John Oloko V. Mr. Sunday Awoko Ube (2003)
LawGlobal-Hub Lead Judgment Report
ISTIFANUS THOMAS, J.C.A.
This is an appeal against the decision of Uke, J. of the Cross-River State High Court, Ogoja Division in suit No. HJ/37/97 delivered on 16th June, 1997. The suit was initiated and concluded under the undefended list procedure based on liquidated money demand arising from loan with accrued interest. The appellant who was the defendant being dissatisfied with the judgment of the lower court filed a motion for extension of time to appeal, which was granted by this court.
The appellant filed 5 grounds of appeal from which three issues were distilled for determination.
They read as follows:-
1. Whether this case ought not to have been transferred to the general cause list for the court to take oral evidence in view of the conflicting affidavits.
2. Whether the claim of the respondent as constituted is not statute barred thereby depriving the court of jurisdiction to hear and determine same.
3. Whether the claim of 30% and 20% interest per week compound on the loan was not unlawful and illegal.
The respondent on the other hand in his brief of argument formulated 3 issues for determination that read thus:-
(a) Whether there are any material conflicts in the affidavits to dissuade the lower court from entering judgment for the plaintiff.
(b) Whether the respondent’s action is statute bar (sic).
(c) Whether the interest claim is lawful.
I find the two sets of issues for determination to be identical and they need not to be dealt with separately. I will approach the issues in the manner formulated by the appellant.
In arguing issue No.1, learned counsel for the appellant contended that, the respondent in his affidavit in support of his application to place the suit under the undefended list, had averred that he lent the appellant the sum of N50,000.00 and showed it by exhibiting a loan agreement and part-payment receipts. That the appellant on the other hand denied vehemently ever collecting any loan from the respondent. That the appellant claimed that his signature on exhibit PS2 was signed with the belief that he was witnessing the transaction. That his signature on exhibit PS2 was obtained at 5.00am.
Learned counsel for the appellant further observed that it is disturbing to know that the lawyer Odey Ogbaji who prepared the agreement loan for the appellant and the respondent is also the same lawyer who prepared the notice of intention to defend in which the loan was denied. That the appellant at the lower court had notified the trial Judge that there was a gang-up against him on political grounds and so should be given time to get another counsel.
That the appellant in his affidavit had mentioned names of persons who were present when the discussion of the loan took place.
Learned counsel for the appellant submitted that the learned trial Judge ought to have transferred the suit to the general cause list to enable him hear the parties since the averment of the appellant alleged misrepresentation and an absolute denial of taking any loan from the respondent.
Learned counsel referred to the case U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19,31.
Learned counsel to the appellant concluded arguing this issue by further submitting that this is a case where even the lawyer who drafted the loan agreement could and ought to have been a witness, particularly as to his role between the parties to the extent that he was being accused by his client of ganging up against him.
In reply to the argument of the appellant on issue No. 1, learned counsel to the respondent submitted that there is no conflict in the affidavits of the parties because according to learned counsel:
“construction of any document is a question of law for the Judge to decide and the court cannot be bound by any conclusion made by any of the parties as to what its language means.”
For this proposition, respondent’s counsel referred to the case of Bahamas International v. Thread Gold (1974) 3 All E.R. 1881 at 884. Learned respondent’s counsel referred to the loan agreement exhibit PS2 and identified witnesses called by the parties to witness the agreement.
It is further submitted for the respondent that where there is enough documentary evidence outside conflicting affidavit the court can make use of that evidence without calling for oral evidence and, the case of Lijadu v. Lijadu (1991) 1 NWLR (Pt.169) 627, 649 was cited in support.
Counsel further submitted that the denial by appellant that he did not take any loan, but only signed as a witness to someone else is an afterthought intended to mislead the court; and that the further allegation by the appellant that his counsel Odey Ogbaji had ganged-up with the respondent based on political differences was also an afterthought intended as well to mislead the court. Respondent’s counsel pointed out that the complaint of gangup was dated 17th July, 1997 whereas the judgment was delivered on 16th June, 1997, a period of one month after judgment.
Learned counsel further submitted that it is unethical for a party to embark on casual correspondence with a Judge hearing a cause in which he had interest, and referred to page 18 of the record.
It was further submitted for the respondent that the appellant’s notice of intention to defend and the accompanying affidavit in support had no exhibit and wondered how the so called document (notice to the court) at page 18 of the record found its way to the record of the court and without notice to the respondent.
It was finally submitted in this issue No.1 that the trial was by affidavit evidence that had no material conflicts, and that the duty of the court was to give due construction to the loan agreement, and the respondent counsel, urged us to affirm the judgment of the lower court on this issue.
Before I consider the merits in the argument of both parties, it is necessary to consider the provisions of the law in regard to the trial under the undefended list procedure of Cross River State High Court (Civil Procedure) Rules, 1987 which states thus:-
“Order 23 rule 1:-
Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
Rule 3(1):-
If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
Rule 3 (2):-
Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings, or proceed to hearing without further pleadings.
Rule 4:-
Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.
Rule 5:-
Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceeding under rule 4.”
In the record of proceedings, at pages 1-4, the respondent who was the plaintiff filed his writ of summons supported by an affidavit.
Pages 5-10 of the record are exhibits annexed to the affidavit in support. Pages 11-13 shows the motion ex-parte to place the suit on the undefended list. The application was granted as prayed vide page 14 of the record.
When the appellant was served with the court’s order placing the suit in the undefended list, he timeously in accordance with Order 23 r. 3(1) of the Rules of Cross-River State High Court, filed his notice of intention to defend the suit. He filed a 19 paragraph affidavit showing his defence, paragraphs 2, 3, 7, 11, 12, 13, 14, 15, 17, and 18 are relevant and are reproduced:-
1. …
2. I have never approached the respondent for any loan before as I know him to be a patent medicine dealer and not a money lender.
