IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ZONE 2 ABUJA

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1 IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT WUSE ZONE 2 ABUJA BEFORE HIS LORDSHIP: HON.JUSTICE D.Z. SENCHI COURT CLERKS: T. P. SALLAH & ORS. COURT NUMBER: 25 DATE: 22 nd January, BETWEEN:- SUIT NO: FCT/HC/CV/751/10 MRS. LONGI- GREY LAWRE PLAINTIFF AND 1. MALLAM IBRAHIM BAKOSHI DEFENDANTS 2. OASIS CAPITAL PORTFOLIO LIMITED JUDGMENT The Plaintiff commenced this suit by a writ of summons issued under the undefended list. The writ of summons is dated the 3 rd of February, 2010 and filed on the same date. On the service of the writ of summons and other Court processes on the Defendants, the Defendants filed a notice of intention to defend with an affidavit disclosing a defence. On the 30 th March, 2010, the matter came up for hearing. Pursuant to the notice of intention filed to defend the suit and the affidavit disclosing a defence by the Defendants, learned Counsel for the Plaintiff did not object to the suit being transferred to the general cause list. On the 2 nd December 1

2 2010 the suit was transferred from the undefended list to the general cause list. Pleadings were ordered to be filed and exchanged between the parties. Thus, by the statement of claim of the Plaintiff. The Plaintiff claims against the Defendants as follows:- 1. A declaration that the Defendants led the Plaintiff into extending the time of her investment and are thus responsible for whatever collapse they claimed occurred at the capital market. 2. A refund of the sum of N1, 000, Naira only being the principal sum invested with the 2 nd Defendant. 3. An interest of 17% per annum on the said N1, 000, naira from 2 nd April, 2008 till judgment. 4. An interest of 10% on the judgment sum till final liquidation of same. 5. The sum of N1, 000, only as general damages for breach of contract. The statement of claim and the hearing notice were served on the Defendants through its Counsel on the 26 th May, The evidence of service or proof of service of both the statement of claim and the hearing notices was filed in Court. The case was adjourned for the 29 th February, 2012, 29 th March, 2012 and 22 nd May, 2012 for hearing but the Defendants were not in Court neither were they represented by their Counsel one Mike Ugwuanyi Esq. The Defendants did not also file their statement of defence as ordered by the Court on the 2 nd December, Thus, on the 22 nd May, 2012, the Plaintiff opened its case for hearing. One witness testified on behalf of the Plaintiff. She is Mrs. Longi Grey Lawre as PW1. PW1 adopted her witness statement on oath as her evidence in this case. Five (5) Exhibits were admitted in evidence on behalf of the Plaintiff. At the close of the Plaintiff s case, the case was adjourned for cross examination and defence to the 2

3 19 th June, A hearing notice was issued and served on the Defendants. The proof of service was filed in Court. On the 19 th June, 2012, the Defendants were absent and their Counsel also absent. The case of the defence including cross- examination of the Plaintiff s witness, PW1 was foreclosed by the order of this Court on the 19 th June, The brief facts of the Plaintiff s case is that the Plaintiff, a widow and an employee of the University of Abuja is a Customers of the 2 nd Defendant, Oasis Capital Portfolio Limited while the 1 st Defendant is a broker or agent and an employee of the 2 nd Defendant. Then sometimes in 2008, the 1 st Defendant convinced the Plaintiff to invest in the 2 nd Defendant s regular portfolio Management tenure of six (6) months with effect from 2 nd April, 2008 TO September, The Plaintiff then completed the requisite form with the 1 st Defendant. The account opening form of 2 nd Defendant was received in evidence as exhibit 1. The Plaintiff having completed their requisite form, exhibit 1, on the 27 th March, 2008 invested the sum of N1,000, only with the 2 nd Defendant vide the 2 nd Defendant Zenith Bank account No The Plaintiff was issued a deposit slip by Zenith Bank Plc dated the 27 th March, The Zenith deposit slip was admitted in evidence as exhibit 1 (a). The agreement between the Plaintiff and the Defendants in the regular portfolio management is that after six (6) months, the Plaintiff was to be paid her principal sum invested plus the interest accrued on such sum. Then in September, 2008, at the expiration of the six (6) months tenure agreed by the Plaintiff and the Defendants the 1 st Defendant visited the Plaintiff in her office and requested for an extension of period of six (6) months to lapse in April, The Plaintiff agreed. At the end or expiration of the extension of six (6) months tenure and to lapse in October, The Plaintiff then refused. 3

