Samuel Tele Onadeko V. Union Bank of Nigeria Plc. (2004)
LawGlobal-Hub Lead Judgment Report
ADEKEYE, J.C.A.
T
his is an appeal against the judgment of Ogun State High Court of Justice – Ijebu-Ode Judicial Division, delivered on the 6th of July, 1999. This judgment emanated from suit No.HC/119/97 which was heard under undefended list and the lower court awarded judgment to the respondent in the sum of N482,614.16 with interest at the rate of 21% per annum from the 1st of November, 1997, until the date of judgment and thereafter, interest at the rate of 10%, until final liquidation of the debt. The plaintiff before the lower court, the Union Bank of Nigeria, stated in affidavit sworn to by Tajudeen Adesegun Ajibade, an appraisal officer of the bank that the defendant – Samuel Tele Onadeko, was a customer at Ijebu-Ode branch. In the course of their bank and customer relationship – the defendant took a loan of N30,000.00, sometime in 1983. The plaintiff secured the loan by mortgaging its landed property at No.2 Oriwu Street, Atikori, Ijebu-Igbo Ogun State. A deed of legal mortgage was executed by the parties on the 13th of September, 1984, specifying the modalities for the repayment of the loan. The defendant failed to comply with the terms of the mortgage following which the plaintiff attempted to foreclose and sell the mortgaged property. The defendant prevented the bank from taking this line of action by obtaining an order of injunction at the High Court of Justice Ijebu-Igbo Division. On the 25th November, 1997, the plaintiff filed an action for the recovery of the loan granted to the defendant. The loan and interests on the 31/10/97 stood at N482,614.16. The plaintiff filed an affidavit in support of the summons, and a statement of claim. Prior to this, the defendant issued a cheque for N50,000.00 as part-payment but the cheque was dishonoured. The suit in which the defendant obtained the order of injunction was struck out. The plaintiff before the trial court exhibited along with his affidavit in support of the summons documents like the deed of legal mortgage as exhibit A, respondent’s covering letter returning the dishonoured cheque and the cheque as exhibits B and B1, the proceedings in suit No.HCB/12/91 struck out by court as exhibit C. The plaintiff maintained in the claim that the appellant has failed and neglected to pay the debt in spite of repeated demands. The defendant did not dispute being a customer of the plaintiff at its Ijebu-Ode branch, and that he obtained a loan of N30,000.00 in 1983, secured on his landed property in Ijebu-Igbo. The defendant also admitted instituting the action by which he obtained an order of injunction in the Ijebu-Igbo High Court. He denied not receiving statements of account or demand notice from the bank, neither was his indebtedness to the bank up to N482,614.16. The defendant filed a counter-affidavit in reply to the plaintiff’s affidavit. He did not deny issuing the cheque exhibit B in an attempt to settle the amount outstanding on the loan. It is his contention that this matter was placed on the undefended list in the High Court of Ijebu-Ode and was disposed in that manner. Furthermore on the day the action was heard – he was not present in court and his counsel applied to withdraw his appearance. The court granted the request of his counsel and proceeded to hear the case. He was not served with hearing notice notifying him about the case. The trial court proceeded to take the case as undefended and granted judgment and interests against him for a sum of N482,614.16 being the balance of a loan as at 31/10/97, plus 21% interest on the said sum from 1/11/97, until judgment and thereafter at 10%, until the whole debt is paid – plus N1000 costs in favour of the plaintiff against the defendant.
The defendant being aggrieved by the judgment of the trial court filed his notice of appeal on 8/6/2001, pursuant to the order of this Court made on 7/6/01. Parties thereafter exchanged briefs in accordance with the Rules of the Court of Appeal, 2002.
At the hearing of this appeal – the appellant adopted and relied on the appellant’s brief filed on 21/1/03 and the appellant’s reply brief filed on 29/4/03. The respondent adopted and relied on the respondent’s brief filed 15/2/03.
In the appellant’s brief three issues were settled for determination as follows:
(1) Whether the plaintiff’s claim was statute-barred, and if so what order should be made by the lower court.
