demand has been defined thus:
“A liquidated money demand includes a debt and means a specific amount which accrued in favour of the plaintiff from the defendant.”
See: Kabiru v. Ibrahim (2004) 2 NWLR (Pt. 857) pg 326 at 351.
In a suit under the Undefended List procedure, to raise a valid defence to it, the appellant is under a duty to give specific details and particulars in denial of the debt in his affidavit. See: Franchal Nigeria Ltd. P. Nigeria Arab Bank Ltd. (1995) 8 NWLR (Pt. 412) pg 176 at 188; Diamond Bank (Nig.) Ltd. P. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt. 616) pg 558.
The defence must not be a half-hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place.
It is not enough for the defendant merely to deny the claim; the defence must be on the merit.
In the present case, the defence of the defendant/appellant has not rebutted the claims of the plaintiff/respondent. For instance, it is the defence of the defendant/appellant that he was wrongfully dismissed by the respondent: however he has not disclosed how his dismissal from the services of the respondent was wrongful or how it is an answer to his indebtedness to the respondent.
It is also the defence of the defendant/appellant that the allegation against him was criminal in nature. This assertion as it is, is no answer to the plaintiff’s claim for payment of the debt being owed to it by the appellant.
The defence of the defendant/appellant that he had been surcharged to the tune of N210,000.00 is not supported by any documentary evidence as to the time, by whom, place, and circumstances in which the alleged surcharge was made. It is a mere vague assertion without particulars.
It is the defence of the defendant/appellant that the plaintiff/respondent unilaterally accused him and started deducting his monthly entitlements but it was neither supported by any document showing how and when such deductions were made.
The claims of the defendant/appellant for general damages and special damages for wrongful dismissal from service are tortuous/contractual wrongs, which ought to be ventilated in a distinct civil action and therefore not a defence under Undefended List procedure. I have earlier said in this judgment that the appellant after receiving the Writ of Summons together with an affidavit stating that he had no defence to the plaintiff/respondent’s claim, instead of filing the notice of intention to defend supported by an affidavit, he filed a memorandum of appearance. He again filed a notice of preliminary objection, when all failed, he brought an application by way of a motion on notice seeking leave of the court to file his notice of intention to defend, 112 days after the time for filing the notice of intention to defend had elapsed, and after the matter has been heard and adjourned for judgment.
It is very clear from the conduct of the appellant that he had no credible defence to offer against the claim of the respondent, rather than submit to judgment, he choose to embark on a scheme to waste the time of the court and to delay the respondent from obtaining the justice he richly deserved.
This type of attitude or conduct has been deprecated in the case of Alale v. Olu (2001) 7 NWLR (Pt. 711) Pg 119 at 129.
Mahmud Mohammed, JCA (as he then was) said:
“In the present case however, the appellant was properly served before the undefended suit was heard and judgment delivered against the appellant and the other two defendants. On the whole therefore, the proceedings of the lower Court leading to judgment against appellant were not in breach of the appellant’s right to fair hearing when the appellant in flagrant disregard of the rules decided to raise an objection at the hearing of the suit rather than filing notice of intention to defend. Although the law is trite that in the determination of the civil rights and obligations before the Court, a party to the litigation is entitle to be heard as enshrined in section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 as was decided in Adigun v. Attorney-General of Oyo State (J 987) 2 NWLR (Pt. 56) pg 197; the fundamental requirement of our adversary system of administration of justice otherwise known as the audi alteram partem principle requiring the hearing of both sides in a case before judgment, has no application in cases tried under the undefended list where special procedure is prescribed for the quick dispensation of justice”.
It is clear from the circumstances of this matter that the failure of the trial court to consider the notice of intention to defend and the affidavit in support does not in anyway occasion a miscarriage of justice as there was nothing to consider at the time the court adjourned for judgment.
I have perused the proposed notice of intention to defend and the affidavit in support; it does not contain a defence on the merit as required by Order 21 rule 3 (1) of the High Court of the Federal Capital Territory (Civil Procedure) Rules.
The learned trial Judge was right to have entered judgment against the defendant/appellant pursuant to Order 21 rule 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, when the defendant/respondent neglected to deliver the Notice to Defend supported by an affidavit disclosing a defence on the merit.
The appellant had alleged in his brief of argument that he was denied fair hearing and that the provision of section 36 (1) of the Constitution of the Federal Republic of Nigeria, I999 was thus contravened.
The fundamental basis underlying the principle of fair hearing is the doctrine of “audi alteram partem” which means hear the other side. However, fair hearing is nothing short of an opportunity to be heard.
In the instant case, the appellant was given an opportunity to be heard but he neglected to seize the opportunity to be heard, he cannot therefore complain that the court did not accord him fair hearing. See:
Ogene v. Ogene (2008) 2 NWLR (Pt. 1070) pg 29 at 44; Abia State Transport Corporation v. Quorum Consortium Ltd. (2004) 1 NWLR (Pt. 855) pg. 601 at 632-633; Onyekwuluje v. Benue State Government (2005) 8 NWLR (Pt.928) pg. 614; Akande v. State (1988) 3 NWLR (Pt. 85) pg. 681; Mohammed v. Kano N.A. (1968) 1 All NLR 424.
In the final analysis, this appeal lacks merit and it is hereby dismissed. The decision of the trial court delivered on 22nd July, 2004 is affirmed. N20,000.00 costs awarded in favour of the appellant against the respondent.
Other Citations: (2008)LCN/2661(CA)