4 Pursuant to the refusal of the Plaintiff to accede to the further extension of six months tenure, she wrote a letter to the 2 nd Defendant dated 3 rd July, 2009 demanding for payment of the principal sum and the accrued interest be paid into her unity bank Account. The letter of the Plaintiff to the Defendants is exhibit 2, The Plaintiff stated further that having served the Defendants the original copy of the offer on the 3 rd July, 2009, the Defendants refused to respond to the letter. The Plaintiff then wrote the 2 nd letter to the Defendants and same was received and acknowledged by the Defendants. The 2 nd letter dated the 11 th October, 2009 was admitted in evidence as exhibit 2 (a). The Plaintiff averred further that the Defendants did not respond to her second letter, exhibit 2 (a). Then on the 22 nd October, 2009 the Plaintiff s solicitor, J.Y Musa and company wrote to the 2 nd Defendant demanding that the Defendants pay the Plaintiff the principal sum invested and accrued interest within one week. The letter of the Plaintiff s solicitors is exhibit 3. According to the Plaintiff the Defendants did not respond to exhibit 3 nor took any step to address the situation by paying the principal sum and its accrued interest. As I said earlier, by the order of this Court, the Defendants defence was foreclosed. The case was therefore adjourned to the 26 th September, 2012 for address. Hearing notices was issued and served on the Defendants. The Plaintiff by the order of this Court filed its final address on the 2 nd October, 2012 out of time. The final address of the Plaintiff was served on the Defendants on the 26 th September, The endorsement of the Defendants at the back cover of the final address and the duplicate copy of the hearing notice were all filed in court as proof of service. The Court Bailiff also deposed to an affidavit of service as having served the Defendants. However before the 2 nd October, 2012 one Mike U. Ugwuanyi Esq. of Mike Ugwuanyi and Company on the 26 th September, 2012 wrote a letter to this Court paragraphs 2 and 3 of the letter states:- 4

5 When I came back from Court and saw the processes I called my learned friend in Lagos, Barrister Francis Ogunbowale, and informed him of the service of the process on us for onward passing to him. He informed me that the 2 nd Defendant who briefed him to defend the Defendants in the suit was wound up sometimes late last year or early this year he further informed me that he does not know the whereabouts of the 1 st Defendants and does not have any instructions from him to defend him in the matter after the winding up of the 2 nd Defendant. By the above information my office ceases to be the address of service of any processes in respect of this suit and the processes (Motion No. M/160/12, the written address and final address and hearing notice served on us are hereby returned In any case, on the 1 st November, 2012, the right of the Defendants to file final address was foreclosed by the order of this Court. Thus by the final address of the Plaintiff the following issue was distilled for determination:- Whether in view of the uncontroverted evidence of the Plaintiff, she is not deemed in law to have proved her case to be entitled to her claims? In arguing the sole issue, learned Counsel for the Plaintiff referred me to the statement of claim of the Plaintiff and the evidence of PW1 on oath to the effect that the Plaintiff would invest her money with the Defendants under regular portfolio management scheme for six (6) months tenure which would entitle her to the principal sum alongside the accrued interest. Learned Counsel for the Plaintiff also referred me to exhibit 1-3 of the Plaintiff and submitted that it is trite law that an uncontroverted evidence before any Court of law amounts to an admission of the truth and validity of such evidence Counsel relied on the case of MAINAGGE V GWAMMA (2004) ALL FWLR (pt 222) page 1617 at 1626 & SPDCN LTD V EDAMUKE (2009) ALL FWLR (pt489) page 407. According to learned Counsel for the Plaintiff that the over whelming evidence that is uncontroverted and unchallenged the Plaintiff has sufficiently prove its case 5

