John Akalonu V. Mr. S. O. Omokaro (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an interesting, as well as intriguing appeal. It questions, indirectly though, the right of counsel to announce his appearance for a party and the right of the other party, to challenge his authority for doing so.

The plaintiff brought an action against the defendant, in suit No. KDH/KAD/340/2001 claiming the sum of N425,000.00 which represents the total loans collected by the defendant from the plaintiff, through one O. G. H. Anaele and after judgment, interest on the said sum at the rate of 10% per annum, from date of judgment, until the final liquidation of the entire sum.

The action was brought under the provisions of Order 22 of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State, 1991. The respondent’s application for writ of summons was supported by affidavit to which was exhibited ten documents, which are marked as exhibits 1, 2, 3, 4a, 5, 6, 7, 8 and 9, while the defendant’s notice of intention to defend, found by the learned trial Judge to be filed within time, was also backed by affidavit to which there were two annexture marked exhibits AA and BB.

At the date fixed for hearing of the suit, learned Counsel for the defendant submitted that the notice of intention to defend disclosed a defence on the merit and urged the learned trial Judge to transfer the action from the undefended to the general cause list. In response, the learned Counsel for appellant drew attention of the trial Judge to the signatures of both parties at the back of exhibit 8 and invited him to compare them with the signature on exhibit AA, attached to the defendant’s notice of intention to defend, and contended that the undisputed signature of the plaintiff on exhibit 8 is not the same as the one imputed to him in exhibit AA. The learned trial Judge agreed with him and found that there is no defence disclosed on the merit in the notice of intention to defend put in by the defendant.

Thereafter, learned trial Judge entered judgment for the plaintiff (i) in the sum of N425,000.00 and (ii) “claim for 10% interest is reserved until the mode of payment is determined”. The defendant was dissatisfied and appealed to this court on 3 grounds of appeal.

Parties, pursuance of the provisions of Order 6 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990, filed and exchanged briefs of argument which were exchanged at appellant’s and respondent’s brief. There is no appellant’s reply brief.

On the day fixed for hearing of the appeal, briefs of argument were adopted and relied upon. In the brief for the defendant (hereinafter referred to as the appellant) two issues were framed from the grounds of appeal. Appellant’s formulations read as follows:-

“(i) Whether the issues of impersonation, and the liquidation of the amount claimed in this suit as raised by the appellant, without any denial by way of counter affidavit by the respondent were not sufficient to constitute defence on the merit in this case – Ground 1.

(ii) Whether the lower court can resolve an allegation of forgery of the signature in exhibit B, and/or difference in signatures as alleged in the respondent’s oral submission, by an affidavit evidence, without calling oral evidence. Grounds II & III.”

The respondent, in his brief of argument, framed the following 2 issues for determination:

“1. Whether the issue of impersonation raised by the appellant in his notice of intention to defend amounts to a defence on the merit.

2. Whether the lower court was wrong in making a finding of facts after making a comparison between the

appellant signature at the back of exhibit 8 in support of the respondent writ of summons, and that on the face of exhibit BB which was not properly marked and referred to by the lower court as exhibit A in support of appellant notice of intention to defend.”

The two formulations are very similar if not identical. But I think both issues may be taken together.

Learned Counsel submitted, in arguing issue 1, that in the consideration of whether an affidavit in support of the notice of intention to defend disclosed a defence on the merit the trial court is only concerned with the averments contained in the affidavit in support of the notice of intention to defend. See Bature v. Savannah Bank of Nigeria Ltd. (1998) 4 NWLR (Pt. 546) 438, 445 – 446. He contended that, in the instant case, the affidavit in support of the notice of intention to defend, disclosed two issues namely that one Mr. O. G. H. Anaele, impersonated Mr. S. O. Omokaro, in instituting the action and that the amount being claimed had in fact been paid to Mr. Omokaro.

