May 18, 2025
Legalpedia Citation: (2012) Legalpedia (CA) 01173 In the Court of Appeal HOLDEN AT LAGOS Thu Mar 29, 2012 Suit Number: CA/L/82/2002 CORAM PARTIES 1. FORTUNE INTERNATIONAL BANK […]
CORAM
PARTIES
1. FORTUNE INTERNATIONAL BANK PLC2. SUFOOLK PETROLEUM SERVICES LTD.3. MR. HENRY ADAWARI MACPEPPLE 4. MR. ELFRIDA MACPEPPLE5. MR. EMMAUNEL MACPEPPLE
CITY EXPRESS BANK LTD.
AREA(S) OF LAW
SUMMARY OF FACTS
This appeal is against the Ruling of the Federal High Court Lagos wherein the learned trial Judge entered Judgment in favour of the Respondent herein as per its claim dated 26th June, 2002. A synopsis of the facts giving birth to this appeal will suffice. The Respondent/cross Appellant as plaintiff in the trial court, granted a Term Loan Facility of N500, 000,000.00 (five hundred million naira) through its offer letter dated 12th January, 2001 to the 2nd Appellant who accepted and utilized the same. The 1st Appellant which shares the same ownership structure with the 2nd Appellant, further to its Board Resolution, executed a corporate Guarantee for the said facility in favour of the Respondent/Cross Appellant. The 3rd, 4th and 5th Appellants also executed personal Guarantees in favour of the Respondent herein. Owing to the failure of the 2nd Appellant to honour its obligation i.e., the payment of agreed monthly rentals and further failure on the part of the 3rd – 5th Appellants, the Respondent/Cross Appellant called in the corporate Guarantee of the Appellants who also defaulted in their obligation. With this state of affairs, the Respondent instituted an action by way of originating summons and claimed inter alia the sum of N254, 836,238.23 (two hundred and fifty four million, eight hundred and thirty six thousand, two hundred and thirty eight naira, twenty three kobo), being the 1st – 5th Appellants’ indebtedness to the Respondent/Cross Appellant as at 15th January 2002. In a bid to secure the money, the court below granted an ex-parte application against the Central Bank of Nigeria, ordering it to set aside the said amount standing to the credit of the 1st Appellant. Upon service of the processes on the 1st – 5th Appellants, they filed a preliminary objection challenging the jurisdiction of the court and on that same date the court below extended the life span of the exparte order. On 6/3/02, the 1st Appellant issued its cheque No. 000746370 in the sum of N259,796,792.50 (two hundred and fifty nine million, seven hundred and eighty six thousand, seven hundred and ninety two naira, fifty kobo) an amount over and above the sum claimed by the Respondent in its Originating Summons. The Respondent in acknowledging receipt of the said amount in a letter, reminded the Appellants that it was still being owed the sum of N50, 555,027.70 (fifty million, five hundred and fifty five thousand, twenty-seven naira, seventy kobo) “being cumulative sum for interest, default and other charges”. In consequence thereof, the Respondent/cross Appellant brought an application to amend the originating summons to reflect the sum owing, which it said ought to have been N310, 119,820.29 (three hundred and ten million, one hundred and nineteen thousand, eight hundred and twenty naira, twenty three kobo), as at the time the suit was filed originally and having paid the sum of N259,786,792.50 (two hundred and fifty nine million, seven hundred and eight six thousand, seven hundred and ninety two naira; fifty kobo), the unpaid balance was then the sum of N50, 021,114.94 (fifty million, twenty one thousand, one hundred and fourteen naira, ninety four kobo). When the motion for amendment came up for hearing, the court below made an order that the parties should file pleadings afresh in the new matter. The Respondent/ Cross Appellant then filed a writ of summons with a statement of claim. The Respondent also filed a Motion Ex-parte praying the court to enter the suit on the undefended list and the suit was accordingly entered on the undefended list. On receipt of this process, the Appellants, rather than file Notice of Intention to defend the suit, filed another preliminary objection challenging the Jurisdiction of the court. On 29/7/02, the learned trial Judge struck out the said preliminary objection for being an abuse of court process. He then proceeded to enter Judgment for the Respondent/Cross Appellant in terms of his claim based on the undefended list procedure since the Appellants did not file Notice of Intention to defend. Aggrieved by the Ruling of the court below, the Appellants filed this Appeal. Also dissatisfied with the failure of the learned trial Judge to grant some of the reliefs sought for, the Cross Appellant filed a Notice of Cross Appeal.
HELD
Appeal Allowed, Cross-Appeal Struck Out.