(2) Whether plaintiff was entitled to judgment upon the processes filed by them in the lower court.
(3) Whether the hearing in the lower court was conducted in accordance with the principles of fair hearing.
The foregoing relate to the grounds of appeal filed by the appellant. The respondent in its brief settled two issues for determination as follows:
(1) Whether the claim of the respondent before the lower court was statute-barred.
(2) Whether the lower court was right to have adopted the procedure it did at the trial before awarding judgment to the respondent.
This court shall adopt the issues formulated in the appellant’s brief for the purpose of this appeal.
The respondent filed notice of preliminary objection on 18/2/03 whereupon it submitted for determination as follows-
“Whether all the grounds of appeal and a fortiori all the issues formulated by the appellant as arising for determination in this appeal are competent”.
Ground (a) raising issue of limitation law was never raised in the lower court – that the case of the respondent was statute-barred. That leg requires leave of court – which the appellant should have sought and obtained. The issue should have been specifically raised in the affidavit in support of the writ. If this fresh point is allowed to be argued it would prejudice the appellant.
Ground (b) discloses that the court did not take any oral evidence before awarding judgment against the appellants.
Ground (c) was filed without leave of court. Both the notice of appeal dated 8th of June, 2001, and the appellant’s brief filed 20/1/03 should be struck out.
Grounds (A) and (C) in the objection were taken care of by the motion on notice filed by the appellant on the 31st of March, 2003.
The appellant asked for the reliefs as follows:
(1) Leave of court to raise and argue a new point of law in the Court of Appeal which point of law was not previously raised in the lower court.
(2) Leave to further amend the ground of appeal number three dated and filed on 8/6/01 by order of this court dated 7/6/01 by adding one thereto that is to say-
“That lower court erred in law by proceeding with the determination of the matter in the absence of counsel and appellant and thereby infringed the principles of fair hearing.”
The motion was argued before the court and granted on the 9th of February, 2004. Order 23(4) of the High Court (Civil Procedure) Rules in respect of cases under undefended list provides that:
“Where any defendant neglected to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by court, the suit shall be heard as an undefended suit and judgment given thereon with-out calling upon the plaintiff to summon witnesses before court to prove his case formally.”
This provision adequately takes care of leg (b).
The objection is overruled and consequently struck out. I shall now proceed to consider the issues in the main appeal.
On issue one the appellant submitted in consideration of whether this action was statute-barred, that the appellant was granted a loan of N30,000.00 by the respondent in 1983 – and that is the time when the cause of action arose and time will run from then. The writ of summons was filed on 25/11/97 – the writ of summons was filed fourteen years after the cause of action arose. Going by the time when the legal mortgage was exhibited between the parties – the 13th of September, 1984 – the cause of action arose thirteen years before the action was commenced in the lower court. Going by these two dates suggested – at the time the cause of action was commenced on the 25th of November, 1997 – the action was already statute-barred, therefore the right of action of the plaintiff had become extinct. By virtue of section 18(1) and (5) of the Limitation Law, Cap. 61, Vol. III of Ogun State, 1978, no action can be instituted twelve years from the date the cause of action to recover money owed accrued. The effect is that the cause of action has become extinguished by operation of law and the suit can no longer be maintained in the courts. A determination on the statute of limitation is to be based on the writ of summons and the statement of claim on pages 20 and 21 of the record, and not from the defence or any other answer by the defendant. The appellant cited the cases of A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645 at 650-65; Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 at 215.
The appellant urged this court to allow the appeal on issue one.
