In The Court of Appeal of Nigeria
On Tuesday, the 7th day of March, 2017
Before Their Lordships
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
1. YAKUBU ABDULMUMINU
2. MUHAMMAD ADAMU JALO
3. NAOMI BELLO
4. NIGERIAN UNION OF LOCAL GOVT. EMPLOYEES, GASHAKA, TARABA STATE
5. GASHAKA LOCAL GOVT. COUNCIL, GASHAKA, TARABA STATE –Appellants
GUARANTY TRUST BANK PLC –Respondent
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court delivered on the 19th of December 2013 by Tani Yusuf Hassan J (as he then was).The Respondent, who was the Plaintiff at the Lower Court, had, by a Writ of Summons brought under the Undefended List, sought the following reliefs against the Appellants, Defendants therein:
1. The sum of N112,823,479.45k (One Hundred And Twelve Million, Eight Hundred And Twenty Three Thousand, Four Hundred And Seventy Nine Naira, Forty Five Kobo) with interest at 20% per annum subject in the prevailing market condition till judgment is delivered.
2. 10% Court interest rate on the entire judgment sum from the date of judgment sum from the date of judgment until the entire judgment is liquidated.
3. The cost of this action.
Leave was also sought and obtained to issue and serve the Writ of Summons on the Appellants in Taraba State outside the jurisdiction of the Court. Service, as permitted by the Court, was by DHL Couriers. Judgment was ultimately entered against the Appellants.The Appellants, complaining that they were not served, neither were they aware of the proceedings before the Lower Court, by leave of this Court granted on the 9th of November 2015, filed a Notice of Appeal, dated 13th November 2015.
In their Brief of Arguments, filed on 3/3/6 but regularized by this Court on 3/5/16, M. I. Musa Esq. of M.I. Musa & Co, formulated three issues for this Court’s determination, namely:
1. Whether in the circumstances of this case the Appellants were served with the originating and other Court’s processes at the trial of the case?
2. Whether the Appellants were denied fair hearing by the Lower Court and whether a travesty of justice was committed by the Lower Court on the denial of fair hearing?
3. Whether the claims of the Respondent at the Lower Court not being for liquidated money sum were properly heard and determined under the Undefended List procedure?
The Respondent, in its Brief of Arguments filed on 23/8/16 but regularized by this Court on 23/11/16, adopted, through its Counsel, Okitikpi Toritseju of Dele Olaniyan & Co, the issues for determination formulated by the Appellants.
I shall accordingly adopt these issues for determination, albeit slightly rephrasing them, as follows:
1. Whether in the circumstances of this case the Appellants were served with the originating and other Court’s processes at the trial of the case?
2. Whether the Appellants were denied fair hearing by the Lower Court, thereby causing a travesty of justice.
3. Whether the claims of the Respondent at the Lower Court are for a liquidated money demand and properly heard and determined under the Undefended List procedure?
The 1st and 2nd issues for determination shall however, be taken together.
Learned Counsel to the Appellants, arguing these issues, has contended that the return date of the Writ of Summons was 30th July 2013 instead of 30th September 2013. In addition, the shipment was addressed to “Yola via Kaduna” as opposed to the order of the Court that delivery was to be made in Gashaka Local Government Council, Taraba State. Service was thus effected in Yola, Adamawa State. He complained, in addition, that the Lower Court, rather than sit on the scheduled date and in spite of lack of service of hearing notice on the Appellants, as directed by the Court, assumed jurisdiction over the case.
Furthermore, by the provision of Section 195 of the Taraba State LGA Law No. 2 of 2000, any processes to be served on the Local Government shall be served on the Local Government Secretary at the principal office of the Local Government, while service on the 4th Appellant by Section 16 (iv) of the Review of the Nigerian Union of Local Government Employees, will be effected by serving the General Secretary. On the issue of essentiality of service, Counsel cited the cases of Osayande v Utak (2008) All FWLR Part 435 Page 1760, I.G.P v Akpan (2008) All FWLR Part 425 Page 1793, Skenconsult Ltd v Ukey (1987) SC 6, ICRC v Olabode (2009) LPELR – 8764 CA, Champion Breweries PLC v Specialty Link Ltd (2014) LPELR 23627 CA.
