IBRAHIM KHALIL AHMED V ALH. GAMBO DANPASS

CORAM

AHMAD OLAREWUJU BELGORE, JUSTICE, COURT OF APPEAL

PARTIES

IBRAHIM KHALIL AHMED APPELLANTS

ALH. GAMBO DANPASS RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Applicant instituted an undefended list action against the Defendant/Respondent at the High Court of Kano State claiming the sum of N3,000,000 being money paid to the Defendant/Respondent as consideration for the purchase of a plot of land situated at Airport Road Kano covered by the later of grant No. COM/2007/31, 10% post-judgment interest on the judgment sum until the final liquidation of the judgment sum, general damages of N500,000 (Five Hundred Thousand Naira only) and the cost of filing the suit.On being served with the Plaintiff/Respondent’s originating process, the Defendant/Appellant filed a Notice of Intention to Defend the suit and raised a counter-claim and set-off therein but the trial Court dismissed same on the ground that it did not raise a triable issue and entered judgment for the Plaintiff/Respondent as claimed. Dissatisfied with the judgment of the trial Court, the Defendant/Appellant appealed to the Court of Appeal.

HELD

Appeal Partially Allowed

ISSUES

1. Whether or not the Lower Court has jurisdiction to entertain this suit despite the pendency of a criminal case before Chief Magistrate Court No. 1 sitting at Nomansland?

2. Whether or not the Appellant has raised a triable issue in his notice of intention to defend to warrant this matter being transferred to the General Cause List?

3. Whether the trial Court was right to have awarded General Damages and interest under the Undefended List Procedure, and, if answered in the negative, whether this rendered the entire judgment entered in favour of the Respondent a nullity?

RATIONES DECIDENDI

PURPOSE OF THE UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE IS DESIGNED TO SECURE QUICK JUSTICE AND AVOID THE INJUSTICE LIKELY TO OCCUR WHEN THERE IS NO GENUINE DEFENCE ON THE MERITS TO THE PLAINTIFF’S CASE FOR DEBTS OR LIQUIDATED MONEY CLAIM

“The Undefended List procedure and the purpose of filing suits under this procedure was succinctly stated in the case of UBA v Jargaba Supra, at Page 272 Para E-H,per Tobi JSC as follows:

“The undefended list procedure is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing 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 a hearing.. The undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. …In other words, the object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims. See Bank of the North v. Intra Bank SA (1969) 1 All NLR 91. ” PER O. A. ADEFOPE-OKOJIE, J.C.A

IMPROPRIETY OF AWARDING GENERAL DAMAGES UNDER THE UNDEFENDED LIST PROCEDURE – GENERAL DAMAGES CANNOT BE ENTERTAINED UNDER THE UNDEFENDED LIST PROCEDURE

“It is thus clear that general damages, which by its nature are not a determined and ascertained amount, cannot be entertained under the Undefended List procedure.” PER O. A. ADEFOPE-OKOJIE, J.C.A

DETERMINATION OF JURISDICTION OF A COURT – JURISDICTION OF A COURT CAN ONLY BE DETERMINED IN THE LIGHT OF THE ENABLING STATUTE

“It is trite that jurisdiction of a court is a hard matter of law that can only be determined in the light of the enabling statute. A court of law cannot add to or subtract from the provisions of a statute. As a matter of law, a court must blindly follow and apply the jurisdictional limits and limitations as contained or provided in a statute. In this and other situations, the statute is the master and all that a court of law can do is to interpret the provisions of a statute to obtain or achieve the clear intentions of the lawmaker. A court cannot do more than this – AtikuVs Bodinga (1988) 2 NWLR (Pt 76) 369, Oloba Vs Akereja(1988) 3 NWLR (Pt 84) 508 and Anibi Vs Shotimehin (1993) 3 NWLR (Pt 282) 461.” PER A. ABOKI, J.C.A

UNDEFENDED LIST PROCEDURE – A DEFENDANT WHO HAS NO REAL DEFENCE TO AN ACTION UNDER THE UNDEFENDED LIST SHOULD NOT BE ALLOWED TO DISTURB AND FRUSTRATE THE PLAINTIFF AND CHEAT HIM OUT OF THE JUDGMENT HE IS LEGITIMATELY ENTITLED TO BY DELAY TACTICS