3. On the 23rd October, 1995, one Andrew Paul approached the respondent for a loan of N50,000.00 to enable him buy 4 tyres to repair a broken down tractor, property of the Ministry of Agriculture to enable him do business with the tractor.
4. …
5. …
6. …
7. At all material time prior to, during and after handing over the N50,000.00 (fifty thousand naira) to Andrew Paul, the respondent knew that I was merely acting as a witness to the transaction.
8. …
9. …
10. …
11.Following our discussions as in paragraph 5 above, exhibit PS2 was made and taken to me at about 5.00am which I signed.
12.At the time I was signing the agreement at 5.00 am I reasonably believed that I was signing same as a witness to the transaction of the respondent and Andrew Paul, the respondent knew and believed the purpose for which I was signing same.
13.The said Andrew Paul is living and within the reach of the respondent. The respondent knows the where about of Andrew Paul.
14.After the discussions in paragraph 5, I have since withdrawn from the transaction.
15.I signed exhibit PS2 in error as I have never obtained any loan from the respondent whom I know as a fact not to be a money lender.
16. …
17. …
18. …
19. …
It is thus clear that, the appellant, not only denied taking the loan but gave names of the parties whom he claimed were alive to substantiate his defence. It is true that the appellant admitted signing the loan agreement exhibited as PS2 by the respondent, but the defence of the appellant was that he was misled into signing same thinking or believing he was a witness to the borrower, Andrew Paul, see paragraphs 12 and 13 above. It is thus very clear that the affidavit evidence of the appellant was in clear conflict with the affidavit evidence of the respondent. In such circumstance, a reasonable court should transfer the suit from the undefended list to the general cause list and order for pleadings.
The lower court in this matter failed to do that, and neither did it take recourse to the cautionary provision made by Order 23 r. 5 of the High Court (Civil Procedure) Rules of Cross-River State quoted above which says that nothing herein shall preclude the court from hearing or requiring oral evidence, should the court so think fit at any stage of the proceedings under rule 4. This means the learned trial Judge, could have called oral evidence to resolve the conflicts in the two affidavits of the appellant and respondent before making his ruling whether to proceed under the undefended list procedure or to transfer the suit to the general cause list and order for pleadings and subsequent oral evidence and thus on the merits.
This the learned trial Judge failed to do. In the short ruling of the learned trial Judge at page 28 of the record he said as follows:-
“I have gone through the motion on notice of intention to defend and have to (sic) the irresistible conclusion that it lacks merit and since there is absence of fraud, it is my view that this court must proceed to determine this suit as a case on the undefended list and not on the general cause list”.
(Italics is mine)
With due respect, the learned trial Judge has misconceived the import of Order 23 r. 3 of the High Court Rules.
It is very wrong for the trial court to only consider the notice of intention to defend without considering the affidavits evidence of both parties filed in support of the writ of summons and the notice of intention to defend, respectively. Even where there is no notice of intention to defend the trial court has the obligation still to consider whether the plaintiff has made out his claim in his affidavit evidence in support of his writ. It is not enough to give judgment to the plaintiff on a platter of gold because the defendant did not plead fraud in his notice of intention to defend as in this case. See A.I.B. Ltd. v. Packoplast (Nig.) Ltd. (2003) 1 NWLR (Pt.802) 502, 526.
It is settled law that allegation of fraud is not the only defence open to a defendant who wants to defend a suit in the undefended list. There are many other defences or grounds. In the case of U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.119) 19 at 29, Uwaifo, J.C.A. as he then was stated the law as follows:-
“The law is that where the defendant raises any substantial question of fact which ought to be tried, leave should be given to him to defend an action which had been placed on the undefended list. Leave will also be given where there has been an alleged misrepresentation by the plaintiff or where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witness on the affidavit he filed to support the action being placed on the undefended list or where fraud is alleged in the transaction”. (Italics are mine for emphasis)
In the affidavit of the appellant in support of his notice of intention to defend, he raised substantial questions of facts that needed to be tried. See his paragraphs 3, 4, 5, 7, 8, 11, 12, 13, 15 thereof, reproduced above.
By his affidavit, evidence also there is no doubt that the five persons named by the defendant/appellant in his affidavit would be liable to be cross-examined by the plaintiff. In the same vein, the witness by name Barrister Odey Ogbaji who, prepared the alleged loan agreement between the appellant and the respondent, as per paragraph 7 of the affidavit of the respondent would be cross-examined by the appellant.
I am satisfied that from the averment of the appellant in his affidavit in support of his intention to defend the suit placed on the undefended list, he alleged a misrepresentation in exhibit PS2 the alleged loan agreement and he infact denied taking any such loan from the respondent. These ought to have convinced the learned trial Judge to transfer the matter to the general cause list. This he failed to do and has occasioned a miscarriage of justice. This cannot be allowed to stand. The judgment of Uke, J. of Ogoja Judicial Division delivered on 16th June, 1997 is hereby set aside. In its place, I order that the suit be sent back to the lower court for trial de novo by another Judge on the merit in the general cause list as the appellant has raised triable issues.
In view of resolving issue No. 1 in favour of the appellant to the effect that the case ought to have been transferred to the general cause list for the court to take oral evidence in view of the conflicting affidavits, and ordering for retrial de novo, I am of the view that it will not be appropriate to embark on the remaining two issues since they border on the merit or otherwise of the suit which is yet to be tried.
Appeal allowed. I award cost of N5,000.00 in favour of the appellant.
Other Citations: (2003)LCN/1408(CA)