Dr. Olatunbosun V. Mr. Michael Okafor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment)

The respondent, as plaintiff, before the High Court of the Federal Capital Territory, Abuja, brought an action against the appellant as defendant, under the provisions of the Undefended List Procedure, pursuant to Order 21 of the Civil Procedure Rules of that court. The reliefs as contained in the Writ of Summons, are –

1. The sum of N5,300.000.00 (Five Million, Three Hundred Thousand Naira only) being the total outstanding debt owed to the Plaintiff by the Defendant.
2. Costs as per Rules of this Hounourable Court.

The defendant, on being served with the Writ, took advantage of Order 21 Rule 3(1) of the Civil Procedure Rules of that court, and filed a Notice of Intention to defend.

The trial court considered the arguments of counsel to both parties, and at the end of the day, entered judgment on 17/2/11 for the respondent, with N20,000 cost to him.

Dissatisfied with that judgment, the appellant herein, filed on the 21/2/11, a Notice of Appeal and three grounds of appeal. The appellant’s brief of argument was settled by his counsel, Mr. K. Olowookere and filed on 1/11/11 but deemed filed on the 5/3/12. The respondent’s brief was filed by his counsel, Chief I. A Nwaiwu on the 9/3/12.

From the three grounds of appeal, two issues were distilled by the appellant thus:

1. Whether the learned trial judge was right when he held that there was no triable issue or any other reasons shown for which there ought to be a trial
2. Whether the trial judge judicially and judiciously exercised his discretion when he entered judgment for the Respondent in the sum of N5,300.000.00 (Five Million, Three Hundred Thousand Naira) only despite the conflicting and irreconcilable affidavit evidence.

The issues identified by the respondent in his brief of argument are in similar vein, and are –

1. Whether the trial judge is right to hold that there is no triable issue without calling any oral evidence.
2. Whether the trial judge having held that there is no triable issue ought to call evidence as to the amount due to the Respondent from the Appellant.

I shall utilise the issues identified by the appellant in deciding this appeal. The story of the respondent before the trial court, is that he leant the sum of N6.8 Million to the appellant, who neglected to pay him back until he obtained the assistance of the Economic and Financial Crimes Commission (EFCC), which helped to recover the sum of N1.5 only from the appellant. Hence his claim before the court, of the balance of N5.3 Million.

On his part, the appellant deposed that he did not obtain any loan from the respondent and that it was the respondent who infact begged him for a loan of N20,000.000. He later on, took N1.6M from the respondent which attracted an interest of N200,000. Instead of loaning the respondent the N20,000.000, he gave him a cheque of N6.8M, made up of N5M loan to the respondent and the N1.8M comprising of the sum of N1.6M he took and the N200,000 interest it attracted. He denied owing the respondent the N5.3 Million claimed, but admitted owing the respondent, N100,000 only.

ISSUE 1

In arguing Issue No. 1, learned counsel for the appellant, Olowookere, referred to paragraphs, 3, 4, 5, 6, 10, 11, 12, 15 and 16 of the affidavit in support of the claim, and paragraphs 5, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 27, 28, 29, 30, 33 and 34 of the affidavit in support of the Notice of intention to defend, as the relevant depositions. He then recounted extracts from the judgment of the trial court which it said, demonstrated how improbable, the story of the appellant was, especially as to the reason why he issued the post-dated cheque of N6.8 Million to the respondent. Learned counsel submitted, that what the trial judge did, was to prematurely evaluate the defence of the appellant with a conclusion that it would not succeed, by resorting to logic, legal reasoning and personal projections and conclusions, instead of relying on the evidence before him. Counsel argued that this is wrong since a court can only base its judgment on facts presented to it and ought not to supply missing links, relying on ADISA VS. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 500 F-G. Counsel also referred to N.A.B. VS. FELLY KEME (1995) 4 NWLR (Pt. 387) 100; BALOGUN VS. BOLAJI (1981) 1 CHCJ 258; JIPREZE VS. OKONKWO (1987) 3 NWLR (Pt. 62) 737; PENEJI VS. INT’L TRANSACTIONS LTD. (2000) 11 NWLR (Pt. 678) 252 and DELTA STATE GOVERNMENT VS. OKON (2002) 2 NWLR (Pt. 752) 665, to submit that once a defendant sets out grounds in an affidavit, which prima facie show a defence on the merit, or a triable issue, then he is entitled to be allowed to defend the case in a full trial. He also placed reliance on SNIG NIG LTD. VS. OMORUKU NIG LTD. (2003) FWLR (Pt. 186) at 596 – 597 to submit that the trial judge ought not to have concerned himself at that stage, with the proof of the defence. Furthermore, since there were irreconcilable conflicts in the affidavits he argued, the calling of evidence is the only open path to resolving the issue – AGWUNEME VS. EZE (1990) 3 NWLR (Pt. 137) 242.

Counsel also submitted that the appellant had admitted partial indebtedness in the sum of N100,000 only, having paid N1.5 Million, which has therefore discharged the burden of proof on him, especially as the respondent had failed to challenge the deposition in the affidavit in support of the Notice of Intention to defend, by filing a reply or a further affidavit in rebuttal. He placed reliance on IKONO L.G.C. VS. DE BEACON FINANCE AND SECURITY LTD (2002) 4 NWLR (Pt. 756) 128 at 142 and JOB CHARLES NIG LTD. VS. OKONKWO (2002) FWLR (Pt. 117) 1067 to submit that where facts contained in an affidavit are not challenged, then they are deemed admitted and that the trial judge ought to have accepted the depositions of the appellant as established, without need for further proof, since they have not been challenged. He argued that the trial judge was wrong to hold that there were no triable issues or other reasons shown, to allow a trial. He urged us to resolve this issue in favour of the appellant.

On this issue, learned counsel for the respondent held a contrary view. He submitted that a defendant’s affidavit in support of a Notice of Intention to defend, must disclose a defence on the merit i.e. a prima facie defence, relying on the case of BENDEL CONSTRUCTION CO. LTD VS. ANGLOCEN DEVELOPMENT CO. (NIG) LTD. (1972) 1 ALL NLR 153. He emphasized that the affidavit must contain statements backed by particulars to constitute a defence, a triable issue or a difficult point of law, a dispute on facts or dispute as to the real amount due or that there is bonafide defence – NISHI ZAWA LTD VS. JETHWANI (1984) 12 SCJ 34 and FMG VS. SANI (1990) 4 NWLR (Pt. 147) 688 at 713.

Learned counsel submitted that the appellant did not disclose the triable issues (the material allegations requiring further investigation) he raised in his notice of intention to defend. Since the trial court had held that the appellant did not disclose a defence on the merits, there was no need to call evidence to support the plaintiff’s claim, he argued. He urged us to agree with the trial judge that the defence put up was a sham defence and so resolve the issue in favour of the respondent.