Mr Debo Kokoorin V. Patigi Local Government (2009)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A. OFR
This is an appeal against the ruling of R. O. Elelu-Habeeb, J. (as she then was) delivered on 26th October, 2006 in which the preliminary objection raised was sustained and the Writ of Summons filed on 28th September, 2005 for a cause of action which arose on 28th of June, 2001 was struck out in its entirety.
Brief antecedents of what culminated in the ruling (supra) are that plaintiff claimed against the defendant as follows:
“1. The sum of N615, 000.00 (sic) (Six Hundred and Fifteen Thousand Naira) only being the cost of the contract executed for the defendant by the plaintiff on 28/6/2001.
- Interest at the rate of 10% per annum on the judgment sum from the date of judgment until final liquidation.”
Subsequent to the filing of the Writ of Summons, the plaintiff sought and got the leave of the trial Court to place the action on an undefended list on 24th January, 2006.
The defendant on its part sought and got the leave of the Court of first instance to file a notice of its intention to defend the plaintiff’s action on the 5th of April, 2006.
Aside the defendant filing a notice of intention to defend the action, it also filed a notice of preliminary objection seeking the following reliefs:
“1. An order dismissing the claimant/respondent’s claim
- And for further order(s) as the court may seem just to make.
GROUNDS FOR THE APPLICATION
- The claimant’s claim is statute barred by virtue of Section 178 of the Local Government Law Cap 92 Laws of Kwara State, 1994.
- That even if the Hon. Court can entertain the claimant’s case, the averments (sic) contained in the supporting affidavit are not sufficient to support the claimant’s claim.”
It is apparent from the proceedings reproduced above that the issue of preliminary objection has been raised by the defendant.
It is trite to state that a Court in which preliminary objection is raised is duty bound to first express in writing whether it agrees with the preliminary objection or not. It is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court. It will amount to unfair hearing to ignore an objection raised by a party or his counsel against any step in the proceedings. See: NWANWATA V. ESUMEI (1998) 8 NWLR (PART 563) 650 AT 666; TAMBCO LEATHER WORKS LTD V. ABBEY (1998) 12 NWLR (PART 579) 548 AT 554; ONYEKWULUJE V. ANIMASAUN (1996) 3 NWLR (PART 439) 637 AT 644; ONYEKWULUNNE V. NDULUE (1997) 7 NWLR (PART 512) 250 AT 279.
The trial Court quite rightly dealt with the defendant’s preliminary objection at the earliest opportunity during the proceedings. It dealt with the said preliminary objection and held, inter alia, as follows:
“Based on the applicable law quoted supra, I am of the view that the case herein is statute barred by the said provisions of Section 178 of the Local Government Law Cap 92 Laws of Kwara State 1994.
This Court therefore lacks the jurisdiction to entertain this action.
The preliminary objection raised in the motion on notice is hereby upheld and this case is accordingly dismissed in its entirety.”
The plaintiff now the appellant was utterly dissatisfied with the ruling delivered on 26th October, 2006 and appealed to this Court on four grounds.
The appellant raised the following two issues from the grounds of appeal for the determination of the appeal:
“1. Whether the learned trial judge was right to have dismissed the appellant’s case without considering the arguments and issues of law urged on her on behalf of the appellant.
- Whether Section 178 of the Local Government Law Cap 92 of 1994, Kwara State is applicable to the facts of this case.”
The defendant now respondent adopted the two issues (supra) formulated for the determination of the instant appeal but went on to add one issue from the respondent’s notice which reads in part:
“TAKE NOTICE that the Respondent will at the hearing of this appeal contend that the decision of the High Court of Justice Ilorin, delivered… on the 26th day of October, 2006 be affirmed by this Hon. Court on grounds other than and/or in addition to the grounds upon which the claimant’s action is dismissed.
- Other grounds upon which the decision of the lower Court could be affirmed by the Court of Appeal (this Hon. Court).
