CORAM

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ALI, JUSTICE, SUPREME COURT

SHEHU USMAN MOHAMMED , SUPREME COURT

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PARTIES

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1. JOLABON INVESTMENT NIGERIA LIMITED

2. MRS ESTHER OLAYINKA

3. NATHAN UMANA

APPELLANTS 

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OYUS INTERNATIONAL COMPANY NIGERIA LIMITED

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent entered into a consultancy agreement with the 1st Appellant for the latter to assist the Respondent to procure land facing Tafewa Balewa Road, Central Business District, Abuja. The Respondent agreed to pay the consultant the sum of N27, 000,000 with an initial deposit of N5, 000,000 paid by the Respondent. The balance of N22, 000,000 was to be paid before the release to the Respondent of original letter of allocation. The 1st Appellant agreed to refund the deposit of N5, 000,000 upon certain terms if it failed to get the allocation/letter of offer after four weeks of the payment of the deposit. The 3rd Appellant served as a guarantor for the deposit. The transaction went sour and the Respondent sued the Appellants on the undefended list for; the sum of N5, 000,000 being money paid the Appellants without consideration; 25% interest per month and cost of action. At the end of the trial, the lower Court entered judgment in favour of the Respondent in the sum of N5, 000,000 with interest at the rate of 20% per month from 15/11/2007 against the Appellants. Aggrieved by the judgment, the Appellants have appealed to this Court by means of a Notice of Appeal bearing 4 Grounds of Appeal.

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HELD

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Appeal Dismissed

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ISSUES

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Whether upon a consideration of the affidavit evidence presented by the parties at the lower court particularly by the respondent, the respondent was not entitled to the judgment in their favour.

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RATIONES DECIDENDI

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REPLY BRIEF – PURPOSE OF A REPLY BRIEF

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“Appellants’ counsel filed a reply brief which in the main amounted to a re-argument and prettification of the arguments in his brief of argument. This is not the function of a reply brief which is designed to answer new points of law arising from the respondent’s brief. See Musaconi Limited V. Aspinall (2013) 14 NWLR (1375) 435, 457. –

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UNDEFENDED LIST PROCEDURE – ESSENCE OF THE UNDEFENDED LIST PROCEDURE

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“The essence of the undefended list procedure is to enable a plaintiff to obtain summary judgment without trial in cases where the plaintiff’s case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on the merits. See Nishizawa Ltd V. Jethwani (1984) 12 SC 254, Sodipo V. Lemminkainen Oy (1986) 1 SC 197, 207 and UTC V. Pamotei (1989) 2 NWLR (103) 244. –

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DEFENCE ON THE MERIT – DUTY OF COURT WHEN A DEFENDANT’S AFFIDAVIT DISCLOSES A DEFENCE ON THE MERIT

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“Where the defendant’s affidavit in support of his notice of intention to defend shows a defence on the merit, the trial court is obliged to let him in to defend. A defence on the merit is disclosed where there is a “triable issue”. In other words, where the defendant’s affidavit is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the depositions in the affidavit cast doubt on the plaintiff’s case. See Faro Bottling Company Ltd V. Osuji (2002) 1 NWLR (748) 311 and National Inland Waterways Authority V. Standard Trust Bank Plc (2008) 2 NWLR (1072) 483.-

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EVIDENCE –A PARTY IS REQUIRED BY THE LAW TO SET OUT THE DETAILS AND PARTICULARS OF PAYMENT OF A SUM CLAIMED

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“I agree with the appellants, counsel that the appellants were not expected to establish their defence at that stage but they were required by the law to set out the details and particulars of such payments. See Okoli V. Morecab Finance (Nig) Ltd (2007) 14 NWLR (1053) 37, 43. In the case of Abdullahi V. Buhari (2004) 17 NWLR (902) 278, 305, it was held that it is not enough for a defendant to depose that he paid the sum claimed but that he must show proof of such payment. Again in the case of General Oil Ltd V. FSH International Bank Plc (2005) 5 NWLR (919) 579, 590, it was held that where a debt is established the mere ipse dixit of a defendant should not be allowed to frustrate the recovery of the same. It is noteworthy that in respect of the sum of One Million Naira said to have been paid to respondent’s lawyer, it was not deposed that this was with the respondent’s knowledge or agreement nor was it said to be agreed that it be taken out of the deposit. –

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COURT –DUTY OF COURT WHERE A PARTY FILES AN AFFIDAVIT DISCLOSING A DEFENCE ON THE MERIT

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“What has emerged from the affidavit of the appellants is nothing but a sham defence aimed at dribbling and frustrating the respondent and cheating it out of the judgment it was entitled to. This the law would not be a party to. See UTC V. Pamotei supra; and Okoli V. Morecab Finance (Nig) Ltd. supra. It is of no moment contrary to the argument of appellants’ counsel that the respondent did not file a further and better affidavit to controvert facts deposed to in the appellants’ affidavit. This is because;
(i) What a trial court in an undefended list matter is required to do is simply to consider the affidavits and decide whether the defence discloses a defence on the merit and in this case there is no defence on the merit. See Imoniyame Holdings Ltd V. Soneb Enterprises Ltd (2010) 4 NWLR (1185) 561,574;
(ii) It is only where conflict exists on fundamental facts that the defendant is to be let in to defend and the case transferred to the ordinary cause list. See African Continental Bank Plc V. Emedo (2003) 10 NWLR (828) 244, 262. –

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UNDEFENDED LIST PROCEDURE –DUTY OF A DEFENDANT IN AN UNDEFENDED LIST PROCEDURE

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“The duty of a defendant in any undefended list procedure, is to file a Notice of an intention to defend the suit, together with an affidavit disclosing a defence on the merit. If he is able to establish a defence on the merit, the matter will be transferred to the general cause list for hearing and pleadings ordered. If he fails, the judgment will be entered for the plaintiff, as per the writ. The action is determined on the status of the documents filed by the two parties. A trial judge has no obligation, nor is he empowered to transfer the action to the general cause list for hearing on the supposition that a defendant has some documents to present to the court at the trial. He ought to produce the documents to enable the court to transfer the case and he fails, if he does not do so. –

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FAIR HEARING –CONCEPT OF FAIR HEARING

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“Fair hearing as far as a trial is concerned, connotes the necessity to afford the parties, equal opportunity to put their case to the court, before the said court determines it – Pan Vs Mohammed (2008) 16 NWLR (PT.1112). It is therefore a question of fact, to be determined by looking at the totality of the record of proceedings, whether the parties had been given equal opportunity to present their cases before the court, or not. Once an opportunity is given to a party to present his case, it is entirely up to him to seize the opportunity and adequately state his side of the story. Should he fail to take the advantage afforded to him, he cannot complain of breach of fair hearing. See Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025) 423; and Maikyau Vs. Itodo (2007) 7 NWLR (Pt.1034) 443. –

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004

 

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