Legalpedia Citation: (2024-01) Legalpedia 24332 (SC)

In the Supreme Court of Nigeria

Fri Jan 12, 2024

Suit Number: SC.121/2012

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Adamu Jauro Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

PARTIES

1. INTERCHEMICALS LIMITED

2.MR. CHRIS ODIETE

APPELLANTS

INTERCONTINENTAL BANK PLC

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The sum of N13, 559,497.06 (Thirteen Million Five Hundred and Fifty-Nine Thousand, Four Hundred and Ninety-Seven Naira, Six Kobo) being the outstanding debit balance in the 1st Defendant’s account with the Plaintiff as at May 2007 which sum is due the Plaintiff from a credit facility granted to the 1st Defendant at the 1st Defendant’s request and guaranteed by the 2nd Defendant which sum the Defendants have failed, neglected, omitted and/or refused to pay in spite of repeated demand.

The contention that brought them to Court was whether same was paid back or not.

 

The trial Court delivered its judgment in favour of the Respondent, prompting the Appellants to appeal against the said judgment to the lower Court, which also dismissed the Appellant’s appeal. Hence, this appeal by the Appellants to this Honourable Court.

HELD

Appeal dismissed

ISSUES

Ø  Whether the Justices of the Court of Appeal were right in upholding the judgment of the trial Court?

RATIONES DECIDENDI

DEFENCES – DEFENCES OPEN TO A DEBTOR OR BORROWER OF MONEY WHEN SUED FOR PAYMENT

This Court has narrowed and pinned the defences open to a debtor or borrower of money when he is sued for the repayment. Per DAHIRU MUSDAPHER, JSC, in OKOLI V. MORECAB FINANCE (NIG) LTD (2007) LPELR- 2463(SC) (P. 22, PARAS. D-F), on the Defences open to a defendant in a

claim for repayment of loan under the undefended list procedure; held:

“In an action placed in the undefended list where the plaintiff claims repayment of loan, the only defences open to the defendant are only two. (1) That the defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid or (2) That he never borrowed the money in the first place, he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery.” – Per U. M. Abba-Aji, JSC

MONEY – THE BEST WAY OF PROVING PAYMENT OF MONEY INTO A BANK ACCOUNT

This Court logically and commonsensically settled the matter in SALEH V. BANK OF THE NORTH (2006) LPELR-2991(SC), when it decided:

“…where the appellant claimed to have repaid the loan overdraft against statements of accounts tendered by the respondent bank showing non-payment by the appellant, the proof of payment by the mere ipse dixit of the appellant cannot be sufficient proof of repayment of the debt…The best way of proving payment of money into a bank account is by the production of a bank teller or an acknowledgment showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialed by the cashier, constitutes prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipt, need not prove more unless payment is being challenged.”

See also ISHOLA V. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR-1547(SC) – Per U. M. Abba-Aji, JSC

UNDEFENDED LIST PROCEDURE – CONDUCT OF A DEFENDANT SEEKING TO TRANSFER A MATTER UNDER THE UNDEFENDED LIST PROCEDURE TO THE GENERAL CAUSE LIST

In an action under the Undefended List procedure, the defendant seeking to have the matter transferred to the General Cause List must, in his affidavit accompanying his Notice of Intention to Defend, “condescend upon particulars and as far as possible deal specifically with plaintiff’s claim and affidavit and should also clearly and concisely state what the defence is. A mere denial by the defendant of his indebtedness is not sufficient. It is also not enough for the defendant to show a case of hardship nor a mere inability to pay.” See:Sanusi Brothers (Nig) Ltd. Vs Cotia Commercio Exportacao E. Importacao S.A. (2000) LPELR – 3006 (SC) @ 16 – 17 E – C, Macaulay Vs NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 283, Nishizawa Ltd Vs Jethwani (1984) 12 SC 234. – Per K. M. O. Kekere-Ekun, JSC

UNDEFENDED LIST PROCEDURE – THE ESSENCE OF THE UNDEFENDED LIST PROCEDURE

The essence of the Undefended List procedure is to allow a claimant obtain quick justice in respect of a debt or liquidated sum where the facts are clear and there is no genuine defence to the claims. It allows the Court to give judgment without the need to go the whole hog of a trial on pleadings and the calling of evidence. It saves judicial time and expense. It was held by this Court in Nishizawa Vs Jethwani (supra) that:

“A defendant who has no genuine defence will not be permitted to waste the time of the Court and dribble his opponent and cheat him out of the Judgment he is entitled to by delay tactics aimed, not at any real defence to the action, but at gaining time within which he may postpone meeting his obligation and indebtedness.” – Per K. M. O. Kekere-Ekun, JSC

UNDEFENDED LIST PROCEDURE – THE MANNER BY WHICH A PLAINTIFF MAY BRING A CLAIM FOR LIQUIDATED MONEY DEMAND – THE UNDEFENDED LIST PROCEDURE

Where a Plaintiff brings a claim for a liquidated money demand as the Respondent herein did at the trial Court, the rules of Court allow it to be brought by a peculiar procedure called the Undefended List Procedure. The purpose of the procedure is to enable a Plaintiff obtain summary judgment without going into a lengthy trial if he can prove his claim clearly and also if the Defendant is not able to set up a bona fide defence on the merit or raise an issue against the claim which ought to result in transfer of the case to the general cause list and being tried on its merit. It is a kind of abridged procedure and is meant to enable the Plaintiff obtain summary judgment without trial where his case is patently clear and unassailable. See SODIPO V. LEMNINKAINEN OY (1986) 1 NWLR (PT. 15) 220, AJE PRINTING (NIG.) LTD. V. EKITI L.G.A. (2021) 13 NWLR (PT. 1794) 498, OBARO V. HASSAN (2013) LPELR – 20089 (SC), IMONIYAME HOLDINGS LTD & ANOR V. SONEB ENTERPRISES LTD & ORS (2010) LPELR – 1504 (SC), JOEL OKUNRINBOYE EXPORT CO. LTD & ORS V. SKYE BANK PLC (2009) LPELR – 1618 (SC).

The undefended list procedure is however not designed to shut out a Defendant who has a genuine defence or a defence on the merit. Hence, by Order 23 Rule 3(1) of the High Court of Bendel State (Civil Procedure) Rules, 1988, applicable to Delta State, the rules of Court applicable to the suit before the trial Court, provides thus:

“If the party served with the writ of summons and affidavit delivers to the registrar, not less than five 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.” – Per Adamu Jauro, JSC

DEFENDANT – CONDUCT OF DEFENDANT IN DRAFTING THE DEFENDANT’S AFFIDAVIT

To disclose a defence on the merit, the Defendant’s affidavit must ex facie disclose a strong defence and not a sham defence intended to delay and frustrate justice. It has to disclose a triable defence to warrant the action being transferred from the undefended list to the general cause list for a trial on the merit. See LEWIS V. UBA (2016) LPELR – 40661 (SC), ATAGUBA & CO. V. GURA (NIG.) LTD. (2005) 8 NWLR (PT. 927) 429.  – Per Adamu Jauro, JSC

CASES CITED

STATUTES REFERRED TO

Bendel State High Court Rules, 1988

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