- The decision of the learned trial judge can be sustained on the ground that the claimant’s action was not supported by cogent evidence of award of contract to her by the respondent. (Sic)”
The issue raised by the respondent from the respondent’s notice equally for the consideration of this appeal reads:
“Whether the appellant has established by affidavit evidence any contractual relationship between him and the respondent to entitle him to payment”.
At the hearing of the appeal on the 27th of March, 2009, Olu Adesina Esq., the learned counsel for the appellant adopted and relied on both the appellant’s brief and the appellant’s reply brief respectively filed on 23/11/2007 and 6/12/2007 and without any amplification urged the Court to allow the appeal.
M. Issa Esq., the learned counsel for the respondent adopted and relied on the respondent’s brief dated and filed on 9/10/2008 and deemed properly filed on 3/3/2009 and without any expatiation urged the Court to affirm the decision of the trial court and dismiss the appeal.
On issue No. 1, the learned counsel for the appellant submitted that the learned trial judge failed in her duty to act judicially and judiciously by not considering the arguments and points of law urged upon her in behalf of the appellant. From all indications he argued that the said trial Judge appeared to have made up her mind to dismiss the appellant’s case no matter what might be urged on his behalf including binding authorities of the higher Courts cited for consideration. He relied on the case of BASHIR M. DALHATU V. IBRAHIM SAMINU TURAKI & 6 ORS. (2003) 7 SCNJ 1 AT 12 where the Supreme Court said, inter alia, in respect of the conduct of a trial Judge by showing its disgust when it held:
“This Court is the highest and final Court of appeal in Nigeria. Its decision binds every Court, authority or person in Nigeria. By the doctrine of stare decisis, the Courts below are bound to follow the decision of the Supreme Court. The doctrine is sine qua non for certainty of the practice and appreciation of the law.”
The case of RABIATU ADEBAYO & ORS. V. RASHEED SHOGO (2005) 2 SCNJ 60 AT 66, the Supreme Court emphasized the need to consider all the issues put forward by the party or parties as failure to do so only amounts to bare faced injustice masqueraded as adjudication in a democratic society where the rule of law is specially given a prominent place in our body polity. It posited that where lies the justice where the cases made up by the contending parties are not put on the imaginary scale. Such a judgment is an affront to reason and intelligence and portrays inordinate desire to see nothing good in the party or respondent’s case.
Learned counsel contended that it is not the law that once limitation law is raised in any proceedings the Court must automatically throw in the towel. The Court as in the instant case has a duty to enquire into the case to enable it determine whether or not it has jurisdiction to entertain the claim. See: AGWUNA V. A. G. FEDERATION (1995) 5 NWLR (PART 396) 418 AT 432, 437-438. He further contended that the trial Judge would not have dismissed the appellant’s case if she had considered the written arguments of the appellant’s counsel especially the higher Courts’ decisions referred to her. This she failed to do so and it was wrong. She could distinguish the several judgments referred to from the case before her but not to blatantly close her eyes to those binding authorities. He argued, albeit hypothetically that the case of the appellant was statute barred, it was not the law for the learned trial judge to have dismissed it. He submitted that where a plaintiffs case is said to be statute barred, such finding goes to the jurisdiction of the court and denies its jurisdiction to determine the action and that the proper order to make in such a situation is to strike out and not dismiss it.
The learned counsel urged the Court to set aside the ruling of the learned trial Judge and look into the merit of this case and allow the appeal.
In response to Issue NO.1, the learned counsel for the respondent submitted that the refusal of the learned trial Judge to pronounce on some authorities submitted to it by the appellant has not occasioned any miscarriage of justice. He argued that since the consideration and pronouncement of Section 178 of the Local Government Law of Kwara State by the learned trial Judge was enough to dispose of the case, it would be needless for the trial Court to go into other issues as that would amount to academic exercise. He cited in support the case of PLATEAU STATE OF NIGERIA & ANOR. V. A.G. OF THE FEDERATION & ANOR. (2006) 1 S.C. (PART 1) 1 & 60. He submitted that the refusal of the learned trial Judge to consider other arguments did not occasion any miscarriage of justice and was not meant to slight the Supreme Court as submitted by the appellant who relied on the case of DALHATU V. TURAKI (supra). He further submitted that once a preliminary objection succeeds it may not be necessary for the Court to consider other issues and relied on the cases UNION BANK OF NIGERIA PLC. V. SOGUNRO & 2 ORS (2006) 7 SC (PART III) 119 AT 127. He therefore submitted that the order of dismissal of the suit by the learned trial Judge was most appropriate since issues have been joined by way of affidavit evidence.
