⦿ CASE SUMMARY OF:
Intercontinental Bank Ltd v. Brifina Limited (2012) – SC
by PipAr-RAshid
⦿ LITE HOLDING
A process that is contradictory cannot be placed in the undefended cause list. A claim for return of professional fees is in the realm of special damages, and must be strictly proved.
⦿AREA OF LAW
– Administrative Law.
⦿ TAG(S)
– Undefended cause list.
– Special damages.
⦿ PARTIES
APPELLANT
Intercontinental Bank Ltd
v.
RESPONDENT
Brifina Limited
⦿ CITATION
(2012) JELR 34775 (SC)
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, J.S.C.
⦿ APPEARANCES
* FOR THE APPELLANT
– Emeka Okoye Esq.
* FOR THE RESPONDENT
– Cameron Eze Esq.
AAA
⦿ FACT (as relating to the issues)
The Appellant as plaintiff filed a suit under the undefended list at the High Court of Justice Onitsha, Anambra State of Nigeria claiming the following reliefs:
a. The sum of N168,077,485.40 (One Hundred and Sixty Eight Million Seventy Seven Thousand, Four Hundred and Eighty-Five Naira, Forty Kobo) being outstanding sum/balance owed the Plaintiff by the Defendant as at 25th April, 2000.
b. 28% interest on the sum of N168,077,485,40 (One Hundred and Sixty Eight Million Seventy Seven Thousand Four Hundred and Eighty-Five Naira, Forty kobo) from 6th May, 2000 till judgment is delivered in this Suit and thereafter sum is liquidated.
c. The sum of N3,500,000.00 (Three Million Five Hundred Thousand Naira) comprising professional fees for hiring a Solicitor and also legal expenses for prosecuting this matter.
The Respondent, herein, as the Defendant at the trial Court filed a Memorandum of Conditional Appearance instead of the Notice of Intention to defend.
The trial High Court considered the defence stated in the said Memorandum of Conditional Appearance to the effect that the Respondent was under Receivership and that a document attesting to the fact was attached to the Memorandum of Conditional Appearance. In actual fact, no such document was attached and for that reason the court found that no triable issue was raised in the defence and entered judgment for the Appellant.
Being dissatisfied with the judgment, the Respondent appealed to the Court of appeal Enugu Division, which allowed the Appeal in favour of the Respondent herein.
Dissatisfied with the judgment of the Court of Appeal the Appellant has now appealed to this Court.
⦿ ISSUE(S)
1. Was the Court of Appeal right in ordering the action to be transferred to the General Cause List for determination before another judge in the same judicial Division?
2. Whether the Court of Appeal was right that the plaintiff did not discharge the burden of proof of the Trial Court.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N50,000 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. Several factors have clearly disqualified the Appellant’s claims as uncontested and thereby making them not satisfying the requirements of type of action that should come under undefended list. I agree with the court below that the Appellant’s case is inherently contradictory, as it has not been able to discharge the burden of proof that the Respondent has no defence. Instances abound.
Firstly, in the facts contained in paragraphs 13 and 14 of the Appellant’s affidavit. Where it was averred as follows:
“13. The next letter the plaintiff wrote to the defendant on the subject matter of this suit is dated 16th December, 1998 and is hereby annexed and marked Exhibit “E”.
14. That as contained in Exhibit “E” the indebtedness of the Defendant to the plaintiff as of that date was N105,789,739.60 (one hundred and five million, seven hundred and thirty-eight thousand (sic), seven hundred and thirty-nine naira).”
It is observed that the balance of N105,783,731.00 as at 16/12/1998 is not contained in the statement of Account Exhibit “G” at pp.25 and 25 of the Record.
Secondly, paragraph 17 of the Appellant’s Affidavit averred as follows:
“17. That as at the 25th April, 2000 the total outstanding balance owed the plaintiff by the defendant is N168,077,485.40 (One hundred and sixty eight million, seventy-seven thousand, four hundred and eight five, naira forty kobo)”.
The above figure is in contrast with the statement of account at pp.25 and 26 (Exhibit “G”). At page 26 the balance of account shown therein as at 25/4/2000 is N167,233,412.97) (One hundred and sixty-seven million, two hundred and thirty-three thousand, four hundred and twelve naira, ninety seven kobo).
Thirdly, the actual balance of the Respondent’s account on 25th April, 2000 (Exhibit “G”) also contradicts paragraph 18 of the Appellant’s claims, which is stated as follows: “18. As at the 25th day of April, 2000 the total outstanding balance owed the plaintiff by the defendant regarding the said loan and interest due thereon stands at N168,077,485.40 (One hundred and sixty-eight million, seventy-seven thousand, four hundred and eighty five naira, forty kobo). The actual balance shown in Exhibit “G” as overdrawn balance is N176,624,503,76 DR” (one hundred ad seventy-six million, six hundred and twenty four thousand five hundred and three naira, seventy-six kobo).
Fourthly, in paragraphs 19 and 20 of the Appellant’s Affidavit’s it is averred as follows:- “19. That it was the agreement of both parties that the defendant shall bear any legal expenses incurred by the plaintiff in the course of recovery of the loan and interest accruing thereto, should the defendant fail to pay the said loan at when due. 20. That it will cost the plaintiff the sum of N3.5 million to prosecute this matter, comprising professional fees to the plaintiff’s solicitor and other legal expenses”.
I agree with the Learned Counsel for the Respondent that the amount for professional fees stated in paragraph 20 above is speculative and indeterminate. The legal fees sought to be recovered falls within the category of special damages which must always be strictly pleaded and proved.
These inconsistencies and inaccurate descriptions characterising the Appellant’s claims have not been explained by the Appellant. The burden to do this lies squarely on the appellant and it has not been satisfactorily discharged.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. It has been shown that there were substantial contradictions in the case of the Appellant. The nature of its claim, involving compound interest, claim for legal fees and evidence of recovering of facility. This is not the kind of claim in an action that can be brought by the Appellant on the undefended list proceeding. These lapses are obvious facts the learned trial Judge failed to consider and the court below has rightly held so.
⦿ REFERENCED
⦿ SOME PROVISION(S)
Order 24 Rule 9(5) of the Anambra State High Court Rules, 1988. It provides as follows: “Nothing herein shall preclude the court from making an order should it so think fit, at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit not suitable for placement in the undefenced list”.
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
The principles applicable in a undefended list proceedings is that the court has a duty to consider the Notice of Intention to defend as well as the affidavit filed in support of the Writ of Summons. Even where there is no Notice of intention to Defend, the court still has to inquire or examine whether the plaintiff has made out his claim in the affidavit accompanying the writ. – Galadima, J.S.C. Intercontinental v. Brifina (2012)
* SUBSTANTIVE
I must say that for the Learned Counsel to attack the revered jurists as having sentimentalized on this issue is to show lack of respect and decorum in advocacy. They may have expressed an opinion based on the fact presented before them. Expression of unwarranted sentiments belongs to the realm of weak and bias minds and these vices do not attenuate the attributes of my learned respected brothers (two of whom are now late, and of blessed memory). – Galadima, J.S.C. Intercontinental v. Brifina (2012)
The legal fees sought to be recovered falls within the category of special damages which must always be strictly pleaded and proved. – Galadima, J.S.C. Intercontinental v. Brifina (2012)
In matters sought to be pleaded in the undefended list the Court considers only the affidavit evidence and where there is a conflict between the claim and affidavit in the application to place it in the undefended list, that conflict is enough to deny the application to place it on the undefended list. – Ngwuta, J.S.C. Intercontinental v. Brifina (2012)
