3PLR – M.C. OKANUME V. U.A.C NIG PLC
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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M.C. OKANUME
V.
U.A.C NIG PLC
IN THE COURT OF APPEAL [ENUGU DIVISION]
20TH DECEMBER 2001
CA/E/77/2000
3PLR/2001/205 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
JUSTIN THOMPSON AKPABIO, JCA (Presided)
SULE AREMU OLAGUNJU, JCA
MUSA DATTIJO MUHAMMAD, JCA (Delivered the leading judgment)
REPRESENTATION
N.J. Emejulu, Esq., for the appellant
Ifeanyi Udenze, Esq., for respondent.
MAIN ISSUES
COMMERCIAL LAW – AGENCY – Disclosed principal – proper party to sue or be sued upon a contract where an agent acts for a disclosed principal.
PRACTICE AND PROCEDURE – COURT – Discretionary power of court under the undefended list procedure – when such could be challenged on appeal.
PRACTICE AND PROCEDURE – Undefended list procedure – transfer of suit from same to the general cause list – burden on a defendant.
PRACTICE AND PROCEDURE – Undefended list procedure – where no triable issue was raised by the defendant in his notice of intention to defend – duty of court thereunder.
PRACTICE AND PROCEDURE – Undefended list procedure – discretionary power of the court thereunder – when such could be challenged on appeal.
PRACTICE AND PROCEDURE – Undefended list procedure – where defendant filed a notice of intention to defend – duty of court thereunder.
PRACTICE AND PROCEDURE – Undefended list procedure – duty of a plaintiff praying the court to enter a suit for hearing on same.
MAIN JUDGMENT
MUSA DATTIJO MUHAMMAD, JCA. (Delivered the following judgment):
This is an appeal against the judgment of Honourable Justice E.C. Iyizoba of the Anambra State High Court sitting at Onitsha delivered on 8th May 2000.
The decision is in favour of the respondent who as plaintiff instituted an action against the appellant being the defendant. The claim of the respondent which was taken out under the undefended list was for the sum of N290,100.00 being unpaid balance for goods supplied by the respondent to the defendant on credit. The respondent’s claim also included a 5% interest on the amount claimed from date of judgment till the liquidation of the debt.
The appellant filed a notice of intention to defend wherein he challenged the capacity of the respondent to institute the action. He further denied owing the sum claimed. In his notice of intention to defend the appellant contended that G.B. Ollivant, which was the party to sue but did not, had taken back from him thirty (30) cartons of close-up tooth brush valued N240,920.00 at the rate of N697.00 per dozen. The appellant admitted owing G.B. Ollivant the sum of N39,180.00.
In essence the appellant did not deny collecting the goods in respect of which unpaid balance the suit in the instant appeal was filed.
The respondent’s claim at the lower court was supported by a sixteen paragraph affidavit with five annextures marked exhibit ‘A’, ‘B’, ‘C’, ‘D’, and ‘E’.
The appellant’s notice of intention to defend was accompanied by a fourteen paragraph affidavit with three annexture thereto marked exhibit ‘A’, ‘B’ and ‘C’.
The lower court took arguments and in a considered ruling found for the respondent. The appellant being dissatisfied with the lower court’s judgment filed the instant appeal. To facilitate a full understanding of the issues this appeal raises, it is important to reproduce in extenso the decision being appealed against hereunder. At pages 14-15 of the record of appeal the most relevant part reads as follows:-
“In the case before me, there is no evidence that G.B. Ollivant is a legal entity on its own. On the contrary the exhibits show that it is merely a division of UAC of Nigeria Plc without its own legal personality. The defendant has therefore failed to adduce compelling evidence to show that G.B.O. is a separate legal entity from UAC Nig. Plc. I accept the affidavit evidence as shown in the exhibits that G.B.O. is a mere division of UAC without legal personality. I therefore hold that the plaintiff UAC Plc. is properly before this court and can maintain this suit.
