Legalpedia Citation: (2023-08) Legalpedia 18680 (CA)

In the Court of Appeal

Holden At Abuja

Fri Aug 18, 2023

Suit Number: CA/ABJ/CV/713/2022

CORAM

Jamilu Yammama Tukur JCA

Ugochukwu Anthony Ogakwu JCA

Elfrieda Oluwayemisi Williams-Dawodu JCA

PARTIES

ALL PROGRESSIVES CONGRESS

APPELLANTS

OJUKWU CHIKAOSOLU (TRADING UNDER THE NAME AND STYLE OF OJUKWU CHIKAOSOLU & CO.)

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

At the trial court, High Court of the Federal Capital Territory, Abuja, the Respondent instituted an action under the undefended list sealed on 31st March, 2022, claiming that he was variously briefed by the Appellant and that he forwarded separate Bills of Charges of N20,000,000.00 (twenty million naira only) in respect of each of the instructions to the Appellant. That sequel to the failure of the Appellant to pay him the professional fees contained in the said Bills of Charges amounting in the aggregate to N140,000,000.00 (one hundred and forty million naira only) more than 30 days after its receipt of the Bills of Charges, he instituted the instant suit against the Appellant for the recovery of the professional fees after serving a final demand notice on it. In response, the Appellant filed a notice of intention to defend and supporting affidavit.

The trial court in judgment held that there are no triable issues raised in the Appellant’s affidavit in support of its notice of intention to defend, that the defence it purported to present was a sham and granted the Respondent’s claims. Dissatisfied with the above decision of the lower Court, the Appellant appealed the judgment.

 

HELD

Appeal allowed

ISSUES

• Whether the trial Court properly assumed jurisdiction to enter and hear the Respondent’s suit under the Undefended List or in entertaining the suit at all?
• Whether on the state of the affidavit evidence before the trial Court, the Court was right to have entered judgment for the Respondent against the Appellant for the reliefs claimed in the suit under the Undefended List or at all?

 

RATIONES DECIDENDI

UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE EXPLAINED WITH ITS REQUIREMENTS

The undefended list procedure as a mode of summary judgment is sui generis, applicable in the Federal Capital Territory Abuja and some other States. It is a simple procedure devoid of complexity of full trial and allows the claimant to obtain justice without the rigour of having to go through the whole hog of delayed litigation which usually takes much time and resources. Once there is a claim for a liquidated money demand, the claimant is expected to make an application using the undefended list procedure as available in the Rules of the Court. The essence of undefended list is to save the scarce judicial time where the defendant has no reasonable defence to the claims of the claimant. The defendant in undefended list is expected to raise a genuine defence and not a sham defence or needless technicality.

The Supreme Court in the case of NKWO MARKET COMMUNITY BANK (NIG) LTD v. OBI (2010) LPELR-2051(SC) (Pp 29 – 30 Paras G – B), Per, Ikechi Francis Ogbuagu, JSC, reiterated the purpose of the undefended list procedure thus:

“… this is also settled that the purpose of the procedure under the Undefended List, is to enable the plaintiff obtain Summary Judgment without trial, where his case, is patently clear and unassailable. See the cases of Cow v. Casey (1949) 1 K.B. 481 and Sodipo v. Lemninkainen & Ors (1986) NWLR (Pt.15) 220. It is not however designed to shut out a defendant who can show that there is a triable issue. See the case of Nishizawa v. Jethwani (1984) 12 S.C. 124/234.”

See ATAGUBA & CO. v. GURA (NIG) LTD (2005) LPELR-584(SC), FAGBOHUN v. OGUNLEYE (2014) LPELR-22453(CA) and MADEWELL PRODUCTS LTD & ANOR v. CITIBANK NIG (2014) LPELR-22421(CA).

In order to convince the Court to transfer the suit to the General Cause List, the defendant must, in his affidavit disclosing a defence, among other things “condescend upon particulars” and deal specifically with the plaintiff’s claim by stating clearly and concisely what the defence is and the facts relied upon in support.

In sum, the principal requirements for the application of the above is that:

1. The defendant has no defense; and
2. The plaintiff is claiming for debt or liquidated money demand. – Per J. Y. Tukur, JCA

UNDEFENDED LIST – THE PROCEDURE FOR THE UNDEFENDED LIST

The specific provisions of Order 35 of the High Court of the Federal Capital Territory, Abuja Civil Procedure Rules, 2018, which contains the procedure for undefended list are herein reproduced thus:

“1. (1) Where an application in Form 1, as in the Appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand, supported by an affidavit stating the grounds on which the claim is based, and stating that in the deponent’s belief there is no defence to it, the judge in chambers shall enter the suit for hearing in what shall be called the “Undefended List”.