6 as required by law. Counsel for the Plaintiff therefore urged me to accept the uncontroverted evidence of the Plaintiff and he referred me to the case of ALHASSAN V ABU ZARIA (2010) ALL FWLR (pt538) page 962 at Finally learned Counsel for the Plaintiff submitted that the Defendants are deemed in law to have admitted the assertions of the Plaintiff as true hence the Plaintiff need not prove them. In conclusion, learned Counsel for the Plaintiff urged me to grant the reliefs claimed by the Plaintiff. Before I consider the issue distilled for determination in this case, I would want to still refer back to the processes filed in this case vis-a vis the Defendants. As I said earlier the Plaintiff commenced this suit by a writ of summons under the undefended list procedure. The Defendants through its solicitor Francis Ogunbowale Esq. of Francis Ogunbuwale & Co. of Jimade House 3 rd Floor, 2 Ojuelegba Road, Yaba Lagos filed a memorandum of appearance and a notice of intention to defend. He further filed an affidavit disclosing a defence on the merit. On the 30 th March, 2010, one Ben C. Okpe holding the brief of Francis Ogunbowale appeared on behalf of the Defendants. Further on the 20 th July, 2010 Ben. C Okpe Esq. Holding the brief of Mike Ugwuanyi Esq. appeared on behalf of the Defendants. Learned Counsel for the Defendants moved motion no No. M/3504/10 filed on 29 th April, The Motion on Notice was granted for the Defendants. Then on the 4 th April, 2010 the suit was heard under the undefended list. Arguments were taken from both parties. Indeed, the Defendants were represented by the principal partner of Mike Ugwuanyi & Co, Mike Ugwuanyi Esq. the court then ruled on the 2 nd of December, 2010 ordering the placing of this suit in the general cause list from the undefended list. Pleadings were ordered to be filed and exchanged by both parties. 6

7 The Plaintiff filed her pleadings but the Defendants did not. The records of the Court will show the many opportunities granted to the Defendants including several hearing notices served on them but they refused and neglected to either file statement of defence or defend the suit. However, the Plaintiff s Counsel in his final written address at pages 3 submitted as follows:- My Lord, the Defendants filed a statement of defence but never adopted their witness statement on oath in support of same, they did not support their allegations with any form of evidence and they did not challenge either the validity of the Plaintiff s claims nor did they in any way challenged the veracity of the Plaintiff s oral and documentary evidence before this Honourable Court. As far as the records of this Court in respect of this suit, the Defendants never filed any statement of defence or a witness statement on oath. The submission of learned Counsel for the Plaintiff is strange to me. It however appears to me that Counsel for the Plaintiff is mistaking the notice of intention to defend the suit and the affidavit of the Defendants disclosing a defence on the merits as the Defendants statement of defence. No and its wrong. Counsel for the Plaintiff may recall that on the 9 th of February,2011 this suit was dismissed pursuant to order 35 rules of this Court. Then on the 31 st March, 2012, an application to re-list was heard and granted. The Court stated as follows:- Having perused the processes filed by the Plaintiff/Applicant in this application for re-listing of this suit and having also looked at the records of proceedings and the antecedents of the Plaintiff/Applicant, I reluctantly grant this application and allow the parties to contest the matter on its merits. And from the records, it appears that even when the Court made the order of 29 th February, 2012, the Defendants Counsel last appearance was on the 9 th February, 2011 and apart from a purported letter dated 14 th March, 2011 in which the 7

