Effects Of Summary Judgement (III)

Learned counsel referred to the controversial paragraph 18 of the appellants’ affidavit in support of their notice of Intention to defend the action. He referred also to the preceding paragraphs 1-17 and the succeeding paragraphs 19-20 of paragraph 18 of the said affidavit and contended that it is the totality of the affidavit in support of the notice of intention to defend that will be construed to determine whether or not indeed there was an admission of  indebtedness by the appellants.

The appellants referred to the further affidavit filed by the respondent in reply to the affidavit of the appellants in support of their notice of intention to defend the action. They contended that it was in fact the obvious contradictions and facts that made the trial Judge hold that the affidavit evidence has not helped the court in resolving the difference, hence oral evidence should be adduced by both parties upon pleadings. He submitted that was the reason for the transfer of the suit from the undefended list to the general cause list.

The appellants referred to paragraphs 5,6,7,8,9 and 10 of the affidavit in support of the notice of Intention to defend to the effect  that the plaintiff dumped its low quality goods with the defendants to sell. In other words, that the 1st appellant was merely assisting the plaintiff to market low quality or sub-standard goods and contended that there is now here in the entire 7 paragraph further affidavit filed by the respondent that the averments were denied. He submitted that where a material fact in an affidavit is not controverted by the opposing party, then the facts are deemed admitted. He relied on Ejikeme v. Ikekwe (1997)    7 NWLR (Pt. 514) 592 at 598.

Learned counsel referred to Order 30 rules 1 & 3(1) of the Bendel State of Nigeria High Court (Civil Procedure) Rules. 1988 applicable in Delta State and submitted that for an averment or statement to be considered as an admission of fact by the court, it must be solemn and unequivocal as to the exact details of what is being admitted.

Learned counsel submitted further that an admission against interest envisages a conscious act, a direct and unequivocal acceptance of the state of facts put forward by the other party. It must be clear and definite acceptance of facts stated. If there is possibility of doubt or uncertainty or discrepancy, it definitely cannot amount to an admission. The appellants contended that the appellants’ affidavit as well as the respondent’s further affidavit obviously raised triable issues in the action which led the trial court to transfer the suit from undefended list to the general cause list.

The appellants referred to the mutually agreed method of offsetting the balance of the old outstanding in their account, based on the 80:20 formula. They contended that the respondent breached this agreement, and this is deposed to in their affidavit in support of their intention to defend the action.

The appellant further contended that the fair and just resolution of the issue at stake must necessitate the proper construction of the said 80:20 formula agreement and whether or not the contract has been determined by the act of the respondent. They submitted that this can only be done by full trial evidence but not on affidavit evidence.

Learned appellants’ counsel submitted that the court below was duty bound to consider and determine all issues placed before it for determination in order to find out whether there was clear and unequivocal admission. And by failing to consider other paragraphs of the appellants’ affidavit, the court below failed to consider and determine whether paragraph of the appellants’ affidavit, the court below failed to consider and determine whether paragraph 18 amounts to an admission and that even if it does, whether there was a defence disclosed in support of the notice of intention to defend. They relied on Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 2 NSCC 1184 at 1209-1215, (1986) 5 NWLR (Pt. 391) 1 per Aniagolu, JSC, Kotoye v. Saraki (1994) 7-8 SCNJ 524 at 560, (1994) 7 NWLR (Pt. 357) 414, per Onu, JSC.

In the final analysis, the appellants urged the court to set aside the decision of the court below and to restore the decision of the trial court transferring the matter to the general cause list for hearing and determination.

On this issue as formulated by the respondent, it was submitted that the respondent properly invoked the jurisdiction of the trial court to request for part judgment on the admitted sum after the transfer of the substantive matter to the general cause list.

