POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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B.I. AIKABELI

V.

AFRICAN PETROLEUM PLC

COURT OF APPEAL

BENIN DIVISION

1ST JUNE 2000

CA/13/152/97

3PLR/2000/40 (CA)

OTHER CITATIONS

6 NWLR [PT. 708] 93

BEFORE THEIR LORDSHIPS

SUNDAY AKINOLA AKINTAN, JCA

RAPHAEL OLUFEMI ROWLAND, JCA

SAKA ADEYEMI IBIYEYE, JCA

 

BETWEEN

I. AIKABELI V. AFRICAN PETROLEUM PLC.

 

REPRESENTATION

Prince A.M.C. Igiekhume – for the appellant

J. Aladeyelu ESQ., – for the respondent

 

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

 

MAIN ISSUES

ACTION – Cause of action – what determines it -definition and meaning of.

CIVIL LAW AND PROCEDURE – Undefended list procedure – admission of a liquidated debt in writing – effect of.

CONSTITUTIONAL INTERPRETATION – Essence of Section 6(6)(b) of 1979 and 1999 Constitutions of Federal Republic of Nigeria – whether individuals’ agreement can take away a citizen’s right thereunder.

CONTRACT – Whether a contractual remedy in writing can take away the right of a party to sue under Section 6(6)(b) of the 1979 and 1999 Constitution of Federal Republic of Nigeria.

PRACTICE AND PROCEDURE – Undefended list procedure – how to be reacted to by the defendant.

 

MAIN JUDGEMENT

SAKA ADEYEMI IBIYEMI, J.C.A. (delivering the leading judgment):

This is an appeal against the ruling of Elaiho, J. sitting in Benin High Court of Justice delivered on the 31st of May, 1994 in Suit No. B/59/94. The respondent as plaintiff filled a Writ of Summons dated 21st of February, 1994 against the defendant who is the appellant in this case. The respondent thereafter, by an ex-parte motion, sought and got leave of the trial court to place the suit on the Undefended List. On the return day for the hearing of the suit-placed on the Undefended List, the defendant through his learned counsel on 28th of February, 1994 instead of filing a Notice of intention to defend filed a memorandum of appearance. The learned counsel for the defendant, having realised the irrelevance of the process he filed in the relation to a case placed on the Undefended List sought and got leave of the trial court to come into the case properly by filing a Notice of intention to defend.

 

It is elucidating at this stage to reproduce the endorsement on the instant Writ of Summons. It reads:

 

1. The plaintiff through a dealer Agreement dated 23rd day of November, 1982 appointed the Defendant as licencee of the plaintiff at the plaintiff’s petrol station situated at and known as New Lagos Road Service Station, Benin City.

 

2. On or about October 1991, the Defendant incurred a trading loss of N253,766.06k.

 

3. On 24th of January, 1992, the Defendant through a written agreement convenanted with the plaintiff to pay the plaintiff the said N253,766.06k in twenty five instalments.

 

4. Up to this moment, the Defendant has only paid to the Plaintiff the sum of N60,922 (sic) thereby leaving the sum of N192,844.6k outstanding.

 

5. Inspite of repeated demands, the Defendant has refused/neglected to pay the said N192,844.6k to the Plaintiff.

 

6. WHEREOF the plaintiff claims from the defendant the sum of N192,844.6k as liquidated damages and 25% interest on the debt from 6th day of February, 1992 until (sic) the debt is finally liquidated.”

 

The plaintiff filed a fifteen paragraph affidavit in support of the Writ of Summons placed on the undefended List. Paragraphs 5, 6, 7, 8, 9, 10 13 and 14 of the said affidavit are of moment to the claim of the plaintiff and they read as follows:-

 

“5.     That on or about October, 1991, the Defendant incurred a trading loss of N253,766.06k in the said New Lagos Road Service Station.

 

6. That in a letter dated 10/12/91, the Defendant acknowledged the trading loss of N253,766.06k and agreed to pay the said amount instalmentally. The said letter dated 10/122/91 is further exhibited and marked Exhibit ‘B’.

 

7. That on 24th day of January, 1992 for the sake of clarity and proper documentation; the defendant through a written agreement covenanted with the said sum of N253,766.06k in twenty five instalments. The said agreement is hereby exhibited and marked Exhibit ‘C’.

 

8. That in furtherance of the agreement dated 24th day of January, 1992, the Defendant wrote a letter dated 2/11/92 to the Plaintiff’s Area Retail Manager. The said letter is exhibited and marked Exhibit ‘D’.

