Legalpedia Citation: (2015) Legalpedia (CA) 41312
In the Court of Appeal
Fri Mar 6, 2015
Suit Number: CA/A/143/2013
CORAM
PARTIES
PLATINUM SAVINGS AND LOANS LIMITED APPELLANTS
1.FORTUNE ELECTRIC POWER CO. LTD
2.WEATHERFIELD PROPERTIES LTD
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiff/1st Respondent instituted an action against the 1st Defendant/Appellant and 2nd Defendant/Respondent at the High Court of the Federal Capital Territory, Abuja under the undefended list. The Plaintiff/1st Respondent was claiming for the sum of N71, 485,550.00 due to them under a tenancy agreement dated the 11th of July, 2012 in respect of a four bedroom duplex with 2 boys’ quarters and 60 Nos. boys’ quarters along Hassan Musa Street, Asokoro Extension, Abuja. The 1st Defendant/Appellant filed a notice of preliminary objection and a notice of intention to defend together with a counter-affidavit in opposition to the undefended claim.
After the hearing of the parties’ arguments, the learned trial judge in his considered judgment dismissed the 1st Defendant/Appellant’s preliminary objection and leave was not granted to defend the Plaintiff/1st Respondents claim. Consequently, judgment was entered in favour of the Plaintiff/1st Respondent which ultimately displeased the 1st Defendant/Appellant and prompted him to appeal to the Court of Appeal.
HELD
Appeal Dismissed.
ISSUES
1.Whether the lower court was not in error when it over looked the appellants right to submit to Arbitration (Ground 1)?
2.Whether the lower court was not in error when it entered judgment on the undefended list when the claim was neither for a debt nor for a liquidated demand (Ground 2)?
3.Whether the lower court was not in error by holding that the appellant was required to establish instead of showing a defence (Grounds 3 & 4)?
RATIONES DECIDENDI
VALIDITY OF AN AFFIDAVIT – FOR AN AFFIDAVIT TO BE VALID, IT MUST BE SWORN TO AND SIGNED BY THE DEPONENT AND ALSO BE AUTHENTICATED BY THE APPROPRIATE OFFICER OF THE COURT.
“By its very nature, for an affidavit to be valid, it must be sworn to and signed by the deponent and it must also be authenticated by the appropriate officer of the court or a notary public before whom it is sworn.” PER M. A. A. ADUMEIN, J.C.A
ADMINISTRATION OF OATH- WHETHER IT IS POSSIBLE FOR A DEPONENT TO ADMINISTER OATH ON HIMSELF
“A deponent, by common sense, cannot administer an oath on himself without an officer of the court or a person duly authorized to administer oaths, such as a notary public.” PER M. A. A. ADUMEIN, J.C.A
“DEBT” – MEANING OF THE TERM “DEBT”
“The term “debt or liquidated money demand” means no more than a specific sum of money dueby agreement or otherwise payable to the claimant by the defendant and which sum can be confirmed by means mathematics or arithmetic.” PER M. A. A. ADUMEIN, J.C.A
PRIVITY OF CONTRACT – ONLY PARTIES TO AN AGREEMENT ARE BOUND BY THE TERMS OF THE AGREEMENT.
“The law is trite and it is that there is privity of contract and only parties to an agreement or a contract that are bound by the terms thereof.” PER M. A. A. ADUMEIN, J.C.A
ADMISSION OF FACTS- FACTS ADMITTED NEED NO FURTHER PROOF
‘‘The law is trite that facts admitted require no further proof.’’PER T. AKOMOLAFE-WILSON, J.C.A.
UNDEFENDED LIST ACTION – MODE OF ENTERING A DEFENCE IN AN UNDEFENDED LIST ACTION
“A defendant to a cause or matter entered under the undefended list, who wants to defend the suit or action, must file a notice of intention to defend. The notice of intention to defend must be supported with an affidavit disclosing a defence on the merits or a triable issue.” PER M. A. A. ADUMEIN, J.C.A
TRANSFER OF AN ACTION UNDER THE UNDEFENDED LIST TO THE GENERAL CAUSE LIST– A DEFENDANT TO AN ACTION UNDER THE UNDEFENDED LIST MUST BY HIS AFFIDAVIT SHOW THAT HE HAS A DEFENCE ON THE MERITS
“To transfer to the general cause list of a case entered under the undefended list is not a matter mere course or routine. A defendant to a case under the undefended list must, by his affidavit in support of the notice of intention to defend, show that he indeed has a defence on the merits and not merely a flimsy or frivolous defence See the case of United Bank for Africa Plc &Anor. v. Alhaji Babangida Jargba (2007) 11 NWLR (Pt. 1045) 247 at 272 – 273,” PER M. A. A. ADUMEIN, J.C.A
CONTRACT – THE COURT CANNOT MAKE CONTRACTS FOR PARTIES.
“The law is that courts do not make contracts for parties See Omega Bank (Nigeria) Plc v. O.B.C. Ltd. (2005) 8 NWLR (Pt 928) 547 at 576, per Musdapher, JSC (as he then was)” PER M. A. A. ADUMEIN, J.C.A
AUTHENTICATION OF AFFIDAVIT – APPROPRIATE OFFICER TO AUTHENTICATE AN AFFIDAVIT
“By its definition and meaning, an affidavit must of legal necessity be authenticated by the person before who it is sworn.” PER M. A. A. ADUMEIN, J.C.A
INTERPRETATION OF DEBT OR LIQUIDATED DEMAND – LIQUIDATED DEMAND IS A DEBT OR OTHER SUM OF MONEY USUALLY DUE AND ASCERTAINABLE.
‘‘While interpreting the phrase debt or liquidated demand” the Supreme Court, per Iguh, JSC held in the case of Dr. Oladipo Maja v. Mr. Costa Samouris (2002) 7 NWLR (Pt. 765) 78 at 102 as follows;
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be clearly ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be “liquidated” or made clear.”PER T. AKOMOLAFE-WILSON, J.C.A.
AUTHENTICATION OF AFFIDAVIT – NO PROBATIVE VALUE CAN BE ACCORDED TO AN AFFIDAVIT WHICH WAS NOT AUTHENTICATED BY THE COMMISSIONER FOR OATHS BEFORE WHOM IT WAS SWORN
“An affidavit, not authenticated by the Commissioner for Oaths before whom it was sworn is a worthless piece of paper. No probative value can be foisted upon such an affidavit. The depositions in an unauthenticated affidavit are completely of no moment, and cannot be regarded as any defence to an action.”PER T. AKOMOLAFE-WILSON, J.C.A.
AIM OF THE UNDEFENDED LIST PROCEDURE – THE AIM OF THE PROCEDURE UNDER THE UNDEFENDED LIST IS TO ENSURE QUICK DISPENSATION OF JUSTICE.
“The aim of the undefended list procedure is to quicken the dispensation of justice and avoid a situation where a defendant will be merely playing for time when in fact he has no defence to the plaintiffs claim. See United Bank for Africa Plc& Anor v. Alhaji Ibrahim Jargba (supra).” PER M. A. A. ADUMEIN, J.C.A.
CASES CITED
STATUTES REFERRED TO