By way of reply to the issue of whether the respondent’s action was statute-barred – before the lower court, the respondent submitted and drew attention of court to exhibit B attached to the respondent’s affidavit – a letter dated 10th of April, 1996 from Adebiyi Odugbesan, Esq. counsel to the appellant in the previous suit between the parties by which the appellant obtained an order of injunction to prevent the foreclosure of the land and sale of the appellant’s property-HCB/12/91 Samuel Onadeko v. Union Bank of Nigeria Ltd. & Anor. exhibit B1 whereby the appellant forwarded a cheque for the sum of N50,000.00 being part-payment of the amount owed to A.O. Ladeinde, Esq. – the respondent’s counsel. The cheque was post-dated 29/4/96. The letter requested that the cheque be forwarded to the respondent and details of how much was due to the respondent should be made known so that the appellant could pay the amount agreed within some time. The statement by the appellant is an acknowledgment of his indebtedness to the respondent, for the purpose of determining when the cause of action arose on the date on exhibit B which is the 10th of April, 1996, which is the relevant date and not 1983, or the 13th of September, 1984, as has been argued by the appellant. He referred to section 22(1) of the Limitation Law of Ogun State, Cap. 61, 1978 which specified the period of accrual of action and the cases of Olaogun Enterprises Limited v. SJ & M (1992) 4 NWLR (Pt. 235) 361 at 387-388. As from the 10th of April, 1996, when exhibit B was made – there was an acknowledgment of the indebtedness by the appellant to the respondent. Since the writ of summons was filed at the lower court on 25/11/97 – the respondent’s claim was instituted within the period permitted by the Limitation Law. The period of about 1 year and 7 months from the date of the acknowledgment was not statute-barred. Issue one is to be resolved in favour of the respondent.
On issue two – the appellant submitted that before the trial Court- the plaintiff filed the writ of summons, statement of claim and affidavit in establishing the claim. Though the action was undefended there must be enough evidence to establish same. The claims relating to loan, interest and bank charges are in the nature of special damages-they must therefore be specifically pleaded, and particularized. The appellant should have been permitted to give evidence thereof and tender the respondent’s account number, the terms of the loan the statement of account, and letters of demand with dates. The mere fact that the matter was undefended does not mean that the lower court should not advert his mind to necessary points of law in favour of the defendant. The appellant cited the cases – Odumosu v. A.C.B. Ltd. (1976) 11 SC 261, (1976) Federation of Nigeria Law Reports, Vol. II, pp. 229 at 230; Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668, (2000) 2 SCNLR 61 at 71-72.
The respondent replied that on the 6th of July, 1999 – the lower court heard the suit under the undefended list – by virtue of Order 23 rules 1, 2 and 3 of the Rules of Court Ogun State, 1988. This relevant law permit trials under the undefended list to be heard by way of affidavit setting forth the grounds upon which the claim is based and the counter-affidavit of the defendant disclosing a defence on merit – it is only when the action is transferred to the ordinary cause list that the pleadings will be ordered – vide Order 23 rule 3(2) of the rules. The statement of defence filed in the lower court was filed in error – as such a process is unnecessary. There is also no requirement for the respondent to call any further oral evidence beyond the affidavit placed before the court unless the court so orders vide Order 23 rules 4 and 5. The court will determine from the affidavit evidence whether there is a triable issue before it before proceeding to judgment. The court did this at pages 3-4 of the supplementary record of appeal before rejecting the defence of the appellant. If the appellant had seriously wanted to contest the amount claimed against him he could have stated so in his counter-affidavit or by notice that there was no due verification of the amount claimed. Exhibit A provided the terms of the loan and basis for the principal sum, interest and bank charges. The respondent cited the cases of Macaulay Mat Holdings Ltd. v. United Bank For Africa Plc. (2003) 2 NWLR (Pt. 803) 71 at 86; John Holt & Co. (Liverpool) Limited v. Fajemirokun (1961) 1 All NLR 492 at 516; Ben Thomas Hotels Ltd. v. Sebi Fumiture Co. Ltd. (1989) 5 NWLR (Pt. 123) 523 at 529.