 

9. That in further acknowledgement of the debt of N253,766.06k, the Defendant caused a letter dated 21/12/93 to be written to the plaintiff’s Sales Representative. The letter written by one Igiekhume & Co. Legal Practitioners is herein exhibited and marked Exhibit ‘E’

 

10. That up till this moment, the Defendant has only paid to the plaintiff N60,922.00k through the commission due to the Defendant from the plaintiff.

 

13. That inspite of repeated demands, the Defendant has bluntly refused/or neglected to pay to the plaintiff the outstanding N192,844.06k.

 

14. That I believe that the Defendant has no defence to this action.”

(Italics Supplied for emphasis)

 

The defendant on his part filed a Notice of Intention to defend dated 26th March, 1994 and it is supported by a nine paragraph affidavit titled “AFFIDAVIT OF FACTS SHOWING GOOD DEFENCE TO THE PLAINTIFF’S SUIT”. Paragraphs 2, 3, 5, 6 7 and 8 are of relevant consequence and they read:

 

“2.     That by a letter No. SEA/ARM/SM/3205-5 of 04/02/93, signed under the hand of Area Retail Manager of the Plaintiff, my licence to operate the New Lagos Road, Benin City Service Station of the plaintiff was withdrawn.

 

3. That I am informed by my Lawyer, Prince A. M. G. Igiekhume, and I verily believe him as follows:

 

(a)     That the said letter (see paragraph 2 herein), a photocopy of which is attached hereto and marked as Exhibit C, is clearly in breach of Clauses of the Agreement dated 24th January, 1992 voluntarily entered into by the Plaintiff and me with regard to the trading loss of N253,766.06k (Two hundred and fifty-three thousand, seven hundred and sixty-six naira point zero six kobo). A photocopy of the said Agreement is annexed hereto and marked as Exhibit D.

 

(b)     That also in breach of the said clause 5 of the said Agreement (Exhibit D) as well as the Dealer Agreement dated 23/11/82 (it is doubtful if this Agreement is still valid) Clause 3(ii) (a), (b), (c), (d) and (e) thereof, the plaintiff closed down my outlet (New Benin A. P. Service Station, Benin City) with effect from 08/12/92 vide paragraph 2 of Exhibit C. The said Dealer Agreement dated 23/11/82 is exhibited herein as Exhibit E.

 

(c)     That the plaintiff having being in breach of the clear and unambiguous provisions of (i) clause 5 of Exhibit D and clause 3(ii) (a), (b), (c), (d) and (e) of Exhibit E herein, I have a good and sustainable defence to its claim; in addition the question whether there was or there was not a violation of Exhibit D and E by the Plaintiff will be a serious and substantial legal issue for determination in a trial on the merit.

 

(d)     That taking into full account the averments contained in paragraph 4(a), 4(b) and 4(c) herein, the plaintiff’s case ought to be removed from the Undefended List and placed on the List for hearing.

 

5. That to avoid continued borrowing not less than N5,000.00 (Five thousand naira) every month so as to leave small money for the running of my family, I instructed my Lawyers, Igiekume and Company, to address a letter to the monthly sales managers, Lagos pleading that the monthly payment of N10,000.00 be reduced to N5,000.00

 

6. That my Lawyers addressed the letter No. IC/BIA/AP/92/1/ of 15/01/92 to the said Retail Sales Manager, but instead of showing sympathy and understanding, the said Retail Sales Manager did not say anything about my Lawyers’ passionate appeal for a reduction in my monthly payment of N10,000.00 in his letter No. RSD/IOK/-3133 of 12/11/92 of response. A photo’ copy of my lawyers’ letter aforementioned as well as the said Retail Sales Manger’s reply is (sic) attached hereto and marked as Exhibits F and G respectively.

 

7. That I had already instructed my Lawyers to sue the Plaintiff claiming damages for its wrongful (sic) termination of my appointment and my claim(s) against it was/were being prepared when I was served with the Plaintiff’s claim by substituted service.

 

8. That I am informed by Barrister, A.M.G Igiekhume and I verily believe that if the Plaintiff’s claim is placed on the List for hearing and Honourable Court orders the filing of pleadings I can quite properly and legally put up a counterclaim in my statement of defence”.

 

The learned trial Judge in a considered ruling based on the foregoing affidavit evidence and submissions of the learned counsel for both parties in this suit, dismissed the defendant’s application to remove the said suit from the Undefended List to the General Cause List. The defendant who was ostensibly dissatisfied with this ruling appealed to this Court on four grounds.

