(2016) LPELR-41211(CA)

Transcription

1 L. O. YEMOS (NIG) LTD & ANOR v. UNITY BANK CITATION: HUSSEIN MUKHTAR CHIDI NWAOMA UWA In the Court of Appeal In the Ilorin Judicial Division Holden at Ilorin ON THURSDAY, 24TH MARCH, 2016 Suit No: CA/IL/135/2014 UCHECHUKWU ONYEMENAM 1. L. O. YEMOS NIGERIA LIMITED 2. MR. LAYIWOLA OYETUNJI Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal UNITY BANK PLC - Respondent(s) RATIO DECIDENDI - Appellant(s) 1. APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Whether an appellate Court will interfere with an exercise of discretion by a lower Court merely because it would have exercised its discretion differently if faced with the same facts "I have considered the submissions of the learned Counsel for the Appellants from pages 7-16 Paragraphs , I do without hesitation agree with the Applicants that the learned trial Judge was in error when he took into account irrelevant, extraneous and speculative issues while he considered the application as this is not in consonance with the principle governing the exercise of judicial discretionary power. However, it is trite that a discretion properly exercised by a trial Court cannot be interfered with a wave of hand just for the fact that the appellate Court is of the view that it would have exercised the discretion differently. See: Sanni v. Agara (2010) 2 NWLR (Pt. 1178) 371; NLC & Anor. v. P.M.B. Ltd (2012) 15 NWLR (Pt. 1324) 505."Per ONYEMENAM, J.C.A. (Pp , Paras. D-B) - read in context

2 2. COURT - DUTY OF COURT: Whether a court has a duty to act on unchallenged depositions "Indeed, in all cases, where sufficient facts have deposed in an affidavit, such facts constitute solemn averments rebuttable only by way of filing a counter affidavit. It is rather strange that facts deposed in an affidavit could be thrown on the floor of the Court for oral argument without countering those facts. It is indeed the duty of the Court to accept and act upon such uncontroverted depositions as true. The failure of the respondent therefore to file a counter affidavit places it in an intolerably weak position to satisfy the judge or Court that the depositions are not true. An affidavit sworn by counsel representing a party to the proceedings is unobjectionable by oral argument. The appellant, in this case, has supported his application with an affidavit while the respondent with his eyes wide open choose not to deny or controvert any of those depositions by filing a counter affidavit, the law is trite and elementary that the respondent is deemed to have accepted all the facts deposed in the affidavit. It was therefore fundamentally wrong for the learned trial judge to allow oral submissions against sworn affidavit depositions to becloud his sense of justice. It was a duty on the trial Court to accept the uncontroverted depositions as true."per MUKHTAR, J.C.A. (Pp , Paras. B-A) - read in context 3. COURT - POWER OF COURT: Position of the law as to the exercise of discretion of court to grant extension of time "The powers of a Court to grant an extension of time for a party to carry out an act which he is out of time by the rules of Court or statute to do is discretionary. It is equity-stemmed and as such guarded by the equitable principle that he who comes to equity must come with clean hands. See:Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1289) 17. It is never granted as a matter of course, but judiciously and judicially, considering relevant facts placed before the Court without allowing extrinsic or extraneous matters come into play in the decision, ensuring the material (facts) relied on for the grant agree with the principles of law while bearing in mind that the rules of Court were first and foremost made to be obeyed; and as such once there is any breach of the rule the Judge without leaning to his sentiments, his whims and caprices or allowing his hunch sway him will only rely on cogent, verifiable, compelling reasons to make him step out of the straight jacket of the rules to grant the application out of time."per ONYEMENAM, J.C.A. (Pp , Paras. F-E) - read in context 4. EQUITABLE REMEDY - INTERIM INJUNCTION: Guiding principles for the grant of interim injunction "In OJUKWU v. GOVERNOR, LAGOS STATE (1986) 3 NWLR (Pt. 26) the Court of Appeal held per Nnaemeka-Agu, JCA (as he then was) that where a Court has been misled in an affidavit for obtaining an interim injunction (an equitable relief as in the instant case), the trial judge on discovering the true facts is entitled to discharge the order. The corollary is that if the true facts are discovered before grant of an equitable relief it should be refused and the applicant's deception in the affidavit should be fatal to his application. This is because a person who comes to equity must come with clean hands. See AFOLABI v. MUDASHIRU (2010) 3 NWLR (Pt. 1181) 328."Per MUKHTAR, J.C.A. (Pp , Paras. D-A) - read in context

