Peter Okeke & Anor V. Nicon Hotels Limited & Anor (1998)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The suit which gave rise to this appeal was instituted before the Kaduna State High Court No.4 on the undefended list procedure. The claim of the respondent as plaintiff against the appellants as defendants jointly and severally were for:-

“1. The sum of N531.471.00 being outstanding amount due from the defendants to the plaintiff on account of hotel bills incurred by the 1st and 3rd defendants as guests of the plaintiff in its Nicon Noga Hilton Hotel Abuja at various dates between 9th May, 1996 and 24th June, 1996 which said bills the defendants have failed, refuest (sic) and neglected to pay despite repeated demands,

2.2 I per cent interest on the said amount from 25th June. 1996 until judgment and thereafter at 10 per cent per annum until the judgment debt is fully paid.

3. Costs of this action.

Mr. J.B. Daudu (SAN) for the 1st and 2nd appellant filed a notice of intention to defend the action. The learned trial Judge took arguments on the notice to defend from respective counsel for the panics and ruling was fixed for the 16th of December. 1997. In his ruling, the learned trial Judge had that a defence on the merit had not been disclosed which would warrant the transfer of the suit to the general cause list. Judgment was accordingly entered in favour of the respondent as per the writ of summons.

Dissatisfied, the appellants filed a notice of appeal to this court, The notice of appeal contained three grounds of appeal.

In compliance with our rules of court, parties filed and exchanged briefs of argument. Learned senior counsel for the 1st & 2nd appellants formulated only one issue for determination which is as follows:-

“Whether the notice or intention to defend and affidavit in support thereof filed on behalf of the 1st and 2nd appellants in defence of the respondents specific claims disclosed a defence on the merits such that the learned trial Judge upon the consideration ought to have transferred the matter to the general cause list and whether judgment ought to have been entered in favour of the plaintiff.”

Learned counsel for the respondent formulated the following issue:-

“Whether the lower court was justified in holding that the notice of intention to defend did not disclose any defence on the merit and having so decided, entered judgment for the respondent.”

Now, before delving into the determination of the issues formulated by the parties, I consider it pertinent to give a run-down of the background facts of this case as is gatherable from the printed record before the court. This is in order to allow for a fair grasp of the case which indeed is within a very narrow compass. The respondent is the proprietor and owner of the Nicon Noga Hilton Hotel. Abuja. The 1st appellant is the Managing Director of the 2nd appellant. Sometimes between the 9th day of May 1996 and 24th June, 1996, the 1st and 3rd appellants were at their request provided accommodation facilities by the respondent at its Abuja Nicon Noga Hotel. The 1st appellant was a guest at the Hotel from the 13th to the 15th day or June, 1996 whereas the 2nd respondent was a guest at tile same Hotel from 9th May, 1996 to 24th June 1996. Hotel bills in the sum of N531.471.00 were incurred. In partial settlement of the said bill, the 1st and 2nd appellants issued various cheques at various times all totaling to the sum of N272, 112.00. On presentations, all the cheques were dishonoured. Further cheques in various sums were issued by the 1st & 2nd appellants but these were never presented sequel to the previous dishonour of the first set of cheques. On coming to know that their cheques were dishonoured, the 1st & 2nd appellants promised to make good the said cheques. This, they failed to do and the respondent had to resort to filing the suit which resulted into this appeal.

On the hearing dale, learned SAN for the 1st & 2nd appellants informed the court that he was formally dropping the name of Mr. Sipa Mohammed which name appears on the record as the 2nd defendant/respondent. In his submission, learned SAN argued that the lower court ought to have transferred the suit to the general cause list rather than treating it on the undefended list. The notice of intention to defend on pages 31 – 32 of the record discloses several defences. The defences did consist merely of general denial but cogent reasons why the appellants should not be liable for the debts incurred by the 2nd respondent in the absence of any document to link the 3rd respondent’s reservation of accommodation to the appellants. Again, there were conflicts in the affidavits of both parties as to who would bear responsibility for Mrs. Mohammed’s indebtedness. There was therefore need for the learned trial Judge to call oral evidence to resolve such conflicts. It was also wrong of the learned trial Judge to raise the issue of defence of estoppel. Learned senior counsel urged us to allow the appeal and set aside the lower court’s judgment. The plaintiffs claim at the lower court should be dismissed or transfer same, at best, to the general cause list.

Learned counsel for the 1st respondent submitted that the appellants’ notice of intention to defend did not disclose a defence on the merit and the lower court was right to hold that the appellants did not make out a defence on the merits to the respondent’s case. He argued further that it were the appellants who checked Mrs. Sipa Mohammed (2nd respondent) into the Nicon Noga Hilton Hotel Abuja on 9th May, 1996. They paid the initial deposit of N30,000.00. further deposits were also made subsequently. By this, argued the learned counsel, the 2nd appellant represented that it was responsible for payment of the bills. The 1st appellant, as per the affidavit in support of notice of intention to defend, was the Managing Director or the 2nd appellant and all cheques issued to the respondent in the transaction between the parties, were signed and stamped by the 1st appellant. This connoted active knowledge and participation of the appellants as it was at appellants’ insistence and request that Mrs. Sipa Mohammed was checked into the hotel. As for the affidavit evidence before the lower court, learned counsel submitted that there was no conflict at all as the appellants failed m show the areas of conflict. And even if there were, the documentary evidence ought to assist the lower court in resolving such conflicts. Submitted further is that the existence or failure of the business transaction between the appellants and Mrs. Sipa Mohammed was never communicated to the respondent and would not be the basis to deny the respondent payment for services rendered. Lastly, learned counsel argued that the respondent had altered its position based on the appellants’ representation that they would be responsible for paying the bills incurred by Mrs. Sipa Mohammed. He urged us to dismiss the appeal.

Now let me observe from the start that the issues formulated by the parties are in accord in intent though different in terms. Both issues arc on whether the learned trial Judge was justified in refusing to transfer the suit from ‘undefended’ in the general cause list’. An undefended action is one which the defendant is not willing to contest, oppose or defeat the claim made against him by the plaintiff. In that event, the defendant need do nothing and on the date fixed for hearing, the suit or action will be heard as undefended suit and the court may give judgment for the plaintiff without his calling witnesses in proof of the claim. Such judgment is considered as judgment on the merits. See: U.A.C. (Technical) Ltd v: Anglo -Â Â Canadian Cement Ltd. (1966) NMLR 349. Such a suit is only maintainable in a claim for debt or liquidated money demand.