ANOKAM V GODSON DEVELOPMENT LTD

ANOKAM V GODSON DEVELOPMENT LTD


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON THURSDAY, 2ND AUGUST, 2018


Appeal No: CA/OW/135M/ 017
CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

MR. SAM ANOKAM

(APPELLANT)

AND

GODSON DEVELOPMENT LTD

(RESPONDENT)


PRONOUNCEMENTS


A. JUDGMENT
1. Judgment of Court – Nature of a judgment handed down under the Undefended List

“…Finally, it is trite law that a judgment handed down under the undefended list is certainly one on the merit. See Obaro vs. Hassan (2013) LPELR 20089 (SC).”Per AGBO, J.C.A. read in context

2. Setting Aside Judgment – Whether a judgment can be set aside for non compliance with Section 294(1) of the 1999 Constitution

“The appellant’s issue 3 is founded on a breach of S. 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He however completely turned a blind eye to S. 294(5) of the said Constitution which provides as follows:

– “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

There is absolutely nothing proffered by the appellant in his brief of argument to make me come to the conclusion that he has suffered any miscarriage of justice. The issues involved in this matter were determined by the trial Court purely on affidavit evidence. The issue of blurred memory does not arise. I agree that there was a breach of S. 294(1) of the 1999 Constitution, but S. 294(5) of the said Constitution was not established.”Per AGBO, J.C.A. read in context

B. PRACTICE AND PROCEDURE
3. Undefended List Procedure – Instances when the undefended list procedure would be appropriate

“The judgment of the trial Court is concise and clear. It was founded, as made out in the affidavits of the parties on the fact that the appellant collected from the Respondent the sum of N10,000,000.00 (Ten Million Naira) as purchase price for land (part payment) on behalf of the Ozim family. Not only did the Ozim family not receive this money but denied authorizing the appellant to sell their land. The appellant’s claim was clearly a liquidated money demand. The essence of the undefended list procedure is to prevent unnecessary delay. See G. M. O. Nworah & Sons Co. Ltd vs. Akputa (2010) 9 NWLR (pt. 200) 443. The Respondents affidavit in his affidavit at the trial Court in support of his application to place the case in the undefended list clearly set out his case that the matter was a liquidated money demand for which the appellant did not establish in his counter-affidavit any real defence. The appellant’s affidavit did not disclose a defence on the merit nor did it disclose a triable issue. It was right for the trial Court therefore to proceed on the undefended list procedure. I must emphasis that the Court will enter judgment for the plaintiff where as in this case the defendant raises a sham defence to gain time or elongate litigation. See G. M. O, Nworah supra.”Per AGBO, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY AGBO, J.C.A.


At the Imo State High Court in Suit No. HOW/11/2012, the Respondent claimed of the Appellant as follows: –

“1) The sum of N9,000,000.00 Nine Million Naira being money had and received by the defendant for a consideration that has failed.

2) The cost of action.

3) 20% interest on the said total sum of N9,000,000.00 (Nine Million Naira) from the 1st day of April, 2011 to the date of judgment and from the date of judgment to the final liquidation of the judgment debt.”

The Respondent as plaintiff had by motion ex-parte pursuant to Order 11 Rule 8, Order 7 Rule 5 (1&2) and Order 13 of the High Court Rules of Imo State High Court (Civil Procedure) Rules 2008 sought the order of Court to place the suit to the undefended list. The trial Court obliged the plaintiff. The application was predicated on the 24 paragraph affidavit reproduced hereunder: –

“1. That I am the Operations Manager of the Claimant Company, Godon Development Ltd, by virtue of which I am conversant with the facts of this case.

2. That I have the consent of the claimant, Godon Development Ltd., to depose to this affidavit.
3. That the claimant is a limited liability company registered under the relevant laws of the Federal Republic of Nigeria. The Claimant is ordinarily engaged in the business of acquiring land and developing same into housing units and Estates which it sells to interested members of the public. The claimant has his office at No. 19 Assumpta Avenue Owerri within the jurisdiction of this Court.

4. The defendant holds himself out as an Estate surveyor and valuer and agent. The defendant plies his trade under the name and style, Anokam & Associates, with office at No. 101 Lobo Street Owerri within the jurisdiction of this Court.