I have carefully considered the submissions of the learned counsel for the appellant and the respondent and I observed that the crucial questions to ask are:
(i) Are there issues raised by the parties for in depth consideration by the trial court before the consideration of the preliminary objection raised by the respondent?
(ii) In the prevailing circumstances of this case is the invocation of Section 178 of the Local Government Law Cap. 92 Laws of Kwara State relevant?
As regards (i) above, I agree with the learned counsel for the appellant that there are vital facts disclosed in the several affidavits filed by the parties that ought to have agitated the mind of the trial Judge in considering whether or not there is a case before her that might necessitate the invocation of the principle of preliminary objection vis-a-vis limitation of action. In view of the sumptuous affidavit evidence on transactions that apparently bordered on contractual relationship as evidenced by exhibits A, B, C and D averred to by the appellant in his paragraph 12 of the appellant’s affidavit, the learned trial Judge, should, as a matter of bounden duty, have adverted her mind to them for especial consideration in order to find out if they are sufficient enough to ground a claim in debt or liquidated demand. Moreso when it is a case placed on the undefended list.
It is pertinent to state that the undefended list procedure is a special procedure being a truncated form of the ordinary civil hearing peculiar to Nigerian adversary system where in the ordinary case is rendered unnecessary due, in the main, to the absence of an issue to be tried or the quantum of the plaintiffs claim disputed, to necessitate such hearing. The procedure is designed to expedite the hearing of a suit for a debt or liquidated money demand and to ensure a quick dispensation of justice to prevent sham defences. See: OGBAEGBE V. F.R.N. PLC (2005) 18 NWLR (PART 957) 357 AT 363. What is utmost in this procedure is that the trial Court must be satisfied that the defendant has no defence before granting the claim of the plaintiff. It is from the arguments put forward by the parties that the Court will source its satisfaction. I agree with the learned counsel for the appellant that from the state of the record proceedings, the learned trial Judge, with due regard, failed in her duty to act judicially and judiciously by failing to consider the arguments and points of law urged upon her particularly in behalf of the appellant. I am also inclined to agree with the learned counsel for the appellant that the learned trial Judge, in the prevailing circumstances, was in great haste, with due reverence, to dismiss the appellant’s case. I am of the firm view based on the foregoing that the trial Judge did not consider the case put forward by the appellant. That approach is nothing but barefaced injustice masqueraded as adjudication and I regard it as an affront to the common law principle that the other side must be heard. In other words, the Court is in duty bound to inquire into the case of both parties in order to determine whether or not it has jurisdiction to entertain it. See: AGWUNA V. A.G. FEDERATION (SUPRA) AT 432. Apparently, the trial Court failed to do so.
It is not the law that once the issue of preliminary objection is raised, the trial judge need not consider all the issues and arguments proffered thereat. The failure of the trial Court to consider those issues and arguments but only Section 178 of the Local Government Law Cap.92 Laws of Kwara State on which the respondent hinged its arguments is, in my opinion, a patent miscarriage of justice. I hold that the trial Judge improperly dismissed the appellant’s case. It is pertinent to note that an order of dismissal is not apt for a Court to make where it claims that has no jurisdiction. It is instead an order of striking out that should be made. I accordingly resolve Issue NO.1 in favour of the appellant.
Issue No.2 deals with the applicability of Section 178 of the Local Government Law Cap. 92, Laws of Kwara State to the circumstances of this case.