(2) A writ of summons for a suit in the undefended list shall contain the return date of the writ.

2. A claimant shall deliver to a registrar on the issue of the writ of summons, as many copies of the supporting affidavit, as there are parties against whom relief is sought, for service.

3. (1) Where a party served with the writ delivers to registrar, before 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.

(2) Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings or proceed to hearing without further pleadings.

4. 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.

5. A Court may call for hearing or require oral evidence where it feels compelled at any stage of the proceedings under Rule 4.”

The above procedure is very simple and straightforward, in line with the intention behind the special procedure. It is immediately clear that there is no need for a special application, nor a formal judicial determination, other than what is done in chambers and is evidenced by marking of the writ as “undefended” as was done in the case that culminated in this appeal. – Per J. Y. Tukur, JCA

 

UNDEFENDED LIST – AN EXPOSITION ON UNDEFENDED LIST

The Supreme Court in the case of BANK OF INDUSTRY LTD v. OBEYA (2021) LPELR-56881(SC) (Pp 23 – 25 Paras E – F) per Helen Moronkeji Ogunwumiju, JSC gave an exposition on what undefended list in FCT, Abuja entails thus:

“In this instant case, the matter is listed under the undefended list. Whenever an application is made to a Court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit stating that in the deponent’s belief there is no defence to the plaintiff’s claim, the Court shall if satisfied that there are good grounds for believing that there is no defence to the claim, enter the suit for hearing in what shall be called the undefended list. By Order 21 Rule 3 of the Federal Capital Territory, Abuja High Court Civil Procedure Rules, 2004, if the party served with the writ of summons and affidavit delivers to the Registrar not less than 5 days before the date 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. Hence, where leave to defend is given the action shall be removed from the Undefended List and placed on the Ordinary or General Cause List. Thereafter, the Court may order pleadings or proceed to hearing without further pleadings. Where any defendant neglects to deliver the notice of defence and affidavit prescribed or is not given leave to defend by the Court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally. See Order 21 Rule 4 of the Federal Capital Territory; Abuja High Court Civil Procedure Rules, 2004. The Appellant failed to put up any defence before the trial Court but rather filed a preliminary objection to the suit neglecting its defence to the claim. This presumes that the Appellant had no defence. Therefore, when a matter is on the undefended list, there is no need to summon witnesses at all. It is basically decided on affidavit evidence. See Obaro v. Hassan (2013) 8 NWLR Pt. 1357 Pg. 425, Massken Nig. Ltd.”

See EKAETE v. UBN PLC (2014) LPELR-23111(CA), KINGTONY VENTURES (NIG) LTD & ANOR v. E-BARCS MICRO FINANCE BANK LTD (2022) LPELR-57087(CA) and IBETO & ANOR v. OGUH (2022) LPELR-56803(CA).

 

It is indeed true that wherever the law gives a definite procedure to follow before a matter can be deemed to be properly instituted or where a condition precedent to the institution of an action is given, either by law or agreement of the parties, failure to comply with such procedure or condition precedent means that the Court would not have the needed authority (jurisdiction) to hear the matter, the so called conditions to the proper filing of an action under the undefended list as argued by the Appellant do not exist and as such, cannot inure to invalidate the jurisdiction of the lower Court to hear the matter. What the rules of the lower Court requires is an affidavit accompanying the writ, not a formal application and the determination as to the suitability or otherwise of a newly filed suit for the undefended list procedure is to be done by the Judge in Chambers. – Per J. Y. Tukur, JCA

LIQUIDATED MONEY DEMAND – MEANING OF LIQUIDATED MONEY DEMAND

A liquidated money demand has been described as an amount of money that could be ascertained by calculation, or fixed by any scale, or other positive data or mathematics. When the amount to be recovered depends on circumstances and is fixed by opinion or estimate, it is said not to be liquidated. The Apex Court in the celebrated case of MAJA v. SAMOURIS (2002) LPELR-1824(SC) (Pp 21 – 22 Paras F – C), per Anthony Ikechukwu Iguh, JSC, defined a liquidated money demand thus:

“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute.”

The Supreme Court in the case of WEMA SECURITIES & FINANCE PLC v. NIGERIA AGRICULTURAL INSURANCE CORP (2015) LPELR-24833(SC) (Pp. 75 – 75 Paras D – F), per John Afolabi Fabiyi, JSC gave helpful pointers to what would be regarded as liquidated damages thus:

“It is now clear that the factors for determining a liquidated sum are as follows: (a) The sum must be arithmetically ascertainable without further investigation. (b) If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach. (c) The agreed and fixed amount must be known prior to the breach.”