5. That on or about the 17th day of August, 2009, the defendant purporting to be acting as agent to the land owners introduced the claimant to a piece or parcel of land suitable for the development of a Housing Estate.

6. That the claimant later became aware that the said land situate at Avu in Owerri West Local Government Area of Imo State belongs to the family of one Ozim. A copy of the letter dated the 17th day of August, 2009 written to the claimant by the defendant introducing the said property to the claimant and captioned introduction and letter of offer of land suitable for the development of housing estate at Avu is herewith Exhibited as Exhibit A.

7. That the claimant made a counter offer to Exhibit A above in a letter dated the 27th day of August, 2009. The said letter signed by the Managing Director/Chief Executive Officer of the claimant is exhibited herewith as Exhibit B.

8. That the defendant in a letter dated the 4th day of September, 2009 made what he termed final offer wherein among other conditions the defendant demanded the sum of N35m (Thirty Five Million Naira) from the claimant being down payment of 20% of the purchase price of N350,000.00 per plot of about 500 plots. The said letter is exhibited as Exhibit ‘C’.

9. That at all times material to this suit, the defendant presented himself as the agent and acting for the Ozim’s family, owners of the said land, subject matter of the said transaction.

10. That as negotiation was still on going for the acquisition of the said property, the claimant made a deposit of Ten Million Naira being part payment for the said land. The deposit was made through the defendant via a Finbank Cheque dated the 2nd day of January, 2010. The said cheque was honoured through the defendant’s account with the same Finbank.

11. That the claimant pursuant to the need for professional input in the negotiations to buy the said land retained the s e r v i c e s o f o n e R . C . N w a n e b u & C o . L e g a l Consultants/Solicitors to represent her in further negotiation. The said R. C. Nwanebu in a letter dated the 6th day of February, 2010 and addressed to the Ozims family stated therein the final counter offer of the claimant. The said letter is herewith exhibited as Exhibit D.

12. That in apparent reaction to Exhibit D, the defendant wrote another letter dated the 18th day of February, 2010 addressed to the claimant and titled sale of land at Avu/Obosima Owerri West LGA, Imo State, wherein the defendant chronicled the historical facts of the transaction and therein insisted that he claimant should complete the payment of the N35m (Thirty Five Million Naira) while making allusions that he was the agent and represents the Ozim’s family, owners of the land. The defendant in the said letter also admitted the receipt of the said N10,000,000.00 (Ten Million Naira). The said letter is Exhibit E.

13. That in swift response to the defendant’s letter, Exhibit E, the Learned representative of the claimant, R. C. Nwanebu & Co. wrote the defendant confirming the claimant’s counter offer. The said letter dated the 23rd day of February, 2010 is exhibited F.

14. That negotiations for the purchase of the said land eventually collapsed when in a letter dated the 3rd day of March, 10 written by the defendant to the learned representative of the claimant, R. C. Nwanebu & Co. The defendant refused to accept the claimant’s counter offer. The said letter is Exhibit G.

15. That in a letter written by the Ozim’s family to the claimant dated the 4th day of March, 2010, the Ozim’s family denied that the defendant ever acted as their agent. The family in the said letter also disclosed that the defendant did not pay over to the family the said deposit of N10,000,000.00 (Ten Million Naira) paid by the claimant through the defendant for the said land. The said letter written to the claimant by the Ozims family is herewith Exhibited as Exhibit H.

16. That based upon the revelation that the defendant did not pay over the said N10,000,000 to the Ozims family as part payment for the said land. Claimant instructed its legal representative to recover and demand for the refunds of the said N 0,000,000.00 (Ten Million Naira) from the defendant. The said demand letter dated 8th day of March, 2010, written by R. C. Nwanebu & Co. is Exhibited I.

17. That the defendant, despite the series of entreaties that followed Exhibit I, refused, neglected and failed to refund the said N10,000,000.00 (Ten Million Naira).

18. That following further demands and entreaties by the claimant and his legal representative, the defendant refunded the sum of N1,000,000.00 (One Million Naira) only.