In respect of issue three, the appellant made reference to pages 45-47 of the records, the court proceedings for those dates. At page 47 of the record, the appellant was absent, Mr. Odugbesan appearing for him asked for leave of court to withdraw from the case. The court granted him that leave. The court then proceeded to determine the matter in the absence of the defendant and his solicitor. There is no provision in respect of withdrawal of counsel in the rules of court – but Order 67 rule 6(1) of the White Book, 1979 Edition, Volume 1 at 1119 Article 67/6/2 stipulates that a retainer continues until the client discharges the solicitor – or is terminated by death – where the solicitor wishes to disengage himself he must do so on (a) for good cause shown; (b) after giving reasonable notice to his client.
The appellant had been absent from the proceedings due to illness. It is not certain whether he had adequate notice of the counsel’s intention to withdraw from the records of the 6th of July, 1999. The counsel having withdrawn by leave of court but without any special reason given to court, the court ought to have adjourned for service of the notice of hearing on the defendant so as to know the next date of adjournment and that his counsel had withdrawn from the case. The court did not exercise his discretion in giving the defendant the opportunity to handle this case which has infringed the principle of fair hearing – audi-alteram partem. This court has the power to interfere with the decision of the lower court so as to do substantial justice in the matter. This court should resolve this issue in favour of the appellant and allow the appeal. He referred to the case of Nigerian Union of Railway Workers v. Nigerian Railway Corporation (1996) 9 NWLR (Pt. 473) 490.
The respondent replied that when the case came for hearing on the 6th of July, 1999, the appellant was absent, but his counsel Mr. Odugbesan, was present. The counsel withdrew his appearance without explaining the absence of the appellant to court, neither did he offer any explanation for the withdrawal of his appearance. The action was set down for hearing and not mention on the 6th of July, 1999 – the lower court has a duty to proceed with the hearing. The appellant did not comply with the provisions of Order 23 rule 3(1) strictly – as he was required to file a notice in writing of – intention to defend and an affidavit disclosing a defence on the merit – that the appellant filed a memorandum of appearance and a counter-affidavit. The lower court considered his counter-affidavit. Counsel submitted further that the lower court has thereby satisfied the doctrine of fair hearing – and did not need to further adjourn the action to allow the appellant to be physically present in court. The absence of the defendant in court physically did not cause any miscarriage of justice – by hearing the action under the undefended list as the lower court adverted its mind to the counter-affidavit of the appellant and considered same in detail. The physical presence of the appellant would not have advanced his case any further. The purpose of putting a case on the undefended list is to prevent delay in the hearing of the case, and to adjournment the case any further would simply cause delay in the hearing of the case when the affidavit evidence has demonstrated that the appellant has no good defence. The proceedings of the 6th of July, 1999, does not show that the court took any legal argument from the respondent’s counsel, who was present in court on the 6th of July, 1999. The appellant was given the opportunity to be heard but he did not make use of it. The third issue is to be resolved in favour of the respondent – while the court is urged to dismiss this appeal in its entirety. The respondent cited the under mentioned cases in support of this contention – Ben Thomas Hotels v. Sebi Furniture Company Ltd. (1989) 5 NWLR (Pt.123) 523; Jonason Triangle Ltd. v. Charles Mob & Partners Ltd. (1999) 1 NWLR (Pt. 588) 555.
I have painstakingly considered the argument and submissions of the parties in this appeal. I shall take the issues raised therein in seriatum.
Issue one is for consideration of this court as to whether the appellant had a cause of action at the time this action was filed at the High Court Ijebu-Ode on the 25th of November, 1997. The appellant put the dates the cause of action accrued as 1983 or 1984 – which is 14 years or 13 years as the time the action was filed, whereas the Limitation Law of Ogun State put the time of bringing the action as within 12 years and 6 years for the interest thereof. The respondent replied that the date of accrual of a cause of action in debt is as stipulated in section 22(3) of the Limitation Law – of Ogun State, Cap. 61 of 1978 – which declares it as the date of acknowledgment and not before the date of acknowledgement or the last payment. The statement of the appellant in exhibit B is an acknowledgement of the debt by the appellant – and the cheque for N50,000.00 issued for settlement of the debt on the 10th of April, 1996 is the relevant date on which the cause of action accrued and not 1983 or the 13th of September, 1984, as has been argued by the appellant. Before going into the relevant facts of this appeal it is imperative for me to explain what a cause of action, accrual of the cause of action – and the effect of the Limitation Law particularly of Ogun State in the circumstance of this case.
