Mr Frank Muobike V. Mr Thomas Nwigwe (1999)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the judgment of Ugwu, CJ. of Enugu State High Court, handed out on 18th March, 1998. Judgment was entered in favour of the Respondent and against the Appellant in the total sum claimed to wit:- N870,000 with N1,000 as costs including out of pocket expenses as well as 5% per annum interest on the judgment debt from 18/3/98 until the whole sum is liquidated.
For a proper and adequate consideration of the issues seriously at stake and canvassed in this appeal, the relevant and material facts must be assembled with some measure of considerable detail. Such facts are subsumed as follows “The Respondent herein filed his writ of summons under the undefended list on 12-1-98 claiming the sum of N870,000. He deposed to an affidavit in support of his claim. He averred that he had a series of business and other transactions with the Appellant. One of the transactions involved the sum of about N450.000 which the Appellant owed the Respondent and one Mr. Nwagba. This transaction is different from the subject matter of this suit according to the Respondent. On 30-8-96, the Appellant asked for an advance of the sum of N280,000 repayable within a month thereof. The Appellant was advanced the stated sum and he issued a Union Bank post-dated cheque, photocopy of which is Exhibit ‘A’ to the Respondent. Again, on 15-6-96, at the request of the Appellant, the Respondent was given another loan of N590,000. He issued another Union Bank post-dated cheque of N590.000. He issued another Union Bank post-dated cheque to the Respondent. Exhibit ‘B’ is a photocopy of the said cheque. The total sum contained in Exhibits ‘A’ and ‘B’ is N870,000. On 31-12-97, the Respondent’s counsel wrote a letter of demand Exhibit ‘C’ to the appellant. The letter was sent to the Appellant through NIPOST EMS speed post. Exhibit ‘D’ is the receipt issued thereof. The letter was not returned to Afam Akputa Esq, of counsel. The Appellant did not reply the letter from counsel. The Respondent finally averred that the Appellant had no defence whatsoever to his claim.
The Appellant at the trial court, filed the requisite notice of intention to defend the suit, dated 19-2-98, pursuant to order 24, Rule 9(2) of Anambra State High Court (Civil Procedure) Rules 1988 applicable to Enugu State as well as under the inherent jurisdiction of the trial court. He deposed to two separate affidavits to buttress his notice of intention to defend the suit.
In his first affidavit deposed to on 19-2-98, the Appellant averred that sometime in 1995, he took a loan of N200,000 from the Respondent for a short-term of two weeks. He issued the Plaintiff/Respondent a Progress Bank Enugu cheque, dated 20-10-95 for the sum of N280,000 to accommodate the principal and the interest of N80,000 thereon. The principal sum was obtained from one Chief S.M. Okeke at Awka. Before the end of 1995, he paid a total sum of N160,000 to the Respondent while presentation of cheque was suspended. By early 1996, he paid N100,000 cash. He did not collect any receipt for the stated cash payments. In his word, he never suspected any mischief. He said in March 1996, Chief S.M. Okeke mounted pressure on him under the pretext that the Respondent had not repaid any part of the loan to him. As a result of intimidation and pressure coupled with promise to douse the anger of Chief S.M. Okeke, he issued the plaintiff a Union Bank cheque for the sum of N590,000 postdated 15-7-96 making a total of N870,000 in cheques. About the same time, he replaced the Progress Bank cheque with Union Bank cheque because the Progress Bank had become distressed.
The appellant further averred that the amount borrowed was N200,000. Interest on the principal sum accounts for N670,000. About 9-9-96, he paid N50,000 in a Union Bank Draft to the respondent. It is Exhibit ‘A’ to his affidavit. He averred that despite his payments which amounted to N310,000, he was in October 1996 arrested and put behind the bars on the petition of Chief S.M. Okeke to police. The timely intervention of J.H.C. Okolo, Esq, SAN, saved him from prolonged incarceration. At the instance of J.H.C. Okolo, Esq, SAN, an arbitration meeting was held in Igwe Akputa’s office where it was resolved that he should pay N450,000 by March, 1997. Those in attendance, according to the appellant, were (1) Igwe Akputa, (2) J.H.C Okolo, Esq, (SAN) (3) Chief S.M. Okeke, (4) Chief Law Udechukwu, (5) Thomas Nwigwe (respondent) (6) Engr. Frank Muobike (a) (appellant). Pursuant to the arbitration, he paid N300,000 through J.H.C Okolo. Esq, (SAN) notwithstanding other payments earlier made to the respondent. The respondent, by a letter dated 26-10-97, clearly but subtly acknowledged that some payments had been made. Copy of the letter is Exhibit ‘B’. He denied owing the respondent the total amount claimed having paid the sum of N610,000 to him. He contended that he had triable issues including the issue of illegality.