Learned Counsel referred to and read section 179 of the Penal Code before submitting that the allegation as contained in the affidavit, in support of the notice of intention did not only disclose a defence on the merit but also goes to the root of the action itself.

Learned Counsel referred to the second defence raised to the effect, that the amount being claimed has been liquidated. He argued that in this regard, that the treatment of this issue was confusing. He then argued that where there is no denial of an averment in an affidavit the averment is deemed admitted: Globe Fishing Industries

Limited & Others v. Chief Folarin Coker (1990) 7 NWLR (Pt.162) 265; (1990) 11 SCNJ 56, 78, and argued that the rejection of the averment on the ground that the same is not substantiated while averments in an affidavit unlike in pleadings are evidence: Magnusson v. Koiki (1993) 9 NWLR (Pt. 317) 287; (1993) 12 SCNJ 114.

Learned Counsel contended that this court has outlined instances where cases brought under undefended list should be transferred to the general cause list. The two instances are, where there are disputed facts from a comparison of the affidavits of both parties and when the issue of disclosure of defence on the merit turns on difficult areas of law. He relied on Santory Company Ltd. v. Elabed (1998) 12 NWLR (Pt.579) 538; Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737 and Jos North Local Government v. Daniyan (2000) 10 NWLR (Pt.675) 281; (2000) FWLR 871, 884 – 885. On these hypothesis, learned Counsel submitted that the respondent’s affidavit disclosed defence on the merit as the competence of the action as a result of false personation is a serious issue for determination.

Learned Counsel for respondent, in the respondent’s brief, contended that the issue of impersonation raised by the appellant in the affidavit in support of his notice of intention to defend does not amount to defence. Counsel, further contended that parties are determined by their role in what gave rise to the cause of action and Mr. Anaele, who is alleged to have impersonated as the plaintiff was the agent for the respondent throughout the transaction giving rise to the action in the trial court. Learned Counsel contended that the appellant knowing the relationship of the respondent and Mr. Anaele in this transaction, should know that it is not the agent, but the disclosed principal that should, in the circumstance, bring the action.

Learned Counsel also argued that there is a presumption that a counsel handling a matter on behalf of a party is briefed by the same party he profess to be representing.

The submission of the learned Counsel for appellant in respect of the affidavit to be examined in determining whether the defendant’s affidavit discloses a defence on the merit is contradictory. In one breathe, learned Counsel for appellant contended that, in coming to a determination on whether there is a defence on the merit disclosed in the affidavit accompanying the notice of intention to defend, the court should confine itself solely to the consideration of the defendant’s affidavit. He cited the case of Bature v. Savannah Bank of Nigeria Limited (1998) 4 NWLR (Pt.546) 438, 445 – 6.

Contrary to that postulation, on the authorities of Santory Company Ltd. v. Elabed (1998) 12 NWLR (Pt.579) 538; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 and Jos North Local Government v. Daniyan (2000) 10 NWLR (Pt. 675) 281; (2000) FWLR 871. 884-885, that if there are disputed issues of fact disclosed from comparison of the plaintiffs and defendant’s affidavit. I think in all cases, both affidavits should be examined in determining whether affidavit of the defendant discloses a defence on the merit and the matter, in the result, should be transferred from undefended to general cause list or not. If the determination is confined to the consideration of defendant’s affidavit in support of notice of intention to defend, without reference to the plaintiff’s affidavit in support of the application for writ of summons under the undefended list, it would leave the defendant’s defence at large. Such an approach will make it well nigh impossible, if not impossible, to determine whether the defence mounted in the defendant’s affidavit is directed at the plaintiff’s case not to talk of its constituting a defence thereto on the merit. A triable issue should emanate from the averments contained in both affidavit. In the circumstance, the learned trial Judge rightly in my view looked at the affidavits deposed to by both parties. But respectfully on the defence of the appellant that the cause of action no longer existed at the time of the institution of the action, I am firmly of the view that learned trial Judge rightly assessed the evidence placed before her. The treatment of the issue by the learned trial Judge was lucid contrary to the submission of the learned Counsel for the appellant who alleged that the same was confusing. The apparent confusion stems out of the learned Counsel for appellant quoting her out of con and her misplacing the burden of proof. To fully appreciate the treatment of the argument it is appropriate, at this stage, to quote the passage in question from the judgment of the court below. It reads as follows:-