8 Defendants, Counsel applied for certified True Copy of the ruling of 9 th February, 2011, no other process was filed by the Defendants. In otherwords, the Defendants wouldn t have filed their statement of defence earlier than the 29 th February, 2012 when the Plaintiff s application for extension of time to file statement of claim was granted. As I said earlier the Defendants last appeared in this matter on the 9 th of February,2011. I therefore disagreed with the Plaintiff s Counsel that the Defendants filed statement of defence and witness statement on oath but the witness statement on oath was not adopted. No statement of defence filed or if it was filed then it was not brought to this Court or it was alternatively filed in the law office of the Plaintiff s Counsel. Be it as it may, the issue for determination is whether the Plaintiff has proved her case and entitled to the claims. However before I proceed to consider the reliefs sought and the evidence led, it is trite law that where a Defendant fails to file a defence, judgment may be entered against the Defendant in favour of the Plaintiff on the basis of the averment of the statement of claim which should ordinary be taken as un-denied see MALLE V ABUBAKAR (2007) ALL FWLR (pt360) page 1569 at paragraphs G- A OKE V AIYEDUN, (1986) 4 SC 61 and MOSHOOD V BAYERO (2001) 52 WRN 42. In otherworld failure to file a statement of defence and evidence led on same places a minimal burden of proof on the Plaintiff. In the instant case the Defendants did not file their statement of defence neither did they lead evidence in their defence. The burden of proof therefore places on the Plaintiff to prove its claims is minimal. The first claim of the Plaintiff is a declaration that the Defendants led the Plaintiff into extending the time of her investment and are thus responsible for whatever collapse they claimed occurred at the capital market. Before considering the 8

9 evidence led on claim one, it is important to refer to paragraphs 4,5 6 and 7 of the statement of claim. The facts pleaded in these paragraphs are to the effect that the Plaintiff paid the sum of N1,000, to the Defendants as an investment placed under regular portfolio management for a tenure of 6months. The evidence of PW1 at paragraphs 4,5 6 and 7 supports paragraphs 4,5,6and 7 of her statement of claim. In fact PW1 produced exhibit 1 which is the account opening form of the Defendants. It is also in evidence that by exhibit 1 (a), the Plaintiff paid to the Defendant the sum of N1,000, through the Defendants Account with Zenith Bank Plc. The Defendants did not challenged the evidence of the Plaintiff and it is therefore deemed that the Defendants had admitted paragraphs 4, 5 6 and 7 of the Plaintiff s statement of claim. Thus therefore, from the evidence adduced by the Plaintiff there exist a contractual relationship between the Plaintiff and the Defendants whereby the Plaintiff invested the sum of N1,000, with the Defendants. The unchallenged evidence of the Plaintiff is that after six (6) months tenure, the Plaintiff will be entitled to the principal sum of N1,000, and the accrued interest. Furthermore PW1 gave evidence at paragraphs 7 and 8 of her witness statement on oath that the six (6) months tenure had expired and the Defendants requested for extension of another six (6) months, and yet at the end of the six (6) months extension, the Defendants did not pay the principal sum of N1,000, and its accrued interest. The Plaintiff as PW1 at paragraphs 9, 8 and 10 pleaded that she wrote to the Defendants demand letters for the payment of the principal sum invested in the regular portfolio management of the Defendants and its accrued interest. The facts pleaded by the Plaintiff is supported by her evidence at paragraphs 9, 10 and 11 of PW1 s witness statement on oath. The letters of demand are exhibits 2, 2 (a) and 3 9