ISSUES
Whether or not the learned trial Judge was right to have awarded Judgment against the Appellants under an undefended list procedure in an action commenced by way of Originating Summons? Whether or not an undefended list procedure under order 24 Rule 1 of the Federal High court (Civil Procedure) Rules 2000 can be used by the Respondent to recover legal charges, default charges and interest charges from the Appellant all of which are in the form of general damages without any evidence? Whether or not the Respondent claim is caught by Doctrine of Estoppel, having by his words or conduct made unambiguous promise or assurance to the Appellant which is intended to affect the relations between the Appellant and the Respondent and the Appellant having acted upon the said assurance altering his position to his detriment?
RATIONES DECIDENDI
UNDEFENDED LIST PROCEDURE – PURPORT OF THE UNDEFENDED LIST PROCEDURE
“Order 24 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000, states:-
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based, and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list”, and mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case”.
Let me state here that the undefended list procedure is designed to enable a Plaintiff to obtain summary Judgment without lengthy trial in such 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 its merits. The procedure is not intended to deny a Defendant fair hearing; rather it is a way of speeding up trial and entering Judgment without unnecessary waste of time where the conditions for it are available. See UTC V. Pamotei (1989) 2 N.W.L.R. (PT. 103) 244; Okoli V. Morecab Finance Nigeria Ltd. (2007) 14 N.W.L.R. (PT. 1053) 32.”
UNDEFENDED LIST PROCEDURE – BASIS ON WHICH A DEFENDANT WILL BE ALLOWED TO DEFEND HIS SUIT UNDER THE UNDEFENDED LIST PROCEEDINGS
“Thus, a Defendant in an undefended suit proceedings must show in his affidavit in support of his notice of intention to defend the suit not only that he intends to defend the suit, but also that the affidavit discloses a real defence on the merit. It is not enough for such a Defendant to merely assert that he has a good defence to the action without deposing to the relevant facts disclosing such defence. See ACB Ltd. V. Gwagwada (1994) 5 N.W.L.R. (PT.342) 25. For a court to let the Defendant defend the suit, it must be satisfied that the Defendant has deposed to facts, which disclose a prima facie or reasonable defence. See UNN V. Orazulike Trading Co, (1989) 5 N.W.L.R. (PT.119) 19; Agwuneme V. Eze (1990) 3 N.W.L.R. (PT.137) 242; Okambah Ltd. V. State (1990) 7 N.W.L.R. (PT.160) 1.”
AFFIDAVIT – DUTY OF PARTIES WHERE FACTS ARE PROVABLE BY AFFIDAVIT
“Needless to say, and it is trite law that when, in a situation in which facts are provable by affidavit, one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where such a party fails to swear to an affidavit to controvert such facts, the facts may be regarded as duty established. See Ajomale V. Yaduat (NO.2) (1991) 15 N.W.L.R. (PT.191) 266 at 282.”
UNDEFENDED LIST PROCEDURE – CONSEQUENCE OF A DEFENDANT’S FAILURE TO DELIVER THE NOTICE OF INTENTION TO DEFEND AND AN AFFIDAVIT
“Under Rule 4 thereof, where any Defendant neglects to deliver the Notice of Defence and Affidavit prescribed by Rule 3(1) of the said order, or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and Judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally. See Under Rule 4 thereof, where any Defendant neglects to deliver the Notice of Defence and Affidavit prescribed by Rule 3(1) of the said order, or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and Judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally. See Ben Thomas Hoters Ltd. V. Sebi Furniture Co. Ltd. (1989) 5 N.W.L.R. (Pt.123) 523; Ataguba & Co. V. Gura Nig. Ltd. (2005) 8 N.W.L.R. (PT.927) 429; Agro Millers Ltd. V. CMB Ltd. (1997) 10 N.W.L.R. (PT.525) 469.”
UNDEFENDED LIST – DUTY OF A PARTY WHEN SERVED WITH A PROCESS UNDER THE UNDEFENDED SUIT
“I need to emphasise that the procedure under order 24 Rule 1 of Federal High Court (Civil procedure) Rule 2000, is a special provision with its own rules which must be followed step by step to its logical conclusion. Whenever, a party is served with processes under the undefended suit, what is required of such a party is to file an Affidavit disclosing an intention to defend the suit and depose to facts that would assist the court to decide in his favour by giving him leave to defend the suit. He can also admit the debt if he so wishes.”