In his further affidavit, the appellant further stressed the issue of illegality. He averred that he travelled with the respondent to Awka the country home of Chief S.M. Okeke along with Mr. Nwagba for the loan. He stated that he had no transaction involving N450,000 or any other transaction at all with either the plaintiff or with Mr. Nwagba or with both of them jointly. He attached a copy of Chief S.M. Okeke’s petition to police as Exhibit ‘A’. The same was made available to the appellant by the respondent under a covering letter- Exhibit ‘B’. He, as well, attached copies of receipts for payments made through the chambers of J.H.C Okolo, Esq, (SAN). Appellant stated that it dawned on him that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He attached Exhibits “E’ and ‘F’ which he said have to do with payment of the sum of N300,000 through J.H.C Okolo, Esq. (SAN) to the respondent.
It can be gleaned from page 31 of the transcript record of appeal that on 18-3-98, the suit was heard. The parties were present and duly represented by counsel. None of the counsel uttered a word. The trial CJ then entered his judgment as follows:-
“I have gone through the affidavit of the defendant dated 19-2-98 particularly paragraphs 3 and 7 and it to quite clearly (sic) that these paragraphs are no defence to the action but they instead admitted the claim of the plaintiff of N870,000.00. Accordingly, the defendant has no defence to this action.
Judgment is therefore entered in favour of the plaintiff as follows:-
- The defendant is to pay to the plaintiff the sum of N870,000.00 which are the value of two cheques dated 30/6/96 and 15/7/96 respectively which the defendant issued to the plaintiff but were dishonoured.
- The defendant is to pay the plaintiff the sum of N1,000 as costs including out of pocket expenses.
- The defendant is also to pay 5% interest on the judgment debt from today and not 15/7/96 until the whole judgment is liquidated.”
The appellant felt dissatisfied and filed his notice cum grounds of appeal against the judgment on 19-3-98 being next day to the judgment of the trial CJ. The appellant had axe to grind with the whole decision. The attendant four grounds of appeal read as follows with their particulars:-
“i. Error in Law
The trial court erred in law in refusing the appellant to defend the action when the materials placed before the trial court disclosed triable issues.
Particulars of Error in Law
(a) The proceeding before the trial court (the subject matter of the ruling/judgment now being challenged on appeal) arose from suit placed on the undefended list. The defendant/appellant filed and served a notice of intention to defend together with the supporting affidavit setting out grounds of defence which raised triable issues. A further affidavit was also filed and served to strengthen the defendant’s case.
(b) The plaintiff/respondent filed no counter-affidavit to controvert or challenge any of the averments in the defendant/appellant’s affidavit and further affidavit.
(c) It is a common ground that there was a loan transaction between the appellant and the respondent but the amount of the loan is in issue. While the appellant averred that the amount of the loan was N200,000 only, the excess of N670,000 being interest on the said loan, the respondent averred that the total amount of the loan he granted to the defendant was N870,000 citing the cheques issued by the appellant.
(d) Besides the appellant averred that he had repaid the loan including part of the interest element.
(e) The trial court erred in law by not accepting the uncontroverted depositions or the appellant in exercising his discretion whether or not to let the appellant in to defend the suit.
(ii) Error in Law
The trial court erred in law in entering judgment for the plaintiff/respondent when there was enough supportive evidence that the appellant had made some payments to the plaintiff/respondent.
(a) Copy of the draft with which payment of N50,000.00 was effected was annexed as Exhibit. (b) Copies of receipts from the Chambers of J.H.C. Okolo, SAN, for the payment made through the chambers were exhibited.
(c) Copy of letter from the plaintiff/respondent to appellant acknowledging some payment and asking for the balance was exhibited.
(iii) Error in Law
The learned trial court erred in law by entering judgment in favour of the plaintiff/respondent against the defendant/appellant, then on the facts relied on in the affidavit and further affidavit, a clear case of the illegality striking at the root of the transaction was disclosed.
Particulars of Error
(a) Paragraph 8 of the affidavit in conjunction with the depositions in the further affidavit in support of the application to defend show that the principal sum loaned to the defendant/appellant was N200,000.00 only.