10 respectively. The Plaintiff testified that the Defendants did not respond to exhibits 2, 2 (a) and 3 respectively. Thus in view of the Facts and evidence adduced before the Court, there is no dispute that the Defendants received from the Plaintiff the sum of N1,000, to invest in the regular portfolio management with a tenure of six (6) months and that the Defendants shall also pay accrued interest. It is also in evidence that the Defendants failed in their contractual obligations of repaying the principal sums of N1,000, and the accrued interest to the Plaintiff. Hence, therefore by exhibits 2, 2 (a) and 3 the demand letters for the re-payment of the principal amount which the Defendants failed to pay or refund to the Plaintiff s letters, the legal implication is that the Defendants have admitted the contents therein. See GWANI V EBULE (1990) 5 NWLR (pt149) page 201 at 217. The further legal implication is that evidence is not necessary on admitted facts or issues see OMOTAYO V NRC, (1992) 7 NWLR (pt254) page 471 at 485. In any case based on minimal of proof, the Plaintiff has adduced sufficient evidence to entitled her to clams 1 and 2. That is a declaration that the Plaintiff is entitled to the N1,000, principal sum invested in the regular portfolio management and accrued interest there from. Thus, I hold the view that the Plaintiff is entitled to a refund of the sum of N1,000, only being the principal sum invested with the Defendants and I so hold. Claims 3 and 4 are for interest of 17% per annum on the said one Million naira and 10% on the judgment sum till final liquidation of same. In respect of claim 3 which is for 17% interest per annum on the principal sum of N1,000,000.00, it is in evidence that the Plaintiff is entitled to accrued interest on her investment. There is no evidence nor facts pleaded by the Plaintiff as to the percentage of interest payable by the Defendants. In fact even exhibit 1, the account opening form did not specify the percentage as interest. In same breadth, 10

11 even in the final address filed by Counsel for the Plaintiff, he did not canvass any argument on interest chargeable on the principal sum of N1,000, However, it is trite that the 2 nd Defendant appears to be a financial institution that manages portfolio for its customers as in the Plaintiff in the instant case as pleaded at paragraphs 3 of the statement of claim. It is therefore expected to pay interest on investment funds. To that extend therefore, I hold the view that the Plaintiff is entitled to interest at the CBN rate of N17% per annum on the principal sum and I so hold. In respect of 10% interest on the judgment sum till final liquidation of the amount, the law and indeed the rules of Court recognizes post judgment interest. Thus, the Plaintiff is also entitled to 10% interest on the judgment sum till final liquidation of the principal sum and the accrued interest of 17% on the N1, 000, The interest payable by the Defendants, in my humble understanding arises due to the custom of the trade between the parties in the portfolio management see IDAKULA V RICHARDS (2001) 1 NWLR (pt 693) pages 122, paragraphs B-D & H-A. The final claim of the Plaintiff is for the sum of N1,000, only as general damages for breach of contract. The Plaintiff did not lead evidence or even pleaded facts that will entitle her to general damages. However the law is that general damages are damages which be given when the Court cannot determine any measure upon which they can be assessed except the opinion or the judgment of a reasonable man. A claim for general damages need not be proved strictly or particularized in the pleadings, yet a party seeking for general damages must furnish or provide the Court with sufficient material upon which the Court will base its assessment. See ARTRAH IND LTD V NBC I, (1997) 1 NWLR (pt483) pages 596 paragraphs E-f, OMONUWA V WAHABI (1976) 4SC 37. In the instant case, the Plaintiff did not place before me materials that will enable me base my assessment as to what the Plaintiff is entitled to as general damages. 11

12 The same thing goes with the final address of Counsel. Indeed Counsel did not make any submission on the matter under reference i.e general damages. In any event it is trite that general damages can be inferred and awarded from the facts of a particular case even where it is not claimed. In the circumstances therefore, the sum of N100, is awarded to the Plaintiff as general damages against the Defendants. In conclusion, having perused the facts as pleaded by the Plaintiff and the evidence led, including documentary evidence the Plaintiff, on the balance of probability or preponderance of evidence, the pendulum tilts in favour of the Plaintiff. I therefore believe the evidence of the Plaintiff. Accordingly the Plaintiff is entitled to claims 1-5 as specified in this judgment. Hence, judgment is hereby entered for the Plaintiff in respect of claims 1-4 and the sum of N100, general damages against the Defendants. That is the judgment of this Court. Parties:- Absent. E.E.Eko :- For the Plaintiff Defendant s Counsel Absent. Signed Judge 22/01/13 Signed Judge 22/01/13 12