Charles Ekeiloanya V. Hon. Chike Anyaonu (2002)

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FABIYI, J.C.A.

This is an appeal against the judgment of Izuako, J, sitting at the High Court of Justice, Ogidi, in Anambra State of Nigeria, on 14th November, 2000.

As filed at the trial court, the plaintiff/respondent’s claims can be found in paragraph 12 of the ‘CLAIM’ which accompanied the writ of summons specifically, placed under the undefended list procedure. The claims read thus:-

“12. WHEREFORE the plaintiff claims against the defendant as follows:-

(a) The amount of N500,000.00 (five hundred thousand naira only) being the sum covenanted by the defendant as representing the value of the said car.

(b) Interest at the rate of 21% per annum on the said sum of N500,000.00 from 1st October, 1999, until judgment is delivered and thereafter, until the entire sum is paid up.”

The plaintiff deposed to an affidavit of 14 paragraphs in support of the writ of summons. It is apt to reproduce paragraphs 2-11 of the affidavit as they have direct impact on the matter. They read as follows:-

“2. That the defendant, who is a businessman and whose business includes the sale of used/imported cars sometime in 1999, represented himself to me as being capable to sell to me a Mercedez Benz Car.

3. That consequent on the herein above stated fact the defendant offered to sell a ‘High/Quality 1984, Model

of Mercedez Benz flat Engine/Boot Car’ to me at the cost of N406,000.00(four hundred and six thousand naira).

4. That consequent on the herein above stated sales transaction, I paid to the defendant the agreed sum of

N406,000.00 and the defendant in turn covenanted to deliver the said car latest by March, 1999.

5. That the defendant did not deliver the said car in March, 1999 and up till now, have (sic) not delivered same nor returned my money to me. 6. That the defendant in September, 1999, made out a Memorandum of Authority and Understanding to me, covenanting to deliver the said car soon thereafter, or in the alternative refund to me in full the sum of FIVE HUNDRED THOUSAND NAIRA representing the value of the said car. Find attached a photocopy of the said Memorandum of the defendant dated 14th September, 1999, marked exhibit A.

7 That the defendant has up till now not delivered the said car to me nor refunded the covenanted sum of five Hundred Thousand Naira (N500, 000.00) representing the value of the said car by September, 1999.

8. That the defendant has since then failed, refused and neglected to pay the said sum of N500,000.00, despite several and repeated demands by me for payment of same.
9. That this act of the defendant has caused me grave hardship, inconvenience, set back and embarrassment because this money he is holding onto, is money I borrowed from the Bank and Finance House for which I pay huge interest. 10. That it is only by an ORDER of this Honourable Court, shall the defendant refund me this money.
10. That the defendant has no defence whatsoever to this suit.”

The suit came up for hearing for the first time on 28/6/2000. A notice of entry of appearance was earlier filed on behalf of the defendant on 23/6/2000. The defendant failed to file the requisite notice of intention to defend supported by an affidavit on 23/6/2000, as prescribed by the Rules of court. The learned trial Judge, instead of entering judgment for the plaintiff without much ado on 28/6/2000, adjourned the matter to 18/7/2000 ‘for the defence to sort itself out’. On 17/10/2000, the defendant had not taken the proper step. The learned trial Judge again pampered the defendant and adjourned to 8/11/2000. Eventually, the defendant filed his notice of intention to defend on 6/11/2000. He deposed to an affidavit of 22 paragraphs in support of same.

Paragraphs 6-17, both inclusive, and 19 of the defendant’s affidavit are relevant. I reproduce them as follows:-

“6. That I know one Mrs. Lizy Anyaonu, who was the branch Manager of Orient Bank (Main Market Branch) Onitsha and that I am a customer of that Bank. (a) That sometimes in 1999, Mrs Lizy Anyaonu, who knew me as customer of the bank and as an importer of used cars approached me to buy one 1984 Model Mercedez Benz Car for her from abroad and at an agreed price of N300,000.00 (Three hundred thousand naira) which excludes the cost of clearing the car from the wharf. (b) That consequently, she made a part payment of N100,000.00 (One hundred thousand naira) to me promising to shoulder the cost and responsibility of clearing the car on arrival.

