Addax Petroleum Development (Nig) Ltd. V. Chief J. L. E. Duke (2009)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

This is an appeal against the judgment of Hon. Justice S. M. Anjor, of the High Court of Cross River State, holden at Calabar, delivered in Suit NO.HC/65/2001 on the 4/5/2007.

The facts of the case are as follows: Sometimes in the year 2002, the appellant, through her Base Manager requested the respondent to procure a piece of land in Calabar for its pipeyard. The respondent did so and obtained the consent of the sub-lessor (Micky-buildsco Ltd) for a ten years lease to the appellant with an initial down payment of three years rent only. Thereafter the respondent drew up a ten years sub-lease agreement incorporating into it the two features in the agreement.

On 8/8/2002, the respondent sent an interim bill of costs to the appellant amounting to N10,800,000.00. The said bill was accepted and paid by the appellant without any qualification.

Subsequently, the respondent in compliance with Section 16(1) of the Legal Practitioners Act, 1975, served the appellant a one month’s notice requesting for payment of the sum of N13.9 million being the outstanding bill for professional fees and agency services rendered by the respondent to the appellant. The respondent sent a letter of reminder to the appellant on 15/1/2007. Not having received any response from the appellant, the respondent instituted proceedings by way of the undefended list procedure for his action under Order 23 of the High Court (Civil) Procedure) Rules of Cross River State, 1987. The claims are as follows:

1. The sum of N10,900,000.00 (Ten Million Nine Hundred Thousand Naira), being the plaintiffs outstanding fees and commission for services rendered and excepted.
2. Interest upon the judgment sum of the rate 10% from the date of judgment until full and final satisfaction of the judgment sum. On being served with the writ, the appellant in accordance with the Rules filed a notice of intention to defend the suit supported with an affidavit disclosing a defence on the merit filed on 18/4/2007 with three exhibits attached. After perusing the respondent’s claim and the appellant’s notice of intention to defend the trial Judge entered judgment for the respondent.

Dissatisfied with the judgment of the trial Judge, the appellant appealed to this court on 5 grounds in her notice of appeal filed on the 7/5/2007.

The appellant in his brief dated 28/1/2008 and filed the same day but deemed properly filed and served by this court formulated two issues as follows:

1. Whether or not in the light of the affidavit evidence before the court, the learned trial Judge was right to grant the Respondent’s claim under the Undefended List Procedure.
2. Whether the learned trial Judge was right in proceeding to rule in favour of the Respondent after the Appellant had given notice of intention to object to the Respondent’s bills of charges on the ground that the said bill breached Section 16 of the Legal Practitioners Act.

The respondent’s brief dated 1/4/08 was filed on the same day. In the brief the respondent raised a preliminary objection to the competence of the appeal mainly on two grounds. In the alternative the respondent formulated three issues in the brief. The three issues are as follows:

1. Whether there was an admission of the Respondent’s case. (Grounds 1 and 2)
2. Whether the court below was right in holding that the Appellant’s affidavit in support of the intention to defend did not disclose a defence on the merit. (Ground 4 and 5)
3. Whether there was non-compliance with the provisions of Section 16(2) of the Legal Practitioners Act 1975 by the Respondent.

(Ground 3).

Upon being served with the respondent’s brief, the appellant filed a reply brief dated 3/5/08 and filed on the 5/5/08.

In the appellant’s brief of argument, it was contended that in her affidavit disclosing defence on the merit, the appellant in paragraphs 4 – 5 vehemently denied that she owes the respondent in respect of the transactions. Though the appellant admitted that there was a transaction between herself and the respondent, she however denied ever coming to an agreement with the respondent to pay the amount claimed. It was also contended that in an undefended list procedure, one of the important factors that a trial Judge takes into consideration in deciding whether to enter judgment for the Plaintiff or transfer such a case to the general cause list is, whether between the affidavits of the two parties (i.e. the plaintiff and the defendant) there is a triable issue raised and/or dispute as to facts before the court. The appellant referred to Socfin Consultants Services vs. Arumah (2002) FWLR (Pt. 130) 1729 at 1759.

The appellant referred to paragraphs 18, 19, 20, 21 of the respondent’s affidavit in support of the writ and paragraphs 4(a) and 4(b) of the affidavit in support of the intention to defend. Quite apart from the denial of the respondents paragraphs 11-24, the appellant put forward set of facts which cast serious doubt as to the claim of the respondent under paragraphs 4(d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) and (o).

It is the appellant’s contention that in the absence of an agreement on the amount of money due between the parties, such claim for money due cannot be brought under the undefended list procedure. Appellant relied on Aruwa vs. Abdulkadri (2002) FWLR (Pt. 115) 681. It was contended that where under the undefended list procedure triable issues are raised, which need to be resolved the only way they can be resolved is by calling oral evidence, which implies trial on the merit. See Nya & Anor vs. Edem (2000) 8 NWLR (Pt. 669) 349 at 360.

Lastly on this issue, it was submitted that a defence on the merit is not the same thing as success of the defence in litigation. All that is required is to lay the foundation for the existence of a triable issue (s). See Ataguta & Co vs. Gura (Nig.) Ltd. (2000) 8 NWLR (Pt. 927) 429 at 436.