Intercontinental Bank Ltd Vs Brifina Limited (2012)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
The Appellant as plaintiff filed a suit under the undefended list at the High Court of Justice Onitsha, Anambra State of Nigeria claiming the following reliefs:
“a. The sum of N168,077,485.40 (One Hundred and Sixty Eight Million Seventy Seven Thousand, Four Hundred and Eighty-Five Naira, Forty Kobo) being outstanding sum/balance owed the Plaintiff by the Defendant as at 25th April, 2000.
b. 28% interest on the sum of N168,077,485,40 (One Hundred and Sixty Eight Million Seventy Seven Thousand Four Hundred and Eighty-Five Naira, Forty kobo) from 6th May, 2000 till judgment is delivered in this Suit and thereafter sum is liquidated.
c. The sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) comprising professional fees for hiring a Solicitor and also legal expenses for prosecuting this matter”.
The Respondent, herein, as the Defendant at the trial Court filed a Memorandum of Conditional Appearance instead of the Notice of Intention to defend. The trial High Court considered the defence stated in the said Memorandum of Conditional Appearance to the effect that the Respondent was under Receivership and that a document attesting to the fact was attached to the Memorandum of Conditional Appearance. In actual fact, no such document was attached and for that reason the court found that no triable issue was raised in the defence and entered judgment for the Appellant. Being dissatisfied with the judgment, the Respondent appealed to the Court of appeal Enugu Division, which allowed the Appeal in favour of the Respondent herein.
Dissatisfied with the judgment of the Court of Appeal the Appellant has now appealed to this Court.
On 9/11/2005, the Appellant brought an application for enlargement of time to file its Brief of Argument and to deem same as validly filed and served on the Respondent. The application was granted.
On 28/11/2007 similar application was made by the Respondent for extension of time to file its brief and to deem same as properly filed and served on the Appellant. It was granted and the Respondents’ brief of argument was deemed as properly filed and served on the Appellant.
The Briefs of argument of the respective parties having been filed and exchanged, the appeal was heard on 2/2/20/2. On that day Emeka Okoye Esq, the learned counsel for the Appellant having duly identified his brief urged this court to allow the appeal. The learned Counsel for the Respondent, Cameron Eze Esq, identified his brief and urged the court to dismiss the appeal and to affirm the decision of the court below.
The two issues raised for determination of this appeal by the Appellant are as follows:-
“1. Was the court below right when it held that the plaintiffs/Respondents/Appellants action was unsuitable to be placed under the undefended list and which unsuitability.
a. Rendered the said action incompetent.
b. Denied the Defendant/Appellant/Respondent fair hearing.
- Does an allegation in the memorandum of conditional Appearance that a company is under Receivership without more raise a triable issue as to warrant a matter brought under undefended list to be transferred to the General cause list.”
The two issues identified by the Respondent for determination of the appeal are as follows:
“1. Was the Court of Appeal right in ordering the action to be transferred to the General Cause List for determination before another judge in the same judicial Division
- Whether the Court of Appeal was right that the plaintiff did not discharge the burden of proof of the Trial Court”.
Arguing the first issue, the Learned Counsel for the Appellant, noted that from the sole issue that arose for determination at the court below was the propriety of the trial judge entering judgment in the undefended list without placing the matter in the General Cause List in view of the fact that, though it was a memorandum of Appearance that was filed but it proferred a defence that the Defendant was under a Receivership. It is contended that the major plank upon which the court below premised the reversal of the judgment of trial court was that the Appellant’s claim was not suitable to be placed under the undefendant list. It is submitted that the court below misdirected itself and went into the scrutiny of the Appellant’s claim and came up with the conclusion that owing to the inconsistency in the claim of the Appellant the judgment ought not to have been entered. That the court below was of the view that the Appellants’ claim was not a liquidated money demand but one that requires further explanation or proof. It is contended that the court below had imported into the Respondent’s case an issue which it did not raise. Learned Counsel has argued that the only contention that was before the court below was whether the trial court was right to have refused to transfer the matter to the General cause list in the face of the defence allegely proffered in the memorandum of conditional Appearance that the Appellant was under receivership. That the argument of the Respondent that even though the memorandum of conditional appearance was an appropriate step, to be taken in the proceedings, yet the trial court ought to have given it consideration, cannot hold. It is submitted that the court below, veered away from the sole issue and rested its decision on an issue that was not raised on the ground of appeal, and was not argued in the brief and by so doing, it had formulated suo motu or raised single-handedly for the parties and decided on those issues without hearing the parties, on such issues so formulated; and this it cannot do on the authorities of OLUMOLA v. ISLAMIC TRUST OF NIGEIRA (1996) 2 NWLR (Pt.430) 253 at 266; NWOKORO v. ONUMA (1990) 3NWLR (pt.136) 22 and UGO v. OBIEKWE (1989) 1 NWLR (pt.99) 566.