(c) That when the car arrived Nigeria, I gave the proforma invoice and the bill of lading to Mrs. Lizy Anyaonu and advised her to come and see the car and to arrange for the clearing. At this stage, she pleaded with me to clear the car from the wharf for her using my own agent, since she had no time and energy to do that.

10.That consequently, I engaged the services of a clearing agent who promised to do the job at the price of N155,000.00 (One hundred and fifty-five thousand naira only) and I accordingly, informed Mrs. Lizy Anyaonu of what the agent said and she accepted same and immediately made a part payment of N106,000.00 (One hundred and six thousand naira) with a promise to pay the balance after the car has been cleared.

11. That after the clearing agent had cleared the car from the wharf, Mrs. Lizy Anyaonu was asked to come and pay for the balance fee of N49,000.00 (forty-nine (sic) thousand naira) but she deliberately refused to do so.
12. That the clearing agent threatened to sell the already (sic) car if Mrs. Lizy Anyaonu fails to pay his balance fee of N49,000.00 (forty-nine thousand naira) within a reasonable time and all entreaties made by me for her to pay were in vain. The car was consequently sold by the clearing agent after waiting for more than six months.
13. That I have on several occasions, approached Mrs. Lizy Anyaonu to come and collect the money she paid to me, but she deliberately refused to do so.
14. That on 11th September, 1991, (sic) I went to Mrs. Lizy Anyaonu’s house at No. 17 Omu Road, G.R.A., Onitsha, to further persuade her to collect the money she paid to me. I went to her house with my Mercedez Benz 280 Concord car and on arrival, I met Mrs. Lizy Anyaonu and the plaintiff in this case, whom I later knew to be the husband. 15. That before I could introduce my mission, two men acting on the instruction of the plaintiff, pushed me out of the plaintiff’s compound and my car was consequently, seized by the plaintiff. I was later arrested and detained by the Police on the instruction of the plaintiff.
15. That following my statement to the Police, my car was later recovered by the Police from the plaintiff. The car is currently with the Police. 17. That I did not enter into any sale transaction with the plaintiff.
16. That exhibit A annexed to the plaintiff’s claim is forged.”

On 8/11/2000, the suit was eventually heard by the learned trial Judge. Counsel on both sides addressed the court at will. A ruling which turned out to be judgment was delivered on 14/11/2000.

Judgment was entered for the plaintiff in the sum of N500,000.00 against the defendant plus 5% per annum interest on the judgment sum until same is entirely liquidated. The trial Judge also awarded N2,000.00 cost in favour of the plaintiff. The defendant/appellant felt dissatisfied with the judgment and has, ex debito justitiae, appealed to this court. The notice of appeal dated 29/11/2000 was filed on the same date. It was accompanied by four grounds of appeal. Complaints relate to the whole decision of the trial Judge. I need not reproduce the grounds of appeal here.

On page 2 of the appellant’s brief of argument, three issues have been submitted for the determination of this appeal. They read as follows:- “(i) Whether the trial court was right, when it held that the appellant failed to comply with the Rules of court by filing a notice of intention to defend out of time; or did the appellant file notice of intention to defend out of time?

(ii) Whether the trial court was right, when it held that the appellant disclosed no triable issue in his notice of intention to defend and the supporting affidavit evidence.

(iii) Whether the appellant’s affidavit in support of notice of intention to defend, did not disclose a defence on the merits.” On behalf of the respondent, one issue was couched with remarkable degree of brevity as follows:-

“Whether in the light of the facts of this case, the learned trial Judge was right in law to enter judgment for the plaintiff.” In passing, I should note here that the 2nd and 3rd issues formulated on behalf of the appellant appear to over-lap. I do not want to say that they appear hair-splitting. Proliferation of issues should always be avoided as it is not the cumulative number of issues that can tilt an appeal in the positive direction.

