Masseken Nigeria Limited & Ors V. Mr. Ambile Amoaka & Anor (2007)
LawGlobal-Hub Lead Judgment Report
OLUFUNMILOLA OYELOLA ADEKEYE, J.C.A.
In the endorsement in the writ filed under the undefended list procedure the plaintiffs Mr. Ambile Amoaka and Mr. Tonab Dugwe claimed against the defendants Massken Nigeria Limited, Mrs. Alex Ononye and Surveyor Alex Ononye as follows –
“Whereof the plaintiffs claim from the defendants jointly and severally the sum of three million six hundred and fifty-five thousand naira plus 21% interest from January 2002 to date of judgment and thereafter same rate until judgment sum is finally liquidated.”
The plaintiff filed an eleven paragraph affidavit in support of the writ. The writ was deposed to by Abubakar Mohammed a litigation clerk in the law firm of the counsel appearing for the plaintiffs – Mr. M. P. Ibrahim Esq. The affidavit evidence revealed that the amount of indebtedness arose from an outstanding friendly loan of three million naira and various other sums of money collected by the defendants to the tune of six hundred and fifty-five thousand naira (N655, 000,00). The two documents attached as Exhibits A and B are a cheque for a sum of N3, 000,000 and a letter of demand.
The suit was placed on the undefended list while notice was served on the defendants to whom they reacted by filing notice of intention to defend and attached a 40 paragraph affidavit disclosing a defence on the merit. On the return date for hearing of this application, the court heard the submission of both parties.
The learned trial judge in her findings in the ruling delivered on 29/1/03 held that the defendants have not disclosed sufficient defence on the merits to persuade the court to send this suit to the General cause list. The defendants failed to lead evidence to disclose the source or essence of the cheque Exh. A with the plaintiffs. The court relied on this cheque as a proof of the transaction between the parties. The court thereafter gave judgment to the plaintiffs for the sum of N3million which according to her was the amount proved by the plaintiffs. She did not grant the interests requested for.
Dissatisfied with the judgment of the lower court the defendant now to be referred to as appellants appealed to this court.
Notice of Appeal with four grounds of appeal was filed.
At the hearing of the appeal the appellants adopted and relied on the appellants’ joint brief filed on 27/11/03. The appellants distilled three issues for determination from the four grounds of appeal which are:-
(1) Whether the learned trial judge was right when she decided the suit under, the undefended list by awarding the sum of three million naira to the plaintiffs
(2) Whether the defendants’ affidavit in support of Notice of Intention to defend the suit did not disclose a defence on the merit.
(3) Whether the trial court was right by considering the averments in paragraphs 3(c), (d), (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the undefended list procedure which are hearsay evidence by M. P. Ibrahim Esq.
The Respondents in their joint brief deemed filed on 18/5/06 settled issues for determination which are:-
(a) Whether the learned trial judge was right when he decided the suit under the undefended list by awarding the sum of three million Naira to the plaintiffs/ respondents.
(b) Whether the defendants placed before the trial court an affidavit disclosing a defence on merit.
(c) Whether, the trial court was right by considering the averments in the affidavit of Abubakar Mohammed which was in support of the application under the undefended list.
Since the parties raised similar issues the court shall now proceed to consider them seriatim.
The appellant filed a reply brief in this appeal.
I am duty bound to point that a reply is only required where a Respondent invoked Order 3 Rule 15(1) of the Court of Appeal Rules 2002 to raise a preliminary objection and same is incorporated in the Respondents brief.
This is to enable the opposite party that is the appellant from being taken by surprise and to give him an opportunity to react to the objection. The essence of a reply brief generally is to reply to a new issue of law raised in the Respondents brief. Although filing of a reply brief by an appellant is not mandatory in the sense of compulsion, where a respondents brief raises issues or points of law not covered in the appellants brief and appellant ought to file a reply in the interest of his case.
