Elder Eseme Akpan V. Ekanabasi Asibong Ubong (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED, LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant was the defendant in the suit of the Respondent placed under the undefended list by the High Court of Akwa Ibom State in a claim for money had and received. The endorsement on the writ of the Respondent was in the following terms:-

1. The sum of 2,100,000.00 (Two Million, One Thousand Naira) being amount of money lent to the defendant by the claimant as a friendly loan which sum the defendant has refused to refund to the plaintiff despite repeated demands.
2. 10% interest on the judgment sum from the date judgment until the entire sum is fully liquidated.

In brief, the facts relied on for the claim, as set out in the affidavit in support of the ex-parte motion to place the suit under the undefended list, are that the Appellant and his friends, obtained a friendly loan of Two million, One hundred Thousand Naira Only (N2,100,000.00) from the Respondent vide an agreement entered into by the parties on the 14/11/2005. That the Appellant and his friends had failed or refused to pay back the loan in accordance with the terms of the agreement which was attached to the affidavit as Exhibit GB1. A letter of demand from the Respondent’s solicitors to the Appellant was also attached to the affidavit as Exhibit GB2.

When served with the Respondent’s suit, the Appellant in accordance with the rules of the High Court, filed a notice of intention to defend the action against him, along with a 30 paragraphs affidavit which was said to disclose a defence on the merit.

Eventually,when the case came up for hearing before the High Court on the 21/4/2010, judgment was entered in favour of the Respondent under the undefended list and being aggrieved by that decision, the Appellant caused a notice and four grounds of appeal to be filed against it, the following day, i.e. the 22/4/10. With the leave of this court granted on the 23/4/12, two (2) additional grounds were filed in the Amended Notice of Appeal filed on the 27/4/12.

In line with the Rules of the Court, learned counsel for the parties filed briefs of argument in the appeal. The Appellant’s Amended brief filed on 21/6/12 was deemed on the 25/6/12 and the following five (5) issues are said to arise for determination:

1. Whether having regard to the appellant’s defence of want or failure of consideration under the loan agreement the subject matter of the suit, the learned trial Judge was not in error when she entered judgment against the appellant instead of transferring the suit to the general cause list for trial.
2. Whether the Appellant was not denied fair hearing when the learned trial judge entered judgment under the undefended list in favour of the respondent on the face of conflicting affidavits of the parties and self contradictory averments of the respondent.
3. Whether the learned trial judge was not in error when she decided that the appellant’s affidavit in support of the Notice of Intention to defend was a “dexterously worded affidavit of counsel” and thus occasioned miscarriage of justice by shutting out appellant’s defence.
4. Whether having regard to the appellant’s uncontradicted averments, appellant had not set up a separate agreement, constituting a condition precedent to the enforcement of the friendly loan agreement consequent upon which the trial court ought to have transferred the action to the general cause list to enable the appellant adduce oral evidence under S.132(1)(c) of the Evidence Act.

The Respondent’s brief was filed on 19/7/12 wherein, two (2) issues were submitted for decision in the appeal as follows:

1. Whether the learned trial judge was right to have relied on Exhibit GB1 in deciding in favour of the Respondent at the lower court?
2. Whether the Appellant was denied fair hearing by the lower court?

On the 6/2/13, at the oral hearing of the appeal, learned counsel for the parties adopted the briefs as their submissions in support of their respective positions and each urged us to uphold same in the determination of the appeal.

Looking at the grounds contained on the Appellant’s amended notice of appeal calmly, the primary complaints of the Appeal against the decision by the High Court are that it was wrong to have entered judgment under the undefended list when there were conflicts in the affidavit evidence of the parties which called for oral evidence to resolve and that the Appellant was denied fair hearing when the judgment was entered in favour of the Respondent. The germane and crucial issues which therefore call for decision in the appeal are:

1) Whether the High Court was right on the face of the Appellant’s averments in the affidavit in support of the notice of intention to defend, to have entered judgment under the undefended list.

2) Whether the High Court denied the Appellant the right to fair hearing by entering the judgment under the undefended list, in the circumstances of the case.

These are the real and main issues which are relevant to the grounds of the appeal and the law is now firmly established that the court can reframe, reformulate or even frame issues from the grounds of an appeal which would lead to a proper determination of the appeal. See Sha v Kwam (2000) FWLR (11) 1798 at 1815; Bankole v. Pelu (1991) 8 NWLR (211) 523; Nwana v FCDA (2004) 13 NWLR (889) 128; Lebile v Res. Trustee. Cher. & Serap (2003) 2 NWLR (804) 399; F. M. H. v C.S.A. Ltd. (2009) 9 NWLR (1145) 193 at 222 – 3. Recently, the law on the point was restated by the Supreme Court in the case of Chabayas v Anwasi (2010) 10 NWLR (1201) 165 at 181 where it said per Mukhtar, JSC (now CJN):

‘In fact, the law permits an appellate court to ignore some or all issues raised in the briefs of argument and formulate its own issues, the way it deems fit to be material once they are distilled from the grounds of appeal. See Opera v D. S. (Nig) Ltd. (1995) 4 NWLR (390) 440; Bankole v Pelu (1991) 1 NWLR (Pt.211) page 523 and Ukpo v Mbaba (2001) 4 NWLR (Pt.704) page 460.”

Learned counsel for the parties to the appeal have adequately addressed the above two (2) issues in their respective briefs of argument and so the need for the court to call for addresses or argument by them on the issues does not arise. For that reason, I intend to consider the issues in the determination of the appeal in line with the relevant submissions by the learned counsel for the parties and the law.