Alh. Umaru Mohammed Mai Biredi Azare V. Alh. Shehu Abdulahi Mai Flour (2005)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD LADAN TSAMIYA, J.C.A.

The respondent (herein) was the plaintiff at the trial Court. He sued the appellant (who was the defendant at the trial Court), claiming the sum of N136, 810.00, and 10% interest on the judgment sum from December, 1998, to the final satisfaction of the judgment and the costs of this action.

The claim was brought under the undefended list procedure. The appellant filed a Notice of Intention to defend, which was supported by an affidavit. After taking submissions by counsel to both parties, the learned trial Chief Judge refused to transfer the matter to the general cause list, but entered judgment in favour of the respondent. In his Ruling, the Chief Judge stated:-

“The justice of the matter, therefore, dictates that the Notice which is a denial devoid of any particular…mere general denial of the plaintiffs claim is not sufficient to warrant a defendant being given leave to defend…

The defendant is hereby ordered to pay to the plaintiff the sum of N136,810.00 and N550.00 cost of the action. The amount shall attract 10% interest p.a. from today, until final settlement of the entire sum pursuant to Order 23 Rule 4 of the Rules of Bauchi State High Court, 1987.

The appellant herein not satisfied with the decision, appealed to this court. His Notice of Appeal contained two grounds of appeal. His grounds of appeal with their particulars are as follows:-

1. The learned Trial Chief Judge erred in law, when he relied on Exhibits ‘A’ and ‘A1’, ‘B’ and B1 of the plaintiff claim to enter judgment for the plaintiff.

(a) It is in the Court record that Exhibits A and A1, B and B1, have been quashed by Order of Court under the hand of Hon. Justice Bala Umar on 25/7/99, i.e. Exhibit A attached to the defendant’s Notice of Intention to defend.

(b) The consequence of quashing an Order is in law to make it legally in effective and can therefore, not to be relied upon for any purpose.

(c) Once an Order is quashed, it is assumed not to be existing and what is not existing cannot be relied upon.

2. The learned Trial Chief Judge erred in law, when he held that the defence of the defendant is mere general deniel.

PARTICULARS

(a) The plaintiffs claim was only supported by Exhibits A and A1, B and B1 which were quashed by Exhibit A of the defendant affidavit.

(b) Since Exhibits A and A1, B and B1 of the respondent are not existing there is nothing left in the respondent’s affidavit for the appellant to attack unless the respondent’s affidavit.

(c) The appellant has adequately responded to the respondent’s affidavit.

In compliance with the rules of this Court, Brief of Argument were filed and exchanged by both parties. The appellant formulated Two issues for determination in his Brief of Argument, viz: –

(a) Whether Exhibits A, A1, B, and B1 annexed to the respondent’s affidavit in support of the Writ of Summons are legally admissible and effective in law to be relied upon in any proceedings.

(b) Whether the appellant’s affidavit in support of the Notice of Intention to defend are mere general denial, which have not deal with the respondent’s claim.

The respondent on the other hand formulated only one Issue for determination which reads:-

(a) Can an unequivocal admission by a party in a civil proceedings, that he is indebted to the other party, be resolved by a mere general denial without more in a subsequent proceedings under the undefended list, on the ground that the proceedings wherein an admission was made, have been set aside on grounds of want of jurisdiction.

The learned Counsel to the parties failed to relate the grounds of appeal to the issues formulated.

On issue No.1 the learned Counsel for the appellant submitted that the basis of the respondent’s claim as contained in paragraph 2 (c-e) of his affidavit in support of the Writ of Summons is exhibits A, A1, B, and B1 respectively. That these exhibits are the records of proceedings of the civil Area Court and the Upper Area Court Azare, which have been quashed by the High Court, Bauchi in Suit No. BA/62m/98, and having been quashed they become inadmissible in evidence. Therefore the learned trial Judge should not have used them or relied on them in reaching his decision since they ceased to exist.

In response, the learned Counsel to the respondent argued that even though the said proceedings were quashed still those proceedings are very helpful as evidence in the subsequent proceedings such as the one in the instant case.

On issue No.2, the learned Counsel for the appellant submitted that the learned trial Chief Judge was wrong to have held that the defence of the appellant as contained in the affidavit in support of the Notice of Intention is a mere general denial. His ground for saying so is that the main ground of the respondent’s claim is exhibits A, A1, B and B1 and these exhibits have been quashed for lack of jurisdiction. The learned Counsel submitted that since these exhibits have been quashed, the respondent have no materials remaining to sustain the claim on the undefended list.