“It is trite that where a matter is placed under the Undefended List, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness – Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc (2002) 15 NWLR (Pt 789) 46, Sanyaolu Vs Adekunle (2006) 7 NWLR (Pt 980) 551, Theobros Auto-Link Nig Ltd Vs Bakely International Auto Engineering Co Ltd supra”. PER H.A.O. ABIRU, J.C.A

UNDEFENDED LIST PROCEDURE – THE UNDEFENDED LIST PROCEDURE IS UTILIZED FOR THE RECOVERY OF “A DEBT OR LIQUIDATED MONEY DEMAND”

“From Order 23 Rule 1 Supra reproduced by me earlier in the Judgment, the Undefended List procedure is utilized for the recovery of “a debt or liquidated money demand”. PER O. A. ADEFOPE-OKOJIE, J.C.A

UNDEFENDED LIST PROCEDURE – WHETHER IT IS THE AIM OF THE UNDEFENDED LIST PROCEDURE TO SHUT OUT A DEFENDANT WHO WANTS TO CONTEST A SUIT BROUGHT UNDER THE UNDEFENDED LIST IN ORDER TO OBTAIN A SPEEDY TRIAL AT THE EXPENSE OF JUSTICE

“It is not the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice. Thus Order 23 rule 3 (1) of the High Court of Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit, placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit,and it states that once a defendant does this, the court will grant him leave to defend — Bona V Textile Ltd Vs Asaba Textile Mills Pic (2013) 2 NWLR (Pt 1338) 357, Theobros Auto-Link Nig Ltd Vs Bakely International Auto Engineering Co Ltd (2013) 2 NWLR (Pt 1338) 337.” PER H.A.O. ABIRU, J.C.A

UNDEFENDED LIST PROCEDURE – DUTY OF THE COURT NOT TO OBLIGE A LIABLE DEFENDANT TO EMPLOY MERE SUBTERFUGE TO DRIBBLE HIS OPPONENT OR STALL PROCEEDINGS SO AS TO CHEAT THE PLAINTIFF OUT OF THE RELIEFS HE IS ENTITLED TO

“It is pertinent to state that the provisions on undefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff s case. It is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq(2010) 9 NWLR (Pt 1200) 443, BabaleVs Eze(2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi(2011) 11 NWLR(Pt 1258) 320.” PER H.A.O. ABIRU, J.C.A

INSTITUTION OF ACTION – WHETHER THE EXISTENCE OF CRIMINAL ACTION BARS INSTITUTION OF A CIVIL ACTION

“The fact that there is in existence a criminal action is no bar to the subsequent institution of a civil suit against the same party.”PER O. A. ADEFOPE-OKOJIE, J.C.A

UNDEFENDED LIST PROCEDURE -WHETHER A MERE DENIAL AND AFFIDAVIT IS SUFFICIENT TO DISCLOSE A DEFENCE ON THE MERIT

“A mere general denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiff s claim – Ataguba & Co V sGura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt 997) 452, David Vs Jolayemi supra, Delta Holdings (Nig) Ltd VsOboro(2014) 13 NWLR (Pt 1425) 590.” PER H.A.O. ABIRU, J.C.A

POWER OF COURT TO ORDER INTEREST -ORDER 40 RULE 7 OF THE HIGH COURT (CIVIL PROCEDURE) RULES OF KANO STATE 1988

“Order 40 Rule 7 of the High Court (Civil Procedure) Rules of Kano State 1988provides as follows:
“7. The Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at the rate not exceeding ten naira per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards, as the case may be.”PER O. A. ADEFOPE-OKOJIE, J.C.A

CASES CITED

STATUTES REFERRED TO

High Court Of Kano State (Civil Procedure) Rules, 1988

Legalpedia Citation: (2014) Legalpedia (CA) 27811

In the Court of Appeal

Wed Dec 10, 2014

Suit Number: CA/K/122/2012