Counsel alleged that the bailiff of the Court deposed to service of the processes by DHL Couriers, when DHL is not a party. Further, that by the failure of the Appellants to serve them with the processes, there has been a breach of the rules of audi alteram partem. Breach of their rights to fair hearing renders the proceedings a nullity, he submitted. He cited Adigun v AG Oyo (1987)
1 NWLR Part 53 Page 678, UBN Plc v Ikwen (2000) 3 NWLR Part 648 Page 223.
In response, the Respondent’s Counsel, referring to the Record of Appeal, submitted that the Appellants were indeed served. On the manner of proof of service of documents, he cited Nlewedim v Uduma (1995) 6 NWLR Part 402 Page 383, FBN PLC v Akiri (2014) All FWLR Part 739 Page 1133 and Registered Trustees of Acts of the Apostles Church v Fatunde (2010) FWLR Part 510 Page 662, Agbaje v Fashola (2008) All FWLR Part 443 Page 1302.
He denied that in any of the processes, the shipping details stated that the processes were delivered in Yola as opposed to Gashaka in Taraba State. The waybills proving delivery of the documents constitute evidence of delivery, he submitted.
He submitted further, on the authority of Ezechukwu v Onwuka (2005) All FWLR Part 280 Page 1514 that hearing notice is not an originating process which must be served personally. The best evidence of service of Court process is an affidavit of service deposed to by a Court bailiff. He cited in support Jikantoro v Dantoro (2004) FWLR Part 216 Page 390. The only acceptable way to have controverted the question of service, he submitted, is by filing a counter affidavit, which was however not done. He cited in support Fatokun v Somade (2002) All FWLR Part 93 Page 1989 and Udo v Ekpeyong (2006) All FWLR Part 324 Page 1924.
Pointing to the records of the Court, Counsel denied that the Court sat on an unscheduled date. Also, from the said records, it was clear that notification of the proceedings were brought to the attention of the Appellants. Citing the case of Atamah v Ebosele (2010) All FWLR Part 506 Page 1925, Counsel submitted that the Appellants having been notified of the proceedings on three separate occasions yet failing to attend the Court or participate, have “disabled” themselves of the opportunity presented to them.
Looking through the Record of Appeal, I note that at Page 90, the Respondent, on 2/7/13, sought leave to place the suit in the Undefended List and to serve the Writ of Summons on the Appellants in Taraba, outside the jurisdiction of the Court. It also sought leave to appoint DHL as a special bailiff to serve the Court processes on the Appellants outside the jurisdiction of the Court. These orders were granted as prayed.
The case came up on 28/10/2013. On that date, Mr. Okitikpi for the Respondent, informed the Court that the matter had come up on 30/9/13 but that the Court did not sit due to the demise of Hon. Sidi Mato, in consequence of which the matter was adjourned to the instant date. He conceded an adjournment.
On the subsequent date, the Appellants were again absent, in consequence of which the application was moved and the case adjourned for judgment. The judgment of the Lower Court is as follows:
“As at the 4/2/2013 the Defendants indebtedness to the Plaintiff stood at N112,823,479.45k (one hundred and twelve million, eight hundred and twenty three thousand, four hundred and seventy nine naira, forty five kobo) with interest accruing daily. A copy of the 4th Defendant’s Statement of Account is Exhibit Q. The Defendants never denied their indebtedness to the plaintiff but offered flimsy excuses through their solicitors letter which is Exhibit “R”.
Prior to this action, the plaintiff issued a pre-action notice dated 13/4/2013 on 5th defendant and served same on the 5th defendant via DHL courier dated 19/4/2013 which was acknowledged by the 5th defendant. The
pre-action notice and DHL courier service way bill are Exhibit S and S1.
Plaintiff finally deposed that by the foregoing facts in this affidavit to the plaintiff’s have no defence to the plaintiffs claim in this suit in the sum of N112,823,479.45k (one hundred and twelve million, eight hundred and twenty three thousand, four hundred and seventy nine naira, forty five kobo only). The plaintiff therefore urged the Court in the interest of justice to enter judgment in favour of the plaintiff on the undefended list by virtue of Order 23(1) of the Kano State High Court (Civil Procedure) Rules 1988.