The learned counsel for the appellant submitted that Section 178 of the Local Government Law (supra) is not applicable to the facts of this case. He exemplified that the case of the appellant was simply a claim in debt arising from a contract voluntarily entered into by the parties. He contended that in the prevailing circumstances the law that is applicable is Section 7(1) of the Limitation Act 1966 Laws of the Federal Republic of Nigeria (hereinafter referred to as Limitation Act of 1966). He submitted that by virtue of the Limitation Act 1966, the appellant is entitled to six years within which to take action and not six months within which to take action against the respondent on recovery of debt owed by the respondent. He argued that such action as in the instant case does not fall within the acts contemplated by Section 178 of the Local Government Law to warrant it being statute barred as the period between January 2001 and 28th September, 2005 when the appellant instituted the action is less than six years.
Learned counsel for the appellant submitted without conceding that even though Section 178 of the Local Government Law applicable to Kwara State as regards limitation of suits against Local Government, Section 7(1) of the Limitation Act 1966 being a Federal Legislation has by virtue of Section 315 (1) (a) of the Constitution of the Federal Republic of Nigeria made it extant and by virtue of the doctrine of covering the field which is to the effect that where a National Assembly has validly made a legislation which is identical with the legislation made by the State Assembly and there is a conflict or inconsistency in the two legislation, the legislation of the National Assembly which has wider jurisdictional spread is said to cover both the National and State interests. In such circumstances, the State law shall be void to the extent of the conflict or inconsistency. In effect, the valid National Assembly law invariably described as an Act shall cover the field equally covered by the State law. See: LADOKE AKINTOLA UNIVERSITY OF TECHNOLOGY V. Z. O. OGUNWOBI (2006) 4 NWLR (PART 971) 569 AT 590-591. He urged the Court to hold that the legislation which is apt in the prevailing circumstances of the instant case is Section 7(1) of the Limitation Act 1966. I shall, however, cursorily remark that since the Kwara State legislature has legally passed the Limitation Law which took effect from 1st day of October, 1987 and the cause of action arose on 28th January, 2001, it is Section 18 of the Limitation Law Cap. 89 Laws of Kwara State 1994 that is undoubtedly applicable to limitation period in respect of contracts, torts and other actions instituted in Kwara State.
On whether there are facts which the learned trial Judge would have considered before she short-circuited the procedure on the undefended list matter, the learned counsel for the appellant referred to pages 1, 5 and 6 of the appellant’s writ of summons which are the said supporting affidavit, letter to the Executive Chairman of the respondent and several minutes of various officers of the respondent acknowledging the respondent’s indebtedness and directing payment voucher to be raised in favour of the appellant which are exhibits A, B and C respectively. In view of the foregoing the learned counsel for the appellant raised the question if the respondent can seek refuge or succour under the Limitation provision in Section 178 of the Local Government Law in order to deny liability of a claim which it had earlier by its actions particularly accepted in exhibit B. He submitted in reaction that such recourse by the respondent would offend Section 151 of the Evidence Act and relied on the case of CHAIRMAN MORO LOCAL GOVERNMENT & ORS. V. ADELODUN LAWAL & ORS (unreported appeal No. CA/IL/49/2005) delivered on 5th February, 2007. See also the case of NWADIALO V. SHELL DEVELOPMENT CO. LTD (1990) 5 NWLR (PART 150) 332 AT 338-339 where Kolawole J.C.A. (of blessed memory) held, inter alia,
“It is not always that the Court permits the law of limitation to debar a bona fide claim; one of such exceptions is where there has been admission of liability during negotiation and all that remains is the fulfillment of the agreements: the Court always maintained that it cannot be just and equitable that the action should be barred after the statutory period of limitation giving rise to the action, if the defendant were to resile from his agreement during negotiation.”
