C. Enye V. Kevin Ogbu (2002)

LawGlobal-Hub Lead Judgment Report

OLAGUNJU, J.C.A.

The appeal is from the decision of Okoli, J., of the Anambra State High Court who entered judgment for the respondent as the plaintiff against the appellant qua the defendant for the sum of N161,192 with 5% interest on the judgment debt under the summary procedure of the undefended list.

The claims arose from the shortage incurred by the appellant from the stock of goods put in her charge as a saleslady by the respondent who employed her and who deposed that he supplied her with the goods on 19 separate invoices listed in the affidavit verifying his claims. He deposed in elucidation that the shortage was discovered by his auditor who on 5/10/99 made a preliminary check of the stock from three books of account in use by the appellant, viz, sales-book, stock-book and credit-book that revealed a shortage of N200,000 worth of goods. That the final audit report issued on 18/10/99 shows a loss of N1,535,587 on sales made by the appellant between 5/5/99 and 5/10/99 and that from that amount the sum of N1,374,395 made up of ‘company expenses, salary and value of goods remaining in stock’ over the same period was discounted revealing that ‘the actual loss occasioned by the defendant’s negligence or bad faith is N161,192.00’.

That is the summary of the material facts verified by the affidavit on which the writ of summons for placement on the undefended list was issued endorsed with a hearing date copy of which was served on the appellant in due course. The appellant did not file notice of Intention to defend the action as stipulated by sub-rule 9(2) of Order 24 of the Anambra State High Court Rules, 1988, and at the hearing the learned trial Judge, at page 12 of the record, held as follows:

“The affidavit of service in the case file shows the defendant was duly served the writ and the affidavit in

support. By virtue of the provisions of Order 24 rule 9 High Court Rules the court has no alternative than to enter judgment for the plaintiff without calling on the plaintiff to prove his case. See Agueze v. Pan African Bank Ltd. Accordingly, judgment is hereby entered in favour of the plaintiff against the defendant for the sum of N 161,192.00 being value of goods sold and delivered by the plaintiff to the defendant. There will be interest on the judgment debt at the rate of 5% per annum from the date of judgment until payment is fully made.” (Italics mine)

Dissatisfied with the judgment the appellant is challenging that decision on three grounds of appeal from which she formulated in her brief of argument the following two issues for determination:

“2.1 Whether from the affidavit evidence and all the materials placed before the court the learned trial Judge was right in hearing and determine this suit under the undefended list procedure?

2.2 Did the leaned trial Judge exercise his discretion judicially and judiciously taking into consideration the nature, facts and circumstances of this case?”

In his brief of argument the respondent adopted the issues formulated by the appellant. On the first limb of issue one, learned counsel for the appellant contended that the respondent’s action is not maintainable under the undefended list originating process because, firstly, it is not an action for recovery of debt or liquidated money demand; rather, it is an action in tort of negligence. He referred to the definition of the word ‘debt’ in Akinnuli v. Odugbesan (1992) 8 NWLR (Pt. 258) 172, 188, and to the expression ‘liquidated money demand’ as defined in Nortex (Nigeria) Ltd. v. Franc Tools Co. Ltd (1997) 4 NWLR (Pt. 501) 603, 610-611; and S.B.N. Plc. v. Kyentu (1998) 2 NWLR (Pt. 536) 41, 56. He further referred to Odume v. Nnachi (1964) All NLR 324, 328, that drew a distinction between liquidated and unliquidated demands. Secondly, that the respondent’s claim as deposed to in the supporting affidavit does not disclose a prima facie case that could warrant its being placed on the undefended list for not only is the respondent not sure of the amount of the alleged shortage that oscillated between the sums of N200,000 in the primary audit report and N161,192 in the final audit report but also the affidavit setting out the claim does not contain the statutory declaration of brief that the appellant has no defence to the action.

Thirdly, that the respondent’s action is incomplete because the 19 invoices through which the goods are alleged to be supplied to the appellant and the sales-book, stock-book and credit-book which the affidavit was using to operate the stock were not exhibited to the affidavit. Fourthly, that exhibit ‘A’, the service agreement between the parties, laid down the rules governing the appellant’s employment and nothing more while the audit report made up of exhibit ‘C’ signed by the Auditor and exhibit ‘D’, the breakdown figures of the items in stock and their value signed by the respondent, are ‘mathematical contraption specifically made for this suit’; moreso, as the auditing and the stock-taking were made in the absence of the appellant.

The learned counsel cited a host of judicial authorities to support his contention that the respondent’s action cannot be maintained under the undefended list with the requirements laid down which the respondent’s action did not conform to. Those which are strictly relevant to the summary procedure of the undefended list variant include: Macaulay v. NAL Merchant Bank Ltd. (1990)4 NWLR(Pt. 144) 283, 307; Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt.347) 667, (1994) 8 NACR 73; NAB (Nig.) Ltd. v. Felly Keme (Nig.) Ltd. (1995) 4 NWLR (Pt. 387) 100, 144; Okeke v. NICON Hotels Ltd. (1999) 1NWLR (Pt. 586) 216, 222; and Grand Cereals & Oil Mills Ltd. v. As-Ahel International Marketing & Procurement Ltd. (2000) 4 NWLR (Pt. 652) 310, 326. Winding up on this point the learned counsel submitted that a plaintiff who out of the desire to obtain a cheap and quick judgment decides to cloth or mark an otherwise contentious matter as an undefended should not be directly or indirectly, assisted by the court to achieve his aim citing in support of the proposition Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620,638.

On the second limb of his submission the learned counsel took to task the learned trial Judge’s stand on failure of the appellant to file notice of intention to defend which he made the centre-piece of his decision to enter judgment for the respondent. He contended that failure of the appellant, qua the defendant, to file notice of intention to defend does not relieve the court of its duty to consider whether the suit is one suitable to be placed on the undefended list as he is enjoined to do by virtue of rules 14 and 15 of Order 5 and sub-rules (2), (3) and (4) of Order 24 stressing, in particular, sub-rule 9(5) thereof that vests the court with enormous discretion in that regard. He submitted that as this court held in Pwol v. Union Bank Plc. (1999) 1 NWLR (Pt. 588) 631, 635, “a defence is only necessary in a suit commenced under the undefended list procedure where the plaintiff’s case as disclosed by his affidavit has established a primafacie case against the defendant necessitating such a defence.

A defence is therefore unnecessary in a suit under the undefended list procedure where the plaintiff’s affidavit shows that his case is unsustainable”. In aid of that proposition of the law he referred further to Okeke v. NICON Hotels Ltd. (supra), at page 222, and Kola v. Taibu (2001) 4 NWLR (Pt. 702) 200, 216. On that note, he rests his submissions on issue one and urged this court to resolve that issue in favour of the appellant.