I further hold that the averment in his affidavit that G.B.O on 24/9/99 collected 30 cartons of close-up tooth brush at a total cost of N250,000.00 does not in my view raise any triable issue as there is no link whatsoever even in his affidavit between the collection of these goods and the indebtedness of the defendant to the plaintiff. It is further note worthy that exhibit ‘C’ acknowledgment of the debt of N303,116.00 (sic) was signed on 28/9/99 – four days after the goods were allegedly collected from the defendant. No mention was made of the good in exhibit ‘C’ and even in the exhibit ‘A’ annexed to the defendant’s affidavit it was not shown why the goods were collected. I do not think any useful purpose will be served by the transfer of this case to the general cause list. I am satisfied that no triable issue has been raised in the defendant’s affidavit.
Judgment is hereby entered for the plaintiff in the sum of N290,100.00 being the balance left unpaid of the value of goods supplied to the defendant on credit plus 5% interest from this day until the judgment debt is fully paid.”
Parties have filed and exchanged their briefs which they adopted before us as arguments for the appeal.
The appellant’s two issues for the determination of appeal are as follows:-
“(i) Whether the learned trial Judge was right when in refusing to transfer the suit to the general cause list she held that UAC Plc was properly before the court and could maintain the suit.
(ii) Whether the appellant’s notice of intention to defend did not raise triable issue to warrant the suit to be transferred to the general cause list.”
On its part the respondent has formulated a single issue in the brief. The issue reads:-
“Whether the appellant raised any triable issue(s) in his notice of intention to defend the suit.”
In arguing the appeal, learned appellant’s counsel in the brief cited order 3 rule 1 of the Anambra State High Court Rules 1988 and the decision in Madukolu & Ors. v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587 to submit that a trial court would only assume jurisdiction where there was a plaintiff in whom the right to relief existed. By the documents annexed to defend, the transaction that gave birth to the instant case was between the G.B.O. and the appellant G.B.O., counsel submitted, had separate identity from that of UAC Nig. Plc the plaintiff on record. Where there was this lingering issue as to who the proper party in a suit was, a triable issue must be said to have been disclosed and the appellant as defendant is allowed on transfer of the suit to the general cause list to defend. Learned counsel finally submitted that in its consideration of whether a triable issue has been disclosed by a defendant or not the courts have been enjoined to be liberal. The lower court was not. Counsel relied on Danatata & Sawoe Const. v. Hassan (2001) 14 WRN 84; (2001) 5 NWLR (Pt. 705) 129 at 136 and M.O. & Kanu Sons & Co. Ltd. v. F.B.N. Plc. (1998) 11 NWLR (Pt. 572) 116 in support of his position and urged that the appeal be allowed.
On their part, learned respondent’s counsel has argued that it was clear from the particulars of their claim and the affidavit in support that G.B.O. was a division of the respondent and never had the legal personality necessary to institute the suit against the appellant. Appellant knew this fact and cannot be allowed to turn round and disclaim a fact the existence of which benefited him. It was only the respondent as the plaintiff on record that had the personality to sue on behalf of its division G.B.O., counsel further submitted. Learned counsel referred us to Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558; Agbonmagbe Bank Ltd. v. General Manager G.B.O. Ltd. & Ors. (1961) 1 All NLR (Pt. 1) 116; Hi-flow Farm Ind. Ltd.v. Unibadan (1993) 3 NWLR (Pt. 290) 719 in support of his submissions. Counsel further argued that the decision in M.O. Kanu Sons Co. v. F.B.N. Plc (1998) 11 NWLR (Pt. 572) 116 cited by the appellant’s counsel does not apply to the instant case and same was rightly distinguished by the lower court.
Finally, respondent’s counsel submitted, by order 24 rule 9(2) of the High Court Rules of Anambra State 1988 and decided authorities on same, for a court to allow a defendant to defend a suit under the undefended list procedure, the court must be satisfied as to the merits of the defendant’s notice of intention to defend. Where the notice lacks merits and has not disclosed any triable issue the court would be right as in the case before us, to refuse the transfer of the matter to the general cause list for full trial. Counsel referred to and asked us to dismiss the appeal by virtue of the following authorities: Jipreze v. Okonkwo & Anor (1987) 3 NWLR (Pt. 62) 737; Tiwell (Nig) Ltd. v. Inland Bank (Nig). Ltd (1997) 3 NWLR (Pt. 494) 408 at 419 & 422, Dantata & Sawoe v. Hassan (2001) 14 WRN 84; (2001) 5 NWLR (Pt. 705) 129 and Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538.
