AIMUAMWEHI FRIDAY OSAREREN v. FEDERAL REPUBLIC OF NIGERIA
April 11, 2025ALHAJI SAHEED IBRAHIM MASSALA V INSPECTOR GENERAL OF POLICE
April 11, 2025Legalpedia Citation: (2018) Legalpedia (CA) 12130
In the Court of Appeal
HOLDEN AT CALABAR
Wed Feb 21, 2018
Suit Number: CA/C/51/2016
CORAM
PARTIES
JULIUS BERGER NIGERIA PLC
1. ALMIGHTY PROJECTS INNOVATIVE LTD.2. FRIDAY OBONOH RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents as Plaintiffs, at the Akwa Ibom State High Court, holden at Uyo Judicial Division, filed a motion exparte against the Appellant as Defendant seeking an order of the Court to issue concurrent Writ of Summons against the Defendant and enter the suit for hearing and determination under the Undefended List among other reliefs. A notice of intention to defend the action and an affidavit supporting same were filed. When the matter came up for hearing, the erstwhile trial judge recused herself and accordingly remitted the case to the Admin. Judge for reassignment to another. The matter ultimately came up for continuation of hearing and upon the conclusion of the submission of the learned counsel to the respective parties, the Court below adjourned for ruling. In its ruling, the Defendant was denied leave to defend the suit and judgment was entered for the Claimants on the premise that the notice of intention to defend, did not disclose a defence on the merit. Dissatisfied with the court’s ruling, the Appellant has lodged the instant appeal.
HELD
Appeal Dismissed.
ISSUES
Whether the trial Court carefully and properly evaluated both parties’ affidavit evidence with the attached exhibits placed before the Court and whether the trial Court was right to have held that the Defendant [Appellant herein] have no defence to the claim of the claimants? Whether the trial Court was right to have raised the equitable doctrine of estoppel suo motu and relied on same in its judgment without inviting the parties to address the Court on same? Whether the trial Court was right to have granted the reliefs sought by the claimants and whether the cost so awarded has any legal basis in law?
RATIONES DECIDENDI
UNDEFENDED LIST PROCEDURE– NATURE OF THE UNDEFENDED LIST PROCEDURE
“Instructively, the trite procedure under the Undefended List commences with the claimant’s application to the trial for the issuance of a writ of summons regarding a claim for liquidated money demand. Invariably, the said application should be supported by an affidavit thereby setting out the necessary grounds upon which the claim is predicated. The claimant shall equally aver in the said affidavit to the effect that in the belief thereof the defendant does not have any defence to the action.”
UNDEFENDED LIST PROCEDURE –ESSENCE OF THE UNDEFENDED LIST PROCEDURE
“Invariably, the whole essence of the Undefended List Procedure and practice is to fast track the hearing and determination of cases where the claims are for debts or liquidated demand. Thus, the Undefended List Procedure is fundamentally antithetic to the excruciating rigours of pleadings and long adjournments, especially in cases where defendants do not have any feasible defence but merely set out to delay the hearing of the cases. See Ataguba Coy Vs Gura NIG. LTD. [2005] 2 SC 101; Nwankwo Vs Ecumenical Development Cooperative Society; UA [2007] 5 NWLR [Pt.1027] 377; Okoli Vs Morecab Finange [Nig] Ltd. [2007] 4-5 SC 116.”
APPEARANCE BY A PARTY – WHAT CONSTITUTES SUFFICIENT APPEARANCE BY A PARTY?
“Regarding the issue of Appellant’s failure to file a memorandum of appearance, the law is trite, that a party to an action is entitled to appear either in person or counsel thereof. And this is sufficient appearance for the purpose of the rules. See Ceekay Traders Ltd. Vs Gen. Motors Co. Ltd. [1992] NWLR [pt.222] 132 per Karibi-Whyte, JSC @ 27 paragraph D.”
DISCRETIONARY POWER OF COURT – MODE OF EXERCISING THE DISCRETIONARY POWER OF COURTS
“And the law is trite, that the discretionary power of the Court must always be exercised not only judicially but also judiciously. See Ceekay Traders Ltd. Vs Gen. Motors Co. Ltd. [supra] @ 13 paragraphs F – G per Kawu, JSC.”