19. That upon paying the said sum of N1,000,000.00 (One Million Naira), the defendant dropped out of sight, became elusive and incommunicado. The defendant started avoiding the claimant and would not even answer to the telephone calls of the claimant’s representatives. The defendant has also turned down, avoided and absented himself from the several invitations to meetings fixed to find the best option to refund the money. The defendant would also escape on noticing that the claimant’s officers were coming to see him.

20. That following this hide and seek attitude of the defendant, the claimant retained the services of another layer O. U. Ulasi of O. U. Ulasi and Associates who on the 31st day of January, 2011 wrote another demand letter to the defendant. The said demand letter is Exhibit J. The defendant did not reply nor reacted in any manner to the said letter. Defendant refused to collect the letter after reading the acknowledgement copy sent by speed post.

21. That the learned counsel found it very difficult to serve Exhibit J on the defendant personally. The lawyer ended up dropping the said letter at the defendant’s office. The defendant remained adamant and never reacted or replied the said letter or refunded any other sum of money to the claimant. Thus the balance owed the claimant by the defendant remained the sum of N9,000,000.00 (Nine Million Naira) together with interest thereon.

22. That personal service on the defendant of all the processes in this suit will be very difficult if not impossible in the circumstances and that pasting of the originating processes as well as all other processes in this suit on the door of the defendant’s office at NO. 101 Lobo Street, Owerri will definitely get to the notice of the defendant.

23. That I honestly believe that the defendant has no defence to this claim same being clear unambiguous and unassailable. The proposed writ of summons is Exhibit K.

24. That I make this oath in good faith conscientiously believing the contents to be true and correct in accordance with Oaths and Affirmation Act, 2004.”

Upon the service on the Appellant of the Respondents ex-parte motion and the affidavit in support, he filed his notice of intention to defended together with a 26 paragraph affidavit reproduced hereunder:

“1. That I am the principal partner of Anokam & Associates of No: 101 Lobo Street Owerri Imo State.

2. That my attention has been drawn to a process served by substitution but brought to me by my Neighbour on Friday where it was pasted on his own apartment.

3. That I have read through the order of the Honourable Court entering the suit to an undefended list, the Affidavit in support of the motion and all the accompanying exhibits thereto.

4. That paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 24, are hereby denied.
5. That I have a good defence to the suit as the Claimant misinformed the Honourable Court in the aforementioned paragraphs.

6. That paragraph 4 of the affidavit is correct only to the extent that the Defendant is a qualified and registered Estate Surveyor a valuer and accredited Agent of No. 101 Lobo Street Owerri.

7. That contrary to the averments of the aforesaid paragraphs, I firmly and sincerely aver that I am not owing Claimant/Applicant N9,000,000.00 (Nine Million Naira)

8. That the Claimant/Applicant was the person in breach of our contract agreement by not paying me fully the agreed amount of N35m (Thirty Five Million Naira) as initial payment.

9. That the alleged N9,000,000.00 (Nine Million Naira) was forfeiture in breach of the terms of our contract agreement which Claimant/Applicant failed to meet up after much notices

10. That the Ozim’s family authorized me to act on their behalf.
11. That I was authorized in writing to act on their behalf in respect of Ozims farm land at Obosima; by the family head of Ozims. The written authority is hereby Exhibited AA1.

12. That acting on the aforesaid written authority, I made a presentation to the Claimant in respect of the farm land as shown in Exhibit “A” of the Affidavit.

13. That based on the aforesaid authority, we agreed at the rate of N360,000.00 (Three Hundred and Sixty Thousand Naira) per plot X 500 plot X 500 plots totaling N175,000,000.00 (One Hundred and Seventy Five Million Naira) and later settled that Claimant should make a deposit of N35 Million (Thirty Five Million Naira) as a down payment of 20% of the purchase price.

14. That Claimant could only pay the sum of N10 Million (Ten Million Naira) and promised to complete the balance of N25 Million (Twenty Five Million Naira) within two weeks from the date of payment.

15. That I waited several weeks for the Claimant to complete the aforesaid agreed N35m (Thirty Five Million Naira) to no avail hence in a letter dated May 21st, 2010, I gave the Claimant final notice to complete the N35 Million (Thirty Five Million Naira) as agreed or forfeit the part payment of N10 Million (Ten Million Naira). The letter is herein exhibited as Exhibit “AA2”.