“It is my considered view that a sworn affidavit by Mr. Omokaro would have settled this matter but in the absence of any such deposition from the plaintiff, at best the affidavit of defendant is mere averments with no single evidence to support same. A close perusal of exhibit A annexed to the defendant’s affidavit and the said exhibit 8 particularly the endorsement at the back of exhibit 8 would disclose the following…”

The burden of proof in all cases of indebtedness is on the defendant, who admitted being indebted to the plaintiff to show that such obligation has been discharged. To discharge the burden of proof, appellant, having admitted the debt has to prove on preponderance of credible evidence that the debt has been repaid. It is thereafter, that the burden of proof, in civil cases, which is not static shifts on the respondent to deny the averment. The demand for “a sworn affidavit by Mr. Omokaro to “settle the matter” was, at that stage, premature. The learned trial Judge longed for the affidavit prematurely. Hence, the seeming confusion in her judgment which the learned Counsel for appellant was attempting to cash upon or exploit to advantage.

In trying to discharge the onus of proof placed on the appellant by his admission of the indebtedness, appellant in paragraphs 5 and 6 of the affidavit in support of the notice of intention to defend averred as follows:-

5. That when the letter attached as exhibit 9 to the writ of summons was written to me, I caused a reply to be written to the alleged plaintiffs counsel, wherein I stated through my solicitor that the transactions between me and Mr. S. O. Omokaro has been settled. See attached as exhibit AA a copy of the letter dated 30/5/2001.
6. That the acknowledgment of the settlement of the transaction and duly endorsed by exhibit BB.

Should appellant in good conscience settle his indebtedness to the respondent at the back of Mr. O.G.H. Anaele, through whom he got the loan as shown in all the accompanying exhibits attached to the respondent’s affidavit? I do not think so. Learned trial Judge, however, examined exhibit BB compared it with signatures on exhibit 8 to the affidavit in support of the application for the writ of summons. The reverse side of exhibit 8 bears two signatures, one is that of the appellant which is consistent with his signatures on exhibits 1, 2, and 7. The second signature is established as that of the respondent which after comparison with his alleged signature on exhibit BB, learned trial Judge came to the conclusion that the signature imputed to respondent on appellant’s exhibit BB does not belong to the respondent. Learned trial Judge, respectfully, is entitled under s. 108(1) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990, to, in open court, compare the signature alleged to be Mr. Omokaro’s on exhibit BB with any other signature of Mr. Omokaro whether admitted in evidence or not and come to a

determination thereon in the manner the learned trial Judge did. Section 108(1) provides that in order to ascertain whether a signature, writing seal or finger print impression is that of the person by whom it purports to have been written or made, any signature, writing seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing seal or finger impression has not been produced or proved for any other purpose. See Lawal v. Commissioner of Police (1960) WRNLR 72; R v. Omisade & Others (1964) NMLR 67, 86 and Sebastian S. Yongo v. Commissioner of Police (1992) 8 NWLR (Pt. 257) 36; (1992) 9 SCNJ 113, 131; (1992) 8 NWLR (Pt. 257) 36. It is clear from the proceedings of that day that, the comparison took place in the open court and not in chambers. The learned Counsel referred the learned trial Judge, in his address, to the existence of respondent’s signature at the reverse side of exhibit 8 and contended that exhibit BB in the appellant’s affidavit was not made by the respondent.

The learned trial Judge in her judgment apparently written on the bench did the examination and comparison of the respondent’s two signatures and rejected exhibit BB. This was exercise of judicial and not investigatory function.