CASE OF BY A PARTY – WHETHER A PARTY CAN APPROBATE AND REPROBATE
“By the doctrine of estoppel, a party is not allowed to blow hot and cold, to affirm one time and deny at the other time, that is to approbate and reprobate. See the case of Lawal V. Hon. Comm. For Lands, Housing & Survey, Oyo State, [2013] LPELR – 21114 and Ude Vs Nwara & Anor. [1993] 2 NWLR [Pt. 278] 602 at 638.”
EQUITTABLE DOCTRINE OF ESTOPPEL – WHETHER A PARTY CAN APPROBATE AND REPROBATE
“This Court has reiterated the trite fundamental principle in the case of Alh. Usman Babatunde Lawal Vs. Hon. Comm. For Lands, Housing & Survey, Oyo State:
By the equitable doctrine of estoppel, a man is not allowed to blow hot and cold, to affirm one time and deny at the other time that is to approbate and reprobate. See Ude Vs Nwara & Anor. [1993] 2 NWLR [Pt. 278] page 638 at 602. See also Section 157 of the Evidence Act. I do not know of any authority which extends that equitable doctrine to the Court itself, in its decision making process. Quod approbonon reprobo being an equitable doctrine, one must not forget that equitas Sequitur Legem i.e. equity follows the law. See [2013] LPELR 1114[CA] @ – 3 paragraphs C-F per Daniel Kalio, JCA.”
UNDEFENDED LIST PROCEDURE – PURPORT OF THE UNDEFENDED LIST PROCEDURE
“In the case of United Bank For Africa Plc & Anor. Vs. Alhaji Babangida Jargaba (2007) LPELR-3399 (SC) Niki Tobi, JSC explained that:
‘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 Plaintiff’s claim disputed to necessitate such a hearing. see Agwineme Vs. Eze (1990) 3 NWLR (PT.87) 242.’”
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UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE
“Nweze, JSC in the case of Wema Securities And Finance Plc Vs. Nigerian Agricultural And Insurance Corp (2015) LPELR-24833 (SC) gave the import of the undefended list procedure as essentially to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the Plaintiff’s case. It is also meant to shorten the hearing of a suit where the claim is for a liquidated sum. The deal is usually to ensure a quick dispatch of certain types of cases which are virtually incontestable. His Lordship said that the procedure designed to relief the Courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by Defendants who are just determined to dribble and cheat Plaintiffs out of reliefs they are normally entitled to because the case is, patently, clear and unassailable, Cow Vs. Casey (1949) 1 K.B. 482; Sodipo Vs. Lemninkainen & Ors. (1986) NWLR (PT. 15) 270; UBA & Anor. Vs. Jargaba (2002) LPELR-3399 (SC) 24; Obaro Vs. Hassan (2013) LPELR-20089 (SC); Planwell Ltd. Vs. Ogala (2003) 18 NWLR (PT. 852) 478; (2003) 12 SCNJ 58, 68. In such a case, it would be inexpedient to allow a Defendant to defend for the mere purpose of delay, Sodipo Vs. Lemninkainen (1986) 1 NWLR (PT. 15) 220; Adebisi Macgregor Ass. Ltd. Vs. N.M.B. Ltd. (1996) 2 NWLR (PT. 43) 378; (1996) 2 SCNJ 72, 81.”
UNDEFENDED LIST PROCEDURE – DUTY OF COURT TO ENSURE THAT PARTIES IN AN UNDEFENDED SUIT DO NOT ABUSE THE PROCEDURE
“From the nature of this case, I need to place a caveat to the effect that parties in an undefended list suit should understand the underlying focus of the procedure and avoid generating unnecessary and irrelevant issues to expand the docket of the procedure under the Rules. When parties engage in such diversionary tendencies they will not only abuse the procedure but engage in wasting valuable judicial time. Every trial Court must ensure such attitudes are rebuffed and not tolerated..”
CASES CITED
Not Available
STATUTES REFERRED TO
Akwa Ibom State High Court (Civil Procedure) Rules 2009|Evidence Act 2011 as amended|High Court [Civil Procedure] Rules, 2009 of Akwa Ibom State|