3 5. EVIDENCE - AFFIDAVIT EVIDENCE: Effect of not filing a counter affidavit or a reply to a counter affidavit "The material fact to be furnished by an Applicant seeking for extension of time is placed before the Court by way of affidavit evidence. Such evidence once unchallenged, uncontroverted, credible is admitted by the Court. Ogualaji v. A.G. Rivers State (1997) 5 SCNJ 24. The law requires that an affidavit evidence may only be challenged by a counter affidavit. Generally where there is the absence of a counter affidavit, that implies absence of a challenge to the fact and in law it means the fact is deemed to be correct and established. See: Honda Place Ltd. v. Globe Motors Holdings Nig. Ltd. (2005) 7 SC. (Pt. 111) 182; Lijadu v. Lijadu (1991) 1 NWLR (169) 627. The law forbids a party who failed to file a counter affidavit to the facts deposed to in support of an affidavit to orally and casually challenge the sworn facts in the affidavit. See: Ogualaji v. A.G. Rivers State (1997) 5 SCNJ 24."Per ONYEMENAM, J.C.A. (Pp , Paras. F-D) - read in context 6. EVIDENCE - AFFIDAVIT EVIDENCE: Instances where a counter affidavit is not required "While it is correct that the Respondent who did not file a counter affidavit could not challenge the facts therein; but ipso-facto the non existence of a counter affidavit does not outrightly shut out the Respondent from challenging the application nor does it compel the Court to exercise its discretion in favour of the Appellant without more. A Respondent who fails to file a counter affidavit is in law permitted to challenge an application on point of law. This in my view is what the learned counsel for the Respondent did at the trial Court when he submitted that the Appellants had not placed material facts to sway it to grant the application and also that the Appellants did not approach the trial Court with clean hands."per ONYEMENAM, J.C.A. (P. 27, Paras. C-E) - read in context 7. EVIDENCE - AFFIDAVIT EVIDENCE: Whether where there is absence of counteraffidavit to an affidavit evidence, the averments therein is deemed admitted; and qualities of affidavit evidence to be acted upon by the trial Court "Still on non filing of a counter affidavit by the Respondent, I have read the authorities cited by the Appellants and I agree with them on the general principle that as in this case, the failure of the Respondent to file a counter-affidavit, the facts should ordinarily be deemed correct and believed by the Court to exercise its discretionary power in their favour. However, as argued by the Respondent, this general principle is not absolute. The application to extend the time allowed by the rules for a procedural step to be taken being an equitable relief whoever that approaches the Court for the exercise of its discretion to grant such a relief must stand before the Court with clean hands, as he who comes to equity must come with clean hands. See: Afolabi v. Mudashiru (2010) 3 NWLR (Pt. 1181) 328; C. O. E. Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191) 423; Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1189) 17. This principle has eroded the absolute nature of the principle that once there is failure to file a counter affidavit, the Court is bound to accept the affidavit evidence since equity cannot stand injustice or unfair play. Affidavit evidence is therefore not sacrosanct. The facts deposed to therein is subject to evaluation by the Court to ascertain its veracity, cogency and authenticity. See: Okoye v. Centre Point Merchant Bonk Ltd (2008) 7-12 S.C. 1."Per ONYEMENAM, J.C.A. (Pp , Paras. F-A) - read in context 8. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Steps to be taken by a defendant when served with a writ for an undefended suit "Under Order 23 of the Kwara State High Court (Civil Procedure) Rules 2005, a defendant wishing to file notice of intention to defend an action under the undefended list procedure must do so not less than 5 days before the date fixed for hearing of the suit. He must also file with such notice of intention to defend, an affidavit showing defence on the merit."per MUKHTAR, J.C.A. (P. 6, Paras. A-B) - read in context