A reply brief should not be seen as an opportunity to re-argue or of having a second bite of the apple.
The reply brief filed, by the appellant is superfluous in the instance of this case.
Akinrinade V. Lawal 1996 2 NWLR pt 429 pg 218
Umeji V. A-G Imo State 1995 4 NWLR pt. 391 page 552
Nwali V. State 1991 3 NWLR pt. 182 pg 663
Popoola V. Adeyemo 1992 3 NWLR pt. 257 pg 1
E. I. I. A V. C. I. E. Ltd 2006 4 NWLR pt 969 P9 119
ISSUE NO. ONE
Whether the learned trial judge was right when he decided the suit under the undefended list by awarding the sum of three million naira?”
The appellants submitted that the trial court was wrong to enter judgment for the plaintiffs in the sum of three million naira since at this stage it is not the duty of the learned trial judge to come to the conclusion that the defence is not genuine or have not disclosed sufficient defence on the merit. The affidavit attached to the defendants’ notice of intention to defend under the undefended list was not mere denials but raised facts on which the court should hear evidence. No details of the date and documents relied upon to raise the loan for a whooping sum of three million naira. No particulars were tendered about the different times the defendants collected various sums of money to the tune of six hundred and fifty-five thousand naira. The facts in their affidavit did not show a prima facie case while the facts raised in the defence of the appellants disclose a defence on merit and a triable issue. Evidence would be heard only when the appellants are afforded the opportunity to give detailed evidence in defence of their case on merit.
The Respondent replied that the appellants must comply with the provisions of order 23 Rule 3(1) of the High Court of Federal capital Territory Rules for a matter to be transferred from the undefended list to the General cause list. The respondents averred that the appellants are indebted to them having collected various sum of money as a result of which the post dated cheque Exh. A was issued and was later dishonoured. The appellants failed to file any affidavit to disclose a defence on the merit. The judgment of the court was in compliance with Order 23 of the Rules of Court.
ISSUE NO. TWO
“Whether the defendants placed before the trial court an affidavit disclosing a defence on the merit.”
The appellants submitted that all the 40 paragraphs of the affidavit of the appellants in support of their notice of intention to defend this suit are materials which go to the root of the defence of the case. The deposition was signed by the 3rd defendant on the 26th of June 2002 at pg 17 of the record. The forty paragraph affidavit discloses a defence on the merit. The defendants are not expected to establish their case and it is not the duty of the learned trial judge to step into prove at that stage that the defendants have not disclosed sufficient defence on the merit to persuade the court to send this suit to the general cause list. Exh A is a contentious document in that it was written by the 2nd respondent. Facts before the court are hearsay as they were not derived from the respondent. The ruling must be set aside.
The appellants referred to the cases of –
UBA & OR V. Immarches Nig. Ltd. 2003 6 NWLR pt 817 pg. 529
Faro Bottling Co. Ltd. V. Lawrence Osaji 2002 1 NWLR pt 746 pg 311
Abubakar Dan Azumi V. Pan African Ltd. 19968 NWLR pt. 467 pg 462
The respondents submitted that the affidavit of the appellants disclosing a defence on merit was not signed by the deponent Surveyor Alex Ononye. Vide pages 8-11 of the supplementary record and pg. 28 lines 20-30 of the Record of Proceedings.
It is mandatory for a deponent to append his signature to an affidavit deposed to by him and where he failed to sign the affidavit no weight should be given to the affidavit. Section 90(F) of the Evidence Act Cap 112 Laws of the Federation 1990.
Non compliance is incurably bad with the combined effect of section 84 of the evidence Act.
Brifina Ltd. V. International Continental Bank Ltd. 2002 FWLR pt. 116 pg. 863
ISSUE NO. THREE
“Whether the trial court was right by considering the averments in paragraphs 3(c), (d) and (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed in support of the undefended list procedure which are hearsay evidence by M. P. Ibrahim.”