Order 24 rule 9 of the Anambra State High Court Rules 1988 provides for suits in the undefended list such as the suit in the instant appeal. All complaints against the decision of the trial court must of necessity be viewed in the light of this procedural provision. Rule 9(1) & (2):
“9(1) The hearing of a suit placed in the undefended list shall be as prescribed in this rule.
(2) If the party served with the writ of summons and affidavit delivers to the Registrar, 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 the court is satisfied that there is a triable issue, then and in such case the suit shall be entered in the general list and pleadings shall be filed.
(3) Not applicable to instant appeal.
(4) Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by sub-rule (2), within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of sub-rule (3), or where he delivered the notice and affidavit but the court is not satisfied therefrom that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such case, 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) Not applicable to instant appeal. (Italics supplied).
The foregoing rule of practice has clearly set out what a trial court’s functions are in respect of suits in the undefended list. The appellant say that the court has failed in the discharge of its stipulated duties. How true is the allegation?
By rule 9 sub-rule 2 supra, where the respondent had served the appellant with the writ of summons and affidavit and the appellant had delivered to the Registrar of the trial court his notice in writing that he intended to defend the suit together with an affidavit setting out the grounds of the defence, all the court needed to do was to satisfy itself that there was a triable issue between the parties and thereafter enter the suit in the general list and order pleadings.
However, by the second limb of sub-rule 4 of rule 9 order 24, where a defendant, such as the appellant, had delivered the notice of intention to defend and the affidavit setting out the grounds of his defence, and the court was not satisfied that the defendant had raised any triable issue, the suit must be heard as an undefended one and judgment given the plaintiff without being made to call witnesses to formally prove his case.
What comes through from the applicable rule of court is that the court’s duty of deciding whether or not to transfer a suit taken out in the undefended list to the general cause list for formal trial is carried out by the court’s examination of the writ as taken out, the notice of intention to defend, the affidavits of the contending parties as well as annextures to these affidavit if any. See Nishizawa Ltd. v. Jethwani (2001) 8 WRN 153; (1984) 12 S.C 234 and Macaulay v. NAL Merchant Bank (1990) 4 NWLR (Pt. 144) 283.
Without fear of contradiction it can be stated that the powers conferred in the trial court by the rules of court for the conduct of trials under the undefended list are discretionary, the exercise of which powers a party can successfully challenge only where it had not been judicially and judiciously done. Here, discretion properly belongs to the trial court. If we must, at this appellate level, interfere with the lower court’s decision as the appellant counsel asked us to, we must be convinced that the exercise had either occasioned miscarriage of justice or that the court had taken into consideration matters extraneous to the relevant materials placed before it by both parties. See Dangardi v. Jibril (1997) 4 NWLR (Pt. 501) 590 at 599; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Ilona v. Dei (1971) 1 All NLR 8.
Exhibit ‘A’ and ‘B’ all dated 29/1/99 and annexed to the respondent’s affidavit in support of the claim are invoices in respect of goods supplied to the appellant. The goods were worth N304,100.00. Exhibit ‘A’ and ‘B’ were issued by GBO/MDS a division of UAC (Nig.) Plc. Exhibit ‘C’ also attached to the respondent’s affidavit at the lower court is the appellant’s acknowledgement of the debt he was owing the respondent on record as at 28/9/99. The acknowledgment was duly signed by the appellant.
Exhibit ‘D’ is a demand letter addressed to the appellant by the respondent’s counsel in respect of the unpaid balance of N290,100.00 as at 24/2/2000. This was the sum claimed under the undefended list procedure as prescribed by order 24 rule 9 of the Anambra State High Court Rules.
