Undefended List Procedure: Effect of Contradictions in Affidavits
Yaman Fuel Filling Station was legally mortgaged to the Appellant, as security for loans obtained by Yaman Nigeria Limited (YNL) from the Appellant. In a bid to recover YNL’s indebtedness, the Appellant exercised its right of sale. After negotiations, the Appellant agreed to sell the filling station to the Respondent. The sum of N300 million, representing the price for the filling station was paid by the Respondent to the Appellant. Further to the above, the Respondent demanded to be put in physical possession of the filling station. However, the Appellant was unable to put Respondent in physical possession, because YNL refused to give up possession, and also filed an action challenging the Appellant’s sale of the filling station to the Respondent. The Respondent subsequently, brought an action at the High Court of the FCT under the undefended list, seeking an order directing the Appellant to refund the purchase price of N300 million plus interest. The Appellant filed a notice of intention to defend the suit, and supported same with an affidavit. After a consideration of the processes filed in the suit, the trial Judge gave judgement in favour of the Respondent. The Appellant was dissatisfied, and filed an appeal at the Court of Appeal, which appeal was dismissed. Further dissatisfied, the Appellant appealed to the Supreme Court.
Issues for Determination 1. Was the Court of Appeal right, given the circumstances of the case, when it decided that transfer of the property coupled with physical possession, is a crucial ingredient of the purchase or sale agreement between Appellant and the Respondent.
2. Was the Court of Appeal right, when it held that, conflicts in affidavit evidence of the Appellant and Respondent, can be resolved with the aid of documentary evidence, without calling oral evidence to resolve the conflict in an undefended list application.
3. Was the Court of Appeal right, when it held that, the trial court did not violate the Appellant’s right to fair hearing when the trial High Court suo moto raised the issue of forfeiture of purchase price paid by the Respondent, and resolved same against the Appellant without affording the Appellant any hearing on the issue.
Arguments The Appellant’s counsel, while arguing issues 1 and 2 together, stated that since there were material contradictions in the affidavit evidence before the court, particularly on the issue of vacant possession of the property, the Court of Appeal ought to have allowed the appeal, and order that the case be transferred to the General Cause List of the trial court. He submitted that the contradictions in the affidavit, could not be resolved by documents. Counsel relied on JIPREZE v OKONKWO (1987) 3 NWLR (Pt. 62) Page 737. He further contended that, the Appellant never covenanted with the Respondent to transfer physical possession of the property to it, and as such it was not a crucial ingredient of the Purchase or Sale Agreement between the parties. On issue 3, counsel for the Appellant contended that, the trial judge raised the issue of forfeiture of the sum of N300 million paid by the Respondent to the Appellant, suo moto. He submitted that the issue was neither raised by the Appellant nor by the Respondent, and it only arose for the first time in the trial Judge’s judgement. In this regard, he contended that, the trial court ought to have called the parties to address the court on the issue, and submitted that, by resolving the issue of the forfeiture in favour of the Respondent, without affording the Appellant any hearing, the trial court has breached the fundamental right to fair hearing of the Appellant. Counsel relied on AKERE v GOV. OF OYO STATE (2012) 12 NWLR (Pt. 1314) Page 240.
In his argument, counsel for the Respondent contended that, the Court of Appeal was right in holding that there were no material conflicts in the affidavit of the parties. He further argued that, physical possession of the property by the Respondent, was crucial to the sale agreement between the parties. On issue 3, counsel to the Respondent submitted that, the counsel for the Appellant has interpreted the use of the word “forfeit” by the trial Judge wrongly and out of context. He submitted that, the trial Judge was making a point that, it would be unjustifiable for the Appellant to refuse to refund the Respondent’s money, after failing to hand over physical possession of the property. He further submitted that, even if the counsel for the Appellant had not misinterpreted the trial Judge, the use of the word “forfeit” did not occasion a miscarriage against the Appellant. He stated that, the decision of the trial Judge, was not based on the principle of forfeiture.
Court’s Judgement and Rationale The Supreme Court stated that, where facts deposed to in an affidavit are controverted on a crucial and material issue, a trial court ought to invite the parties to call oral evidence. When such situation arises under the undefended list, the court should transfer the case to the General Cause list for trial in the usual way. The Court referred to AKINSETE v AKINDUTIRE (1966) 1 ANLRP 147. The court noted that the conflict in the present matter, was on the issue of vacant possession. Though the Appellant denied, in its paragraph 12, 14 and 15 of its affidavit, ever promising the Respondent vacant possession, the court held that, the said paragraphs amount to ‘bare denial’. The court held that, depositions in an affidavit denying a fact should be robust. The court commented that, the conduct of the Appellant does not reflect that of a person that did not promise the Respondent vacant possession of the filling station. The Court further queried that, if the Appellant did not promise the Respondent vacant possession, why did staff of the Appellant go to the filing station to try and obtain physical possession for the Respondent, but were chased away by staff of Yaman Nigeria Ltd. The court held that, it was satisfied that the Appellant promised the Respondent vacant possession of the filling station. The court therefore, held that, there are no conflicts to be resolved in the affidavits, and there was thus, no reason. whatsoever to transfer the case to the General Cause list.
On issue 3, the Supreme Court held that, Section 36 of the Constitution of the Federal Republic of Nigeria 1999 provides for fair hearing, which is a mandatory provision that must be complied with by the courts when determining civil or criminal rights, obligation of a person. Once a party shows that he has been denied a fair hearing and it is found to be correct, a breach of his right to a fair hearing has occurred, and the trial or proceedings would be declared a nullity. The court referred to ISIYAKU MOHAMMED v KANO N.A. (1968) 1 All NLR P 42; AKANDE v STATE (1998) 3 NWLR (Pt 85) P 681.
The Supreme Court held that, the word ‘forfeit’ as used by the trial Judge, was interpreted out of context. The Apex Court stated that, what the trial Judge was saying in his judgement, was that if the Appellant was allowed to keep the purchase price for the filling station without the Respondent not having physical possession of the filling station, it would amount to the Respondent losing or forfeiting the purchase sum of N300 million. The court stated that, forfeiture was not an issue in the case, and that no fresh issue was raised by the trial Judge, by the use of the word ‘forfeiture’. The court thereafter, held that the Court of Appeal was correct in finding that the Appellant was not denied a fair hearing. Appeal Dismissed.
Representation
Prof Taiwo Osipitan, SAN with A.M Kayode, I.O Aniekwe (Miss) and Wole Aroge for the Appellant
Samuel O. Zibiri, SAN with Omotayo Ibrahim and Christian Ebenebe for the Respondent
Reported by Optimum Law Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)
“WHERE FACTS DEPOSED TO IN AN AFFIDAVIT ARE CONTROVERTED ON A CRUCIAL AND MATERIAL ISSUE, A TRIAL COURT OUGHT TO INVITE THE PARTIES TO CALL ORAL EVIDENCE. WHEN SUCH SITUATION ARISES UNDER THE UNDEFENDED LIST, THE COURT SHOULD TRANSFER THE CASE TO THE GENERAL CAUSE LIST FOR TRIAL IN THE USUAL WAY”