JOHNBULL ADAMS NIGERIA LIMITED & ORS. V. ISOKO COMMUNITY BANK LIMITED

CORAM

S.M.A. BELGORE (PRESIDED) – JUSTICE, SUPREME COURT

PARTIES

1. JOHNBULL ADAMS (NIG) LTD

2. JOHNBULL ADAMS

3. URIEH JAMES

APPELLANTS 

ISOKO COMMUNITY BANK LTD

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent initiated proceedings under the undefended list at the Registry of the High Court of Justice, Oleh, on the 24th day of April, 2007. The Court granted leave to the Respondent to issue and serve writ of summons and other processes on the Appellant in Lagos and to place the suit on the undefended list. The Respondent’s Claim as endorsed on the writ of summons are the sum of N1,710,000.00 as the amount owed inclusive of the interest on the investment facility granted to the 1st Appellant by the Respondent. The Appellants filed several notices of intention to defend the suit at the lower court, except for the 3rd Appellant. The proceedings commenced with the suit placed on the undefended list, and the writ of summons ordered to be marked undefended by the lower court while, judgment was entered against the 3rd Appellant, having failed to file a notice of intention to defend or an affidavit disclosing a defence on the merit despite service of the processes of the Respondent on him and upon admission that he had no defence. Hearing of the suit against 1st and 2nd Appellants suffered many adjournments occasioned principally at the instance of the Appellants. When further application for adjournment by the Appellants to enable them file their Notice of Intention to defend out of time and a deeming order was rejected by the Lower Court upon the opposition of the Respondent; parties addressed the court. The Lower Court delivered judgment in favour of the Respondent. Dissatisfied, the Appellants appealed against the judgment vide their Notice of Appeal.

HELD

Appeal Allowed

ISSUES

Whether the judgment of the Lower Court as between 1st and 2nd Appellants and the Respondent was correct having regard to the facts before the Court.

RATIONES DECIDENDI

JUDICIAL DISCRETION – CONCEPT OF EXERCISE OF JUDICIAL DISCRETION

“Undoubtedly, the discretion of the judge is the power or right conferred by the law, on a court in acting in certain circumstances according to the dictates of his own judgment and conscience, uncontrolled by the judgment or conscience of others, so it is unfettered. See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Hence, it is the court exercising its discretion which depends upon the peculiar circumstances of the case before it, who can limit itself in the exercise of that discretion. See ICAN V. Attor. Gen. Federation (2004) 3 NWLR (pt. 859) 186; Odusote v. Odusote (1971) 1 All NLR 219; Udeze V. Ononuju (2001) 3 NWLR (pt. 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt.690) 414; NICON Hotel Inter. SA v. NICON Hilton Hotels & Anor. (2007) 7 NWLR (Pt.1032) 86 at 113 – 114. –

EXERCISE OF DISCRETION – CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE EXERCISE OF DISCRETION OF BY A TRIAL COURT

“An appellate court does not usually interfere with the exercise of discretion by a trial court, except where the exercise of such discretion was under a mistake of law, whether substantive or procedural or a misapprehension of the facts before that court or that the court considered irrelevant things or the exercise of the discretion worked an injustice to any or both of the parties before it. See: Ojiako V. Attor. Gen. Anambra State (2000) 1 NWLR (pt. 641) 375; Solanke V. Ajibola (1969) 1 NMLR 253; NICON Hotels Inter. S.A V. NICON Hilton Hotels Ltd &Ors. (supra)”. –

UNDEFENDED LIST – ESSENCE OF SUITS ON THE UNDEFENDED LIST

“The essence of suits on the undefended list is for the quick and timeous dispensation of justice to the parties. Therefore, upon service of a writ of summons in respect of a suit on the undefended list on a defendant, the latter must deliver or file a notice of intention to defend the suit and together with the said notice, he must file an affidavit disclosing a defence on the merits and where the defendant fails to so do or act, then judgment may be entered against him as per the writ of summons without necessarily calling on the plaintiff to formally prove his claim by calling witnesses to testify. See Ben Thomas Hotel Ltd. V. Sevi Furniture Co. Ltd (1989) 12 SCN 171. In Mat Holdings Ltd V. UBA Plc (2003) 2 NWLR (pt.803) 71 at 90, the law was succinctly stated with respect to suits on the undefended list, inter alia:
“The rules of court providing the cases to be placed on the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the plaintiff of judgment he well deserves, a case should therefore not be transferred to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” convenient as well as handy slogan.”
–