Annexed to appellant’s affidavit accompanying the notice of intention to defend is exhibit ‘A’. Appellant in paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of his supporting affidavit admitted being a customer of G.B.O. and collecting goods on credit worth N303,116 (sic) from the latter in January 1999. He further averred that he made payment in respect of the goods leaving a balance of N290,100.00 as at 28/9/99; appellant further averred that the manager of G.B.O. collected from him 30 cartons of close-up tooth brush valued N250,920,000, as indicated by exhibit ‘A’ the only annexture to his affidavit, leaving the balance of his indebtedness to N39,180.00. This balance appellant did not dispute.
It is glaring from exhibit ‘A’ and ‘B’ annexed to the affidavit in support of the claim in the instant suit that appellant knew the status of G.B.O. vis-a-viz the respondent on record. It would be unfair if appellant is not estopped from denying a position he knew very well of and benefited from. Furthermore, the plaintiff/respondent on record from all available documents was a disclosed principal. A contract made by an agent acting within the scope of his authority for a disclosed principal is, in law, the contract of the principal and the principal not the agent is the proper person to sue or be sued upon such contract. See Carlen (Nig) Ltd. v. Unijos (1994) 1 NWLR (Pt. 323) 631 at 659 S.C; Niger Progress Ltd. v. NEL Corp. (1989) 3 NWLR (Pt. 107) 68 at 84 S.C. In the instant appeal appellant’s arguments that GBO rather than the respondent on record was the proper party to sue was rightly rejected by the lower court.
Lastly, exhibit ‘C’ annexed to the affidavit in support of respondent’s claim has clearly debunked the content of exhibit ‘A’ in support of appellant’s notice of intention to defend. In exhibit ‘C’ dated 29/9/99 the appellant voluntarily acknowledged his indebtedness to the respondent as per the latter’s claim. This was inspite of the fact that respondent had allegedly by exhibit ‘A’ collected the 30 cartons of close-up tooth brush from the appellant on 24/9/99, the cost of which items appellant wanted to set-off from the sum claimed against him. The lower court’s finding that appellant’s averments had failed to link exhibit ‘A’ to the transaction in respect of which the accrued debt was claimed against him by the respondent lingers on. It has not been shown to be perverse to enable us to interfere.
From all the material before the court, the appellant had failed to provide any defence on the merits to enable the lower court to transfer the matter to the general cause list for a full trial. His counsel had urged that the court ought to have been liberal in its consideration of the appellant’s notice of intention to defend. This submission and the reliance of counsel on the authority they cited depicts a colossal misapprehension of the ratio decidendi in the case and indeed the position of the law on matters under the undefended list. The conclusion of the trial Judge in the face of all available facts cannot be faulted.
For the trial court to hold otherwise than that from the available facts at its disposal no triable issue had persisted to warrant the transfer of the suit to the general cause list was to abdicate its responsibility. It would not have exercised the discretion the rules of court had prescribed judicially and judiciously and the appeal court would have found it necessary by now to interfere.
What must be affirmed here is that in the context of proceedings under the undefended list, no matter how liberal a trial court decides to be, once the affidavit in support of the defendant’s notice of intention to defend had failed to raise any triable issue thereby requiring the plaintiff to explain certain matters regarding his claim or by his affidavit defendant had failed to throw doubt on the plaintiff’s claim, the court would have no option than to find for the plaintiff. As in the instant case, the trial court “hears” and concludes the proceeding as an undefended one. See C.C.B (Nig.) Plc. v. Samed Investment Company Ltd. (2000) 4 NWLR (Pt. 651) 19; and Franchal (Nig) Ltd. v. Nigeria Arab Bank Ltd. (1995) 8 NWLR (Pt. 412) 176 at 188.
Invariably the issue in this appeal must be resolved in favour of respondent. I so do. This appeal lacks merit and same is hereby dismissed with N4,000.00 cost in favour of the respondent.
JUSTIN THOMPSON AKPABIO, JCA: I have had the privilege of reading in advance the lead judgment of my learned brother M.D. Muhammad, JCA, just delivered and have no difficulty in agreeing with him that this appeal should be dismissed.
This was a case in which the respondent as plaintiff had sued the appellant as defendant claiming the sum of N290,100.00 being balance of the value of goods sold to the defendant as a regular customer on credit; plus 5% interest from the date of judgment till the total liquidation of debt. The said claim was placed on the undefended list and supported by relevant invoices and an affidavit.