It is further submitted that the allusion by the court below to the fact that the judgment entered by the Court was of a mind-boggling sum of N171,577,485.40 on the undefended list, has deeply influenced the court below to undertake the scrutiny of the Appellants’ claim at the trial court. In other words, if the Appellant’s claim was for a meagre sum, the court below may not have bothered to undertake the task of scrutinizing the Appellant’s claim. It is submitted that the court below had expressed unnecessary sentiments on this point; I must say that for the Learned Counsel to attack the revered jurists as having sentimentalized on this issue is to show lack of respect and decorum in advocacy. They may have expressed an opinion based on the fact presented before them. Expression of unwarranted sentiments belongs to the realm of weak and bias minds and these vices do not attenuate the attributes of my learned respected brothers (two of whom are now late, and of blessed memory).
Be that as it may, the learned counsel for the Respondent has viewed this issue from a different viewpoint. He has submitted that the nature of the claim before the trial court cannot be said to be liquidated sum of money and one suitable to be placed under undefended list. It is submitted that the Appellant’s case is inherently contradictory resulting in its not discharging the burden of proof requiring him to show that the Respondent has no defence. The instances of these contradictions were cited in paragraphs 13, 14, 17, 19 and 20 of the Affidavit evidence of the Appellant.
It is submitted that the issue formulated by the Appellant centred only on the role of the Respondent and that the court below rightly held that based on the role of the said Respondent as shown in its averments and in the documents filed, it raised a triable issue, which is enough to transfer the case to the General Cause List. It is contended that in considering the issue formulated by the Appellant, the court below has a duty to relate those issues to the relevant laws and rules and it cannot be said to have raised issue suo motu. It is submitted that where a party raises an issue for consideration which amounts to a misconception this will not amount to raising new issues, if the appellate court reinstates the correct position of the law.
The Appellant’s first issue for determination is similar to the Respondent’s first issue stated a above. However, my observation is that the second issue formulated by the Appellant is not quite helpful in the determination of the appeal, in the circumstances of this matter. Assuming that the issue of Receivership stated in paragraph 1 of the Memorandum of Conditional Appearance does not disclose a defence, this does not automatically qualify the suit to be so transferred to the undefended list without more.
This is just not the main handhold of the Respondent’s case, as it will be shown, anon. The principles applicable in a undefended list proceedings is that the court has a duty to consider the Notice of Intention to defend as well as the affidavit filed in support of the Writ of Summons. Even where there is no Notice of intention to Defend, the court still has to inquire or examine whether the plaintiff has made out his claim in the affidavit accompanying the writ: OBI v. COMMERCIAL BANK LTD. (2001) 2 NWLR (pt.696) 113.
Several factors have clearly disqualified the Appellant’s claims as uncontested and thereby making them not satisfying the requirements of type of action that should come under undefended list. I agree with the court below that the Appellant’s case is inherently contradictory, as it has not been able to discharge the burden of proof that the Respondent has no defence. Instances abound. Firstly, in the facts contained in paragraphs 13 and 14 of the Appellant’s affidavit. Where it was averred as follows:
“13. The next letter the plaintiff wrote to the defendant on the subject matter of this suit is dated 16th December, 1998 and is hereby annexed and marked Exhibit “E”.
- That as contained in Exhibit “E” the indebtedness of the Defendant to the plaintiff as of that date was N105,789,739.60 (one hundred and five million, seven hundred and thirty-eight thousand (sic), seven hundred and thirty-nine naira).
It is observed that the balance of N105,783,731.00 as at 16/12/1998 is not contained in the statement of Account Exhibit “G” at pp.25 and 25 of the Record.
Secondly, paragraph 17 of the Appellant’s Affidavit averred as follows:
“17. That as at the 25th April, 2000 the total outstanding balance owed the plaintiff by the defendant is N168,077,485.40 (One hundred and sixty eight million, seventy-seven thousand, four hundred and eight five, naira forty kobo)” .
The above figure is in contrast with the statement of account at pp.25 and 26 (Exhibit “G”). At page 26 the balance of account shown therein as at 25/4/2000 is N167,233,412.97) (One hundred and sixty-seven million, two hundred and thirty-three thousand, four hundred and twelve naira, ninety seven kobo).
Thirdly, the actual balance of the Respondent’s account on 25th April, 2000 (Exhibit “G”) also contradicts paragraph 18 of the Appellant’s claims, which is stated as follows:
“18. As at the 25th day of April, 2000 the total outstanding balance owed the plaintiff by the defendant regarding the said loan and interest due thereon stands at N168,077,485.40 (One hundred and sixty-eight million, seventy-seven thousand, four hundred and eighty five naira, forty kobo). The actual balance shown in Exhibit “G” as overdrawn balance is N176,624,503,76 DR” (one hundred ad seventy-six million, six hundred and twenty four thousand five hundred and three naira, seventy-six kobo).