In response, the learned Counsel for the respondent submitted that from the two affidavits placed before the trial Court, even without these exhibits, i.e. exhibits A, A1, B and B1, the decision of the learned trial Chief Judge would not have been different be cause the appellant’s affidavit is not condescend upon facts and particulars, and did not, as much as possible, deal specifically with the respondent’s claim and affidavit. The counsel submitted that the defendant’s affidavit must condescend upon facts and particulars and should deal specifically with the respondent’s claim and affidavit. The learned Counsel cited and relied on Nishizawa vs. Jethorasi (1984) All NLR 470 and Agro-Miller vs. C.M.B. (1997) 10 NWLR (Pt.535) 477 – 478. The learned Counsel further submitted that the affidavit in support of the Notice of Intention to defend the suit has not disclosed any defence upon which this suit should have been transferred to the general cause list, rather the respondent was aiming to delay the respondent from obtaining judgment to which he is entitled. This should not be indulged as highlighted in the case of Franchal (Nig) Ltd Vs. NAB Ltd (1995) 8 NWLR (Pt. 412) 176 at 189.

From the record of this appeal, the reasons given by the learned trial Chief Judge in reaching his decision is that the appellant made a general denial of the respondent’s claim and this general denial is not sufficient to warrant the respondent given leave to defend. The learned trial Chief Judge relied on the principle of law applied in Macauly vs. NAL Marchant Bank (1990) 4 NWLR (Pt.144) 283. Considering the arguments of counsel to both parties, the main issue, in my view, that calls for my consideration in the circumstances of this appeal is whether or not the appellant’s affidavit accompanying the Notice of Intention to defend disclosed a defence on the merit as would enable the learned trial Chief Judge transfer the suit from the undefended list to the general cause list for full hearing.

The procedure for bringing action on undefended list in Bauchi State is provided by Orders 23 of the Bauchi State High Court (Civil Procedure) Rules 1987. It is apt, at this stage to reproduce the relevant portion here under:-

“28 1. Whenever an application is made to a court for the issue of a Writ of Summon in respect of a claim to recover a debt or liquidated money demand or any other claim and such 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 suit for hearing -in what shall be called the undefended list, and mark the Writ of Summons accordingly, and enter there on a date for hearing suitable to the circumstance of the particular case.

2. ……………………………………

3 (1) If the party served with the writ of summons and affidavit delivers to the registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.

(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list, and the court may order pleadings, or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the Notice of defence and affidavit prescribed by rule 3 (1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given there-on, without calling upon the plaintiff to summons witness before the court to prove this case formally.
5. Nothing therein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”It could be seen from the provisions of Order 23 of the Bauchi State High Court (civil procedure) Rules (supra) that it is not the intention to shut out a defendant from contesting the suit. Where a defendant could show in his affidavit that he has a defence on the merit, he will be granted leave to defend the suit. However, leave to defend will only be given where the defendant raises substantial question of fact or law which ought to be tried or when he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to enable the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit. See University of Nigeria vs. Orazulike Trading Co. (1989) 5 NWLR (Pt.119) 19. Also, to entitle a defendant to be granted leave to defend the suit under the undependent list, his affidavit in support of the Notice of Intention to defend must not contain merely a general statement that he has a good defence to the action. Such a general statement must be supported by particulars which if proved would constitute a defence. He must as far as possible deal specifically with the plaintiff’s claim and state clearly what the defence is and what facts and documents he relied on. See John-Holt & Co. (Liverpool) Ltd. Vs. Fajemirokun (1961) All NLR 492. Where a defendant gives Notice of Intention to defend, but his affidavit does not disclose any defence on the merits, the case would be heard under the undefended list. A mere general -denial of the plaintiff’s claim is not sufficient to warrant a defendant be given leave to defend. See U.T.C. Ltd. Vs. Pamotei (1989) 2 NWLR (Pt. 103) 244.It is worth noting that it is not the duty of the Court while considering action under the undefended list procedure to determine at that stage, whether the defence will ultimately succeed. In determining whether a defendant has a good defence on the merits, or whether he has disclosed such facts as may be deemed sufficient to allow him to defend the suits it is not necessary for the trial Judge to consider whether the defence has been proved. What is required at that stage is simply to look at the facts deposed to and see if they can prima-facie afford a defence to the action. A complete defence needs not be shown at this stage. It suffices if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. Whether the defence will ultimately succeeds is irrelevant at this stage. See Nishizawa Ltd. Vs. Jethwani (1984) 12 S.C. 234. –

Having considered the law, I will now consider the facts to determine whether or not the appellant’s affidavit accompanying the Notice of Intention to defend disclosed a defence on the merit as would enable the learned trial Chief Judge transfer the suit from the undefended 1st to the general cause list for a full hearing. In the affidavit of the respondent filed along with its Writ of Summons under the undefended list procedure, it was deposed to in paragraphs 2 (a – e) and 3 (a & d).”2. I am informed by the plaintiff at our office in the course of briefing in respect of this matter, information which I verily sincerely and heartily believe to be true as follows:-

(a) The defendant and himself are businessmen, and they both enjoy a mutually beneficial business relationship whereby, he supplies and the defendant accepts baking flour on payment later basis.