4 9. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Whether a claim for interest under the undefended list bears the same principles as in a claim under the general cause list "It has not been explained how the interest became accrued in respect of the facility of N7,500, and how the respondent came about the sum of N56,538, as flowing from the principal sum and accrued interest. The rate of interest was never specified by the respondent who had a duty to do so. The Supreme Court in SURVEYOR B. J. AKPAN v. A.I.P.I.C. Ltd. (2013) LPELR pg. SC. 96/ per GALADIMA, J.S.C. Delivering the lead judgment observed as follows "Generally, a claim for interest under the undefended list bears the same principles as in a claim under the general cause list. Any Plaintiff claiming interest under the undefended list must disclose in his affidavit how his right to interest accrues and how the rate thereof was arrived at." There is nothing in the affidavit of the respondent in support of the summons (on pages 3-5 of the Record of Appeal) disclosing the respondents' right to the interest, the rate of such interest and the criteria by which the rate was calculated. It was submitted for the appellants that an unspecified rate of claim of interest in respect of a loan facility cannot be said to be liquidated money demand that could be brought pursuant to Order 23 of Kwara State High Court (Civil Procedure) Rules 2005 without a clear evidence of the agreement to in respect of the specific interest rate and how the interest become accrued. In Dantama v. Unity Bank Plc (2015) LPELR CA/S/81/2014 Muhammed Shuaibu, J.C.A. held thus: "And since interest still has to be proved and assessed a decision which purported to consider interest on a liquidated money demand denies the jurisdiction to the Court under the undefended list procedure. A Court determining a claim under the undefended list procedure cannot expand its jurisdiction by assessing interest claimed in the suit since the procedure is available for speedy judgment on a liquidated money demand only or debt where the defendant has no defence. EKERETE v. U.B.A. PLC (2005) NWLR (Pt. 930) 401 at 414." This is more so when there is no shred of evidence from the respondent on how the interest become accrued from the original facility of N7,500,000 at an interest rate of 24% per annum to N56,538, Though the interest rate is subject to change(s) depending on money market conditions, but it was never altered to best of the appellants' knowledge. The provisions of Order 23 does not derogate from the provisions of Section 133 of the Evidence Act which requires the plaintiff to prove his entitlement to the reliefs sought for. InODU v. AGBOR-HEMESON (2004) FWLR (Pt. 188) 935 at , where Olagunju, JCA succinctly captures the point thus: "The two conditions must co-exist before the plaintiff can be entitled to judgment as of right. But this is with a further qualification that failure of the plaintiff to satisfy the primary condition relieves the defendant of the need to discharge the duty of what defence he has because of the more fundamental requirement of the principle of burden of proof in civil matters as stipulated by Sections of the Evidence Act which is tacitly incorporated as part of the procedure for summary trial of the undefended list variety but by no means eliminated by that made of trial. In other words until the Court is satisfied that the plaintiff's claims to which the defendant is invited to plead by filing a notice of intention to defend disclose a prima facie case the point cannot be said to have been reached where the burden of proof can, in law, be deemed to have shifted to the defendant within the principle enunciated in Elemo v. Omotude (1968) WMLR - 359, 361, i."per MUKHTAR, J.C.A. (Pp , Paras. B-B) - read in context