See ONYIMA GLOBAL RESOURCES INVESTMENT (NIG) LTD v. ECOBANK (2022) LPELR-57875(CA), GTI ASSET MANAGEMENT & TRUST LTD v. OYO STATE GOVERNMENT & ANOR (2022) LPELR-58765(CA) and COASTERNERS INTEGRATED (NIG) LTD & ANOR v. PILLAR MICRO FINANCE BANK LTD (2020) LPELR-52299(CA). – Per J. Y. Tukur, JCA

 

BILL OF CHARGES – PROCEDURE FOR BRINGING AN ACTION BASED ON BILL OF CHARGES AS PROVIDED IN THE LEGAL PRACTITIONERS ACT

…procedure for bringing an action based on bill of charges as provided in Section 16(1), (2)(a) & (b) of the Legal Practitioners Act, Cap. L. 11 Laws of the Federation of Nigeria, 2004 applicable as at the time the bill of charges was sent. The section provides thus:

“(1) Subject to the provision of this Act, a Legal Practitioner shall be entitled to recover his charges by action in any Court of competent jurisdiction.

(2) Subject as aforesaid, a legal practitioner shall not be entitled to begin an action to recover his charges unless: (a) a bill for the charges containing particulars of the principal items Included in the bill and signed by him, or on the case of a firm by one of the partners or in the name of the firm, has been served on the client personally or left for him at last address as known to the legal practitioner or sent by post address to the client at that address; and (b) the period of one month beginning with the date of delivery of the bill has expired.”

The Supreme Court in REBOLD INDUSTRIES LTD v. MAGREOLA & ORS (2015) LPELR-24612(SC) (Pp 46 – 46 Paras C – F) per Chima Centus Nweze, JSC, reiterated the applicable principle thus:

“There can be no gainsaying the fact that, pursuant to Section 16(1) of the Legal Practitioners’ Act, Cap 207, Laws of the Federation, 1990, [applicable at the material time], a legal practitioner who satisfies the Trinitarian preconditions, now endorsed in Case Law, could commence an action to recover his fees upon a bill of charges. First, he must prepare a bill of charges or a bill for the charges which should duly particularize the principal items of his claim, second, he must serve his client with the bill and third, he must allow a period of one month to elapse from the date the bill was served. -Oyekanmi v NEPA (2000) LPELR -2873 (SC) 12, C-E.”

In the celebrated case of OYEKANMI v. NEPA (2000) LPELR-2873(SC) (Pp 24 – 25 Paras D – F) per Samson Odemwingie Uwaifo, JSC the Apex Court give a guide on how a proper bill of charges should consist of thus:

“A general guideline as to the form, contents and purpose of a bill of charges, in my view, would be: (1) the bill should be headed to reflect the subject matter. If it is in respect of litigation, the Court, the cause and the parties should be stated. See Lewis v. Primrose (1844) 6 Q.B. 265, Dimes v. Wright (1849) 8 CB 831. (2) The bill should contain all the charges, fees and professional disbursements for which the legal practitioner is making a claim. See McCullie v. Butler(1961) 2 All ER 554. Professional disbursements include payments which are necessarily made by the legal practitioner in pursuance of his professional duty such as Court fees, witness’ fees, cost of production of records etc. if paid by him. (3) charges and fees should be particularised e.g. (a) perusing documents and giving professional advice, (b) conducting necessary (specified) inquiries or using legal agent in another jurisdiction for a particular purpose. See Re: Bishop Exp. Langley (1879) 13 Ch. D 110, Re: Pomeroy and Tanner Solicitors (supra), (c) drawing up the writ of summons and statement of claim or defence, (d) number of attendances in Court and the dates, and (e) summarised statement of the work done (in Court), indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for. See Re A Solicitor (supra) at p.287. (4) It is required to give sufficient information in the bill to enable the client to obtain advice as to its taxation and for the taxing officer to tax it. See Keene v. Ward (1849) 13 Q.B. 515, Slingsby v. Attorney General (1918) Probate 236. It is necessary therefore to indicate against each of the particulars given in the bill of charges a specific amount, taking into account the status and experience of the legal practitioner, and the time and efforts involved. 

See generally, Halsbury’s Laws England, 4th edn. vol. 44(1), paras. 192-193; The Digest, Annotated British, Commonwealth and European Cases, Vol. 44 1984 reissue, paras. 2338-2483.”