(b) The sum of N570,000.00 claimed and on which the judgment of the court is based represents continued additions of interest on the said principal sum from the date of the transaction to the filing of the suit.
(c) The plaintiff/respondent is not and has never been held Money Lender Certificate (sic) as will enable him to charge interest on the loan.
(d) There is fundamental illegality disclosed on the parties’ transaction.
(iv) Omnibus
The decision of the trial court is against the weight of evidence”
It is pertinent to state here that the relief sought from this court by the Appellant is to allow the appeal, set aside the decision of the lower court, place the matter on the general cause list and remit same to another judge of the High Court of Enugu State for a formal hearing and proper determination of the suit.
As usual, briefs of argument were exchanged by the parties. It is desirable to set out the issues formulated in each brief. The three issues formulated on behalf of the appellant for determination are as follows:-
“1. Whether the learned trial Judge was not in error in holding that the defendant has no defence to the action.
- Whether the learned trial Judge was not in error to have entered judgment for the plaintiff as claimed in the writ of summons and the claim attached thereto.
- Whether the entire decision of the court below was not against the weight of evidence disclosed by the uncontradicted and unchallenged affidavit and further-affidavit in support of the appellant’s notice of intention to defend the suit.
Two issues were formulated for determination on behalf of the respondent in his own brief. They read as follows:-
“1. Did the appellant’s affidavit and further affidavit in support of his notice of intention to defend disclose any triable issue in this case?
- Is there any illegality in the transaction between the parties the subject matter of the suit?”
On 29-9-99, when the appeal fell due for hearing, Mr. J.H.C. Okolo, SAN, who appeared for the appellant adopted the appellant’s brief dated 14-7-98 and filed on 15-7-98. The Senior Counsel, in further expatiation, observed that materials were placed before the trial CJ who brushed them aside and said there was no defence to the suit. He contended that such a stance was wrong in law. He observed that there is the issue as to the exact sum owed by the appellant. He opined that there is the issue of illegality which was not investigated. He maintained that the subsequent mediation and new sum of N450,000 created new legal relationship between the parties constraining the respondent to the said sum rather than N870,000 in judgment. He referred to the case of Festus Obayuwana v. Oscar Ede (1998) 1 NWLR (Pt.535) 670.
Afam Akputa, Esq, of counsel for the respondent, adopted the respondent’s amended brief dated and filed on 1-7-99. He referred to page 21 of the record of appeal as well as paragraph 7 of the further affidavit. He observed that there are intra contradictions in the defence put up by the appellant.
The above observations and submissions by each counsel on behalf of his client only represent the tip of the iceberg when joined with ruthless arguments contained in the parties’ respective briefs of argument.
Obi Onukwili, Esq, former counsel for the appellant, submitted on the appellant’s issue No. 1 that the learned trial CJ was wrong when he held that appellant’s notice of intention to defend the suit did not disclose any defence. He contended that enough materials to emphasize triable issues were clearly placed before him by the uncontradicted and unchallenged affidavit and further affidavit setting out the ground of defence. He observed that even if, in paragraphs 3 and 7 of the affidavit in support of the notice of intention to defend, the appellant admitted issuing the said cheques, the circumstances leading thereto were fully explained.
Learned counsel submitted that the court of appeal will interfere with findings of fact of the trial court where such is not properly made or not based on evidence before the court. He referred to Nwokedi v. Orakposim (1992) 4 NWLR (Pt.233) 120; Gbadamosi Adegoke v. Chief Nathaniel Adibi (1992) 5NWLR (Pt.242) 410.
Learned counsel further submitted that when findings of fact are not supported by evidence, such findings are perverse and will be set aside. He referred to Union Bank of Nigeria Ltd. v. Ifeatu Augustine Okoye (1996) 3 NWLR (Pt.435) 135. Learned counsel submitted that there has been a wrongful exercise of discretion through misconception of facts as the trial CJ omitted to take into account matters that are relevant. The exercise of discretion was based on wrong or inadequate materials. He referred further to Shittu v. Osibanjo & anor. (1988) 7 SCNJ 37 at 44: (1988) 3 NWLR (Pt.83) 483: Irewole L.G. v. Oyeyemi (1993) 1 NWLR (Pt.270) 462: (1993) 1 SCNJ 127 at 137: Wayne (West Africa) Limited v. Ekwunife (1989) 12 SCNJ 99 at 128: (1989) 5 NWLR (Pt. 122) 422
On issue No.2, learned counsel submitted that it was wrong for the trial CJ to have entered summary judgment without calling for oral evidence in the face of appellant’s uncontroverted depositions in his affidavit and further affidavit. He submitted that uncontroverted evidence should be deemed as admitted. He referred to Lewis Peat v. Akhimien (1976) 7 S.C. 157 at 164: Ajomale v. Yaduat (1991) 5 SCNJ 170: (1991) 5 NWLR (Pt.191) 266 and Egbunta v. Egbuna (1989) 2 NWLR (Pt. 106) 773.