Generally speaking, a cause of action is every fact that would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It can therefore be defined as the entire set of circumstances giving rise to an enforceable claim. It is in effect the fact or combination of facts which gives rise to a right to sue and it consists of two elements:
The wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. Akibu v. Oduntan (2000) 13 NWLR (Pt.685) 446; Fadare v. A.-G., Oyo Stale (1982) 4 SC 1; Kusada v. Sokolo N. A. (1968) 1 All NLR 377; Emialor v. Nigerian Army (1999) 12 NWLR (Pt.631) 362 SC; Alalade v. Morohundiya (2002) 16 NWLR (Pt.792) 81.
In determining whether there is a reasonable cause of action the determining factor is the writ of summons and particularly statement of claim of the plaintiff. A cause of action accrues on the date when a breach or any step taken would warrant a person who is adversely affected by the act of another to seek redress in court. A legal right to institute an action is not a perpetual right but a right generally limited by statute. After the date on which the applicable statute provides that legal proceedings cannot be taken, any person having a right of action can no longer competently institute an action. In short, a cause of action becomes statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law has elapsed. In determining whether an action is statute-barred the court will look at the writ of summons and the statement of claim of the plaintiff alleging when the cause of wrong committed which gives the party complaining a cause of action and by comparing that date with the date on which the writ of summons in the action was filed. If the date on the writ is beyond the period allowed by the limitation law – then the action is statute-barred. The latent effect of an action being statute-barred is that it affects the legal competence or the jurisdiction of the court. Egbe v. Adefarasin (No.2) (1987) I NWLR (Pt. 47) 1; Kalango v. Governor, Bayelsa State (2002) 17 NWLR (Pt. 797) 617; Alalade v. Morohundiya (2002) 16 NWLR (pt. 792) 81; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241; IAL 361 Inc v. Mobil Oil (Nig.) Plc. (1999) 5 NWLR (Pt. 601) 9 CA.
The cause of action in this appeal is based on the writ and affidavit in support of the respondent before the trial court. The case of the trial court was pursued under undefended list. The plaintiff/respondent’s counsel admitted that the filing of a statement of claim in the hearing of an undefended suit was superfluous, as the case is not fought on pleadings. The affidavit in support of the summons relied upon by court is at page 18 of the record. The relevant paragraphs are 3-9 of the affidavit – which reads:
Paragraph 3
“That the defendant is a customer of the bank at the Ijebu-Ode branch.”
Paragraph 4
“That sometime in 1983 – the defendant asked for and was granted a loan of thirty thousand naira.”
Paragraph 5
“That in order to obtain the loan – the defendant mortgaged his landed property at NO.2 Oriwu Street, Atikori, Ijebu-Igbo Ogun State to the plaintiff as per exhibit A.”
Paragraph 6
“That the defendant failed to fulfill the terms of the mortgage.”
Paragraph 7
‘That the plaintiff attempted to foreclose and sell the mortgaged property on 14th of June, 1991.
Paragraph 8
‘That the defendant forestalled the plaintiff by obtaining an injunction at the High Court of Ijebu-Igbo;
Paragraph 9
“That the defendant by all sorts of subterfuge (including the endorsement of a cheque for N50,000) which bounced to the plaintiff ensured that he did not enter into the witness box to give evidence – see exhibits and B1.”
Exhibit B attached to the affidavit of the respondent is a letter dated 10th of April, 1996, from counsel of the appellant, whereby the appellant forwarded a cheque for the sum of N50,000.00 being part payment of the amount owed by the appellant to the respondent to the counsel of the respondent. The cheque was post-dated to 29th April, 1996. The letter requested the appellant’s counsel to forward same to the respondent and details of how much was due from the appellant to the respondent should be made known so that the appellant could pay the amount agreed within sometime.
