‘Heydays of technicalities are gone forever’

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION  HOLDEN AT JABI  BEFORE HIS LORDSHIP:  HON. JUSTICE .Y. HALILU  COURT CLERKS: JANET O. ODAH & ORS  COURT NUMBER: HIGH COURT NO. 32  CASE NUMBER: SUIT NO: CV/458/16  DATE: TUESDAY 6TH JUNE, 2017   BETWEEN  ABUBAKAR D. RABIU …..…..PLAINTIFF/APPLICANT  AND 1. SAM […]

IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION 

HOLDEN AT JABI 

BEFORE HIS LORDSHIP:  HON. JUSTICE .Y. HALILU 

COURT CLERKS: JANET O. ODAH & ORS 

COURT NUMBER: HIGH COURT NO. 32 

CASE NUMBER: SUIT NO: CV/458/16 

DATE: TUESDAY 6TH JUNE, 2017  

BETWEEN 

ABUBAKAR D. RABIU …..…..PLAINTIFF/APPLICANT 

AND 1. SAM EBONNI  DEFENDANTS 

2. PRO-QUIP NIGERIA LTD  

Plaintiff/Applicant not in court and not represented. 

Defendants also not in court  

Court:- Case is for Judgment and this is the Judgment of this court. 

JUDGMENT 

The Plaintiff brought this action pursuant to Order 21 of the Rules of this Honourable Court. The said writ was marked undefended by this Honourable court on the 26th February, 2017 and 14th March, 2017 was fixed as return date. 

By the endorsement on the writ, the said writ was served on the Defendant on the 3rd February, 2017. 

The case of the Plaintiff as distill from the affidavit in support of the writ is that sometime in December 2010, the 1st Defendant came to his house in Abuja and requested that he borrow him the sum of N2,250,000.00 (Two Million, Two Hundred and Fifty Thousand Naira) only to enable him work on a road contract he secured from the Maritime Academy of Nigeria, Oron, Akwa Ibom State. 

That he transferred the money to the 2nd Defendant’s account through Zenith Bank account No. 1001870135 on the 21st December, 2010. 

Plaintiff avers that the Defendant requested for additional sum of N10, 000,000.00 (Ten Million Naira) only to enable him complete the work on the road as the company had informed him that he would only be paid on  timely completion of the contract. 

That he transferred the sum of N9,000,000.00 (Nine Million Naira) only to the account of the 2nd Defendant on 30th December, 2010 and subsequently the sum of N1,000,000.00 (One Million Naira) on the 17th of January, 2011 through his Zenith Bank account. The Plaintiff statement of account is annexed as Exhibit “ADR1” 

Plaintiff aver that 1st Defendant promised to repay the loan after 2 months and he failed to do so despite several demands. 

Plaintiff maintained further that after several demands, on the 19th 

May, 2014 1st Defendant transferred the sum of N1,000,000.00 (One Million Naira) only to his Diamond Bank Account No. 0022125494 remaining the balance of N11, 250,000.00 (Eleven Million, Two Hundred and Fifty Thousand Naira) only. 

Plaintiff statement of account from Diamond Bank is annexed as Exhibit “ADR2”. 

Plaintiff claims from the Defendants as follows:- 

1. The sum of N11, 250,000.00 (Eleven Million, Two Hundred and  Fifty Thousand Naira) only being balance of the loan/credit  facility granted the first Defendant which amount was paid in  the name and through the bank account of the 2nd Defendant and  which debt they have failed, refused and or neglected to pay  despite several demands. 

2. 10% interest on the total judgment sum from the date of judgment to the date of final liquidation of the judgment sum. 

3. N2,000,000.00 (Two Million Naira) only being the professional fees paid to the counsel to prosecute this claim as a result of the failure of the Defendant to repay the debt despite several demands. 

4. Cost of this action. 

Upon service, the Defendant filed notice of intention to defend the action on merit. 

In his notice to defend the action, an affidavit of 6 paragraphs deposed to by one Kehinde Mustapha a litigation clerk in the law firm of the Defendant was filed. 

It is the deposition of the Defendant that the Plaintiff has not made out any claim against the Defendants before this Honourable court. 

That the Plaintiff is not a registered licensed money lender and that the court lack jurisdiction to entertain the matter. 