 

In compliance with the Rules of this Court, the appellant and the respondent filed and exchanged their respective briefs of argument. The appellant identified only one Issue as calling for determination. The only Issue reads:

 

“Whether the learned trial Judge was right in holding as he did that the appellant has no defence, sustainable or at all, to the respondent’s claim.”

 

The respondent on the other hand, posed three Issues which read:

 

“(a)    Whether in the circumstances of this case, the Appellant’s affidavit in support of the notice to defend discloses a defence on the merit so as to place the suit on the general cause list for trial.

 

(b)     Whether Exhibit ‘C’ annexed to the Appellant’s affidavit in support of his notice to defend is relevant to the Respondent’s claim.

 

(c)     Whether where there is an alternative remedy, inalienable right to seek redress in court is taken away.”

 

At the hearing of this appeal, Prince A.M.G. Igiekhmue and O. J. Aladeyelu Esq. who respectively appeared for the appellant and the respondent adopted and relied on their briefs of argument and urged the court to enter judgment for the appellant and dismiss the appeal in favour of the respondent. I have perused the issues formulated by both the appellant and the respondent in relation to the four grounds of appeal. I am of strong opinion that those grounds of appeal admit of more than one issue. I shall therefore adopt the issues distilled by the respondent for the determination of this appeal.

 

On Issue No. 1, the learned counsel for the appellant conceded that it is common ground that the appellant is indebted to the respondent. He, however, went on to place so much reliance on Clause 5 of what he referred to as Exhibit C. I shall quickly correct the wrong ascription of exhibits. It is instead exhibit D which is the same as exhibit E. Exhibit C is infact an undated letter of withdrawal written to the appellant by the respondent and it is devoid of clauses and in particular Clause 5. Learned counsel argued that if the learned trial judge had properly interpreted Clause 5 of exhibit D he would have arrived at the conclusion that the appellant had a good defence. He further argued that Clause 5 of exhibit D relates to an agreement which is binding on both himself and the respondent and since there is a breach of that agreement, it is a good defence in law and he referred to the cases of General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) (Pt. 1) vol. 18 n.s.c.c. 505 at 503 and 513; Ellis v. Allen (1914) I CH 904 at 909 and Premier Breweries Ltd. Aenre Construction Co. Ltd. (1987) 3 N.W.L.R. (Pt. 62) 688 at 689 as irrelevant because he contended that a party can admit facts as in this case and rely on law for his defence. He equally contended that the question of giving judgement for an amount admitted in whole or in part can only arise where there is no collateral agreement as to the mode of payment of a debt and what the sanction would be in the event of a default.

 

In response, the learned counsel for the respondent sub-mitted that the appellant’s affidavit did not disclose a defence on the merit as it is settled law that in a suit brought under the Undefended List and for the defendant to disclose a defence on the merit, the Plaintiff’s claim must be denied, controverted and contradicted as enunciated in cases of Osy Jipreze v. Okonkwo & Anor. (1987) 3 N.W.L.R (Pt. 62) 737 at 744 and Bernard Agwuneme v. Felix Eze (1990) 3 .W. L.R (Pt. 137) 242 at 254. He pointed out a number of instances in the appellant’s affidavit where he admitted the respondent’s claim instead of denying it. Thus exhibits B, C, D and F attached to the appellant’s affidavit are instances he admitted owing the respondent. In view of all these, the learned counsel for the respondent urged the court not to remove the claim from the Undefended List as neither good defence nor defence on the merit has been shown by the appellant.

 

It is settled that the undefended list procedure is invoked whenever there is a claim to recover a debt or liquidated money demand when the plaintiff in an affidavit in support of the Writ of Summons asserts the grounds upon which the claim is based and states that in his belief the defendant has no defence. If, however, the defendant served with such Writ of Summons and affidavit delivers to the Registrar of the trial court not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit together with an affidavit setting out the grounds of his defence and such defence throws some doubt on the case of the plaintiff, the suit shall be transferred from the Undefended List to the General Cause List. See Jipreze v. Okonkwo (supra) at page 744 and Agwuneme v. Eze (Supra) at 254. It is not enough for the defendant to put up a fanciful defence in his affidavit. The defence must instead disclose some facts which will throw some doubt on the plaintiff’s claim.

 

It is trite that where the defendant, in an undefended list procedure, admits a liquidated debt in writing, he has afforded the Plaintiff good ground for instituting the procedure. See Eldrado (Nig.) Ltd. (1973) 3 CCHCJ. 93 at 87. In the instant appeal, there is sumptuous appellant affidavit evidence as reflected in exhibits B, C, D, E and F that he is indebted to the respondent. These exhibits are self-defeatist in the consideration of claims made on the undefended list as they have facilitated the appellant’s claim. Since the appellant affidavit in support of his notice of intention to defend failed to deny his indebtedness to the respondent in such a way as to provide a good defence on the merit, the instant suit was correctly placed and determined on the undefended list by the learned trial judge.

