➥ CASE SUMMARY OF:
Rev Young Peter Onoeyo v. Union Bank Of Nigeria Plc (2014) – CA
by “PipAr” B.C. Chima
➥ COURT:
Court of Appeal – CA/C/66/2007
➥ JUDGEMENT DELIVERED ON:
Thursday, the 6th day of November, 2014
➥ AREA(S) OF LAW
Undefended list.
Mortgage.
➥ NOTABLE DICTA
⦿ ISSUE NOT TIED TO A GROUND OF APPEAL IS OF NO MOMENT
Issue 1 was formulated from ground 1 while Issue 2 does not flow from any of the seven grounds of Appeal. No Issue or Issues were formulated or argued in respect of grounds 2-7 of his Notice of Appeal. A fortiori, the Appellant appears to have abandoned grounds 2-7 of his Notice of Appeal. In the same vein, Issue No. 2 is not tied to any ground of Appeal and therefore is of no moment. See Yadis Nigeria Ltd v. Great Nigeria Insurance Coy Ltd (2007) 30 NSQR (Pt. 1) page 495. — P.O. Elechi, JCA.
⦿ UNDEFENDED LIST – FILING A NOTICE OF INTENTION TO DEFEND
The essence of suits on the undefended list is for the quick dispensation of justice to the parties. Therefore upon service of a Writ of Summons in respect of a suit on the undefended suit on a defendant, the latter must deliver or file a Notice of Intention to Defend the suit and together with the said Notice, he must file an affidavit disclosing a defence on the merits and where the defendant fails to do so or act, then judgment may be entered against him as per the Writ of Summons without necessarily calling on the Plaintiff to formally prove his claim by calling witnesses to testify. See Ben Thomas Hotels Ltd, Sebi Furniture Co. Ltd (1989) 12 SCNJ 171, (1989) 5 NWLR (Pt. 123) page 523. — P.O. Elechi, JCA.
⦿ ISSUE NOT RELATED TO A GROUND OF APPEAL IS INCOMPETENT
Actually, one is at sea where this issue was lifted or distilled from as it does not have any relationship with any of the grounds of Appeal. It is trite that an issue for determination must flow from the ground of Appeal filed. Where an issue for determination in an appeal is not related to or based on ground of appeal filed, it is incompetent, valueless and must be ignored by the Court. See Akese v. Government Oyo State (2012) ALL FWLR (Pt. 634) Page 53, Madukolum v. Nkemdilim (1962) 2 SCNLR Page 34. Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) page 444. — P.O. Elechi, JCA.
⦿ NOTICE OF INTENTION TO DEFEND MUST SET OUT SPECIFICALLY GROUNDS OF DEFENSE
Under the Undefended List procedure, a defendant that intends to defend the action has a duty to file a Notice of Intention to Defend, supported by an affidavit, which must disclose a defence on the merit. It is settled law that the defendant’s affidavit in support of the Notice of Intention to Defend, must set out clearly the grounds of defence. It is not sufficient for the affidavit to allege generally that the defendant has a good defence to the action, if such a general averment is unsupported by particulars, which if proved would constitute such a defence. Similarly, a mere general denial that the defendant is indebted will not suffice unless the ground on which the defendant relies as showing that he is not indebted is stated. The defendant’s affidavit is expected to and must condescend upon particulars. It should as far as possible, deal specifically with the plaintiff’s claim and affidavit stating clearly and concisely what the defence is and what facts are relied on to support it. If the defence goes to the whole or part of the claim, the affidavit should so specify. When the defence is in respect of part of the claim, the defendant’s affidavit should specify the part; Ataguba v. Gura (Nig.) Ltd (2005) 6 MJSC 156; Peter Tiwell (Nig.) v. Inland Bank (1997) CLR 4 (l). — O.A. Otisi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Paul Obi Elechi, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
F.A. Iteshi Esq.
⦿ FOR THE RESPONDENT
J.E. Udeh.
➥ CASE HISTORY
The facts of this case are that the Defendant/Appellant on the 9th day of May, 2002 applied for and was offered an overdraft facility of N6,500,000.00 (Six Million, Five Hundred Thousand Naira) for 12 months and a loan of N4,000,000.00 (Four Million Naira) for four months, all totalling N10,500,000.00 (Ten Million, Five Hundred Thousand) by the Plaintiff/Respondent, through its letter of offer/approval dated 25th June, 2002 and same was received by the Defendant/Respondent.
To be able to service the facilities, the Appellant deposited his title documents i.e. Certificate of Occupancy of his landed properties and also entered into two legal mortgage agreements with the Plaintiff/Respondents over his landed properties located at Eket.
In the course of time, the facilities expired and yet the Appellant failed, neglected and/or refused to liquidate the outstanding debt plus the accrued interest despite requested demands for it by the Plaintiff/Respondent.
This is an appeal against the decision of his Lordship Hon. Justice Andrew Okon sitting at Eket High Court Akwa Ibom State, against the Ruling in suit No. HEK/UND.27/2005 delivered on the 7th November, 2005 in favour of the Respondent herein, who was the Plaintiff at the lower Court. Dissatisfied with the decision of the lower Court, the Appellant/Applicant has now filed a Notice of Appeal dated the 15th day of November, 2005.