NOTICE OF APPEAL – IMPORTANCE OF A NOTICE OF APPEAL
“Let me state here that a Notice of Appeal in the process of appeal is a very important document as it is the foundation of the appeal. If it is defective, the appellate court cannot assume Jurisdiction and must be struck out on the ground that it is incompetent. See First Bank Of Nigeria Plc V. TSA Industries Ltd. (2010) 15 N.W.L.R. (PT. 1216) 247; Amadi V. Okori (1972) 7 SC; Central Bank Of Nigeria V. Okojie (2004) 10 N.W.L.R. (PT.882) 488; Olarenwaju V. Bon Ltd. (1994) 8 N.W.L.R. (PT.364) 622.”
NOTICE OF APPEAL – WHETHER AN APPELLANT CAN FILE MULTIPLE NOTICES OF APPEAL
“It is trite that an Appellant can file several Notices of Appeal within the time allowed by law but at the hearing of the appeal, an Appellant will only rely on one of these notices and not on all the Notices unless he applies to consolidate them. See Tukur V. Government Of Gongola State (1988) 1 N.W.L.R. (PT.68) 39.”
UNDEFENDED LIST PROCEDURE – PURPORT OF ORDER 24 RULE 1 OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES 2000
“As l had earlier stated in this Judgment, the purport of order 24 Rule 1 of the Federal High Court (Civil Procedure) Rules 2000 is that whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the Deponent’s belief there is no defence thereo, the court shall, if satisfied that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the Writ of Summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”
UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE
“It has to be noted that the Undefended List procedure as provided for under the Rules of Court, though aimed at speeding disposition of a certain category cases, especially the recovery of a liquidated sum, is not designed to shut out a Defendant from being heard. This procedure is not for all manner of claims but specifically “in respect of a claim to recover a debt or liquidated money demand.”
LIQUIDATED MONEY DEMAND – DEFINITION OF LIQUIDATED MONEY DEMAND
“A liquidated money demand is defined as a claim for an amount previously agreed by the parties or that can be precisely determined by operation of law or by terms of the parties. In Iwueke V. Imo Broadcasting Corporation (2005) 17 N.W.L.R (PT.955) 447 AT 484 – 485 PARAGRAPHS H – B, the Supreme Court per Ogbuagu, JSC held that:
“Since the learned trial Judge did not receive evidence in proof of the alleged libel, the lower court was justified and right, in holding that the trial court was in error to have entered Judgment for the Appellant. This is also because, as noted in the case of Odume & Ors. v. Nnachi & Ors. (1964) 1 All BLR 324 at 328 (which was a case in trespass), Idigbe, JSC stated inter alia, thus: “… a claim for damages a does not become one for “liquidated damages” merely because a specific amount of money is claimed”.
The learned Jurist referred to Odgers on the common Law (1927) 3rd Edition, Vol. 2, p.654 where the following appears:
“Whenever the amount to which the Plaintiff is entitled can be “ascertained by calculation or fixed by any scale or other positive data” it is said to be liquidated or ‘made clear’. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to unliquidated”.
See also Befareen Pharmacy Ltd. V. African International Bank Ltd. (2005) 17 N.W.L.R. (PT.954) 230; African International Bank Ltd. V. Packoplast Nig. Ltd. (2003) 1 N.W.L.R. (PT.802) 502.”
SPECIAL DAMAGES – NEED TO PROVE SPECIAL DAMAGES SPECIFICALLY
“Any amount claimed by the plaintiff ought to be proved before the court as to how he came about the said sum. It is trite law that special damages must be proved strictly. It is not a claim which can be dumped on the court as a liquidated claim. Legal fees, unless previously agreed upon, and that on a particular sum, cannot be claimed under the Undefended List procedure. See Otaru V. Onu (1999) 4 SC (PT.2) 87; Dumez Nig. Ltd. V. Patrick Nwaka Ogboli (1972) 3 SC 196 at 204-205.”
DOCTRINE OF ESTOPPEL – OPERATION OF THE DOCTRINE OF ESTOPPEL
“I am aware that the payment of a sum less than the full amount of a debt is not a consideration to forego the balance but where by words or conduct, one party to a transaction makes to the other an unambiguous promise, or assurance or representation which is intended to affect the legal relations between them, whether contractual or otherwise, and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance or representation will not be allowed to act inconsistently with it. See Lanre Oladimeji V. Trans Nigeria Assurance Company Limited (1998) 12 N.W.L.R. (PT.576) 44: Ajide V. Kelani (1985) N.W.L.R. (PT.12) 248. The Respondent herein had made a representation to the Appellants by the various letters of demand and the case filed in this court which in my opinion was intended to be acted upon by the Appellants for which they actually acted upon far above the representation made. It is trite that when a promise is made which was intended to be acted upon and was indeed acted upon to bring about some change in the position of the promise capable of putting him in some disadvantage – a detriment of sort, it would be inequitable if the promise was simply resiled from by the promisor. See Temco Engineering Company Limited V. Savannah Bank Of Nigeria Limited (1995) 5 N.W.L.R. (PT.397) 607.”