The appellant admitted paragraphs 3, 4, 5, 7 and 8 of the affidavit and denied paragraphs 6 and 9. The appellant obviously acknowledged his indebtedness to the respondent. Exhibits B and B1 confirmed the issuance of a cheque for N50,000 by the appellant through his counsel to the respondent. Exhibit B1 is the correspondence from the respondent to the solicitor when the cheque of the appellant was dishonoured. The counter-affidavit of the appellant and exhibits B and B1 amount to an acknowledgment of the indebtedness of the appellant to the respondent. For the purpose of determining when the cause of action arose, I agree with the respondent’s counsel that the cause of action accrued in this case on or before the 10th of April, 1996. Though there is evidence that the appellant breached the terms of the legal mortgage executed by the parties, he went to court to prevent the foreclosure of his property by the respondent by securing an order of injunction. Thereafter, he made the offer to repay the outstanding amount on the loan by a post-dated cheque. The Limitation Law of Ogun State adequately took care of the situation in hand.
Section 18(1) of the Limitation Law, Cap. 61, Volume III, Laws of Ogun State, 1978, stipulates that:-
“No action shall be brought to secure any principal sum of money secured by a mortgage or other charge on property whether real or personal or to recover proceeds of the sale of land after the expiration of twelve years from the date when the right to recover the money accrued.”
Section 18(5)
“Fixes the time of action to recover accrual of interests as six years.”
Section 22(3) of the Limitation Law, Ogun State provides as follows:
“Where any right of action has accrued to recover any debt or other liquidated pecuniary claim, or any claim to the personal estate of a deceased person or to any share or interest therein, and the person liable or accountable therefore acknowledges the claim or makes any payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or the last payment.”
In this case, the offer by appellant of the payment of N50,000 to the respondent on the 10th of April, 1996 – is the date of acknowledgment of the outstanding debt. The appellant also made an offer for payment on the interests, and to pay any sum yet to be ascertained – on the outstanding loan. This cheque was however dishonoured. Going by the provisions of Order 22(3) of the Limitation Law – the date the cause of action accrued in this case shall be the 10th of April, 1996. In order to determine whether this action is statute-barred one shall look at the date the cause of action accrued and compare it with the date the writ of summons was filed which was 25/4/97. If the date on the writ is beyond the period allowed by the Limitation Law then the action is statute-barred. The limitation period here is on the overall 12 years. The difference between the date the action was filed and the date the cause of action accrued is one year and 7 months. The action is therefore not statute-bared.
Issue one is resolved in favour of the respondent.
As regards issue two – the appellant contended – whether the plaintiff was entitled to judgment upon the processes filed by them in the lower court.
The respondent in the issue two distilled in the brief asked this court to consider –
“Whether the lower court was right to have adopted the procedure it did at the trial before awarding to the respondent.”
The appellant’s counsel is of the impression that the issue of the respondent is incompetent – in that while the appellant’s issue talked about processes filed – the respondent’s issue talked about the procedure adopted by the learned trial Judge in the case. In my opinion, the issues of the parties are in pari materia as they are making this court to inquire into whether the procedure adopted in the trial of the case is proper and in line with that required in the trial of a suit under the undefended list.
The submission of the appellant on the respondent’s issue No.2 in the respondent’s brief is misplaced. I have said at the onset of this judgment that this court is adopting the issues formulated by the appellant for consideration in this appeal. The court is to determine whether the trial court was right to have pronounced judgment on the processes filed by the respondent – which are the writ of summons, statement of claim and affidavit. The respondent did not proffer any evidence and did not tender any documents at all – notwithstanding that the matter was undefended. The respondent drew the attention of this court to Order 23 rules 1, 2 and 3 of the Ogun State High Court (Civil Procedure) Rules (Edict 1988).
Order 23 rules 1, 2 and 3 stipulates as follows:-
“23(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 or liquidated money demand and such 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 is good ground 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 circumstance of the particular case.”