(b) In or about December, 1998, the defendant was indebted to him to the tune of N180,000.00 and inspite of repeated damages on the said defendant to make good his indebtedness, he either refused, failed or neglected to do so.

(c) It is as a result of the aforementioned state of affairs that he instituted a civil suit at the Area Court, Azare, claiming in the main, his dues from the defendant.

(d) The aforementioned suit was determined in his favour and dissatisfied with the decision, the defendant appealed to the Upper Area Court, Azare which Court dismissed the appeal and affirmed the judgment of the Area Court.

(e) At both Courts, the defendant never denied liability hut only requested for time within which to make good his indebtedness.

3. I am further informed by Mike Utsaha Esq. of counsel, information which I verily, sincerely and heartily believe to be true as follows: –

(a) So soon after the decision of the U.A.C. Azare, aforementioned the defendant through his counsel, commenced Certiorari Proceedings before this Hon. Court and indeed the High Court as presided over by Honourable Justice Bala Umar, on Friday, 2/7/99 quashed the Upper Area Court, Azare proceedings.

(d) In his belief, the defendant has no defence whatsoever to this suit.

The appellant in his affidavit accompanying his Notice of Intention to defend, it was deposed:-

3(a) That it is true that the plaintiff and the defendant are businessmen.

(b) That it is not true that the defendant is indebted to the plaintiff in the sum of N180,000.00 or any sum whatsoever.

(c) That when the plaintiff sued the defendant at the Civil Area Court, Azare, the proceeding was conducted in chambers wherein the defendant vehemently denied being indebted to the plaintiff.

(d) That to the utmost surprise of the defendant, he was later (after about two weeks) summoned before the Civil Area Court, Azare and shown a proceedings alleging that he has admitted being indebted to the plaintiff and that judgment was entered against him.

(e) That the defendant then appealed against the decision of the Civil Area Court, Azare to the Upper Area Court, Azare.

(f) That the Upper Area Court, Azare, also affirmed the alleged decision of the Civil Area Court, Azare whereupon the defendant applied to the High Court for the judicial review of the case by way of certiorari.

(g) That the High Court of Justice, Bauchi in suit No: BA/62m/98 presided over by the Honourable Justice Bala Umar quashed the proceeding of the Civil Area Court and the proceedings of the Upper Area Court, Azare, copy of the order of the High Court is annexed hereto as exhibit ‘A’.

(h) That there is now no proceeding against the defendant in which judgment still subsists.

(i) That the defendant is not indebted to the plaintiff in any money whatsoever.

(j) That the defendant has a good defence to this action.

(k) That it will best serve this interest of justice to transfer this suit to the general cause list for hearing.

4. That the plaintiff will not be prejudiced.

The appellant and the respondent annexed as an exhibit to their respective affidavits a documents captioned Order of the High Court, Bauchi State, and a Hausa and English translation versions of the respective Area Court’s proceedings.

I have very carefully considered all the averments in both appellant’s and respondents affidavits. With respect to the defence of the appellant “that it is not true that the defendant/appellant is indebted to the plaintiff/respondent in the sum of N180,000.00 or any sum whatsoever” (see paragraph 3 (b) of the respondent’s affidavit), it is my firm view that, the appellant did not show any defence to the suit as would warrant the trial court granting the appellant leave to defend the suit. All that the appellant had deposed to in his affidavit was that the amount claimed by the respondent was untrue, and general incorrect. This purported defence in my view amounts to general incorrect. This purported defence in my view amounts to general denial, which, was rightly observed by the learned trial Chief Judge, is not sufficient to warrant a defendant being given leave to defend the suit. See Macauly vs. NAL Merchant Bank (supra).

Taking the affidavit evidence of the appellant in its totality, it is my considered view that there is no any doubt it casts on the respondent’s case. As a result, the learned trial Chief Judge was perfectly right to have refused the appellant leave to defend the action.

Having arrived at this conclusion, this appeal has no merit and fails and it is hereby dismissed. The Ruling/Judgment of the learned trial Chief Judge, S. S. Darazo J., in suit No. BA/205m/99, together with the order as to costs are hereby affirmed. The appeal is dismissed with N10,000.00 costs in favour of the respondent and against appellant.

Accordingly, appeal dismissed.

Other Citations: (2005)LCN/1862(CA)