Learned counsel further submitted that the learned trial CJ was in a very serious error when he entered judgment for the respondent as claimed inspite of the assemblage of enough supportive evidence before him to wit:- photocopy of N50,000 bank draft with which payment was effected to the respondent; photocopies of receipts from the chambers of J.H.C. Okolo, Esq, SAN, for payments made through that chambers sequel to arbitration as well as photo-copy of an acknowledgement letter from the respondent urging the appellant to expedite action with the payment of the balance.
Learned counsel submitted that the judgment entered by the learned trial CJ was rather hasty as he did not consider allegation of fundamental illegality in the transaction between the parties. He opined that whether pleaded or not, the court would not close its eyes against illegally once properly established as it is the duty of the court to refuse to enforce such transaction. He referred to Sodipo v. Lemminkainem OY & anr (1986) 1 S.C. 197 at 212 and 214: (1986) 1 NWLR (Pt.15) 220.
Learned counsel further submitted that discretion must be exercised according to common sense and according to justice. He referred to Odusote v. Odusote (1971) 1 All NLR 219, He urged the court to interfere and set the trial court’s judgment aside as one given without sufficient circumspection. He referred to Enekebe v. Enekebe (1964) 1 All NLR 102 at p. 106; Demuren v. Asuni (1967) All NLR 329: Solanke v. Ajibola (1968) 1 All NLR 46: Mobil Oil (Nig.) Ltd. v. Federal Board of Internal Revenue (1977) 3 S.C. 97 at p. 141; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at pages 148-149.
On issue No. 3, learned counsel submitted that the decision of the trial CJ was against the weight of evidence placed before him and such occasioned a miscarriage of justice. He finally urged us to allow the appeal.
Afam Akputa, Esq., learned counsel for the respondent, on issue 1 in his client’s brief, at the on-set observed that there is authentic documentary evidence in support of respondent’s affidavit. He said such tilted the balance in favour of respondent’s affidavit. He referred to Nwosu v. I.S.E.S.A. (1990) 2 NWLR (Pt. 135) 688 at 718: Magnusson v. Koiki (1991) 4 NWLR (Pt.183) 119.
The learned counsel observed that appellant’s affidavit and further affidavit contain intra-contradictions. He urged that the entire defence of the appellant should not be believed on account of the contradictions. He referred to Mogaji v. Cadbury (Nig.) Ltd. (1985) 2 NWLR (Pt.7)393; N.E.C. v. Wodi (1989) 2 NWLR (Pt.104) 444.
Learned counsel submitted that the allegation of the appellant that he was threatened, blackmailed and intimidated into drawing the two Union Bank cheque -Exhibits ‘A’ and ‘B’ to respondent’s affidavit in support of the claim cannot stand since the transaction between the parties is contractual. It is his submission that interpretation of contracts excludes moral questions unless they are part of it. He referred to Wejin v. Ashaka Cement Co. Ltd. (1991) 8 NWLR (Pt.211) 615. On point relating to illegality, learned counsel opined that the conduct of the appellant estopped him from raising such a defence. He referred to Agidigbi v. Agidigbi (1992) 2 NWLR (Pt.221) 98.
On bank draft payment of the sum of N50,000 by the appellant, learned counsel contended that the value might have not been paid to the respondent and that the appellant has to show in fact that the respondent received the draft’s value for the real transaction.
On issue No.2 formulated on behalf of the respondent, learned counsel contended that the debt has no interest element as the appellant did not state interest rate. The debt herein is certain according to learned counsel. He submitted that the transaction is not tainted with any illegality. He finally submitted that the appellant, by conduct, waived any illegality. He referred to Odua Investment Ltd. v. Talabi (1995) 2 LRCN 2107 at 2183 and 2184. Learned counsel finally urged that the appeal be dismissed.