The learned Counsel for appellant refer to section 100 of the Evidence Act which requires that during the course of a litigation, either civil or criminal, it is alleged a document was signed or written by a particular person, in that case, the document or the writing on it must be proved to be that person’s writing. The appellant did not show that exhibit BB was written by respondent in accordance with the types of evidence admissible such as sections 100, 101, 106 and 107 of the Evidence Act, Cap. 112, on the other hand the respondent has shown that exhibit BB is not made by S. O. Omokaro by causing it to be compared with exhibit 8. Exhibit 8 is a cheque drawn in favour of the respondent, Mr. S. O. Omokaro by the appellant. The reverse side is endorsed as follows-

“Mr. S. O. Omokaro , 26 Abuja Road, PO. Box 1359 Kaduna.”

Immediately under the endorsement, is the signature which is identified as the respondent’s signature. The appellant did not show that another person exists bearing the same name and address as the endorser at the reverse side of exhibit 8.

The learned trial Judge therefore, found exhibit BB, on the strength of which the appellant claimed having redeemed the loan, seriously discredited. Learned trial Judge rightly, in my view, rejected the appellant’s affidavit evidence even though the same was neither denied nor countered. The appellant’s contention that in the absence of express denial of the averments claiming that he has settled his indebtedness on exhibit BB are deemed admitted on the authority of Folarin Coker’s case (supra) is untenable. The proposition of law that when evidence is uncontroverted or unchallenged it must be accepted in proof of the issue in contest only holds good when the unchallenged evidence itself is credible Nsirim v. Omuna Construction Co. Ltd. (1994) 1 NWLR (Pt. 318) 1, 23; Omoregbe v. Lawani (1980) 3-4 SC 108, 177; Owonyin v. Omotosho (1961) 2 SCNLR 57; (1961) All NLR 304; (1961) NSCC 179. The court cannot act on the averments even though they remained uncontroverted or undenied because the same has been demonstrably shown to be palpably unreliable or false.Before the learned trial Judge could admit the appellant to defend, by transferring the action from undefended to the general cause list, his affidavit in support of the notice of intention to defend must disclose a defence on the merit, by virtue of Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules, Cap. 68 of the Laws of Kaduna State of Nigeria, 1991. He must satisfy the court that there is a triable issue or some reason why the matter ought to be heard: University of Nigeria Nsukka v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19, 30; FMG v. Sani (1990) 4 NWLR (Pt.147) 688, 699 and Alaguba & Co. v. Gara Nig. Ltd. (2000) FWLR (Pt. 24) 1355, and Jacob v. Booths Distillery Co. (1900 – 3) All ER. I do not agree that a triable issue does exist where the evidence adduced in support is not credible and reliable.

The contention of the learned Counsel for appellant that the learned trial Judge rushed to judgment without affording him opportunity to prove that exhibit BB was made by the respondent. I think, learned Counsel has himself to blame. The accusation that he was not given a chance does not hold water. I am not aware of any rule of procedure or practice which requires a court to set down a date for establishing authenticity or otherwise of evidence. It is his responsibility to produce before the court a credible evidence and a dud receipt, such as exhibit BB, does not qualify as one. In any case, learned Counsel for appellant has not told this court what other evidence is at his disposal to demonstrate the veracity of exhibit BB attached to the affidavit in support of notice of intention to defend.