The defendants who live outside the jurisdiction of this Court were served through courier service i.e DHL dated 24/7/2013. However, from the record of High Court 3 from where the case was transferred to this court, the defendants never put up their appearance also upon the transfer of the case to this Court when the case came up on 12/12/2013, the defendants were absent and unrepresented despite hearing notices served on them through DHL dated 22/10/2013 and 28/11/2013. Despite the defendants nonappearance in Court there is also appearance in Court, there is also no notice of intention to defend filed. The attitude of the defendants has clearly shown that they have no defence to the action. Even though the defendant have failed to take the required steps under Order 23 Rule 3 of the Kano State High Court (Civil Procedure) Rules 1988. They could still have come at any time before judgment is entered on an affidavit disclosing a defence on the merits and satisfactorily explaining their neglect to comply with the Rules. Thus the defendants have failed to do but remained adamant. The Supreme Court in the case of M.C. Investments Vs Core Investments (2012) 6 SCNJ 111 at 115 held that where the plaintiff has a clear case and satisfies the Court with affidavit evidence which the defendant cannot answer, the Court will enter judgment for the plaintiff and I so hold in this case.
In the circumstance, as there is no notice of intention to defend before the Court, it is presumed that the defendants have accepted the plaintiff’s claim.
Judgment is accordingly entered for the plaintiffs against the defendants jointly and severally as follows:
1. The sum of N112,823,479.45k (one hundred and twelve million, eight
hundred and twenty three thousand, four hundred and seventy nine naira, forty five kobo only) as at 4/2/2013.
2. 10% Court interest rate on the entire sum from the date of judgment until the entire judgment is liquidated.
3. The defendants shall pay the plaintiff the sum of N60,112 being the cost of this action.”
The DHL processes and the respective waybills in respect of service on the various Appellants, I note, are contained at Pages 174 to 195 of the Record of Appeal. Contrary to the submission of the Appellants’ Counsel, it is clearly stated in the waybills that the destination for service was in Taraba State and not Yola.
With respect to the essentiality of service, it is trite law that service of processes, where service is required, is a sine qua non, failure of which renders the proceedings a nullity. See Sken Consult Ltd v Ukey (1981) 1 SC 6 at 26 lines 25-35 per Nnamani JSC; Apeh v. PDP (2016) 7 NWLR Part 1510 Page 153 at 177 Para G-H per Nweze JSC.
In the instant case, the requirement for service has been satisfied, I hold, the Waybills and Delivery Notes being a testament to this.
Learned Counsel to the Appellants has however contended that the law requires personal service of the processes on the Appellants, rendering failure to do this, a fundamental defect, thereby robbing the Court of Jurisdiction. He has cited the case of Fatokun v Somade (2003) 1 NWLR Part 802 Page 431.
This case is unfortunately of no assistance to him, as the Court, per Adamu JCA(as he then was) at 445-446 Para H-A, while acknowledging the general proposition of the law, held:
“I am however of the view that in the present case the trial Court had dispensed with such personal service and has ordered substituted service of all the processes in the suit… and as shown in the record.”
By the order of the Lower Court, given on 2/7/13, personal service had been dispensed with, and service by DHL couriers ordered in lieu; and which, from the Record, was carried out. This argument does not thus avail the Appellants.
It was held by the Supreme Court, in the case of Nlewedim v Uduma (1995) 6 NWLR Part 402 Page 383 at 394 Paragraph B-C per Belgore JSC (as he then was), followed in Agbaje v. Fashola (2008) 6 NWLR Part 1082 Page 90 at 142 Para B-C per Salami JCA (as he then was) that:
Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by:-
(a) dispatch book indicating receipt; or
(b) evidence of dispatch by registered post; or
(c) evidence of witness, credible enough that the person was served with the document.
Evidence of dispatch having been given, the Lower Court, I hold, was justified in holding that service had been effected on the Appellants.
The fact that the deponent of the affidavit of service was a Bailiff of the Kano State High Court, as objected to by the Appellants’ Counsel, does not invalidate the affidavit, neither does it negate the fact that service was effected. See the case of Chief of Naval Staff v. Lt. Cdr Stephen Ochepo -Edeh (2015) LPELR – 24581 (CA) Page 26 Para A per Ndukwe-Anyanwu JCA,
The various waybills and signed delivery notes exhibited have conclusively shown service, I hold.
As rightly submitted by the Respondent’s Counsel, the manner of challenge to receipt of processes, in rebuttal of an affidavit deposing to service, can only be done by a counter affidavit. This would
give the Lower Court the opportunity to ascertain service by a consideration of both affidavits and, if necessary, call evidence to resolve the conflict.
In Fatokun v Somade Supra at 447 Para G-H, it was held, per Adamu JCA(as he then was), that:
“where there is proof of service on a party by means of an affidavit of service, by a plaintiff or an officer of the trial Court, the only recommended and acceptable way of challenging or rebutting the presumption of such service by the party concerned is by filing of an affidavit of service to controvert the affidavit of service. The failure by the Appellant’s Counsel to file such a counter affidavit is fatal to his case and his oral argument on the hearing date that he was not served with the motion and other processes cannot avail him.“ Underlining Mine.