See: also UNIVERSITY OF IBADAN V. ADETORO (1991) 4 NWLR (PART 185) 375. He went on to contend that if the learned trial Judge had considered the paragraphs of the appellant’s affidavit and the exhibits attached thereto (supra) and also adverted her mind to the arguments and submissions urged upon her, she would have come to a different conclusion. The learned trial Judge, with due regard, failed to make use of the opportunity she had but instead fell into a grave error of dismissing the appellant’s case.
The learned counsel for the appellant in respect of the reply brief with regard to whether the appellant has established by affidavit evidence any contractual relationship between him and the respondent to entitle him to payment claimed relied tenaciously on exhibits A, Band C (supra) as well as exhibit D which is a receipt of a letter of acknowledgment to the Hon. Chairman, Patigi Local Government Patigi which was signed for and dated by receipts that cannot be easily deciphered and urged the Court to hold that the appellant sufficiently established by affidavit evidence including four exhibits that a contractual relationship existed between the appellant and the respondent.
The learned counsel for the appellant urged the Court to invoke its power under Section 15 of the Court of Appeal Act 2004 and since all the materials necessary are before it now and in order to forestall further delay that may arise in sending the case back for retrial, assume jurisdiction of the High Court, examine the claims and all the documents and the arguments canvassed in the record of proceedings and set aside the ruling of the learned trial Judge, make its own decision and accede to the appellant’s claim as per his Writ of Summons.
The learned counsel for the appellant further urged the Court to hold that it is too late in the day for the respondent to deny or claim ignorance of a service which it ordered, enjoyed and acknowledged by its officers in writing (that is to say exhibits A, B, C, and D) as to proclaim otherwise will be tantamount to this Court allowing the respondent to take refuge in a plea of technicality to torpedo and defeat the consideration of the appellant’s case on its merit and by so doing perpetuate the very injustice which is being fought against.
In response to the arguments and submissions of the learned counsel for the appellant on Issue NO.2, the learned counsel for the respondent appeared to have hinged his submissions on the fact that since the learned trial Judge considered the issue of Section 178 of the Local Government Act (supra) which is on limitation of actions that bear mainly on preliminary objection and it was enough to dispose of the instant case, it would therefore be needless to go into other issues. Any attempt to consider other issues arising before the trial court would amount to an academic exercise.
The learned counsel for the respondent relied on the case of MORO LOCAL GOVERNMENT OF KWARA STATE V. CHIEF THEOPHILUS OPEBIYI (unreported) in Appeal No. CA/IL/30/2005 delivered on 27/2/2006 where the said section was properly interpreted and applied by the trial Judge and not the cases of CHAIRMAN MORO L.G.A. & ORS. V. ADELODUN LAWAL & ORS (supra) and THE UNIVERSITY OF IBADAN V. ADETORO (supra) which the learned counsel for the appellant relied on. He argued that the affidavit in support of the claimant’s Writ of Summons at pages 3-4 of the record did not reveal that there was any negotiation between the respondent and the appellant which could have led to admission of liability. He instead argued that the respondent in its affidavit in support of its notice of intention to defend at page 18 of the record by paragraphs 2, 3, 4 and 5 denied the existence of the contract and the exhibits on which the case of the claimant is predicated. He submitted that by this denial, a burden is placed on the appellant to prove the existence of the contract leading to the claim of N615, 000.00. He contended that that burden could not be discharged by merely relying on exhibit A which is supposed to be the internal proceedings of the respondent. He further contended that since exhibit A seemed to be the pillar of the appellant’s clam, it is only a certified true copy of it that is admissible in evidence. He urged the Court to resolve Issue No.2 against the respondent and dismiss the appeal.
I have carefully considered the submissions of the learned counsel for the appellant and the respondent and I have a strong opinion that the former canvassed more pungent and radical submissions on Issue No.2, than the latter.
What I consider of particular moment in Issue No.2 is the propriety of the applicability of Section 178 of the Local Government Law (supra) to the circumstances of the instant case which is on recovery of debt seemingly owed by the respondent.