At this juncture, I should note it that the appellant complied with the provisions of Order 24 Rule 9(2) of the High Court (Civil Procedure) Rules, 1988. He filed notice in writing that he intended to defend the action five clear days to the return date. There is no furore about this point.
The law is now settled that judgment can only be entered if there is no notice filed within the prescribed period with an affidavit clearly depicting triable issue or issues that will warrant transferring the suit to the general cause list for further investigation. Refer to Diamond Bank Nigeria Ltd. v. GSM Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt.616) 558 at p. 565; Chief BC Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt.233) 76 at p. 87; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt.123) 523 at p. 532; Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 S.C. 51; Bendel Construction Co. Ltd. v. Anglocan Development Co. (Nig.) Ltd. (1972) 3 S.C. 37.
So, it is now beyond debate that for an action to be transferred to the general cause list from the undefended list, there must be a defence on the merit. It must not be a half-hearted defence. Refer to Franchal Nig. Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188.
Shorn of all irrelevances, the real issue upon which this appeal will stand or fall, in my considered view, is whether or not the appellant’s affidavit and further affidavit in support of his notice to defend, disclose triable issue or issues to warrant the case being transferred to the general cause list for further investigation, in other words, the above may be reframed as whether or not the appellant has shown a real defence to the action; not an imagined or feigned one.
The pertinent question which cries for an answer at this stage is-what is a triable issue in relation to an action filed in the undefended list? I strongly feel that a triable issue is an uncontroverted and uncontradicted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the undefended list. Such material allegation requires further investigation by the court to unearth the veracity or otherwise of the same. Such must portray a strong defence which cannot and should not just be given a wave of the back-hand. The facts deposed to by the appellant in his affidavit and Further affidavit in support of his notice of intention to defend the suit at the trial court remain uncontroverted and uncontradicted, Such affidavit evidence must be, prima facie, taken as admitted. See Ajomale v. Yaduat (supra) at p.170; Egbuna v. Egbuna (supra) 773.
The first triable issue which the appellant tried to show in his affidavit and further affidavit in support relates to the exact sum owed by the appellant to the respondent. He said he paid the sum of N260,000 cash which were not backed by receipts. He paid the sum of N50,000 by bank draft to the respondent. He asserted that he paid the sum of N300.000 through the chambers of J.H.C. Okolo, Esq., SAN, to the respondent with attendant receipt. Bank draft and receipt were attached to the affidavit and further affidavit of the appellant. The trial CJ did not consider both in his judgment. On page 27, lines 7-9 of respondent’s lengthy brief, learned counsel for the respondent stated as follows on the draft – “Do you know, my Lords, that a bank draft may be drawn up in my favour but may be lost or destroyed while in transit to me and it never got to me,” I was tempted to say I don’t know. The submission sounds ludicrous. In any event, there was no counter affidavit to show that the bank draft got lost or was not cashed. No doubt, it is a triable issue that requires further investigation. So also, payment made through the chambers of J.H.C. Okolo, Esq, SAN, to the respondent needs further consideration at the appropriate time.
In Exhibit ‘B’ attached to the affidavit in support of his notice, it is clear that the respondent asked for the balance of the outstanding money from the appellant. This document was not considered by the trial CJ. In a local environment where ‘business transaction’ is the order of the day, it is imperative to explore the meaning and the usual purport of the common word usually invoked in business circles to wit-balance, Black’s Law Dictionary, Fifth Edition at page 130 defines the word ‘balance’ as-
“An equality between the sums total of the two sides of an account, or the excess on either side. The difference between the sum of debit entries minus the sum of credit entries in an account. If positive, the difference is called a debit balance; if negative, a credit balance. Often used in the sense of residue or remainder and, in a general sense, may be defined as what remains or is left over.”
By asking for the balance from the appellant, a triable issue arises as regards what remains to be paid to the respondent. The respondent says there are some other transactions he had with the appellant who denied same and stated that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He said he had only one transaction with the respondent.
