CORAM

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OLUKAYODE ARIWOOLA

MUHAMMAD SAIFULLAH MUNTAKA COOMASS1E

JOSEPH SHAGBAOR IKYEGH, JUSTICE COURT OF APPEAL

OLUKAYODE ARIWOOLA

KUMAI BAYANG AKA’AHS

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PARTIES

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1. IFEANYICHUKUWU TRADING INVESTMENT VENTURES LTD.

2. CALLISTUS OBITUBE

APPELLANTS 

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ONYESOM COMMUNITY BANK LTD

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent as Plaintiff filed a writ of summons which was marked as “undefended”, claiming the sum of N10, 080,093.18 (Ten million, Eighty Thousand, Ninety-three Naira Eighteen Kobo) with interest. The said Writ of summons was served on the Defendants as Appellants herein requiring them to file a Notice of intention to defend the suit if there is a dispute to the claim in the registry of the court not less than five days before the day fixed for hearing. The Appellants were further notified that if there be no notice to defend the suit or if there be such notice but the court is not thereby satisfied that there is a triable issue, the Respondent may proceed and judgment may be given in their absence or the insufficient notice notwithstanding. Subsequently, a day before the return date, the Appellant’s filed an application before the trial court seeking an order to strike out the suit on the ground that it was premature as no “Demand Notice” was given by the Respondent. The Respondent filed a counter affidavit to which various documents were attached including Letters of Demand and notification of balance in the Defendants’ overdraft account. When the application came up for hearing, the court was informed that the Defendants had approached the Plaintiff for settlement out of court and the case was adjourned. The Defendant’s application suffered series of adjournment and when the settlement failed, the court dismissed the application for an order striking out the suit and proceeded to hear the suit under the undefended list. At the conclusion of the trial, the court entered judgment in favour of the Respondent. Dissatisfied, the Appellant appealed to the Court of Appeal which dismissed the appeal for lacking in merit, hence a further appeal to this court.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the court below was right, despite the notice of Intention to defend an affidavit evidence of the appellants, in dismissing the appeal and affirming the decision of the trial court when the matter was heard under Undefended List?

 

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RATIONES DECIDENDI

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FINDINGS OF FACTS OF LOWER COURTS – AN APPELLATE COURT WILL NOT DISTURB THE FINDINGS OF FACTS OF LOWER COURTS EXCEPT THERE IS AN ERROR WHICH LEADS TO A MISCARRIAGE OF JUSTICE

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?“It is already well settled that this court will not ordinarily disturb the findings of facts of the two courts below unless and except there is manifest error which leads to some miscarriage of justice, or a violation of some principles of law or procedure. See; Adaku Amadi Vs Edward N. Nwosu(1992) NWLR (Pt.241) 273; (1992) 6 SCNJ 59, Onwujuba Vs Obienu(1991) 4 NWLR (Pt.188) 16; Odofin Vs Ayoola(1984) 11 SC 72; Ogundipe Vs Awe(1988) 1 NWLR (Pt.88) 188.” PER O. ARIWOOLA, J.S.C

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JOINDER OF ISSUES – CONCEPT OF JOINING ISSUES?

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“Once the court discovers in the affidavit evidence, an issue that will require an investigation or explanation from the plaintiff on the claim, or where the affidavit in support of the Notice of Intention to defend throws a doubt on the claim, then the parties are said to be brought within the concept of joining issues. See; Graham Vs Esumai(1984) 15 NSCC 733 at 743; Ehimare Vs. Emhonyon(1985) 1 NWLR (Pt.2) 777.” PER O. ARIWOOLA, J.S.C

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UNDEFENDED LIST PROCEDURE – UNDEFENDED LIST PROCEDURE IS RESORTED TO WHERE THE CLAIM IS FOR A LIQUIDATED SUM OF MONEY?

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“Where the claim is for a liquidated sum of money, the claim is arguable in law and the facts are not in dispute it is appropriate to resort to the Undefended List procedure. This will ensure that the plaintiff obtains judgment expeditiously and a defendant who has no real defence to the action is not allowed to delay or frustrate the plaintiffs claim. See Nya v. Edem (2000) 8 NWLR (Pt. 669) 340; Ataguba &Co v.Gura (2000) FWLR (Pt. 24) 1522.” PER N. S. NGWUTA, J.S.C.

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UNDEFENDED LIST – WHERE A CASE DISCLOSES A TRIABLE ISSUE, THE CASE CAN NO LONGER BE TRIED UNDER THE UNDEFENDED LIST PROCEDURE?

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“In the situation where a triable issue is disclosed, then the case can no longer be tried or heard under Undefended list but must be transferred to the general list for trial on pleadings. See; Nworah & Sons Ltd. Vs. Akputa Esq. (2010) 4 SCM 31.” PER O. ARIWOOLA, J.S.C

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UNDEFENDED LIST PROCEDURE – OBJECT OF THE UNDEFENDED LIST PROCEDURE?