NOTICE TO DEFEND – NATURE OF AN AFFIDAVIT IN SUPPORT OF A NOTICE TO DEFENCE A SUIT PLACED ON THE UNDEFENDED LIST

“Therefore, the affidavit by a defendant in support of the notice to defend the suit must depose to facts showing that there are triable issues which necessitates a trial on the merits. See Ezekiel Okifo V. Morecab Finance Nig. Ltd. (2007) 5 SCNJ 25; Chief Peter Amadi Nwankwo& Anor. V. Ecumenical Development Co-operative Society EDCS U.A. (2007) 2 SCNJ 89; Imoniyame Holdings Ltd & Anor. V. Soneb Enterprises Ltd &Ors. (2010) 1 SCNJ 303. –

UNDEFENDED LIST PROCEDURE – DUTY OF COURT WHERE A DEFENDANT’S AFFIDAVIT IN SUPPORT OF NOTICE OF INTENTION TO DEFEND DISCLOSES TRIABLE ISSUES

“I am fortified in my view by the decision of the apex court in Ataguba & Co. V. Guara (Nig) Ltd (2005) 6 MJSC 163 at 173 – 174 where it was held that:
“A defendant’s affidavit in support of notice of intention to defend is sufficient if the affidavit discloses a triable issue in that a difficult point of law is involved; that there is a dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine.”
In sum, I am of the firm and considered opinion that in view of the conflict in the affidavit evidence of the respondent and the 1st and 2nd appellants with respect to the liquidation of the investment facility of N2m by the latter, and there are triable issues disclosed in the affidavit evidence of the latter, the best and proper option is to transfer the suit on the undefended list to the general cause list, for trial on the merits. See Nkwo Market Community Bank (Nig) Ltd V. Paul Ejikeme Uwabuchi Obi (2010) 4 SCNJ 81; Imoniyame Holdings Ltd & Anor. V. Soneb Enterprises Ltd &Ors. (supra); Federal Airports Authority of Nigeria V. Wamal Express Services (Nig) Ltd (2011) 1 SCNJ 133”. –

UNDEFENDED LIST – ESSENCE OF SUITS ON THE UNDEFENDED LIST- NEED TO STRICTLY ADHERE TO THE RULES GOVERNING ITS APPLICATION

“The essence of suits on the undefended list is for the quick and timeous dispensation of justice to the parties. In order to achieve the essence of this procedure, all the rules governing its application must be strictly adhered to. It is a two-way traffic both on the side of parties seeking its application and the court responsible for its implementation. The Supreme Court in the case of Otubosola Stores V. Standard Bank of Nigeria Ltd (1975) 4 SC 51 at Pp.56-57, stated as follows:-
“The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the Plaintiff to comply strictly with those Rules injustice is being avoided to a defendant freedom to defend the case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the Rules are followed strictly; and if those Rules are complied with, the defendant need suffer no prejudice in his defence if he himself and on his part has complied with the Rules.”
On the need to strictly followed the Rules, see also:-Metatimpex v. A.G. Leventis& Co (Nig) Ltd (1976) 2 SC 91 at Pp 108 – 109; Bank of the North Ltd V. Intra Bank S.A. (1969) 1 All NLR 91 at 98; Leventis Motors Ltd V. GCS Mbonu (1962) NNLR 19; Ainsworth V. Wilding (1896) 1 Ch. 673, and U.A.C. (Technical) Ltd V. Anglo Canadian Cement Ltd (1966) NMLR 349”. –

CASES CITED

Not Available

STATUTES REFERRED TO

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

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