It is pertinent at this stage to reproduce Section 178 of the Local Government Law for ease of reference. It reads:
“178. When any suit is commenced against any Local Government for any act done in pursuance or execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not lie or be instituted unless it is commenced within six months next after the act, neglect or default complained of or in the case of continuance of damage or injury within six months after the ceasing thereof.” (Underlining mine for emphasis).
For proper appreciation of the provision reproduced in its relation to the subject of the suit in the instant case, I shall at the risk of repetition reproduce what is at page 2 of the record. Thus, it reads in part,
“The plaintiff s claim against the defendant is for:
- The sum of 615,000 (Six Hundred and Fifteen Thousand Naira) (sic) only being the cost of contract executed for the defendant by the plaintiff on 28/6/2001.
- Interest at the rate of 10% per annum on the judgment sum from the date of the judgment until final liquidation.”
Equally relevant to the claim, the subject matter of this case is that the appellant sought and got leave of court to place the Suit No. KWS/116/05 on the Undefended List on the 24th January, 2006:
Placing the suit referred to on the Undefended List is a procedure recognized by the High Court (Civil Procedure) Rules of Kwara State. I have considerably dealt with the Undefended List Procedure. Suffice it to say the undefended list procedure is apt for the consideration of a Writ of Summons in respect of a claim to recover a claim for a debt or liquidated demand.
It is apparent from the provisions of Section 178 of the Local Government Law (supra) that its intendment is not to apply to a debt or liquidated demand which is the subject of the instant case. It instead covers the commencement of a suit against a Local Government for an act done in pursuance of or execution or intended execution of any law or of any duty, public duty or authority et cetera and not in respect of any debt or liquidated demand based on a contractual relationship between the contesting parties. In these circumstances I do not require any treatise on the inapplicability of Section 178 of the Local Government Law before opining that it is inapplicable to the instant case.
It has, however, been suggested by the learned counsel for the appellant that due consideration should be given to Section 7(1) of the Limitation Act 1966 backed up by submissions on the principle of covering the field. The legislation referred to is Federal in nature. An indepth study, however, disclosed that there is a Kwara State Law that can equally and adequately serve the circumstances of this case. It is Section 18 of the Limitation Law Cap 89 of the Kwara State Laws of 1994. It reads:
“18. No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued”.(Underlining mine for emphasis).
It is apparent that Section 18 (above) is an unalloyed provision on a suit founded on contract, among others, which is the specific claim for a debt or liquidated demand as in the instant case. It essentially provided that no action on contract shall be brought after the expiration of five years. In the instant case, the cause of action arose on 28th June 2001 while the appellant instituted and filed the instant case on 29th September, 2005. A simple computation of the intervening period between the two dates is only four years and three months which is less than five years stipulated to make an action statute barred. In effect, the instant action was not statute barred as at the time the learned trial Judge held that it was statute barred. The instant case was therefore validly instituted and is still running its course when the learned trial Judge, without any valid basis, dismissed it. I accordingly hold that Section 178 of the Local Government Law (supra) was wrongly invoked by the learned trial Judge. Issue NO.2 is therefore resolved in favour of the appellant against the respondent.
Since the two issues raised for the determination of the appeal are resolved in favour of the appellant, I shall set aside the ruling of the trial Court. I therefore set aside the ruling of the trial Court actually delivered on the 26th of October, 2006.
In the prevailing circumstances, this Court can do one or two things that is to say (1) send it back for trial or (2) invoke Section 15 of the Court of Appeal Act 2004 under the general powers of the Court and assume jurisdiction of the trial High Court by examining the claims, all the documents and arguments canvassed in the record of proceedings and arrive at a fair and just decision of the case. In view of the state of the record of proceedings, I am of the firm view that the Court should assume jurisdiction as if it were a Court of first instance.
