Ezekiel Okoli V Morecab Finance (Nig) Ltd (2007)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C

This is an appeal by the defendant/appellant against the decision of the Court of Appeal, Enugu Division (hereinafter referred to as the Court below) which had on the 17th of January, 2001 upheld the decision of J. N. Ofomata J , sitting at Onitsha High Court, Anambra State.

The claim before the High Court was for payment of a loan granted by the plaintiff company, Morecab Finance (Nig) Limited to the defendant, Ezekiel Okoli, plus interest. The claim was made under the undefended list procedure (see page 4 of record of proceedings. The defendant’s defence is at page 7 of record of proceedings). The plaintiff won the case on 6th of October, 1997 and the defendant appealed against the decision on the 9th October, 1997. He also lost and has now appealed to this court.

The four issues the defendant/appellant has formulated as arising for determination in this appeal are as follows:

“1. Whether the court below was right in upholding the judgment of the trial Judge that there was no triable issue raised in the appellant’s defence.

2. Whether the learned Justices of the court below were not in error to have ignored the surrounding circumstances of this case which makes it unsuitable to be heard under the undefended list procedure.
3. Whether the Court below was right to have dismissed the allegation of fraud against the company without proper investigation.
4. Whether in view of the failure of the respondent to traverse the allegation of fraud this appeal should be allowed.”

The sole issue the plaintiff/respondent has proffered for our determination is:

“Did the affidavit in support of the defendant/appellant’s notice of intention to defend the suit disclose a defence on the merits as prescribed by Order 24 rule 9 of the High Court Rules of Anambra State 1988 to justify an order transferring the suit from the undefended list to the general cause list.”

At the hearing of this appeal on 6th February, 2007 both parties were absent but since they had filed their briefs we deemed them as argued.

The sole issue proffered for the argument of the appeal by the respondent, in my view, will do to dispose of this appeal. The main plank of the defence sought to be set up by the appellant in his notice of intention to defend this suit which was placed on the undefended list, is contained in paragraphs 1 and 28 of the affidavit in support of his said notice of intention to defend wherein he deposed as follows:

“(1) That I am not a loan customer of the plaintiff.

(28) That the amount the plaintiff is claiming from me is non existent and not owed to the plaintiff.”

The foregoing extracts are mere conclusions and are insufficient to cause the matter to be transferred to the general cause list. See Wallingford v. Mutual Society (1880) 5 A.C 685 at 704 cited with approval in John Holt (Liverpool Ltd.) v. Fajemirokun (1961) ANLR 513. For purpose of emphasis I reproduce hereunder the following paragraphs in appellant’s affidavit thus:

“29. That the truth is that I was owing CCB, Plc a certain sum which I have liquidated after the sale of one of my houses and after the said repayment, CCB, Plc did not return my Deed of Title.

30. So my former good friend and confidant for many years Mr. Kenneth Okonkwo told me and I verily believed him that we shall make case against CCB Plc.
31. Mr. Kenneth Okonkwo prepared for me and I verily believe him the contents of the letter dated 11/ 10/93 and the same is hereby attached and marked exhibit K.
32. That when the CCB, Plc aforesaid did not return the Deed of Title the same Mr. Kenneth Okonkwo (sic) for me the contents of the letter dated 5th day of November, 1993. A copy of the said letter is hereby attached and marked exhibit L.
33. That when the CCB, Plc could not return the deed of title, Mr. Kenneth Okonkwo briefed Barrister Okey Anoh to write on my behalf the letter dated the 14/1/ 94. A copy of the said letter is hereby attached and marked exhibit M.
34. That the alleged debt of N 1, 575 million purportedly owed to the plaintiff in those letter was the brain-child of Mr. Kenneth Okonkwo whose (sic) said allegation of commitment to Morecab Finance Nig. Ltd. is made to the tune of N 1,575 million, the CCB, Plc will be forced to return the title deed.
35. Mr. Kenneth Okonkwo also told me and I verily believed him that the inclusion of N5,000,000 (five million naira) will form the basis of the letter dated 26/10/93 is attached as exhibit .
36. That Mr. Kenneth Okonkwo further briefed and instructed Mr. Okechukwu Anoh to file suit No. 0/110/94 on my behalf against CCB, Plc. A copy of the statement of claim in the said suit is hereby attached and marked exhibit O.
37. That all the documents attached by the plaintiffs company counsel to the affidavit verifying the claim in this suit are part of the supposed preparation by Mr. Kenneth Okonkwo for him to assist me to prove my case against the CCB Plc.
38. I trusted him so much and do whatever he tells me to do without any doubt or suspicion.”The question is, do the foregoing depositions in the affidavit in support of the notice of intention to defend disclose a defence on the merits within the meaning and intendment of Order 24 rule 9 of the High Court. Rules of Anambra State, 1988 to justify an order transferring the suit to the general cause list I am of the view that they do not in as much as the “defence” sought to be raked up in the said affidavit are a sham and constitute a clever by half attempt to divert attention from the real issues raised by the respondent’s claim.

Now, the totality of the averments in the said affidavit in Support of the notice of intention to defend revolve around a loan which, as the herein defendant/appellant alleges he, (i.e. Ezekiel Okoli) owed the CCB Plc and which his friend Mr. Kenneth Okonkwo was assisting him to liquidate. It is the appellant’s further claim (in his said affidavit) that the documents exhibited to the affidavit in support of the claim in this suit which is placed on the undefended list were made or authorised by his said friend Mr. Kenneth Okonkwo in a bid to assist him out of his problems with CCB Plc.