The appellants submitted that M. P. Ibrahim is not the plaintiff therefore paragraphs 3(c), (d) and (e), 4, 5, 7 and 8 of the respondents’ affidavit offend against sections 88 and 89 of the Evidence Act and ought to be struck out. The relevant portions of the affidavit are hearsay as they did not say with reasonable particulars the circumstances of obtaining the information. Reference was made by the appellants to the case of Harold Sodipo V. Lemninkainen & 1 or (No.2) 1986 1 NWLR pt 15 pg 223 and 231.
The respondent replied that the averments in the affidavit of Abubakar Mohammed is not hearsay as it is in compliance with sections 86, 88 and 89 of the Evidence Act. The informant, the place of the information and date of the information and circumstance of the information were stated. The information was given in the presence of the respondents and their counsel M. P. Ibrahim Esq. and they authorised the counsel to depose to the affidavit. Their affidavit disclosing a defence on the merit was not signed by the deponent. The court is urged to affirm the judgment of the lower court.
I have given a careful consideration to the submission of parties in this appeal. It is however apparent from the submission that issues numbers one and two are interwoven – I shall therefore consider them together. The major issues for determination arising from the facts of the case is what factors determine the transfer of a suit from the undefended list to the general cause list for the case to be determined and whether it was followed in this case and consequence of failure of the trial court to comply with the procedure.
Order 23 Rules (1) and (2) of the High Court of FCT Rules 1989 makes provision for trial under the undefended list procedure, if a matter is to be transferred from the undefended list to the General cause list the defendant has to comply with the provisions of Order 23 Rule 3(1) of the Rules. The court has the powers to hear the matter under the undefended list and enter judgment under Order 23 Rule (4) of the same FCT High Court Rules.
In this appeal – the claim of the plaintiff was for a sum of three million six hundred and fifty-five thousand naira (N3, 655,000,00) plus 21% interest to date of judgment and 21% interest till judgment sum is liquidated.
The source of the indebtedness was identified as friendly loans granted on various occasion. There were no documents in support of the request for the loan except a post dated cheque of N3, 000,000 (three million naira) issued by the appellants meant to be a repayment of the loan. The cheque was dishonoured, and the appellants failed to act upon the demand for the repayment of the loan made in Exh. B before the court a letter of demand hence the action before the trial court. The claim before the court is for a liquidated sum a debt due and payable, and the amount already ascertained by the plaintiff as N3, 655,000.00. The plaintiffs/respondents complied with the procedure under Order 23 Rules 1-2 of the FCT High Court Rules – while the matter was placed under the undefended list causes. Notice of this was served on the appellants by substituted means – This was received hence the appellants filed their notice of intention to defend the action and an affidavit disclosing a defence on the merit on the 26th of June 2002.
On the 15th of October 2002 which was the hearing date under the undefended list procedure. Counsel for both parties addressed the court based on their affidavit evidence, counsel for the Respondents in support of the undefended list procedure and counsel for the appellants in favour of the general cause list procedure. After examining the case of each party the court refused to transfer the suit to general cause list and determined the case under the undefended list procedure in compliance with Order 23 Rule 4 of the FCT High Court Rules.
The deponent in the affidavit in support of the Respondents claim in paragraphs 2 and 3 of same disclosed the source of his information in accordance with sections 86-89 of the Evidence Act. The affidavit disclosing a defence on the merit was equally signed by the deponent the 3rd appellant Vide pg 17 of the Record of Proceedings.
Besides the order of Court, Order 23 Rule 3(1), a plethora of court decisions gave guidelines for transferring a matter to the general cause list as follows:-
(a) There must be an intention to defend on the part of the defendant significantly borne out by the affidavit accompanying the notice to defend.
(b) The affidavit must contain such particulars which if proved could constitute a defence on the merit.
(c) The affidavit must deal specifically with the plaintiffs claim and what the defence is – facts and documents relied upon must also be clearly pleaded – in effect the affidavit must contain all facts and figures and documents in response to the plaintiffs claim.