On the 1st issue, it has been observed by appellant’s counsel that since the learned trial Judge on 17/10/2000, gave the appellant up to 8/11/2000 to file the notice of intention to defend and same was filed on 6/11/2000, it was wrong to find that same was filed out of time. Arguing issues (ii) and (iii) together, appellant’s counsel contended that there is no privity of contract between the appellant and respondent herein. He maintained that the appellant had an arrangement with Mrs. Lizy Anyaonu – respondent’s wife in respect of importation of a Mercedez Benz Car. He opined that a triable issue exists in this respect. He referred to the case of Oloko v. Ube (2001) 13 NWLR (Pt. 729) 161 at 182-183. Learned Counsel had the view that exhibit A annexed to the claim is forged. He felt that the case of Diamond Bank v. G.S.M. Allied Agro Ltd. (1999) 8 NWLR (Pt. 616) 558 is quite distinguishable from this matter in hand. He contended that evidence of forgery is prima facie shown on the face of exhibit A. He referred to Calvenply Ltd. & 2 Ors. v. Pekab International Ltd. (2001) 9 NWLR (Pt. 717) 164.

Learned Counsel seriously felt that triable issues had been shown and the matter ought to be transferred to the General Cause List. He referred to Jipreze v. Okonkwo & Anor. (1987) 3 NWLR (Pt. 62) 737; Vincent Standard Steel (Nig) Ltd. v. Govt. of Anambra State (2001) 8 NWLR (Pt. 715) 454 at 465-466. He finally urged that the appeal be allowed. The respondent’s counsel, at the on-set, observed that the appellant was served with the writ of summons/claim and affidavit in support on 19/6/2000 and the matter was fixed for hearing on 28/6/2000. Instead of filing his notice of intention to defend latest on 23/6/2000, vide Order 24 rule 9(2) of the High Court Rules, 1988, the appellant merely files a notice of entry of appearance. Learned Counsel maintained that instead of entering judgment for the respondent on 28/6/2000, the learned trial Judge, suo motu adjourned the matter to 18/7/2000 ‘for defence to sort itself out’. The matter came up again on 17/10/2000. Appellant still failed to sort himself out. The matter was again adjourned to 8/11/2000. The appellant filed a notice of intention to defend with an affidavit on 6/11/2000 about five months out of time. Learned Counsel submitted that the unsolicited attempt by the leaned trial Judge to extend time gratuitously was most irregular and made without jurisdiction. He referred to the case of Morecab Finance (Nig) Ltd. v. Okoli (2001) 12 NWLR (Pt. 727) 400 at 413. He submitted that Rules of court are meant to be obeyed and are in place to advance the course of justice. He refened to Ojiako v. A.-G., Anambra State (2000) 1 NWLR (Pt. 641) 375 at 383; Ayalogu & Ors. v. Agu & Ors. (2002) 3 NWLR (Pt. 753) 168 at 183; National Bank of Nigeria Ltd. v. Are Brothers (Nig.) Ltd. (1977) 6 SC 97 at 107; Okoteha v. Herwa Ltd. (2000) 15 NWLR (Pt.690) 249 at 258; Wellington v. Registered Trustees, Ijebu-ode (2000) 3 NWLR (Pt.647) 130 to 139.

I completely agree with the learned Counsel for the respondent that Rules of court are in place with a purpose to serve. Rules of court are meant to be followed. Refer to Ojiako v. A.-G., Anambra State (supra) at page 383; Afolabi & Ors. v. Adekunle & Ors. (1983) 2 SCNLR 141, (1983) 14 NSCC 398 at 405.

The court has an inherent jurisdiction to extend time in any given case with a view to avoiding injustice to the parties. This undoubted power should not be carried out suo motu but upon the application of the party in default. Justice must be even handed. The law is no respecter of persons. See Ayalogu & Ors. v. Agu & Ors. (supra) at p. 183; National Bank of Nigeria Ltd. v. Are Bros (Nig) Ltd. (supra) at p. 107; Okoteha v. Herwa Ltd. (2000) (supra) at p. 258.

I can not surmise why the learned trial Judge who should have entered judgment for the respondent on 28/6/2000 procrastinated for about five months. Such led to the current imbroglio. Adjournments granted by the learned trial Judge on 28/6/2000 and 17/10/2000 were most uncalled for. They were done for the appellant to sort out himself. Such a step was in clear disregard of the Rules of court as judgment should have been entered for the respondent when the requisite notice of intention to defend was not filed on 28/6/2000 – the return date scheduled for hearing. See Diamond Bank v. G.S.M. Agro Allied Ind. Ltd. (1999) 8 NWLR (Pt. 616) 558 at p. 565; Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523 at 532; Olubusola Stores v. Standard Bank (Nig) Ltd. (1975) 4 SC 51. The trial court pampered the appellant and eventually allowed him to put in his notice of intention to defend supported by an affidavit through the ‘back door’; as it were. I shall consider same and explore it’s worth in its ultimate sense. Learned Counsel for the respondent submitted that a notice of intention to defend must contain triable issue or issues for a court to transfer the suit to the General Cause List vide Order 24 rule 9(4).