 

This issue is accordingly resolved in the negative. As regards Issue No. 2, the learned counsel for the appellant referred to part of the ruling of the trial court where it is stated in essence that the Withdrawal of the appellant’s license by the respondent (Exhibit C) and the debt by the appellant which occurred in 1991 are two different issues and argued that such view was erroneous. He instead submitted that since the withdrawal of the appellant’s licence emanated from his failure to pay the monthly instalment of N10,000.00 as and when due, the one is obviously related to the other and that it is non-sequitur or otiose to view them differently.

 

In reply, the learned counsel for respondent submitted that exhibit C is not relevant and could not displace the respondent’s claim. He argued on this score that first, the debt of N253,766.06k which is the basis of the respondent’s claim against the appellant was incurred in October, 1991 while exhibit C was written on 4/2/93. Secondly, while the respondent’s claim was founded on recovery of debt, the appellant’s claim was based on withdrawal of licence, that is breach of contract, for which he instituted action and lost in suit No. B/688/94.

 

It is obvious from the foregoing arguments that issue of debt recovery and alleged breach of contract are two causes of action. This view is inspired by the definition of cause of action which means the factual situation stated by the plaintiff, is substantiated, entitling him to a remedy against the defendant. See EGBE Vs. ADEFARASIN(1) (1985) I NWLR (Pt. 3) 549 and Alhaji & Anor. v. Fred Egbe & Ords. (1986) I NWLR (Pt. 16) 361. In the instant case, the only cause of action reflected in the Writ of Summons filed by the plaintiff/respondent is for the recovery of debt. The appellant appeared, from his argument, to introduce another cause of action based on alleged breach of contract of employment. It is indeed the texture of the plaintiff’s claim that determines the cause of action. It is irregular to integrate another cause of action not instituted by the plaintiff/respondent into the instant case. I do not se any impropriety in the learned trial judge upholding the submission of the respondent’s counsel that the said two issues are two different causes of action. I accordingly answer Issue No. 2 in the negative. On Issue No. 3, the learned counsel for the appellant contended that the respondent is bound by Exhibit D as it is an agreement which both parties freely entered into. He relied on the case of United Calabar Company. v. Messrs. Elder Dempster Lines Ltd. (1973) 1 N.M.L.R. 36; Union Bank of Nigeria Ltd. v. Prof. A. C. Ozigi (1994) 3 N.W.L.R. (Pt. 333) 385 at 389 and Olaoye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 44. He particularly referred to Clause 5 of Exhibit D and submitted that that provision is mandatory and as such the only remedy open to the respondent. He further submitted that the withdrawal of the appellant’s licence by the respondent was not in tune with Clause 5 of exhibit D.

 

The learned counsel for the respondent, in reply, submitted that the argument of the learned counsel for the appellant in misconceived for a number of reasons. Thus, first, he pointed out that by exhibit F (That is the appellant letter dated 15/10/92), the appellant’s counsel pleaded passionately with the respondent that the appellant’s car should not be seized. Secondly, the respondent refrained from seizing the appellant’s car as that would amount to self help which equity and law frown at and he relied on the cases of Eliochin (Nig.) Ltd. & Son. v. Mbadiwe (1986) 1 S.C. 99 and Emechil v. Abiose (1991) 2 N.W.L.R. (Pt. 172) 192. I shall cursorily remark that these cases and particularly the latter case talks about the attitude of courts towards the use of self help on the part of litigants in matters in which the courts are seised. This action was instituted in the lower court on 20th January, 1994 whereas the agreement (exhibit D) stipulating, inter alia, seizure of the appellant’s car was made on 24th January, 1992. The decisions in those cases are not particularly helpful. Thirdly, the learned counsel argued that even if Clause 5 of exhibit D provides for the seizure of the appellant’s car, the right to seek redress in Court as provided for in Section 6(b) of the Constitution of the Federal Republic of Nigeria 1979 cannot be taken away by any agreement however elegantly it may be drafted.

 

It is settled law that even if there is an alternative remedy for a subject, his inalienable right to seek redress in court cannot be taken away. See the cases of Eguamwense v. Amachiezemwen (1993) 9. N. W. L. R. (Pt.315) 1 at 35 and Erejuwa II, The Olu Of Warri & 3 Ors. v. Egharegbeyewa O. Kperegbeyi & 2 Ors. (1994) 4 S.C. J. (Pt. II) 241 at 266 and 267.