The courts have reacted to the application to transfer a suit to the general cause list by refusing a mere general denial of the plaintiffs claim in a suit on the undefended list, and discountenancing a half hearted defence. Grounds for the application of transfer to general cause must not be frivolous, vague or designed to delay trial.
The learned trial judge on his part must be satisfied that there is a triable issue on the affidavit evidence or that is there is a prima facie defence or bona fide issue.
Zahleem International V Ofoma 2000 11 NWLR pt 679 pg 609
Ahmed V. Trade Bank Plc. 1997 10 NWLR pt. 524 pg. 290
ACA Ltd. V. Gwagwada (1994) 5 NWLR pt 342 pg 25
Pan Atlantic Shipping & Transport Agencies Ltd. V Rhein Mass GMBH (1997) 493 P9 248
However the ultimate success of the defence if transferred to the general cause list is not the determining Factor at this stage of the proceedings.
UBA V Immarches (Nig.) Ltd. 2003 6 NWLR pt 817 Pg 529
Befareen Pharmacy Ltd. V. African International Bank Ltd (2005) 17 NWLR pt 954 P9 230 at Pg 246
P. Eneji V International Transactions Ltd. 2000 11 NWLR pt 678 Pg 225 at Pg 232
It is however the discretion of the court to determine whether a suit shall be transferred to the general cause list, by properly scrutinising both the plaintiffs’ claims as well as the affidavit of the defendant filed in support of the notice of intention to defend the suit.
Such discretion must however be exercised judicially and judiciously while the trial court must employ a liberal view in scrutinising the affidavit of the defendant.
P. Ivan V. Bilante International Ltd. & Anor 1998 5 NWLR pt. 548 Pg 396
Ikpala Est. Hotels Ltd. V N.E.P.A. 2004 11 NWLR pt 884 Pg. 249 at Pg 270
I have looked at the affidavit filed by the appellants attached to the notice of intention to defend on the merit on pages 13-17 of the Record and I conclude that the facts amount to a mere denial of the respondents claim. There is no satisfactory explanation as to why the 3rd appellant issued the cheque Exh. A.
Most of the facts deposed to are irrelevant and extraneous in terms of the matter before the trial court. The facts deposed to are equally frivolous – they do not support or disclose a clear dispute or any triable issue between the parties which would necessitate a full trial in the general cause list. All the issues introduced about the relationship between the appellants and respondents are calculated to delay the trial. It is my conclusion that the learned trial judge had judiciously and judicially exercised her discretion in not acceding to transfer the suit to the general cause list. The law is that a discretion properly exercised by a trial or lower court will not be lightly interfered with by an appellate court even if the appellate court was of the view that it might have exercised the discretion differently.
Oyekanmi V. Nepa 2000 15 NWLR pt 960 P9 414
United spinners (Nig.) Ltd. V Chartered Bank Ltd. 2001 14 NWLR pt 732 P9 195
Nzeribe V. Dave Engineering Co. Ltd. 1994 8 NWLR pt 361 pg 124.
I agree also with her conclusion that only a sum of N3, 000,000 was established by the respondents, before the trial court.
Issues one and two are resolved in favour of the Respondents.
Issue No. Three
I have cleared this issue in the foregoing issue and discarded the appellants view that paragraphs 3(c), (d) and (e), 4, 5 and 8 of the affidavit of Abubakar Mohammed the deponent in the affidavit in support of the undefended list procedure are hearsay and hold that they are competent by virtue of sections 86-88 and 89 of the Evidence Act Cap 112 Laws of the Federation 1990. This issue is resolved in favour of the Respondents.
In the final analysis this appeal lacks merit and it is accordingly dismissed. Judgment of the lower court is hereby affirmed. N5, 000 Costs of this appeal is awarded in favour of the Respondents.
Other Citations: (2007)LCN/2176(CA)