See also Uko v Ekpeyong (2006) All FWLR Part 324 Page 1927 at 1950 Para F-H per Chukwuma-Eneh JCA (as he then was) and Chief of Naval Staff v. Lt Cdr Stephen Ochepo -Edeh Supra
No Counter Affidavit was filed in the Lower Court to challenge service. The Appellants, rather than seek the leave of the Lower Court to set aside its judgment for lack of service, has filed an appeal against this judgment, seeking to make this Court perform a duty that belongs to the Lower Court.
The manner of challenge of an affidavit of service is not by the mere ipse dixit of Counsel in his Brief of Argument, I hold, but by the filing of a counter affidavit in rebuttal, which has not been done.
It is not surprising that the Appellants took this circumlocutous and obviously delay occasioning route, as nowhere in their processes, I note, did they deny their culpability for the facilities utilized by them. The law is that a person who decides not to avail himself of the opportunity of being heard has no-one but himself to blame. See Ezechukwu v. Onwuka (2016) 5 NWLR Part 1506 Page 529 at 554 Para A-D; (2015) All FWLR Part 824 Page 148 at 166 Para B-D per M.D. Muhammad JSC; Military Governor Lagos State v. Adeyiga (2012) 5 NWLR Part 7293 Page 297 at 320 Para B-C per Adekeye JSC.
I accordingly resolve the 1st and 2nd issues for determination against the Appellants.
The 3rd issue for determination is:
Whether the claims of the Respondent at the Lower Court are for a liquidated money demand and properly
heard and determined under the Undefended List procedure?
Learned Counsel to the Appellants has submitted that the sum of N112,823,479.45 claimed, represented both the principal sum and accrued interest. Citing the case of Maja v Samouris (2002) 2 SCNJ 32 he submitted that a liquidated demand must be specific and the amount already ascertained without any further investigation. For the Respondent to be entitled to the total sum claimed, it must show what is the principal sum and what is the interest. It was for them to show what the percentage charged was, as approved by Central Bank, which burden cannot be shifted. Production of a statement of account alone is insufficient proof, without oral evidence. He citedWema Bank v Osilaru (2008) 10 NWLR Part 1094 Page 750; Yusuf v ACB (1986) 1-2 SC 49.
The Respondent’s Counsel cited Order 23 Rule 1 of the Kano State High Court (Civil Procedure) Rules 1988 as authority for the manner in which the action was instituted. He considered as erroneous, the submission of the Appellant’s Counsel that a liquidated money demand does not admit of interest charges. He cited the cases of Effanga v Rogers (2003) All FWLR Part 157 at 1058 Pages 1071-1072 Para B-C and Maja v. Samouris Supra.
Order 23 of the Kano State High Court (Civil Procedure) Rules, relied upon by the Respondent provides as follows:
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 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.
2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service, together with a copy of Rules 1 to 4 inclusive of this Order.
3 – (1) If the party served with this writ of summons and affidavit delivers 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.
(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.
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,
5 – Nothing herein shall preclude the Court from hearing or requiring oral evidence should it so think fit, at any stage of the proceedings under rule 4.
Underlining Mine Liquidated money demand was explained in Wema Securities And Finance Plc v Nigeria Agricultural Insurance Corp(2015) 16 NWLR Part 1484 Page 93 at 144-145 Para G-B; (2015) All FWLR Part 807 Page 410 at 463 Para B-D per Fabiyi JSC as follows:
“It is now clear that the factors for determining a liquidated sum are as follow:-
(a) The sum must be arithmetically ascertainable without further investigation.
(b) If it is in reference to a contract, the parties to same must have mutually and unequivocally agreed on a fixed amount payable on breach.
(c) The agreed and fixed amount must be known prior to the breach.”
In Maja v. Samouris (2002) 7 NWLR Part 765 Page 78, also found in (2002) 3 S.C 37, the Supreme Court, at Page 102 Para C-F, per Iguh JSC, also defining this term, held as follows:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be “liquidated” or made clear. Again, where
the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a “penalty” and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute.”