“23(2) Plaintiff shall deliver copies of affidavit attached to the writ of summons to the Registrar which shall be served on all the parties to the case.”
“23(3)(1) That after service on the defendant – he shall in return deliver to the Registrar 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.”
“23(3)(2) Where leave to defend is given the action shall be removed from the undefended list and placed on the ordinary cause list – the court may order pleadings or proceed to hearing without notice.”
“23(4) Where there is no notice to defend – or the defendant is not given leave to defend by the court – the suit shall be heard as an undefended suit and judgment given thereon.”
Order 25 stipulates that “nothing precludes the court from giving oral evidence.”
The foregoing is the procedure for hearing a case in an undefended list. Both parties complied with this procedure, the appellant by filing a counter-affidavit and memorandum of appearance and the respondent by filing writ of summons, with affidavit attached.
The account of what happened in court on the day the court pronounced judgment can be found at page 47 – the supplementary record of proceedings. In its sitting on the 1st of June, 1999 – the court adjourned the matter to the 6th of July, 1999, by consent of parties for hearing. On the 6th of July, 1999 – parties were absent. Both counsel were present. Mr. Odugbesan counsel to the appellants asked for leave to withdraw from the case. Court granted the leave and he withdrew. Since the case was for hearing the court did not hesitate to proceed with healing of the matter. There was only the counsel to the respondent in attendance. The trial Judge warned himself that the matter was marked undefended. He first made enquiries into whether the matter could be transferred to the general cause list. He convinced himself that the affidavit contains facts that the appellant had no defence so that there was no bona fide or good grounds to transfer it to the general cause list.
The court also considered exhibits B and B1 – the covering letter and the cheque for N50,000.00 issued to be part -payment of his outstanding indebtedness to the respondent. The court was mindful of the denials of the appellant but decided to keep the case on the undefended list. The court emphasized that he would not require that the appellant should give any oral evidence or call witnesses, before he proceeded to pronounce judgment and granted the respondent’s claim. I have to put it briefly that classification of claims into undefended suit or general cause list is decided by the plaintiff’s claim. In order to maintain a suit under the undefended list it must relate to a claim for a debt or liquidated money demand. Liquidated money demand includes a debt and means a specific amount which has accrued in favour of the plaintiff from the defendant. The sum due and described as liquidated must have accrued and it must be ascertained.
In the instant case – the sum claimed is for N482,614.16 as at the 31st of October, 1997, being the balance of a loan plus interest at 21% of the said sum of N482,614.16 from 1/11/97 and 10% until the whole debt is finally liquidated – which is ascertained. Garba v. Sheba Int. (Nig.) Ltd. (2002) 1 NWLR (Pt. 748) 372; SBN Plc. v. Kyentu (1998) 2 NWLR (Pt. 536) 41.
The decision to place a case on the undefended list of the court is essentially a judicial discretion which must be taken judicially and judiciously in a judicial proceeding which is capable of being scrutinized. From record of the court by any appellate court in order to determine whether or not that discretion of the trial court was exercised judicially or judiciously in accordance with the rules of the court. It is a condition precedent to the invocation of its undefended list jurisdiction that the trial court must be fully involved in respect thereof and must personally take a decision having regard to the material placed before it, whether or not to place the case in the undefended list. The claim must be that for recovery of debt or liquidated money to which the defendant has no defence. Chrisdon Ind. CP. Ltd. v. A.I.B. Ltd. (2002) 8 NWLR (Pt. 768) 152.