Another issue which was clearly presented before the trial CJ relates to issue of arbitration which pegged the amount to be paid at N450,000 as at March, 1997. Those in attendance were stated to be 1. H.R.H. Igwe Akputa 2. J.H.C. Okolo, Esq. (SAN) 3. Chief S.M. Okeke 4. Chief Law Udechukwu 5. Thomas Nwigwe (respondent) and 6. Engr Frank Muobike (appellant). Appellant said pursuant to the arbitration, he paid the sum of N300,000 through the chambers of the said Senior Advocate to the respondent. The appellant said the initial loan of N200,000 was taken from Chief S.M. Okeke at Awka. The said Chief reported appellant to the police. Appelalnt was incarcerated as a result. The Chief was part of the arbitration. The role of the trio of Chief S.M. Okeke, the respondent and one Nwagba should be unearthed at the appropriate lime. For the meantime, I think a triable issue has been made out as regards arbitration.
The other vital issue made out by the appellant in his affidavit and further affidavit in support of notice relates to illegality. He said the initial loan, was N200,000. The sum of N670,000 represents interest elements. Neither Chief S.M. Okeke nor the respondent is a licenced money lender according to the appellant. The respondent, on his part, says the whole sum of N870,000 is loan with no interest at all. For now, no one is saying that there is outright illegality. But one can comfortably say that the appellant made out a prima facie case of illegality which requires further investigation. A transaction which is on its face shown to be tainted with illegality ought to be further investigated properly. No doubt, it is a triable issue.
I must confess that the brief of argument filed on behalf of the respondent was not helpful as it complicated the matter. Briefs are principally designed to assist the court in arriving at the justice of the matter. A brief must be pungent and to the point. It should not be unnecessarily lengthy. Submissions must be laced with relevant authorities – statutory cum procedural and case law. Counsel must avoid winding and ludicrous submissions having the semblance of those associated with the Law School Moot trials. Submissions by counsel must not take the place of evidence. Under the guise of submissions, counsel should not attempt to call black white or vice-versa. Submissions must not be geared at propping the indefensible.
The appellant’s counsel strongly urged us to reverse the exercise of discretion by the trial CJ. To succeed in reversing the exercise of discretion by a lower court, the appellant must show that in exercising its discretion, the lower court took irrelevant matters into consideration or omitted to take relevant matters into consideration. See Abeki v. Amboro (1961) All NLR 368 at p. 370. Where exercise of discretion is perverse, such can be reversed. See University of Lagos v. Aigoro (supra) at pages 148-149. Discretion must be exercised not only judicially but judiciously as well. See Saffiddine v. C.O.P. (1965) 1 All NLR 54 at p.58; Ugboma v. Olise (1971) 1 All NLR 8. Where relevant points are brushed aside or it is in the interest of justice, this court can interfere. See Enekebe v. Enekebe (1964) 1 All NLR 102 at 106: Denmuren v.Asuni (1967) 1 All NLR 94 at p.101: Solanke v. Ajibola (1968) 1 All NLR 46 at p. 152; Mobil Oil v. F.B.I.R. (supra) at p. 141. Discretion must be exercised according to justice and in consonance with common sense. See Odusote v. Odusote (supra) 219.With due deference to the learned trial CJ, it is clear beyond peradventure that he brushed aside relevant materials placed before him. He failed to take into consideration relevant matters. The discretion, as exercised by the trial court is no doubt, perverse. The discretion was not properly exercised judicially and judiciously. Appellant’s counsel maintained that he did not act with sufficient circumspection. I do not go as far as that and so I am not at one with him on that point.
I only need to further make the point that the rules of procedure relating to actions in the undefended list are designed for easy dispensation of justice in liquidated money demands where there is palpably no defence disclosed to the action. It is not designed for a short-cut to cover up fraud or illegality. It is also not meant for hasty judgments. ‘Much haste, less speed’ should he avoided in all cases.
All said and done, it is clear that the appellant had triable issues. He disclosed a defence to the action. He showed a bonafide defence. See Franchal Nigeria Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt.412) 176 at p. 188. it will be an eye wash to find otherwise.
The appellant’s relief is that the appeal be allowed, suit transferred to the general cause list and remitted to another Judge of Enugu High Court for determination. I think the purport of remitting a case of this nature to another judge in the same jurisdiction for hearing and determination is to make it possible for a clear mind to try the suit afresh and to put the parties on a level ground devoid of any misgiving.
I come to the conclusion that this appeal is meritorious. And I hereby allow the same. The judgment of the trial CJ handed out on 18-3-98 is hereby set aside. The suit is accordingly transferred to the general cause list and remitted to another Judge of Enugu High Court for a dispassionate appraisal of all issues and final determination. The respondent shall pay N2,000 costs to the appellant.
Other Citations: (1999)LCN/0506(CA)