Defendant avers that Exhibit “ADR1” and” ADR2” attached to the Plaintiff’s affidavit are not certified true copies of the original in the bank’s custody. 

It is the deposition of the Defendant that Plaintiff claim is contentious and ought to be transferred to the general cause list that the sum sought to recover from the Defendant is Plaintiff equitable contribution to the contract the Defendant obtained from Maritime Academy of Nigeria vide Exhibit “A” and “B” annexed. 

Defendant avers that, it was agreed by the partners, that profit of the business shall be share amongst the parties. And that despite completion of the project, and subsequent valuation and interim payment certificate… the money was not paid. 

That the Maritime Academy of Nigeria is indebted to the Defendant to the tune of N58,017,723.46 (Fifty-Eight Million, Seventeen Thousand, Seven Hundred and Twenty-Three Naira, Forty-Six Kobo). 

Defendant avers that a letter of demand was written to the Maritime Academy of Nigeria but to not avail. 

Court was urge to transfer the case to general cause list. 

Undefended list is a procedure meant to shorten hearing of a suit where the claim is for liquidated money demand see UBA PLC VS JARGABA (2007) 5 SC1. 

An action begun under the undefended list, is no less a trial between the parties and where a Defendant is properly served, he has a duty to disclose his defence to the action. ATAGUBA & CO. VS GURA (2005) 2 SC (pt. 11) 101. 

However, notice of intention supported by affidavit so filed must condescend to issues stated in affidavit in support of the claim of the Plaintiff. A mere empty affidavit in support of the Notice of Intention to defend which disclose no defence shall certainly not sway the Court into transferring the matter to general cause list for trial.  

Simply put, the Defendants affidavit must condescend upon particulars and should as far as possible, deal specifically with the Plaintiff’s affidavit and state clearly and concisely what the defence is and what facts and document are relied on to support it. 

Such affidavit in support of Notice of Intention to defend must of necessity disclose facts which will, at least throw some doubt on the Plaintiff’s case. 

A mere denial of Plaintiff’s claim or liability or vague insinuation devoid of evidential value does not and will not suffice as facts, which will throw doubt on Plaintiff’s claim. UBA PLC VS JARA GABA (Supra). 

It is the law that for a claim to be heard under the undefended list, it must firstly be for a liquidated money demand, including account stated to cognizable under the undefended list procedure thus excluding for e.g unliquidated damages as in claim in Torts and special damages arising howbeit from any cause of action as they must be specially pleaded and proved strictly. 

Secondly, the claim for a debt or liquidated money demand must be supported by an affidavit verifying the claim, and thirdly the affidavit must contain a deposition to the effect that in the belief of Plaintiff, Defendant does not have any defence to the claim. 

See A. STC VS QUORUM CONSORTION (2009) 9 NWLR (Pt. 1145). 

It is worthy of note that the Defendants upon been served with the 

Plaintiff’s writ under undefended list, filed their notice of intention to defend this action with affidavit in line with the provisions of Order 21 of the Civil Procedure Rules of the High Court of FCT, Abuja. 

It is the counter affidavit of the Defendants that the amount in issue is a Plaintiff equity contribution to the contract. And that the statement of account annexed to the writ is not a certified true copy. 

I must observe here that the hay days of technicalities are gone forever. The court is now more interested in doing substantial justice than relying on technicalities which can only lead to injustice. The judicial process malfunctions and is discredited when it is bogged down by technicality and is manipulated to go from technicality to technicality and thrives on technicality. ANPP VS REC AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 at 548. 

It must be noted that the Defendants have not denied the fact that they are owning Plaintiff the amount claimed on the face of the writ, 1st Defendant’s contention only is that the statement of account annexed to the writ was not certified. 

In the cause of adumbration, 1st Defendant is also alluding to the fact that Plaintiff is not a licensed money lender to have lent money to 1st Defendant. 

Qst… Did Plaintiff allude to the fact that he is a money lender in any part of his claim or affidavit? 

Ans… No. 

All through, Plaintiff maintained that he borrowed money to the 1st Defendant which was paid at different periods into 2nd Defendant’s account and that Defendant was only able to pay back N1,000,000.00 (One Million Naira) out of N12,250,000.00 (Twelve Million, Two Hundred and Fifty Thousand