He referred to the case of Muobike v. Nwigwe (2000) 1 NWLR (Pt. 642) 620 at 635. A triable issue or defence on merit depends on the facts of the matter. He felt that the learned trial Judge rightly found that there was no triable issue. He cited the case of Nwadiogbu & Ors. v. Nnadozie (2001) 12 NWLR (Pt. 727) 315 at 330 in support of his stand point that the trial court’s findings are not perverse. As well, the cases of Ifeanyi Chukwu Osondu & Co. Ltd. v. Akhigbe (1999) 11 NWLR (Pt. 625) 1; Nwobodo v. Onoh (1984) 1 SCNLR 1 were also cited. He finally urged that the appeal be dismissed. It has been restated times without number that, for an action to be transferred to the General Cause List from the undefended list, the defendant must show triable issue or issues in the affidavit in support of the notice of intention to defend that had been filed as dictated by the Rules. The defence must not be raked up or half-hearted. See Franchal Nig. Ltd. v. Nigeria Arab Bank (1995) 8 NWLR (Pt. 412) 176 at 188; Muobike v. Nwigwe (supra).

It should be stressed here that the Rules of Procedure relating to actions in the undefended list are designed to cater for simple liquidated money demands with no strings attached. Such may facilitate the entering of judgment without any inhibition if no triable issue is advanced by a defendant. Fraud or forgery when raised in air, will not equate to a triable issue. It is not enough to make a vague allegation of fraud without more in the affidavit. It is imperative that the particulars of the fraud alleged must be duly furnished. Refer to John Holt & Co. (Liverpool) Ltd. v. Henry Fajemirokun (1961) All NLR (Reprint) 492; Nishizawa Ltd. v. Jethwani (1984) All NLR 470 at 484-485. The appellant tried to impugn exhibit A annexed to the respondent’s claim by merely saying that it is forged. Particulars were not given. The learned trial Judge treated same carefully at page 24 lines 5-9 of the transcript record of appeal and found as follows:-

“I did look at the signature in exhibit A, it is the same as in the affidavit supporting the defendant’s belated notice of intention to defend. I have no doubt that the defendant made exhibit A.” The appellant has not denied making the signature in the affidavit in support of his notice of intention to defend. The learned trial Judge rightly compared same with the signature in exhibit ‘A’ and found them to be the same. We had cause, on our pan, to compare both signatures and found that they are very similar. The appellant merely tried to deny the obvious. He made exhibit A; no doubt. In exhibit A, the appellant made a memorandum of authority and understanding. Therein, he covenanted his assurance to Mr. & Mrs. Chike Anyaonu that he shall make good the delivery of their car to them within the shortest possible time or in the alternative, refund to them in full, the sum of five hundred thousand naira, representing the value of the said car as at 14/9/99. One is at a loss as to the raked up issue of lack of privity of contract with the plaintiff/respondent Chike Anyaonu.

To disclose a triable issue, an affidavit in support of notice of intention to defend must state clearly a real defence; not a sham intended to delay and frustrate justice as the appellant has tried to do in an attempt to post-pone the day of reckoning. See Macaulay v. Nal. Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 325; Agro Millers Ltd. v. C.M.B. (Nig) Plc. (1997) 10 NWLR (Pt. 525) 469 at 477-478. I agree with the learned trial Judge that stricto sensu, the appellant failed to comply with the Rules of court in not filing his notice of intention to defend on schedule. The learned trial Judge rightly considered the issues raked up by the appellant and found against him. I am unable to fault the rationale of the learned trial Judge.

In conclusion, this appeal lacks merit. And it is hereby, dismissed. The judgment of the learned trial Judge is affirmed. The appellant shall pay N4,000.00 costs to the respondent.

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Other Citations: (2002)LCN/1254(CA)