➥ CASE SUMMARY OF:
Shell Petroleum Development Company of Nigeria Limited V. Chief N.Y. Allaputa (CA/PH/144/2001, 28 Feb 2005)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Undefended list;
➥ CASE FACT/HISTORY
The plaintiff at the trial court and respondent herein filed the writ of summons on 27/11/2000 and placed it on the undefended list. It is extant on page 1 of the transcript record of appeal that the writ was marked as undefended.
The claims, against the defendant at the trial court and appellant herein read as follows: “(i) The sum of ₦505 Million being money owed the plaintiff by the defendant inclusive of 15% interest on the initial ₦305 Million from the date it fell due being 24th of December, 1999 till judgment thereafter at 10% on the judgment debt until its satisfaction therefore. (ii) And subsequently 10% interest on the balance as they shall fall due on the 14/12/2000 and 24/12/2001 until the satisfaction of the debt.”
The requisite notice of intention to defend the suit pursuant to order 23 rule 3(i) of the rules of the trial court was filed by counsel on behalf of the defendant on 5th December, 2000. In support of the said notice of intention to defend the suit, an affidavit of 27 paragraphs was deposed to by Ume Maduka, a legal practitioner on behalf of the defendant on the same 5/12/2000. The trial C.J. heard arguments of both counsel on 11/12/2000. The arguments canvassed appear very crisp. On 29th January, 2001, he entered judgment in favour of the plaintiff in the sum of ₦405 Million as well as interest of the sum of ₦15,750.000 being 15% interest on the amount of ₦305 Million that was due for over a year. A further 10% interest was granted from 29/1/2001 till the whole amount is liquidated. The trial C.J. fixed cost in favour of the plaintiff at ₦5,000.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
↪️ I. Whether or not the defendant showed a defence on the merit which warrants that the suit be transferred to the general cause list for hearing and determination?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE DEFENDANT/APPELLANT SHOWED NO DEFENCE FOR THE MATTER TO BE TAKEN TO THE GENERAL CAUSE LIST
‘I need to touch on the point made faintly by the appellant that the respondent has no locus standi to institute the action. I am unable to see where such was really canvassed and determined by the lower court. Howbeit since the money in exhibit A is to be paid to all the entire people of Bonny Kingdom and the suit is, brought in a representative capacity on behalf of the entire people of the Kingdom, I see no big deal in the complaint. The plaintiff/respondent, the Amanyanabo in council, the chiefs, elders and people of Bonny Kingdom he represents have the locus to institute the action. The learned trial C.J. said it and I agree with him that ‘it is clear that the defendant is but fishing for defences.’ There is nothing in their affidavit which denied their undertaking to pay the money in principle. The condition precedent relied upon by them have been shown to be to no avail. It is clear that the appellant failed to show any defence on the merit that will warrant the suit being transferred to the General Cause List for a full scale trial.’
‘This is a convenient point where I must reflect it that as discernible on page 2 of the transcript record of appeal, the suit was filed on 27/11/2000. As at that date, it is the first instalment in exhibit A at page 13 of the record that was due. The sum is ₦305 Million payable on 24/12/99. The second instalment of ₦100 Million payable on 24/12/2000 was not due. I am unable to trace in the record any amendment of the writ of summons. The liquidated sum due as at 27/11/2000 when the unamended writ was filed is ₦305 Million. This is the amount for which judgment should have been entered for the respondent by the trial C.J. on 29/1/2001. It is the amount that was due as at the time the writ was filed. Equally, I am of the considered opinion that interest at the rate of 15% said to be ₦15,750,000 appears erroneous; with due respect. Nothing in exhibit A shows that such is within the contemplation of parties. And it is not a term of the agreement – exhibit ‘A’. I expunge the sum of ₦100 Million which is not a liquidated amount due on 27/11/2000 when writ was filed. As well, I delete the sum of ₦15,750,000 awarded as interest which appears like a bonus since it was not within the contemplation of parties. The respondent is only entitled to the sum of ₦305 Million being the only matured instalment and that shall be the judgment of the trial court. I endorse the order of 10% interest on the sum of ₦305 Million from the date of judgment – 29/12/2001 until the amount is liquidated in line with the rules of the trial court.’]
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.
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✓ DECISION:
‘In conclusion, subject to the deductions made above by me in relation to the sum of ₦100 Million and interest of ₦15,750,000, the appeal is hereby dismissed. The respondent is entitled to costs which I assess and fix at ₦5,000.00 against the appellant.’
➥ FURTHER DICTA:
⦿ SEALING IS NOT REQUIRED WHERE DOCUMENT IS SIGNED BY ALTER EGO OF COMPANY
Even then, in modern times, if a document is signed by the alter ego of the company, sealing is no longer a sine qua non to the validity of the same since its purpose is to ensure that the right persons entered into an agreement on behalf of the company. Also, Section 77 of CAMA approves same. The case of Carlen (Nig.) Ltd. v. Unijos and Anor. (supra) at P. 668 cited by the senior counsel to the respondent is clearly in point here. It is clear that the fact that a seal is not affixed to exhibit A does not render it invalid. To my mind, that contention can be likened to clinging to a straw. — J.A. Fabiyi JCA.
⦿ A DEFENDANT WHO IS SERVED WITH A WRIT FOR THE UNDEFENDED CAUSE LIST
A defendant who is served with such a writ has to file his notice of intention to defend the suit supported with an affidavit depicting triable issues; not frivolous ones, five clear days to the return date. If he fails to do so, judgment will be entered against him without much ado. The defendant must show a defence on the merit or a bonafide defence. Such a defence must not be a sham. It must not be frivolous, spurious, worthless or designed to postpone the day of reckoning. See UTC (Nig.) Ltd. v. Pamotei and Ors. (1989) 2 NWLR (Pt. 103) 244; (1989) 2 NSCC (Pt. 1) 523; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; (1990) 21 NSCC (Pt. 2) 433; Agro Millers Ltd. v. CMB (Nig.) Plc. (1997) 10 NWLR (Pt. 525) 469 at 477-478. In Nishizawa Limited v. Jethwani (1984) 12 S.C. 234 at p. 278, Aniagolu, J.S.C. pronounced bluntly thus: “…A defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.” — J.A. Fabiyi JCA.
⦿ ADVANTAGE OF UNDEFENDED CAUSE LIST
The procedure under “undefended list case” is designed for quick justice. It cuts down costs. The procedure is aimed at preventing the injustice to the deserving plaintiff most likely to occur in having to go through a long and protracted trial where, indeed, there is no defence to the plaintiffs claim. It saves time of the court and the tax payers. — S.A. Nsofor JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
John Afolabi Fabiyi, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