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“The procedure prevents worthless and sham defences and stops the defendant from frustrating and dribbling the plaintiffs who has a clear case against him. See MC Investments Ltd v Core Investments & Capital Markets Ltd (2012) 6SC (pt l) p.185, Obaro v. Hassan (2015) 8 NWLR (pt.1337) p.425, UTC (Nig.) Ltd v Pamotei (1989) 2NWLR ( p. 103) p. 244 “. PER O. RHODES VIVOUR, J.S.C.

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ADMISSION OF A DEBT – A DEBTOR WHO HAS ADMITTED HIS INDEBTEDNESS TO THE CREDITOR WOULD BE BOUND BY SUCH ADMISSION?

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“The law on the admission of a debt by the debtor is as stated by learned counsel for the respondent that once a debt is admitted by a defendant debtor who has benefited from the largess provided by the plaintiff creditor and the defendant debtor unequivocally acknowledged in writing his indebtedness, but also pleaded and did get mercy, he will not be allowed to dribble the plaintiff out of the judgement which the plaintiff was lawfully entitled to. The defendant would be bound by the contents of the letters of acknowledgement of indebtedness to the plaintiff. See: Akinola v Faseun (1973) All NLR 146; Nishizawa v Jethwani (1984) 12 SC. 234; Macaulay v Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283.”PER K. B. AKAAHS, J.S.C

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RULES OF COURT – RULES OF COURT ARE TO BE OBEYED?

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“It is trite law that the rules of court are to be obeyed and complied with. In the event of a non compliance with the rules and it is not explained away, then, unless the non compliance is of a minimal kind, the court must not grant any indulgence. See; N.A. Williams & Ors Vs Hope Rising Vol. Society(1982) 1 All NLR (Pt.l) 1 at 5; OnwukaKalu Vs. Victor Odili& Ors (1992) NWLR (Pt.340) ; (1992) 6 SCNJ 76.” PER O. ARIWOOLA, J.S.C

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CONCURRENT FINDINGS OF FACT BY LOWER COURTS – THE CONCURRENT FINDINGS OF LOWER COURTS SHOULD NOT BE DISTURBED WHERE THERE IS SUFFICIENT EVIDENCE TO SUPPORT SAME

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?“Where there is sufficient evidence to support concurrent findings of fact by two lower courts, such findings should ordinarily not be disturbed, unless there is a substantial error which is apparent on the record, that is, the findings have been clearly shown to be perverse, or some miscarriage of justice or some material violation of some principle of law, or of procedure is shown. See; Kenneth Ogoala Vs The State(1991) 2 NWLR (Pt.175) 509; (1991) 3 SCNJ 61; (1991) 3 SC 80; Sobakin Vs. The State(1981) 5 SC 75; Nwiboko Vs The State(1985) 4 SC (Pt. ll) 183; Ikem Vs The State(1985) 1 NWLR (Pt.2) 378 at 388.” PER O. ARIWOOLA, J.S.C

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CONCURRENT FINDINGS OF FACT BY LOWER COURTS – ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACT BY LOWER COURTS ?

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“It is now trite law that where there are concurrent findings of fact or decisions by the two courts below, the attitude of this court is not to disturb or interfere with the same. See; Uzoechi Vs. Onyenwe(1999) NWLR (Pt.587) 339; Anwoyi & Ors Vs Shodeke& Ors(2006) 13 NWLR (Pt. 996) 34; (2006) 6 SCM 1.”PER O. ARIWOOLA, J.S.C.

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UNDEFENDED LIST PROCEDURE – A PLAINTIFF IS ENTITLED TO JUDGMENT WHERE THE DEFENDANT IN AN UNDEFENDED LIST PROCEDURE FAILS TO DELIVER THE NOTICE OF DEFENCE?

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“Once the defendant in an action such as the instant fails to deliver the notice of defence and affidavit and is not let in to defend, the plaintiff is entitled to judgment, in particular, once the affidavit in support of the application for Writ of Summons shows that the defendant has no defence to the action. See; Ben Thomas Hotels Ltd Vs. Sebi Furniture Company Ltd(1989) NWLR (Pt.123) 523.” PER O. ARIWOOLA, J.S.C

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UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE

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?“It is trite law that the purpose or object of this procedure is to enable the court to deal summarily with the plaintiffs claim and enter quick judgment once it is clear that the defendant does not have any defence to such claim, in order to save time and avoid unnecessary expense on litigation trial. In other words, the procedure under undefended list rules is designed to secure justice and avoid the injustice likely to occur when there is indeed no genuine defence on the merits to the plaintiffs claim. The procedure is employed to shorten the hearing of a suit where the claim is for liquidated sum. See;United Bank for Africa & Anor VsAlhaji Babangida Jargaba(2007) 11 SCM 169;Imoniyame Holdings Ltd & Anor Vs Soneb Enterprises Ltd & Ors(2010) 4 NWLR (Pt.1185) 561; (2010) 1 SCM 67;Obaro Vs.Hassan(2013) 8 NWLR (Pt.1357) 425; (2013) 4 SCM 145; (2013) 2 SCNJ 788.” PER O. ARIWOOLA, J.S.C

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CASES CITED

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STATUTES REFERRED TO

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Anambra State (Civil Procedure) Rule, 1988 ?

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