I have meticulously considered the several affidavits in support and against the claim of the appellant and by virtue of exhibits A, B, C and D, I entirely agree with the arguments and submissions of the learned counsel for the appellant that a contractual relationship has been established between the appellant and the respondent and that the respondent is in breach of that relationship. All the arguments put forward by the learned counsel for the respondent are, I dear say, only face saving with the ulterior motive to cloud the vision of the Court. In other words, they are purely technical in the face of well backed up facts from exhibits A, B, C and D in which the respondent and/or its officers acknowledged the contract congratulating Governor Mohammed Lawal’s two years in office that is Exhibit A and directives particularly In exhibit B on page 6 referring to page 5 of the record read as follows:
“SGD
DPM
SLG 29/6
You will recall that Patigi L.G. published and congratulated the Executive Governor of Kwara State in the National dailies when he was two years old in administration. The cost of the said publication stood at N615, 000.00. Adekon Communications Consultancy who carried this assignment is requesting for the payment of the said amount.
- The sum of N615, 000 is… for your recommendation of approval pls.
SGD
A.D. 29/6/2001
A
V/C
Above is seen for your consideration Chm’s approval.
SGD
Shm
5/7 /2001
B
Ch
Above f. y final approval.
SUD
V.C 717
C
Above approved.
SGD
Ch. 10/7/
D
LGT
Pls act accordingly
SGD
AD 11/7/2001
FC (P)
Raise the PY in the name of AD. for the sum of N615, 000.00.
Approved
SGD.
11/7/2001.”
Exhibit C is a letter of demand for the debt and a notice of recourse to legal proceedings in the event of none payment of the debt.
In view of the foregoing which the respondent merely denied as non existent. Does it lie in the mouth of the respondent to say that no contractual relationship existed between it and the appellant? I emphatically say no. I rely on Section 151 of the Evidence Act which provides:
“151. When one person has, by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing”. See OROKPO V. PAUL (1990) 2 NWLR (PART 131)494.
The respondent is therefore estopped from denying its liability for the services provided in its behalf by the appellant. See MENAKAYA V. MENAKAYA (2001) 16 NWLR (PART 738) 203 AT 256.
In view of the cogent evidence of the appellant that the respondent is indebted to him in the sum of N615, 000.00 for services already rendered on contractual basis; Can the respondent comfortably state from its affidavit evidence that it has disclosed a real defence? The position of the law has been well stated and it is now trite that when a defendant has not disclosed facts constituting any real defence to the plaintiffs claim, he should not be allowed to indulge in delaying tactics aimed at gaining time and postponing the performance of his obligation to the plaintiff. Under such circumstances, he should not be granted leave to defend and judgment should be entered in favour of the plaintiff. See: ATAGUBA & CO. V. GURA (NIG.) LTD. (2005) 8 NWLR (PART 927) 429 AT 448; (2005) FWLR (PART 24) 1522 AT 1532- 1533. An equally similar principle founded on Section 15 of the Court of Appeal Act 2004 whereby the Court assumes jurisdiction over the whole proceedings as if it is a Court of first instance is where a trial Court finds that a defendant has no defence to a plaintiffs suit placed under the undefended list, the Court has no option than to enter judgment for the plaintiff for the sum of money claimed. See the cases of TAHIR V. UDEAGBALA HOLDINGS LTD (2004) 2 NWLR (PART 857) 438 AT 451/452; ALALE V. OLU (2000) FWLR (PART 23) 1294 AT 1299; DANIELS V. INSIGHT ENG. CO. LTD. (2002) 10 NWLR (PART 775) 231 AT 249 and EASTERN PLASTICS LTD V. SYNCO WEST AFRICAN LTD (1991) 1 NWLR (PART 587) 546.
In view of the foregoing principles vis-a-vis the available evidence particularly by the respondent, I am of the firm view that the defence of the respondent is not real but a bare faced indulgence in delaying tactics solely aimed at gaining time and postponing the performance of his obligation to the appellant. This unwholly attitude is unacceptable and condemnable.
In retrospect, there is merit in the appeal and judgment is entered for the appellant in the sum of N615, 000.00 with interest at the rate of 10% per annum on the judgment sum from today, 29th June, 2009 being the date of judgment until final liquidation.
Other Citations: (2009)LCN/3338(CA)