On receipt of the court processes, the defendant filed a notice of intention to defend plus a 14-paragraph affidavit in support. In the said affidavit two defences were put up as follows:-
(i) That the defendant did not know the plaintiff (UAC of Nigeria Plc.) as all his transactions has always been with “G.B. Ollivant.” In other words there was no privity of contract between him and the UAC of Nigeria Plc. (the plaintiff).
(ii) He conceded that G.B. Ollivant did supply goods to him worth N304,100.00 in January 1999. However on 24/9/99, the said G.B. Ollivant came and collected back 30 cartons of close-up toothbrush valued N250,920.00, promising to return them later, but which were never returned. Therefore out of the debt of N290,100.00 there should be a set off of N250,920.00 leaving a balance of N39,180.00 which he was willing to pay. A document purporting to be a receipt for the 30 cartons of close-up toothbrush was exhibited to the affidavit of defendant.
After a careful consideration of the affidavits of both parties, as well as all the exhibits attached to both affidavits; the learned trial Judge, Iyizoba, J. overruled the two defences of the defendant, holding first that G.B. Ollivant was only a Division of UAC of Nig. Plc. as indicated on all the exhibits, and not an independent legal entity. UAC of Nigeria Plc., was therefore properly before the court and could maintain the suit. As for the second contention that G.B. Ollivant on 24/9/99 collected 30 cartons of close-up toothbrush at a total cost of N250,000.00, he did not think that raised any triable issue as there was no link whatsoever even in defendant’s affidavit between the collection of those goods and the indebtedness of the defendant to the plaintiff. He therefore entered judgment for the plaintiff in the sum of N290,100.00 as claimed plus 5% interest from the date of judgment until final settlement.
The defendant was dissatisfied with the above judgment, and so appealed to this court still contending that “UAC of Nig. Plc.” was not a proper plaintiff in this case, and also that his notice of intention to defend disclosed a triable issue which should have warranted the suit being transferred to the general cause list.
My learned brother, JCA, in the lead judgment has resolved all the issues in favour of the respondent, and I agree with him. I only wish to add for emphasis that since all the invoices and other documents evidencing the transaction clearly bore the inscription:
“GBO/MDS – A DIVISION OF UAC OF NIGERIA PLC”
It clearly meant that GBO (ie. G.B. Ollivant) was an agent of UAC of Nigeria Plc., a disclosed principal in all the transactions with the defendant/appellant. It is our law that:
“Where the principal of an agent is known or disclosed, the correct party to sue for anything done or omitted to be done by the agent is the principal.”
See the cases of Leventis Tech. Ltd. v. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 224) 459, and Vassilev v. PAAS Industries Ltd. (2000) 12 NWLR (Pt. 681) 347.
I also agree with the learned trial Judge that there was nothing in appellant’s affidavit in support that the value of the 30 cartons of close-up toothbrush collected back by respondent was to be credited to appellant’s account. One should also observe that the goods supplied in the two invoices exhibits A & B used to support the claim were in respect of Bournvita and another commodity “Galos Blink” or something to that effect, and had no bearing with close-up toothbrush. It was the sum total of these two commodities (i.e. N170,140.00 plus N133,960.00) that came to N304,100.00 which was the amount claimed in this suit. The learned trial Judge therefore rightly held that there was no triable issue raised in the affidavit of appellant.
Lastly, I should draw attention to the case of Bature v. Savanah Bank of (Nig). Ltd. (1998) 4 NWLR (Pt. 546) 438 where the Court of Appeal (Kaduna Judicial Division) held per Ogebe, JCA, at page 446 that:
“The court should not allow a defendant who has no real defence in an action in the undefended list to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to.”
In view of the above, I too hereby dismiss this appeal with costs as awarded in the lead judgment.
SULE AREMU OLAGUNJU, JCA.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother, Muhammad, JCA., with the conclusion of whom I agree that this appeal should be dismissed for the reasons so eloquent and persuasive.
The appellant is challenging the judgment entered in favour of the respondent in the undefended list on two grounds. On the first issue, he argued that the respondent lacked the capacity to sue for a transaction between him and G.B. Ollivant. But he could not rebut the respondent’s evidence that G.B. Ollivant is a division of the UAC, the respondent.