If fanciful defence is allowed to serve as a triable issue the purpose of the enactment which is to expedite trial would be defeated and the courts will be clogged with undeserving cases. On the issue of impersonation, I am respectfully of the view that appellant was merely drawing red herring across the track. The transaction resulting in the institution of the action, culminating in this appeal, was conducted throughout with Mr. O.G.H. Anaele, whom the appellant alleged is impersonating the plaintiff, respondent herein, acting as the innocent conduit pipe between appellant and the respondent. The appellant, therefore, knew that Mr. Anaele was, at least, an implied agent of a disclosed principal, Mr. S.O. Omokaro. Exhibits 1, 2, 3, 4, 5 and 6, attached to affidavit in support of the application for the writ of summons amply demonstrate that appellant transacted the business with Mr. Anaele as the agent of the respondent. It is trite law that the liability of an agent ceases where the principal is disclosed and it is the principal and not the agent who can, in that circumstance, bring an action to recover. The act of an agent for a particular purpose is the act of his principal. The correct perspective of the law is as if it was the principal that did what the agent did or failed to do. This view is enshrined in the maxim – qui per aliumfacit per seipsumfacere videtur meaning he who does an act through another is deemed in law to do it himself. The general principle is that where the principal of an agent is known or disclosed the correct party to be sued for anything done or neglected to be done by the agent is the principal and by extension the correct party to sue for act or omission of an agent is the principal. Mr. O.G.H. Anaele as agent of a disclosed principal cannot, therefore, sue on the transaction. Allied Trading Co. Ltd. v. G. B. N. Line (1985) 2 NWLR (Pt. 5) 74; Niger Progress Ltd. v. North-East Line Corporation (1989) 3 NWLR (Pt. 107) 68, 83 and Qua Steel Products Ltd. v. Bassey (1992) 5 NWLR (Pt. 239) 67. There is overwhelming evidence before the learned trial Judge which the appellant neither challenged nor rebutted, that to the knowledge of the appellant, Mr. Omokaro, respondent herein was merely acting through Mr. Anaele and the latter’s act or omission was that of the former. Mr. Anaele was not therefore competent to bring the action.

Further more on this issue, Mr. Agu of counsel wrote exhibit 9 on behalf of the respondent herein demanding the money appellant borrowed from respondent. Learned Counsel for appellant, Mr. Aremo, replied on exhibit AA to the effect that the transaction between the parties had been resolved and expressed his surprised that his learned friend was still representing the same party. Nevertheless, a writ of summons was caused to be issued. There is no evidence before both the court below and this court that appellant ever confronted Mr. S. O. Omokaro with the demand letter, exhibit 9, written after the alleged settlement of the loan. A reasonable person finding himself in the situation in which appellant claimed to have found himself would not stop at merely writing Mr. Omokaro’s counsel. He would insist on Mr. Agu hearing the terms of settlement from the respondent’s mouth. This was not done. The neglect to confront Mr. Omokaro with the writer of exhibit 9 left a wide gap in the appellant’s defence.

Consequently, I agree with the submission of the learned Counsel for the respondent that it does not lie with the appellant in the instant appeal to question the instruction or extent of the instruction of the learned Counsel for respondent. It is the respondent who could challenge the authority of his counsel to appear on his behalf. When a counsel appears in court and states that he is instructed, the court will not inquire into his authority to appear Allen v. Francis (1914) 3 KB 1065. The representation of parties, contrary to appellant’s contention, do not affect the competence or jurisdiction of the court. It is not appearance of counsel nor the want of authority that confers on or removes jurisdiction from a court. Appearance of counsel may have something to do with adjudication but nothing whatsoever with the competence of the court to adjudicate and therefore with jurisdiction. Madukolu & Others v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587. The allegation of impersonation made against Mr. Anaele in the trial court does not constitute triable issue and cannot be investigated by the learned trial Judge. If the appellant still feels strongly about it, he is at liberty to lodge his complaint to the appropriate law enforcing agent against whosoever he feels has impersonated or acted against his interest in the matter. Certainly, neither this court nor the court below is the appropriate forum to lodge his complaint. Both courts are not properly or adequately equipped to handle the allegation raised by appellant.

I resolve both issues framed in the appellant’s brief of argument in favour of the respondent and against the appellant. The 3 grounds of appeal from which the issues were formulated fail and are dismissed. In the result, the appeal also fails and is equally dismissed by me. The respondent is entitled to the costs of this appeal which is assessed at N6,000.00 against the appellant.

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Other Citations: 2002)LCN/1228(CA)