16. That when the Claimant was unable to complete the balance payment of N25m (Twenty Five Million Naira) he engaged Mr. Tito Asekhome former Commissioner for Housing and Urban Development who happens to be our bosom friends to intervene and plead with me to balance him N7million (Seven Million Naira) and take N3million (Three Million).

17. That I refused and rather told him that I will take N5 Million (Five Million Naira) representing my 5% agency fee from him as a concession and refund him N5 Million (Five Million Naira), which the Claimant accepted as the best option.

18. That based on the agreement, I remitted N1 Million (One Million Naira) to the Claimant through First Inland Bank Account No. 301430000273501 remaining balance of N4 Million (Four Million Naira) the letter dated 25th August, 2010 is hereby exhibited as Exhibit “AA3”.

19. That after the payment aforesaid, I told the Claimant to arrange for a meeting where we will formally terminate the contract in writing.

20. That I have never been on the run as alleged but has held series of meeting with the Claimant, some at the instance of Dr. S. J. Ozims some at the instance of the Claimant and some at my instance to resolve the matter.

21. That there has been series of correspondences between me and the Claimant, between Claimant’s Solicitors and my Solicitors to the extent that Claimant resorted to blackmail threats and intimidation.

22. That when I discovered that the Claimant wanted to reap me off, I made him to know that my accepting 5% of Agency fees was for peace to rain not inclusive of the money, I spent in surveying the farmland and procurement of other families farmlands at his instance the letter dated 23rd February, 2011, indicating that I spent N3 Million (Three Million Naira) is hereby exhibited as Exhibit “AA4”.

23. That I am not owing the Claimant any money including

N9 Million (Nine Million Naira), rather the Claimant is owing me the expenses incurred during the transaction which he single handedly breached.

24. That the claimant made me loose all the prospective buyers who were eager to buy the land at higher consideration but the Claimant withheld me.

25. That up till now, the Claimant is in possession of the survey plan of the property which I spent money to procure.

26. That I make this Oath in good faith to the best of my knowledge in accordance to the Oath Act 1990.”

In a considered judgment, having refused to place the suit in the general list, the court held as follows – “if the defendant has no authority to contract for the Ozim family, then he has no authority to demand and receive any payment from the claimant either as part payment of a proposed purchase price or as a commission which would run foul of his uberima fidae.” He thereafter discountenanced the Respondent’s claim for interest and entered judgment for the Respondent in the sum of N9,000,000.00.

Dissatisfied with this judgment, the Appellant filed this appeal. On 4-12-17, this Court regularized the Appellant’s amended notice of appeal filed on 30-11-17. The said amended notice of appeal contains eight grounds of appeal set down hereunder –

GROUND OF APPEAL

GROUND ONE (1)

ERROR IN LAW: The learned trial judge erred in law when he gave full judgment in favour of the Respondent ordering the Appellant to pay the sum of N9000,000 (Nine Million Naira) when the case was not heard on merit.

GROUND TWO (2)

ERROR IN LAW: The Honourable learned trial Court erred in law when he proceeded to give judgment based solely on the Affidavit of the Respondent. Ignoring the relevant paragraphs in the Counter Affidavit of the defendant that rebutted issues it relied upon against the appellant.

GROUND THREE (3)

ERROR IN LAW: The Honourable trial Court erred in law

when it denied the Appellant the opportunity to be heard by proceeding to give judgment on the suit without placing it on the general cause list.

GROUND FOUR (4)

ERROR IN LAW: The trial Court erred in law when he relied on Exhibits AA1 and H to arrive at its decision without taking into consideration other conflicting facts that requires explanation.

GROUND FIVE (5)

ERROR IN LAW: The learned trial Court erred in law when it held that from the exhibits filed by both parties, it appears to me that at no time did an agreement crystallized between the claimant and the defendant.

GROUND SIX (6)

ERROR IN LAW: The learned trial Court erred in law when it dismissed the suit of the defendant on ground that he acted outside his scope of Authority and mandate in Exhibit AA1.