➥ ISSUE(S) & RESOLUTION
I. Whether the learned trial judge was right to have relied on Exhibit A attached to the Plaintiff’s/Respondent’s affidavit at the Lower Court in entering judgment in favour of the Respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. “The crux of the Respondent’s case is that it granted an overdraft facility of N6,500,000.00 and a loan of N4,000,000.00 respectively to the present Appellant. The grant was evidenced on a letter dated 25th June, 2002 and addressed to the Appellant’s Managing Director Young Brothers Company and acknowledged same through an endorsement as shown in Exhibit A. Though the Appellant filed a 26 paragraph affidavit in support of his intention to defend the present suit, no mention was made either by way of denial or contest in respect of the contents of Exhibit A. Rather than admit or contest the claim of the Respondent, the Appellant was busy on a frolic of his own dwelling on a transaction that took place and matured before 2002 when the present cause of action arose. By so doing, the Appellant has not satisfied any of the conditions specified in the authority of Lewis v. U.B.A. (Supra). Therefore, the Appellant has not addressed the cause of action in this matter and the likely presumption is to say that he has not disclosed any triable issue as per his affidavit in the Notice of Intention to Defend this claim. The contents of Exhibit A is clear and what is more is that parties are bound by the content of Exhibit A which was signed by them and remain binding by the clear terms of same. See Joseph Ifeta v. Shell Petroleum Dev. Company of Nigeria Ltd. (2006) 7 MJSC page 121 at 134.”
.
.
II. Whether the learned trial judge considered the Notice of Intention to Defend filed by the Appellant and if he did, whether the Notice of Intention to Defend disclosed any defence on the merit?
RULING: IN RESPONDENT’S FAVOUR.
A. “From Exhibit A attached to the Respondent’s affidavit in support of his application to place the suit on the undefended list the Appellant duly stamped, signed and returned the attached copy to the Respondent in compliance with the terms of the last paragraph of Exhibit A thereby acknowledging acceptance and execution of the offer as stated in Exhibit A. Therefore I hold the simple opinion that the Learned trial Judge was absolutely right when he relied on the contents and terms of the contract in Exhibit A in giving judgment to the Plaintiff/Respondent. Based on that also, I see no reason to disturb the findings of the lower Court in relying on Exhibit A to give judgment to the plaintiff/Respondent. This is so because cases under the undefended list procedure are determined on documentary evidence. On that note therefore, I have no hesitation in resolving this second issue against the Appellant and in favour of the Respondent in this appeal.”
.
.
.
✓ DECISION:
“I hereby hold that the Appellant in his Notice of Intention to Defend this suit placed on the undefended list failed to disclose any triable issue and therefore fell short of the requirements of the Law in this regard. In consequence therefore, I hereby hold the view that the appeal here lacks merit, it is not proved, it is accordingly dismissed as this Court has not found any basis to disturb the judgment of the lower Court. Judgment of the lower Court is hereby affirmed. Cost assessed and fixed at N50,000.00 against the Appellants.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ UNDEFENDED LIST & FAIR HEARING – THERE HAS TO BE CLEAR DEFENSE
In Mat Holdings Ltd v. U.B.A. Plc (2003) 2 NWLR (Pt. 803) page 71 at 91, (2003) FWLR (Pt. 183) page 146 the law was succinctly stated with respect to suits on the undefended list inter alia: “The rules of Court providing for cases to be placed on the undefended list proceeding are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceeding which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the Plaintiff of judgment he well deserved, a case should therefore not be translated to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” convenient as well as handy shegam.”
⦿ CONDITIONS AN INTENTION TO DEFEND MUST SATISFY
For a Notice of Intention to raise a defence on the merit under the undefended list, such a Notice of Intention must satisfy the conditions outlined in the case of Lewis v. UBA (2006) 1 NWLR (Pt. 962) page 546 as follows: a) Condescend upon particulars as far as possible, deal specifically with the Plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it. b) Where the defence is that the defendant is not indebted to the Plaintiff, state the grounds on which the defendant relies as showing that he is not indebted and a mere general denial that the defendant is not indebted will not suffice. c) Where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and so state the real nature of the defence relied on. d) Where the defence relied on is of fraud, state clearly the particulars of the fraud and a mere general allegation of fraud is useless. e) If a legal objection is raised state clearly the facts and the point of law arising thereon. f) In all cases, give sufficient facts and particulars that there is bona fide defence. g) Matters of hearsay are admissible provided that the sources and grounds of information and belief are disclosed. h) A case of hardship that creates no enforceable right e.g. past promise by Plaintiff unsupported by valuable consideration, or a mere inability to pay or an allegation that the Plaintiff has given time for payment which of course constitute no defence unless there be consideration, will not constitute defence on the merit. See also Sanusi Books Nig. Ltd v. Cotia C.E.I.S.A. (2000) 11 NWLR (Pt. 679) 556, Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) page 83, Nishizawa v. Jethwani (1984) 12 SC 234.
➥ REFERENCED (OTHERS)
