United Bank for Africa Plc & Anor V. Alhaji Babangida Jargaba (2001)
LawGlobal-Hub Lead Judgment Report
OMAGE, J.C.A.
I
n the high Court number 10, in the Kaduna State High Court Coram Gregory S. Lawan J., a judgment was delivered on 3rd July, 2000. The judgment was delivered in a suit filed under the undefended list procedure, the leave to issue which his lordship had granted earlier.
The judgment inter alia is as follows:
“It is true that a defence that I am not liable is a defence, but from the facts of this case and the affidavit evidence and documents, there is no defence on merit. I accordingly enter judgment against the 2nd defendant in favour of the plaintiff.”
The endorsement on the writ of the plaintiff is;
“For a claim against the defendants jointly and or severally in the sum of N1 ,960,000.00 being outstanding arising from the failure of the defendants to fully supply to the plaintiff the required numbers of trucks load of fertilizers 2-10 percent interest on the judgment sum and cost of this action.”
The facts of the case as contained in the applicants affidavit in support of the motion for hearing of the claim under the provisions of the undefended suit, Order 23 Civil Procedure Rules Kaduna State is in part as follows:
(7) That sometime in 1999, the plaintiff desire to purchase fertilizer in commercial quantities… he was introduced to the 2nd defendant in Kaduna.
(9) The second defendant informed the plaintiff that a truck load of fertilizer was sold at N600,000.00 that is to say N 1,000.00 per bag, since a truck of fertilizer contains 600 bags.
(11) That with the assurance from the second defendant to the plaintiff that the 1st defendant was having in large quantities to dispose of, the plaintiff purchased bank draft made payable to the 1st defendant.
(12) That in all, the plaintiff made payment in bank draft to the tune of N 12,690,000.00 for the truck loads of fertilizer to the 1st defendant on the instructions and directives of the 2nd defendant.
(15) That when the plaintiff went to the 2nd defendant in order to evacuate his truck load of fertilizer, the 2nd defendant directed the plaintiff to the warehouses and or to the premises of a company called Barmani Holdings Company Nig. Ltd. in Kaduna.
(16) That when the plaintiff got to Barmani Holding Company Ltd. in his bid to evacuate his fertilizer he was told there was a price increase of N50,000 per bag.
(18) That at the time the plaintiff had evacuated the 9th truck load of fertilizer his outstanding balance was N6,960,000.00 hence, the plaintiff went back to the 2nd defendant to demand a refund of the said balance.
(19) That on plaintiff’s demand of a refund he was paid the sum of N5 million, thereby having a balance of N1,960,000.00.”
The affidavit concluded that the 1st defendant issued several memorandum undertaking to pay the balance which was not paid.
In a motion dated 1st April, 2000, the 1st and 2nd defendants supported their notice of intention with an affidavit which denies in its paragraph 2(a) the paragraphs 7-24 of the plaintiffs affidavit, and averred that the 1st defendant facilitated the grant of import licence to one Drury Industries to import Sola Urea Fertilizer Drury Industries Ltd. The latter failed to repay the debt to the 1st defendant who consequently appointed Otunba Olutola Sembose as receiver/manager over the assets of Drury Industries as agent to dispose of the fertilizer pledged to the 1st defendant by Drury Industries Ltd. The plaintiff did approach the 1st defendant to purchase the fertilizer and he was informed by the 2nd defendant that the fertilizer had been sold to Barmani Holdings Ltd. for a total sum of N50,760,000.00 to which body the plaintiff was directed (4c). It sold the fertilizer. Thereafter all the averments in the plaintiff affidavit were denied. The affidavit of intention to defend had annexed to it Exhibit FRI.
On the return date, 7/5/2000, after the appearance of both counsel for the plaintiff and the defendant. After hearing both counsels, the court adjourned the matter to 3/7/2000 for judgment.
It is against the judgment, that judgment so delivered and quoted above that the 1st defendant has filed this appeal. For the avoidance of doubt, the defendants in the suit in the court below are (1st) United Bank for Africa PLC., 2nd defendant Alh. Ibrahim EL – Rufai. The judgment of the court below in material particular is:
“I accordingly enter judgment against the 2nd defendant in favour of the plaintiff in the sum of N1,960,000.00 against the 1st and 2nd defendant.”