The above was recaptured and restated succinctly by the Supreme Court in the case of S.B.N. PLC. V. OPANUBI (2004) LPELR-3023(SC) (Pp. 23 – 24 Paras F – D) per Samson Odemwingie Uwaifo JSC thus:

“A legal practitioner should be able to present a bill of charges which, among other facts, should particularize his fees and charges, e.g. (a) perusing documents and giving professional advice; (b) conducting necessary (specified) inquiries; (c) drawing up the writ of summons and statement of claim; (d) number of appearances in Court and the dates; (e) summarized statement of the work done in Court, indicating some peculiar difficult nature of the case (if any) so as to give an insight to the client as to what he is being asked to pay for; (f) the standing of counsel at the bar in terms of years of experience and/or the rank with which he is invested in the profession. It is necessary to indicate amount of fees against each of these item. See Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 437.”

See A-G & COMMISSIONER FOR JUSTICE & ORS v. NGAVAN (2021) LPELR-56285(CA), SHIOR v. LOWER BENUE RIVER BASIN DEV. AUTHORITY (2021) LPELR-56640(CA) and M.R.S. OIL & GAS CO. LTD v. BELLO & KARIBI-WHYTE (2021) LPELR-56842(CA). – Per J. Y. Tukur, JCA

 

UNDEFENDED LIST – DUTY OF THE PARTY CLAIMING UNDER THE UNDEFENDED LIST

There is no gainsaying the fact that anyone who desires the Court to grant his claims must furnish adequate evidence backing the existence of such claims. Moreso, a person who has brought his claim under the undefended list as provided under the rules of the lower Court must establish that the sum being claimed is either a debt or a liquidated money sum, which is easily ascertainable.

See Sections 131-134 of the Evidence Act 2011, OJO v. FRN (2023) LPELR-59970(SC), AGBABIAKA v. FIRST BANK (2019) LPELR-48125(SC), AKINSOLA & ANOR v. EYINNAYA (2022) LPELR-57284(CA) and PEAK MERCHANT BANK LTD v. TILAD NIG LTD ​ (2017) LPELR-50863(CA). – Per J. Y. Tukur, JCA

 

UNDEFENDED LIST – DUTY OF A PARTY CLAIMING UNDER THE UNDEFENDED LIST TO COMPLY WITH REQUIREMENTS OF A BILL OF CHARGES

A workman is of course entitled to his wages, but only the wages that were promised him or in the absence of a clear cut promise, the wages that he can show that he worked for. A careful examination of the evidence before the lower Court reveals that there was no clear cut agreement whereby the Appellant categorically promised to pay the Respondent the amount he sued the Appellant for in this matter, which is why the Respondent prepared a bill of charges and sent to the Appellant. Now, if the Respondent had complied with the requirements of a bill of charges, by adequately itemising and particularising the components of what he charged the Appellant for, and the Appellant failed to respond within a month, it could be confidently said that the Respondent could rely on the uncontested bill of charges as clear evidence of his entitlement to the amount sought as professional fees, and this would also entitle the Respondent to successfully bring the matter under the undefended list, because the amount would be a liquidated sum. The evidence at trial however reveals that the bill of charges sent by the Respondent falls short of the standard required by the Legal Practitioners Act and as such cannot be a solid basis for entering a judgment under the undefended list. – Per J. Y. Tukur, JCA

COURTS – THE CONDUCT OF COURTS WHEN AN ACT PROVIDES SPECIFIC PROVISIONS THAT GOVERN A PARTICULAR SUBJECT MATTER

The arguments of the Respondent on the principle of law to the effect that failure to answer formal correspondence/demand would constitute admission is sound but as a general principle would not override or supersede the specific provisions of the Legal Practitioners Act. It was based on a similar reasoning that the Supreme Court in FBN PLC V MAIWADA (2013) 5 NWLR (pt. 1348) 444 at 497, held that the provisions of the Companies and Allied Matters Act cannot be employed to supplant the legal requirement imposed by the Legal Practitioners Act in the sense that the Legal Practitioners Act provides specific provision that governed that particular subject matter. This position was adopted by this Court in the case of OMINI & ORS v. YAKURR LGA & ORS (2019) LPELR-46300(CA). – Per J. Y. Tukur, JCA

CASES CITED

STATUTES REFERRED TO

• High Court of FCT (Civil Procedure) Rules 2018

• High Court of FCT (Civil Procedure) Rules 2004

• Evidence Act, 2011

• Legal Practitioners Act, Cap L11 LFN, 2004

• Kaduna State (Civil Procedure) Rules 1987

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