ESTOPPEL – PURPORT OF AN ESTOPPEL
“Estoppel is intended to preclude the Respondent from saying that the representation it made to the Appellants was untrue after the Appellants had acted on the said representation to their detriment.
“The Supreme Court in Jacob Oyerogba & Anor. V. Egbewole Olaopa (1998) 12 N.W.L.R. (PT.583) 509 at 519 Paragraphs A – B has put the matter beyond doubt when it held that:-
“Estoppel is now more than rule of practice and it can rightly be described as substantive rule of law. There is estoppel where a party is precluded from saying a certain statement of fact is untrue whether in reality it is true or not. Estoppel, in nature, is a conclusion creating a disability whereby a party is precluded from contending or proving in any legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability”.
The Apex Court in paragraphs G – H in the same case on page 519 further states:-
“Where a person by words and or deeds or by conduct made to another a clear and unequivocal representation of a fact either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable man in his full faculties, understand that a certain representation of fact was intended to be acted upon, and that other person in fact acted upon that representation whereby his position was thereby altered to his detriment, an estoppel arises against that person who made the representation and he will not be allowed to aver that the representation is not what he presented it to be’.”
CASE BEFORE THE COURT – WHETHER PARTY MAY BE ALLOWED TO SET UP INCONSISTENT CASES
“The law is that a party shall not blow hot and cold nor be allowed to set up inconsistent cases even as a defence. See Gombe V. P.W. Nigeria Ltd, (1995) 6 NWLR (PT.402) PAGE 402; Chikwe Ilo V. Nwali (1998) 8 NWLR (PT 696) 187; Stallion Nigeria Ltd, V. EFCC (2008) 7 NWLR (PT 1087) P. 94. See also my decision in Appeal No. CA/L/916/2007 NIGERIAN Aviation Handling Company Limited V. Yinka World Investment Ltd. And Salaudeen Ambali delivered on 5th March, 2012 (unreported).”
UNDEFENDED LIST PROCEDURE – WHETHER A PLAINTIFF IS ENTITLED TO JUDGMENT WHERE A DEFENDANT FAILS TO FILE A DEFENCE IN AN UNDEFENDED LIST SUIT
“Even if the Judgment could be said to be based on an undefended cause list, which as the learned trial Federal High court Judge (Gumel J as he then was) righty held that the Judge’s only obligation on the return date was to enter Judgment if no defence on Affidavit disclosing a the merit is filed, there is in law, in any case, an obligation to enter Judgment on its merit only as the party is entitled to in law, and per proven claim. See my decision in Mrs., Glory J, Jella V. Sardauna Local Government – case No. TRSJ/147m/06 delivered on 19th October, 2006 (unreported). In the said Judgment Danjuma, J (as he then was) held as follows: –
“It is clear from this law that it is only what the plaintiff is entitled to that shall be given as a Judgment in his favour. It is not the law as erroneously assumed (permit the tautology employed for emphasis by many a counsel including unfortunately even some Judges that a Plaintiff whose suit has been placed on the undefended list is automatically and as of right (by that exercise of the Court) entitled to all the claims or reliefs sought. Nothing can be further from the law than this. The non-filing of a Notice to defend and an affidavit or memorandum only obviates the necessity of oral hearing unless otherwise ordered. Thus constituting and exception to the audi alteram partem Rule. It does not take away the need for the court to be satisfied of the merit of a case hence the requirement that ‘Judgment shall be delivered’.
See A.I.B. V. Packo Plastics (2001) 30 WRN 141 per Isa Ayo Salami JCA 159 – 160 lines 40 – 45. Also Agbi V. Ogbeh (2006) 39 LRCN 17, 39. The Supreme Court said the only duty in a civil claim is to render unto a party as per his proven claim.”
LITIGATION – DUTY OF PARTIES AS REGARDS LITIGATION
“Litigation is a sacrosanct pursuit and must be done or pursued with honesty and integrity in the temple of justice. As the courts are to be Holy so also the players therein should be. The record of Appeal is the Bible of the case.”
RIGHT TO FAIR HEARING – CONSEQUENCES OF MAKING AN AWARD AGAINST A PERSON WHO WAS NOT HEARD OR GIVEN THE OPPORTUNITY TO BE HEARD
“To now make such an award against a person who was not heard or given the opportunity to be heard will be against the right of fair hearing. See Green V. Green.”
CASES CITED
Not Available
STATUTES REFERRED TO
Federal High Court (Civil Procedure) Rules 2000|