GROUND SEVEN (7)

ERROR IN LAW: The learned trial Court erred in law when it gave judgment 15 months beyond the statutory provision of Section 294(1) the Constitution 1999.

GROUND EIGHT (8)

ERROR IN LAW: The learned trial Court erred in law when he suo motu raised the issue of Agency and discredited the Authority of the defendant without asking parties to address him on it.

From these grounds of appeal, the Appellant distilled the following issues for determination to wit: –

ISSUES FOR DETERMINATION

ISSUE ONE

WHETHER FROM THE CIRCUMSTANCE OF THIS CASE THE SUIT WAS PRO RLY BROUGHT UNDER ORDER 11 RULES 8(1) ORDER 7 RULES 5(1) IMO STATE (CIVIL PROCEDURE) RULES 2008.
GROUNDS 1, 2, 3 AND 4.

ISSUE TWO

WHETHER THE LEARNED TRIAL COURT WAS RIGHT TO DISMISS THE APPLICATION OF NOTICE OF INTENTION TO DEFEND, RELYING ON EXHIBITS AA1 AND EXHIBIT H WHICH WAS NOT AN ISSUE BEFORE IT WITHOUT CONSIDERING OTHER SURROUNDING FACTORS, CONTENTIOUS FACTS AND CONFLICTING AFFIDAVIT OF PARTIES.

GROUNDS 5, 6 AND 8

ISSUE THREE

WHETHER THE JUDGMENT DELIVERED AFTER THE MANDATORY/STATUTORY 90 DAYS CONTRARY TO SECTION 294(1) OF THE CONSTITUTION OF NIGERIA 1999 WAS NOT NULLITY

GROUND 7

These issues were adopted by the Respondent.

The judgment of the trial Court is concise and clear. It was founded, as made out in the affidavits of the parties on the fact that the appellant collected from the Respondent the sum of N10,000,000.00 (Ten Million Naira) as purchase price for land (part payment) on behalf of the Ozim family. Not only did the Ozim family not receive this money but denied authorizing the appellant to sell their land. The appellant’s claim was clearly a liquidated money demand. The essence of the undefended list procedure is to prevent unnecessary delay. SeeG. M. O. Nworah & Sons Co. Ltd
vs. Akputa (2010) 9 NWLR (pt. 200) 443. The Respondents affidavit in his affidavit at the trial Court in support of his application to place the case in the undefended list clearly set out his case that the matter was a liquidated money demand for which the appellant did not establish in his counter-affidavit any real defence. The appellant’s affidavit did not disclose a defence on the merit nor did it disclose a triable issue. It was right for the trial Court therefore to proceed on the undefended list procedure. I must emphasis that the Court will enter judgment for the plaintiff where as in this case the defendant raises a sham defence to gain time or elongate litigation. See G. M. O, Nworah supra.

Finally, it is trite law that a judgment handed down under the undefended list is certainly one on the merit. See Obaro vs. Hassan (2013) LPELR 20089 (SC). I find no merit in appellant’s issues 1 & 2.

The appellant’s issue 3 is founded on a breach of S. 294(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He however completely turned a blind eye to S. 294(5) of the said Constitution which provides as follows:
– “The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Sub-section (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”

There is absolutely nothing proffered by the appellant in his brief of argument to make me come to the conclusion that he has suffered any miscarriage of justice. The issues involved in this matter were determined by the trial Court purely on affidavit evidence. The issue of blurred memory does not arise. I agree that there was a breach of S. 294(1) of the 1999 Constitution, but S. 294(5) of the said Constitution was not established.

This appeal fails and it is hereby dismissed with N100,000.00 costs to the Respondent.

OREDOLA, J.C.A.

The draft of the lead judgment just delivered by my learned brother, Hon. Justice Raphael Chikwe Agbo, JCA, was made available to me. I have duly perused the same and I am in complete agreement with the well articulated reasoning and conclusion contained therein. I also agree with the orders made therein.

AWOTOYE, J.C.A.

I agree.

Appearances:

C. A. NNADI For Appellant(s)

J. I. OGAMBA WITH HIM I. F. DIKE For Respondent(s)