Giving the distinction between liquidated and unliquidated money demands, this Court held, per Ekpe JCA in the case of Effanga v Rogers (2003) ALL FWLR Part 157 at 1072 Para B-C as follows:
“The term liquidated money demand is an amount that can be ascertained by calculation or fixed by any scale or other positive data or mathematics. In Odgers on the Common Law (1927) 3rd Edition vol. 2 at page 654 it was stated that “whenever the amount to which the Plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated “….Also a claim for liquidated money demand may include interest on a principal sum.” Underlining Mine
By the definition given above, it is clear that when the sum claimed is ascertained, with the interest fixed by the scale of charges as agreed in the contract documents and without the necessity of the opinion of people, it is said to be “liquidated” or “made clear”. It is also clear that the fact that interest is charged, does not make it unliquidated, so long as the rate of interest is clear from the processes.
In the instant case, the following paragraphs in the affidavit of Celestine Oiku, an employee in the Respondent Bank, accompanying the Writ of Summons, indicate the substance of the transaction:
11. That on the strength of the aforesaid Congress resolution dated 14/6/2009, the 1st-4th defendants approached the plaintiff by a letter dated 24/6/2009 for a loan sum of N85,000,000 (Eighty Five Million Naira Only) at the plaintiffs branch office in Plot 12E
Bello Road, Kano. A copy of the application letter for loan dated 24/6/2009 is attached herewith as Exhibit B.
12. That by an offer letter dated 14/6/2009, the plaintiff granted the 1st – 4th defendants a term loan facility of N85,000.00 (Eight Five Million Naira Only) with a condition that same would be repaid within a period of twenty (20) months. A copy of the said offer letter dated 14/6/2009 is attached herewith as Exhibit C.
13. That as security for the aforesaid term loan facility, the 5th defendant on the 24/6/2009 executed irrevocable undertakings assuring the plaintiff that the loan would be repaid instalmentally by deductions from the salaries of the 1st – 4th defendant beneficiaries over a period of twenty (20) months. Copies of the said irrevocable undertakings dated 24/6/2009 are attached herewith as Exhibits D and D1.
17. That it was also a term of the facility as stated in the offer letter, that interest shall be charged at 23% per annum subject to prevailing market conditions.
18. That in furtherance of the aforesaid facility, the 1st 4th defendants executed a term loan agreement dated 24/6/2009, same setting out
explicitly the terms and conditions of the said facility. A copy of the said term loan agreement dated 24/6/2009 is attached herewith as Exhibit G.
25. That the defendants subsequently approached the plaintiffs for a restructure of the aforesaid facility and the plaintiff in its magnanimity obliged the defendants.
26. That by a letter of offer dated 28/4/2010, the plaintiff restructured the aforesaid facility to an amount of N82,649,445.43 (Eighty Two Million, Six Hundred and Forty Nine Thousand, Four Hundred and Forty Three Kobo Only) and for a period of twenty seven (27) months including on (1) month moratorium. A copy of the said letter of offer dated 28/4/2010 is attached herewith as Exhibit L.
27. That the interest rate of the aforesaid restructured facility as contained in the letter of offer dated 28/4/2010 was 20% subject to review in line with prevailing money market conditions.
33. That as at 21/12/2011, the indebtedness of the defendants to the plaintiff stood at N80,778,362.42 (Eighty Million, Seven Hundred and Seventy Eight Thousand, Three Hundred and Sixty Two Naira, Forty Two Kobo Only).
37. That by letters dated
181612012 and authored by OKITIKPI TORITSEJU ESQ. that law firm of MESSRS DELE OLANIYAN & CO. made formal demands (which were acknowledged by the defendants) for payment of the aforesaid loan facility. Copies of the aforesaid letters of demand dated 18/6/2012 are attached herewith as Exhibits P1, P2, P3, P4, P5, P6 and P7.)
38. That despite the aforesaid demand letters referred to in the preceding paragraph, the defendants continued in their default and have persistently failed, refused and neglected to liquidate the aforesaid facility.
39. That as at 4/2/2013 the indebtedness of the defendants to the plaintiff stood at N112,823,479.45K (One Hundred and Twelve Million, Eight Hundred and Twenty Three Thousand, Four Hundred and Seventy Nine Naira, Forty Five Kobo Only) with interest accruing alarmingly on a daily basis. A copy of the 4th defendant’s statement of account as at 4/2/2013 is attached herewith as Exhibit Q.
40. That the defendants have never denied their indebtedness to the plaintiff rather they had through their solicitors written to the plaintiff offering flimsy excuses for the delay in payment. A copy of defendants’ solicitor’s letter is attached as Exhibit R.
41. That I have compared the entries in the 4th defendant’s statement of account with the bank’s book of accounts/computer, one of the book of accounts in the custody/control of the plaintiff and found it to represent a true and correct statement of its contents, the entries having been made and copied in the usual and ordinary course of business.