 

It is appropriate at this stage to reproduce Clause 5 of exhibit 5 on which so much reliance has been placed by the appellant’s counsel. It reads:

 

“5      Where the debtors defaults in the fulfilment of any one of the instalmental payments, he shall forfeit his 505 Peugeot Saloon Car with registration no. BD 2371 CA and Engine No. 1751314 and Chassis No. 1751314 to the creditor.”

 

It appears from Clause 5 (above) that the appellant and the respondent made an agreement which is binding on them. The remedy in the agreement is that in the event of a default by the appellant, the respondent could seize the car of the former (appellant). The question is can the remedy oust any recourse by the respondent to the court in the event of a breach by the appellant? I doubt not in view of section 6(6)(b) of the constitution of the Federal Republic of Nigeria 1979 which is in pari materia with similar section of the Constitution of the Federal Republic of Nigeria 1999. It reads:

 

“S.(6) The judicial powers vested in accordance with the foregoing provision of this section.

 

(b)     Shall extend to all matters between persons, or between government authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of question as to the civil rights and obligations of that person.”

(Italics supplied for emphasis)

 

It is obvious that the foregoing provisions is all embracing as regards any type of disputes between persons in that it provides access to Courts for the settlement of such disputes. It is trite that 1979 and now 1999 Constitution is the grundnorm in Nigeria and its provisions are accorded preference over any other provisions in other statutes be they Acts or Laws as well as agreement which appears to provide its own remedy or penalty. What this means in effect is that no law can restrain aggrieved parties from seeking redress in a Court of Law. It therefore follows that the seizure of the appellant’s car as provided in clause 5 of exhibit D is only an alternative remedy which has hardly taken away the respondent’s inalienable right to seek redress for the same or any default in court. The respondent’s recourse to court was regular. This issue is also answered in the negative. In conclusion, I find no merit in the appeal and it is dismissed. The judgement of the lower court delivered on 31st May, 1994 is affirmed. The appellant shall pay costs of N3,000.00 to the respondent.

 

SUNDAY AKINOLA AKINTAN, J. C. A. I had the privilege of reading the draft of the leading judgement prepared by my learned brother, Ibiyeye, J.C. A. I entirely agree with his reasoning and conclusion that there is no merit in the appeal and should be dismissed. I also dismiss the appeal with costs as assessed in the leading judgement.

 

1. O. ROWLAND JCA. I read in draft before now the judgement just delivered by my learned brother Ibiyeye, J. C.A. I agree entirely with his reasonining and conclusion that this appeal is devoid of merit and should be dismissed. I too, dismiss it. I abide by the order on costs.

 

Cases referred to in the judgment

Alhaji & Anor. v. Fred Egbe & Ords. (1986) I NWLR (Pt. 16) 361.

Bernard Agwuneme v. Felix Eze (1990) 3 .W. L.R (Pt. 137) 242.

Egbe v. Adefarasin & Anor. (1985) I NWLR (Pt. 3) 549.

Eguamwense v. Amahiezemwen (1993) 9. N. W. L. R. (Pt. 315) 1.

Eldorado (Nig.) Ltd. v. Jimfat (Nig.) Ltd.(1973) 3 CCHCJ. 93.

Eliochin (Nig.) Ltd. & Son. v. Headwe (1986) 1 S. C. 99.

Emechil v. Abiose (1991) 2 N.W.L.R. (Pt. 172) 192.

Erejuwa II, The Olu of Warri & 3 Ors. v. Egharegbeyewa O. Kperegbeye & 2 Ors. (1994) 4 S.C. J. (Pt. 11) 241.

General Merchants Ltd. v. Nigeria Steel Products Ltd. (1987) (Pt. 1) vol. 18 N.S.C.C. Ellis v. Allen (1914) I CH 904.

Olaoye v. Balogun (1990) 5 N.W.L.R. (Pt. 148) 44.

Osy Jipreze v. Okonkwo & Anor. (1987) 3 N.W.L.R (Pt. 62) 737.

Premier Breweries Ltd. Anere Construction Co. Ltd. (1987) 3 N.W.L.R. (Pt. 62) 688.

United Calabar Company. v. Messrs. Elder Dempster Lines Ltd. (1973) 1 N.M.L.R. 36.

Union Bank of Nigeria Ltd. v. Prof. A. C. Ozigi (1994) 3 N.W.L.R. (Pt. 333) 385.

Statutes referred to in the judgment:

1979 and 1999 Constitution of the Federal Republic of Nigeria.