Each of the two invoices on which goods were supplied to the appellant by G.B. Ollivant on 29/1/99, exhibits ‘A’ & ‘B’, attached to the plaintiff/respondent’s affidavit in support of the writ of summons have printed on it as the heading ‘GBO/MDS’, a division of UAC of Nigeria Plc.’ Similarly printed upon the note given to the appellant on 24/9/99 for the goods collected from him by the staff of G.B. Ollivant is the same inscription. The note was attached to the affidavit supporting the appellant’s notice of intention to defend.
The appellant did not deny the relationship between the respondent and G.B. Ollivant beyond his pleading in paragraph 2 of his affidavit supporting the notice of intention to defend in which he averred that ‘I do not know the plaintiff and did not transact any business with the plaintiff UAC Nigeria Plc.’ But he averred in paragraph 3 of the same affidavit that ‘I have been a customer of G.B. Ollivant for over 5years.’
If the transaction leading to the action on appeal was done by the appellant with G.B. Ollivant, a division of the respondent, which is not a juristic person but acting on behalf of the respondent as its agent the conclusion is justified as reached in the leading judgment that “a contract made by an agent within the scope of his authority for a disclosed principal is, in law, the contract of the principal and the principal not the agent is the proper person to sue or be sued upon such contract”. On that score, the argument of the appellant that the respondent has no capacity to sue him fizzles out as the desperate act of a drowning man clutching at straws.
Issue 2 is much more feeble. In it the appellant contended that out of his indebtedness of N290,100.00 to G.B. Ollivant the staff of that organization took back from him on 24/9/99 goods worth N250,920.00 leaving him with only the debt of N39,180.00 to pay to G.B. Ollivant. But on 28/9/99 the appellant in a note annexed to the respondent’s affidavit supporting her writ of summons as exhibit ‘C’ the appellant admitted owing the respondent the sum of N303,116.00 an amount which in the respondent’s letter of demand dated 20/3/2000, exhibit ‘E’ to the affidavit supporting the writ of summons, had been reduced to N290,100.00 the figure claimed in the writ of summons issued on 7/4/2000.
Thus on the appellant’s own showing the setting off against his indebtedness to the respondent of the value of goods worth N250,920.00 collected from him by the staff of G.B. Ollivant on 24/9/99 is an eye-wash and a brazen attempt to draw red-herrings across the trail. Judging by the affidavit evidence there is no substance whatsoever in the appellant’s contention that his indebtedness to the respondent raises a triable issue justifying the respondent’s action being transferred to the general cause list.
On the principle governing the resolution of whether a triable issue has been established to justify transferring a case to the general cause list Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737, is particularly instructive. In it the court juxtaposed, at page 744, the duty of the plaintiff with the burden which the defendant must discharge to support the contention favourable to each side. On the duty of the plaintiff the court said:
“…..a plaintiff asking the court to put a suit on the undefended list must show prima facie ground which will enable the court to come to the conclusion that there is no defence to the action…..e.g. where a defendant has admitted a liquidated debt in writing….”
In the instant case the admission of the respondent’s claims is affirmed by the appellant’s acknowledgment of indebtedness dated 28/9/99, exhibit ‘C’ attached to the respondent’s affidavit as later revised in the letter of demand, exhibit ‘E’ attached to the same affidavit. On how the defendant must discharge his burden, the judgment continues, the defendant
“…….must not show a mere fanciful defence but a defence which if not denied on oath or subject to cross-examination an impartial umpire will call for detailed facts on both sides…..The affidavit must equally disclose facts which will throw some doubt on the case of the plaintiff.”
Nothing can be more fanciful than the denial by the appellant of the respondent’s capacity to sue when the relationship between his creditor (G.B. Ollivant) and the respondent is conspicuously printed on the document he filed as a defence, viz exhibit ‘A’ attached to the affidavit supporting his notice of intention to defend. Indeed, the appellant was at pains to deny the obvious. Consistent with the appellant’s poverty of defence is the admission of his indebtedness to the respondent’s agent four days after he had concocted an excuse that his indebtedness had been substantially wiped off by returning certain goods to the creditor through its staff.