42. That the plaintiff delivers to the 1st – 4th defendants upon request their regular statement of accounts which reflects the entries in respect of this transaction.
44. That by virtue of the foregoing facts deposed to in this affidavit, it is the plaintiff’s belief that the defendants have no defence to the plaintiff’s claim in this suit as the aforesaid sum of N112,823,479.45K (One Hundred and Twelve Million, Eight Hundred and Twenty Three Thousand, Four Hundred and Seventy Nine Naira, Forty Five Kobo Only) remains unpaid.
Exhibited to this affidavit are the offer letters and various contract documents, together with copies of the resolutions and letters of guarantee and indemnity. Also exhibited is the statement of account of the Respondent.
Further exhibited is a letter from the Appellants’ Solicitors, I. T. El Sudi & Associates, dated 6/7/12, not denying the facility but explaining that the current administration is not the same as when the transaction was entered into. They requested for time to look into the matter and take a final decision.
Also exhibited is a Pre-Action Notice from the Respondent’s Solicitor to the 5th Appellant, detailing the transaction.
Learned Counsel to the Appellants submits however, that the Respondent should have called oral evidence to prove the interest, rather than “dump” the Statement of Account on the Court. This submission, however, does not take cognizance of the procedure under which the claim was brought.
The Undefended List Procedure has been described as “a truncated form of the civil litigation process peculiar to the adversarial judicial system.” See Wema Securities and Finance Plc v. Nigeria Agricultural Insurance Corp (2015) 16 NWLR Part 1484 Page 93 at 140-147 Para B-C per Nweze JSC.
In further description of the process, it was held by His Lordship, Nweze JSC in the case above, at Pages 140-141 Bara B-C as follows:
“Under the said procedure, ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried …. Essentially, therefore, it is designed to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the Plaintiffs case ….It is usually, meant to shorten the hearing of a suit where the claim is for a liquidated sum…..Put differently, the object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims … which are virtually, uncontested….
Such rules are thus, designed to relieve the Courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to because the case is patently, clear and unassailable. … In such a case, it would be inexpedient to allow a defendant to defend for the mere purpose of delay.”
In this special procedure, the affidavit evidence takes the place of oral evidence and where uncontroverted, the necessity to call oral evidence is obviated, I hold. It was thus not necessary to have called evidence to prove the interest charges, as it is clear from the contract documents exhibited what the principal sum and the interest rate that the transaction attracted were, which being unpaid, attracted the balance as claimed in the Statement of Defence.
It is therefore incorrect to say the statement of account was “dumped on the Court”. This is because, as aforesaid, affidavit evidence, is evidence. It is the evidence of the Respondent’s officer, linking all the transaction documents and the statement of account together. It is only when affidavit evidence is challenged, that the Court may, in appropriate cases, direct that oral evidence be given.
Thus, while it is true, as submitted by the Appellants’ Counsel, and as held in a number of cases, that in proof of indebtedness the Bank must go beyond mere production of the statement of account but must adduce both documentary and oral evidence to show how the overall debit balance was arrived at, where there is no challenge to the Respondent’s affidavit, there is no requirement, I hold, to call oral evidence.
I accordingly see no reason to fault the decision of the Lower Court. I again resolve the 3rd issue for determination against the Appellants.
It is a settled principle of law that where a trial Court has carried out its assignment satisfactorily, an Appeal Court shall be left with no option but to affirm such a decision. See Sule Anyegwu v Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 Para F-G per I.T. Muhammad JSC; Ali v. State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC.
This appeal accordingly fails and is hereby dismissed. Each party shall bear their respective costs.
OBIETONBARA DANIEL- KALIO, J.C.A.: I have read the draft judgment of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA and I agree with my lord’s judgment. It seems to me that instead of taking the matter on the undefended list with the seriousness it deserves by putting forward a robust defence, the Appellants took a laissez-fair attitude. The letter of their solicitor dated 6/7/12 in not denying in any way or manner the facility or interest element in the facility taken from the Respondent was rather lackadaisical and rightly adjudged as an admission of the debt. The learned trial judge had no option but to enter judgment for the Respondent. There is no reason to upset his judgment. The appeal fails and is dismissed. I agree that the parties bear their respective costs in this appeal.
AMINA AUDI WAMBAI, J.C.A.: I agree.
M. I. Musa with him, I. A. Jalo –For Appellant
T. Okitikpi –For Respondent