Fourthly, in paragraphs 19 and 20 of the Appellant’s Affidavit’s it is averred as follows:-
“19. That it was the agreement of both parties that the defendant shall bear any legal expenses incurred by the plaintiff in the course of recovery of the loan and interest accruing thereto, should the defendant fail to pay the said loan at when due.
- That it will cost the plaintiff the sum of N3.5 million to prosecute this matter, comprising professional fees to the plaintiff’s solicitor and other legal expenses”.
I agree with the Learned Counsel for the Respondent that the amount for professional fees stated in paragraph 20 above is speculative and indeterminate. The legal fees sought to be recovered falls within the category of special damages which must always be strictly pleaded and proved.
These inconsistencies and inaccurate descriptions characterising the Appellant’s claims have not been explained by the Appellant. The burden to do this lies squarely on the appellant and it has not been satisfactorily discharged.
I had on the onset expressed the view that the second issue, on the question of memorandum of conditional Appearance, did not really matter in determination of this appeal. However, because the Appellant felt the entire judgment was based on this issue not raised by the parties there is need to state clearly the position of the law regarding the discretionary powers of the trial court in undefended list proceedings. The Court has an important part to play and its jurisdiction in this respect is derived from Order 24 Rule 9(5) of the Anambra State High Court Rules, 1988. It provides as follows:
“Nothing herein shall preclude the court from making an order should it so think fit, at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit not suitable for placement in the undefenced list”.
In consideration of an action brought under undefended list by the plaintiff, the trial judge is faced with a decision whether to hear the case or transfer it to the General Cause List. He must have to begin with the careful scrutiny of the plaintiff’s claim and be satisfied that the action is not contentious and one that should be placed on the undefended list.
The defendant is not invited to defend an action before the Court is satisfied that there is a prima facie case calling for a defence. That will tantamount to casting the onus of proof on the defendant. This offends against the fundamental principle of our law that requires the plaintiff to first establish a prima facie case before the defendant can be called upon to defend the case: See S.138 of the Evidence Act, and ALADE v. ABORISHADE (1960) 5 FSC 165 OWOADE v. OMITOLA (1988) 19 NSCC (pt.1) 802 at 808. This is the duty the learned trial judge has failed to perform. The court below did just that, when it held that the Memorandum of Conditional Appearance raised a triable issue. The court below did not solely formulate any issue suo motu to the prejudice of the Appellant that led to a miscarriage of justice.
When a party in appeal puts up an argument in an issue that requires the re-instatement of the correct position of the law, the appellate court is duty bound to carefully consider the said issue and come up with the correct position of the law.
The Appellant in paragraph 0.3 line 8 of his brief of argument stated that
“The court below veered away from this sole issue and rested its decision on an issue that was not raised in the ground of appeal and was not also argued on the brief”.
The above assertion of the Appellant cannot be correct and it is a misconception of the extract in the judgment of the court below at page 75-76 which is as follows:-
“Fused together the issues formulated by both parties the summary of the amalgam is whether it was proper for the learned trial judge to have entered judgment for the Respondent on the undefended list where the defendant filed no notice of intention to defend the action but filed instead a Memorandum of conditional Appearance. In other words the focus was noncompliance with sub-rule 9(2) of order 24 in total disregard of rule 14 of order 5 which is the genesis of the problems endemic to actions on all the judicial units where the model of that rule operates”.
The Appellant herein raises an issue for consideration which is clearly a misconception of the law. It will therefore not amount to raising new issues when the court below reinstated the correct position of law. Accordingly the court stated, inter alia:
“In such a situation it is a scintillating fallacy to confine the duty of the Judge to simple inquiry about whether the defendant has a defence to the plaintiff’s action which does not arise until after the scrutiny of the plaintiff’s case with a view to determining whether, in law, it is an action that ought, in the first place, to be placed in the undefended list. Thus unlike under other rules of court where the decision to place a matter on the undefended list is primary and clearly separated from the inquiry into whether the defendant has a defence to the action that is determined at the hearing, under the Anambra state High court Rules, 1988 the decision on both question is fused”.
It has been shown that there were substantial contradictions in the case of the Appellant. The nature of its claim, involving compound interest, claim for legal fees and evidence of recovering of facility. This is not the kind of claim in an action that can be brought by the Appellant on the undefended list proceeding. These lapses are obvious facts the learned trial Judge failed to consider and the court below has rightly held so.
In sum, there is totally no merit in the appeal. It is dismissed. The decision of the court below, which has painstakingly analysed the facts and the law in this matter very satisfactorily, is hereby affirmed. I award costs in the sum of N50,000.00 in favour of the Respondent.
SC. 67/2004