The requirements of the rules governing summary procedure of the undefended list cannot be satisfied by a barren declaration by a defendant that he has a defence to the action. This point is underscored by Okeke v. Nicon Hotels Ltd. (1999) 1 NWLR (Pt. 586) 216, 222, where this court admonished that:
“The court will certainly refuse to allow a defaulting defendant to defend an action brought on the undefended list if such a general averment is unsupported by particulars which if proved, would constitute a defence to the suit. See John Holt & Co. (Liverpool) Ltd. v. Henry Fajemirokun (1961) All NLR (Pt. 4) 492; E.N.D.C. v. Felix Durunna (1966-67) 10 ENLR 201………..”
The appellant who in a desperate bid to get the action transferred to the general cause list as if that list belongs to the realms of judicial backwater where rules and merits are consigned into oblivion is not unmindful of the weakness of his case that is devoid of any ‘triable issue’ or ‘bona fide issue for trial’ within the four walls of rule 9 of order 24 of the Anambra State High Court Rules, 1988. By his knack for sophistry the appellant strikes me as belonging to the fringe of visionary and optimistic litigants who believe that if a case can continue to be postponed a point may be reached, sooner or later, when a hopeless case can be transformed into a triumphant law-suit. Such being the idle scheming of the appellant he is up for a rude awakening that there is no royal way by which the case for which he has no defence can be given a new lease of life on the general cause list to the consternation of the respondent.
That is a vindication of the leading judgment compelling the inescapable conclusion that the judgment of the learned trial Judge is unimpeachable and I too will affirm it. In consequence, the appeal lacks merit and I dismiss it with like costs of N4,000 against the appellant.
Appeal dismissed.
Cases referred to in the judgment
Agbonmagbe Bank Ltd. v. G.B. Ollivant Ltd. (1961) 1 All NLR (Pt. 1) 116.
Bature v. Savanah Bank (Nig). Ltd. (1998) 4 NWLR (Pt. 546) 438.
C.C.B (Nig.) Plc. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt. 651) 19.
Carlen (Nig) Ltd. v. Unijos (2000) 19 WRN 167;(1994) 1 NWLR (Pt. 323) 631.
Dangardi v. Jibril (1997) 4 NWLR (Pt. 501) 590.
Dantata & Sawoe v. Hassan (2001) 14 WRN 84; (2001) 5 NWLR (Pt. 705) 129.
E.N.D.C. v. Durunna (1966-67) 10 ENLR 201.
Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558.
Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt. 412) 176.
Hi-flow Farm Ind. Ltd. v. Unibadan (1993) 3 NWLR (Pt. 290) 719.
Ilona v. Dei (1971) 1 All NLR 8.
Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737.
John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR (Pt. 4) 492.
Leventis Tech. Ltd. v. Petrojessica Ent. Ltd. (1992) 2 NWLR (Pt. 224) 459.
M.O. Kanu Sons & Co. Ltd. v. F.B.N. Plc. (1998) 11 NWLR (Pt. 572) 116.
Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283.
Madukolu v. Nkemdilim (2001) 46 WRN 1; (1962) 1 All NLR (Pt. 4) 587.
Niger Progress Ltd. v. NEL Corp. (1989) 3 NWLR (Pt. 107) 68.
Nishizawa Ltd. v. Jethwani (2001) 8 WRN 153; (1984) 12 S.C 234.
Okeke v. Nicon Hotels Ltd. (1999) 1 NWLR (Pt. 586) 216.
Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538.
Tiwell (Nig.) Ltd. v. Inland Bank (Nig). Ltd. (1997) 3 NWLR (Pt. 494) 408.
Unilag v. Aigoro (1985) 1 NWLR (Pt. 1) 143; (1985) 1 S.C 265.
Vassilev v. PAAS Ind. Ltd. (2000) 12 NWLR (Pt. 681) 347.
Rules of court referred to in the judgment
Anambra State High Court (Civil Procedure) Rules 1988 or. 3 r.1. & or. 24 r. 9.