5 10. PRACTICE AND PROCEDURE - APPLICATION FOR EXTENSION OF TIME: Whether the relief of extension of time to do and act outside a period prescribed by law is granted as a matter of course "Secondly, that the depositions in Paragraphs 3, 4 and 6 of the Appellants affidavit are not correct to the knowledge of both the Court and the Appellants since the Court can take judicial notice of its processes. Yet these are the facts the Appellant relied on to seek for an equitable relief. This is why the Courts must even in the absence of a counter affidavit scrutinize and evaluate the facts that have been put forth by an applicant seeking a discretionary favour from the Court to ascertain whether it has before it, in the face of the breach of the rules of Court, a cogent and compelling reason that will sway the Court to step out of adhering strictly to the rules of Court and to grant an applicant the leave to take a procedural step outside the time allowed by the rules. See: Okoye v. Centre Point Merchant Bank Ltd. (supra). Where as in this case, an Applicant places before the Court facts bereft of truth, it will be wrong for a Court to aid the applicant by granting him leave to take step outside the time prescribed by the rules even if he is out of time for one minute. It is in accord with equity which stands for substantial justice not only to frown at an applicant who does not present true facts but to stand against such applicant."per ONYEMENAM, J.C.A. (Pp , Paras. B-C) - read in context

6 HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Kwara State Ilorin Judicial Division in Suit No: KWS/46/2014 delivered on 11th June 2014 wherein the learned trial judge entered judgment against the appellants under the undefended list procedure. On the 4th day of March, 2014, the respondent commenced an action under the undefended list procedure pursuant to Order 23 of the Kwara State High Court (Civil Procedure) Rules 2005, which ultimately culminated into this appeal. The originating processes were served on the 1st appellant L. O. YEMOS NIG. LTD through its secretary on behalf of both appellants as the 2nd Appellant had then traveled. Consequently, on the 1st April when the matter first come up before the Court below, the respondent reported her inability to serve the 2nd appellant personally with the originating processes. The respondent, through its counsel one A. M. Mohammed, Esq. asked for an adjournment to ensure service on the 2nd appellant. The Appellants subsequent filed an application for extension of time to defend the suit and attached 1

7 their proposed notice of intention to defend to the suit and their reasons for late filing being that the 2nd appellant had traveled when the service of the initiating processes was effected through the 1st Appellant. There was no counter affidavit filed against the application for extension of time to file the Notice of Intention to Defend. The Learned trial judge, however, refused the application and proceeded under the Undefended List procedure to enter judgment for the respondent for the principal sum and the cumulative interest, which computation was vehemently disputed by the Appellants. The appellants, therefore, felt disgruntled with that decision and proceeded to file a Notice of Appeal against it on the 11th day of June 2014, which was subsequently amended with leave. The Appellants were ordered to pay a total sum of N56,038, representing the principal and accrued interest over two loans granted them. The sum of N500,000 was paid to the Respondent by the Appellants while judgment was pending. Another sum of N600,000 was further paid by the Appellants to the Respondent on the 6th June 2015 to further reduce the appellants' 2

8 indebtedness to N55,438, as calculated by the appellants. The appeal is predicated upon the followings even grounds: GROUND 1 The lower Court erred in low by entering judgment against the defendants under the undefended list. GROUND 2 The learned trial Judge erred in law by granting the reliefs claimed by the respondent contrary to the provisions of the law. GROUND 3 The Learned trial judge misdirected himself by proceeding to enter judgment for the respondent without considering, evaluating or reviewing the defence of the appellants. GROUND 4 The learned trial judge erred in law when he ordered the appellants to pay to the respondent the sum of N56,538, (less N500,000) when there is no legal basis for the payment of the said amount. GROUND 5 The judgment is against the weight of evidence. GROUND 6 The learned Trial Judge erred in law by assuming jurisdiction in the case and by proceeding to deliver judgment when there was no service of the originating process on the 2nd appellant. GROUND 7 The learned trial Judge erred in law by refusing the appellants' application for 3