Reliance was placed on Chrisdon Ind Co. Ltd. V. AJB Ltd (2002) 8 NWLR (Pt. 768) 152 at 187. The rule of court referred to in the said case was in pari material with Order 30 rule 1 of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable to Delta Sate which the respondent invoked under the general cause list. Learned counsel to the respondent contended that the trial Judge was not functus officio as the court believed,  after having transferred the matter to the general cause list. He submitted that indeed the general cause list gave the trial Judge the jurisdiction to entertain the said application. He cited Mosheshe General Merchant Ltd v. Nigeria Steel Products Ltd. (1987) All Nlr 309 AT 319, (1987) 2 NWLR (Pt. 55) 110, Per Aniagola, JSC.

Learned counsel conceded and submitted that it is settled law that an Order granting unconditional leave to defend or transferring the undefended list  to the general cause list is not appealable. He referred to section 241(2)(a) of the 1999 Constitution (as amended). He however contended that this was not an issue before the two courts below.

Learned counsel referred to paragraph 18 of the appellants’ affidavit in support of the notice of intention to defend the action of the respondent at the trial court and submitted that the court below was right to hold that paragraph 18 amounts to a clear and unequivocal admission of indebtedness by the appellants to the respondent.

He referred to the 80:20 formula alluded to by the appellants as a mode of repayment but contended that it done not derogate from the admission. He cited Kenfrank (Nig) Ltd v. U.B.N. Plc (2002) 15 NWLR (Pt. 789) 46 at 73. He submitted that the court below was right to allow the respondent’s appeal and grant its prayers. He urged the court to dismiss the appeal and affirm the division of the court below.

As earlier indicated, the respondent, as plaintiff commenced the action under the undefended list procedure pursuant to Order 23 of the High court (Civil Procedure) Rules, 1988 of old Bendel State which Rules were applicable to Delta State. The plaintiff filed a writ of summons to which an affidavit of 10 paragraphs was attached with various documents annexed as exhibits. In other words, the procedure under the undefended list, commences with the plaintiff’s application for the issuance of a writ of summons for a claim for liquidated money demand which application is to be accompanied by an affidavit setting forth the grounds upon which the claim is predicated and stating that in the belief of the plaintiff or dependent to the affidavit, the defendant does not have any defence to the action. It is entirely the duty of the High court to which the application is made to consider same ex parte  without hearing argument whether to hear the matter under the Undefended List or transfer same to the general cause list to be so dealt with accordingly. Where the court is satisfied, and this is subjective, if I may say so, that they are good grounds for believing that there is actually no defence to the plaintiff’s claim, enters the suit for hearing in the undefended list. The writ of summons will then be marketed as such and as date for hearing entered thereon. Thereafter, the entire processes are to be served on the defendant who if he desires to defend the action, must deliver to the Registrar  of the court a notice in writing of his intention to defend the claim. The notice must have attached to it, an affidavit disclosing defence on the merit.

However, after considering the affidavit in support of the defendant’s notice of intention to defend the action, the court may on the basis of the facts disclosed in the affidavit of the defendant grant leave to defend the action upon such terms as the court may think fit. Where leave to defend is granted by the court, the action is automatically removed from the Undefended List to the general cause list, bringing an end to the procedure for summary judgment. See: Ekulo Farms Ltd, & Anor v. Union Bank of Nigeria Plc (2006) 6 SCM 78 at 100, (2006) 4 SCNJ 164 (2006) All FWLR (Pt.319) 895: Dange Shuni Local Government Council v. Stephen Okonkwo (2008) All FWLR (Pt. 415) 1757 at 1775.

It is note worthy that upon deciding to retain the action on the undefended list or transfer same to the ordinary or general cause list, as a matter of fact, both parties are taken to have been heard by virtue of the affidavits filed along with various annexure, if need be, in compliance with the rules of court which were considered by the court before taking such decision either way.

In the instant case, after the defendants were served with the specially endorsed writ of summons of the plaintiff along with the supporting affidavit and other annexures, indicating that the claim against them was to be heard as undefended, the defendants filed a notice of intention to defend the suit with an affidavit of 26 paragraphs to which couple of documents were attached and marked as exhibits. The plaintiff in turn filed a further affidavit in reply.