The 1st defendant filed five grounds of appeal from which he formulated one issue for determination, which is written in the brief of argument in the alternative.
Here it is:
“Was the learned trial Judge right in refusing to transfer the case from the undefended list to ordinary cause list for adjudication in the light of the evidence before the lower court or in the alternative? Did the appellant’s notice of intention to defend disclose a defence on the merit to be entitled to have the suit transferred from the undefended list for adjudication on the merit in the light of evidence before the lower court?”
In the respondent’s brief filed on 28th, February 2001, he adopted the same issue formulated by the appellant. He also adopted the alternative issue of the appellant. The issue to be determined therefore in this appeal is this; in the light of the evidence before the court, was the learned trial court right in failing to place on the general cause list, the claims of the plaintiff? For the purpose of clarity, the facts of this case in the court below, simply is that the respondent claim to have bought trucks of fertilizer from the 1st defendant through the 2nd defendant and he could not take delivery of the whole trucks of fertilizer he paid for. Instead of twelve trucks he was able to collect nine and the respondent was given five million naira leaving a balance of N 1,960 million. It is because the defendants failed to pay to the respondent the balance of one million, nine hundred and sixty thousand naira that the plaintiff filed this claim for the balance under the undefended list procedure. The 1st and 2nd defendants filed a notice of intention to defend within the prescribed time, and the matter came before the learned trial court on 17/5/2000. The appellant’s counsel drew the attention of the court to the notice of intention to defend and referred to portions of the affidavit that the plaintiff did not buy from the 1st and 2nd defendant but from Barmani Holdings Ltd., with the UBA drafts. She said in paragraph 4 of the affidavit the second defendant deny liability to the respondent. The appellant’s counsel in the court below referred to the several annextures to the affidavit, and urged the court to transfer the plaintiff’s claim to the general cause list to enable the defendant defend the claim against them. The printed record shows further that the appellants’ counsel as defence counsel in the court below said:
“I submit that we have a defence prima facie and we are not supposed to show that at this stage.”
The learned trial Judge adjourned the case “on 17/5/2000, for judgment on 3-7 July, 2000.”
On the said 3-7 July, 2000, the trial court delivered judgment as recorded above, which for convenience I reproduce here:
“It is true that a defence that I am not liable is a defence, but from the facts of this case, and the affidavit evidence and documents, there is no defence on the merit.”
Order 22 High Court Civil Procedure rules requires the trial court to transfer the plaintiffs claim to the general cause list if the affidavit of intention to defend shows a defence on the merit. The rule does not expect a determination of the claim at that stage on the merit. The Issue to be determined therefore is this, does the defence of the respondent show any merit?
In the instant appeal, the trial Judge is entitled on the spot to determine whether or not the statement showing a defence shows any plausible defence, not just a general denial which does not join a substantial issue with the applicants claim. In U.N.N.. v. Orazulike Trading Company (1989) 5 NWLR (Pt.119) at page 29. Uwaifo JCA., as he then was, he is now JSC, interpreted the rule of defence on merit as follows:
“The law is that where the defendant raises any substantial question of fact which ought to be tried, leave should be given.”
what then is the defence shown by the defendant, it is that the money was received by a third party whereas document annexed show the receipt issued to the claimant by the appellant taking the facts as they are on the printed record, it cannot be said that the defence of the defence shows any merit.
Exhibits ABJ., 1,2 and 3 are clear evidence of an admission by the appellant of liability to the respondent. See Nwosu v. lmo State (1990) 4 SCNJ 197 at 115, (1990) 2 NWLR (Pt.135) 688.
The receipts are evidence of receipt of the money for purchase of the fertilizer by the appellant, and a balance thereof is due, to the respondent.
I therefore affirm the judgment of the court below and dismissed the appeal. There will be costs of N3,000.00 to the respondent.
Other Citations: (2001)LCN/1010(CA)