In a claim under the undefended list procedure two steps are identified as crucial- the primary one being the scrutiny of the plaintiff’s action with a view to seeing whether there is a good reason to believe that it is a proper action that should be placed in the undefended list. Thereafter, the court shall proceed whether there is a defence to the action. What determines whether a case should be placed on the undefended list is the declaration by the plaintiff in his verifying affidavit that upon the grounds set forth by him the defendant has no defence to the action. All that a notice of intention to defend is required to do under the undefended list, is to satisfy the court that there is a “triable issue” or raise a “bona fide” issue for trial. The affidavit accompanying the notice of intention to defend does not have to show “a defence on the merits.” In the instant case – the court satisfied the condition required to place the suit under undefended list – before he proceeded to look at the affidavit evidence of the parties. The defendant gave a notice of his intention to defend – though through filing of memorandum of appearance – he went further to file a counter-affidavit in his defence. The affidavit filed by him confirmed that there was no triable issue before the trial court. The amount was for recovery of debt or liquidated money already fixed and ascertainable by the agreed terms in the legal mortgage executed between the parties exhibit A. The rate of interest is as fixed by the Central Bank in the Mercantile Practice, the Bill of Exchange Act and Rules of Court. Maley v. Isah (2000) 5 NWLR (Pt. 658) 651; Nwakama v. Iko Local Govt. Cross River State (1996) 3 NWLR (Pt. 439) 732; Baba v. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt. 712) 496.
On the counter-affidavit of the appellant, exhibit A – the legal mortgage executed by the parties, exhibits B and B1 agree with the decision of the learned trial Judge that the appellant has no defence to the claim before the court – and it would serve the interest of justice to hear the case under undefended list rather than transfer same to the general cause list. The second issue is resolved in favour of the respondent.
Under issue three – the appellant wants this court to nullify the judgment of court in that the appellant was not served with notice personally to appear in court after the withdrawal of his counsel. The lower court had thereby breached the principles of fair hearing by not giving him the opportunity of being heard. The circumstance in which the trial Judge gave judgment had been examined earlier on in this judgment. The appellant was not present in the court on the day the case was fixed for hearing on the 6th of July, 1999. On the 1st of June, 1999 – his counsel was present in court when the case was adjourned to the 6th of July, 1999, for hearing. The appellant’s counsel was in court on the 6th of July, 1999. He did not give any explanation for the absence of the appellant – he asked for leave to withdraw from the suit which the court granted. The court proceeded to consider the case in the presence of the respondent’s counsel and gave judgment. Ordinarily, failure to give notice of proceeding to an opposing party in a case where service of process is required is a fundamental omission – which renders such proceedings void because the court has no jurisdiction to entertain it. Obimonure v. Erinosho (1966) 1 All NLR 250; Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt. 200) 659; Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 1 All NLR 125; Wema Bank (Nig.) Ltd. v. Odulaja (2000) 7 NWLR (Pt. 663) 1; Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
The best notice to parties to an action is the one communicated to them personally in the open court. Where parties by their conduct voluntarily opt out of the trial although they had adequate information of the hearing date they cannot turn round to complain of want of fair hearing as a result of non-issuance of hearing notice. In the instant appeal the appellant had adequate notice of this case and the fact that the case was fixed for hearing through his counsel. He failed to show upon the 6th of July, 1999 – and his counsel failed to explain the reason for his non-appearance to court. He cannot turn round to complain of want of fair hearing as a result of non issuance of hearing notice. Jonason Triangles Ltd. v. C.M. & P. Ltd. (2002) 15 NWLR (Pt. 789) 176.
The interpretation of the procedure in the undefended list is in the exclusive preserve of the court. It is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. In so doing, he has to exercise his discretion in any power which belongs to the trial Judge. This power can only be challenged on appeal where the court had not exercised the discretion judiciously and judicially, or had exercised same arbitrarily, had acted under a mistake of law or in complete disregard of principles of law. The Court of Appeal will not merely interfere because it would have acted differently in the same situation. The court will not substitute its discretion for that of the trial court. Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221.
I hold that the learned trial Judge had rightly exercised his discretion in the circumstance of this case – as this is a hearing under the undefended suit, whereupon both parties had filed the relevant papers which the court would rely upon in the determination of the case. The court had not adopted the wrong procedure in the determination of the case either. This issue is resolved in favour of the respondent. In sum the appeal lacks merit. It is accordingly, dismissed. Judgment of the trial court is affirmed. Costs of N5,000 is awarded in favour of the respondent.
Other Citations: (2004)LCN/1623(CA)