9 leave to defend the suit against the appellants. From the foregoing seven grounds of appeal, the appellants distilled two issues for determination thus: 1. Whether given the facts and circumstances of this case and the reliance of the Court on extraneous matters, the learned trial judge was not wrong in refusing the appellants, application for extension of time lo defend the suit. (Ground 7) 2. Whether having regard to the fact and circumstances of this case, and Section 133 of the Evidence Act the learned trial judge was right in granting the request of the respondent as undefended under the undefended list procedure when the claims as endorsed on the writ of summons is not a liquidated money demand and when there is no evidence justifying the claims of the respondent. (Grounds 1, 2, 3, 4 and 5) In the Respondent's humble opinion, the following three issues call for determination in this appeal: 1. Whether, given the materials before her, the lower Court's discretion to grant or refuse the Appellants' motion for extension of time to file their notice of intention to defend the suit was wrongly exercised to warrant on 4

10 interference by the Court of Appeal? (Ground 7). 2. Whether having regard to the law and materials on record, the lower Court was justified in hearing and determining the Respondent's, suit as undefended? (Grounds 1, 2 and 3). 3. Whether there were sufficient materials before the lower Court to support the judgment given in favour of the Respondent? (Grounds 4 and 5). The sixth ground from which no issue has been distilled has therefore been effectively abandoned and same is accordingly discountenanced. The appeal is determinable from the appellants' two issues. The respondent's arguments on issues 2 and 3 will be considered and determined along with the appellants' arguments on the second issue. ISSUE ONE: Whether given the facts and circumstances of this case and the reliance of the Court on extraneous matters, the learned trial judge was not wrong in refusing the appellants' application for extension of time to defend the suit. The learned Counsel for the Appellant submitted that the learned trial judge was wrong in refusing to allow the appellants to defend the suit by dismissing the appellants' application 5

11 for extension of time to file the notice of intention to defend and affidavit of defence out of time. Under Order 23 of the Kwara State High Court (Civil Procedure) Rules 2005, a defendant wishing to file notice of intention to defend an action under the undefended list procedure must do so not less than 5 days before the date fixed for hearing of the suit. He must also file with such notice of intention to defend, an affidavit showing defence on the merit. The appellants had filed their Notice of intention to defend the suit as well as an Affidavit showing defence on the merit out of time. (See pages 32 to 41 of the Record of Appeal). The belatedness in the filing of the Notice of intention to defend was owed to the fact that the 2nd appellant who is the Managing Director of the 1st appellant had traveled and thus not available when the process was served on the 1st Appellant. These facts were admitted by the respondent who filed no counter-affidavit to the appellants' motion. On 14/05/2014 the appellants sought to move the application to regularize the late filing of their process and paid the appropriate penalty 6

12 for late filing. However, the respondent's counsel orally opposed it without countering the depositions made in support of the application. The learned trial judge permitted the respondent's counsel M. A. Bello, Esq. to adduce facts from the bar contrary to the sworn depositions in the supporting affidavit. The narrations of the respondent's counsel on pages of the Record was as follows: (a) That the 2nd appellant did not travel; (b) That the originating process was received by the 1st appellant for the 2nd appellant; (c) That the appellants are known for giving the same reasons or excuses in other cases before other Courts including the Court of Honourable Justice Daibu. It is pertinent that these facts were not sworn but smuggled in from the bar by the learned counsel to the respondent. These unsworn facts from the respondent's counsel M. A. Bello, Esq. were used by the Court below against the sworn, unchallenged and uncontroverted depositions of the appellants in refusing and dismissing the appellants' application for leave to file their defence to the respondent's claim out of time. It was submitted 7

13 for the appellants that the lower Court had no justification whatsoever in refusing the application of the appellants for extension of time to file their processes out of time in defence of the suit as there were enough reasons in favour of granting same. The learned trial judge himself in refusing the application of the appellants' observed (on page 49 of the Record) thus:- "The Defendant/Applicant's counsel did not deny the fact that the same reason adduced before my brother Judge Justice Daibu is what he has adduced in his Paragraphs 3-5 of the defendants' averment in the case he claimed was struck out. Where lies the truth in what he is saying other than to buy lime or delay cases. Even in my Court in case of Hennkk Aluminium Company Limited v. Rufus Odeyemi and another in Paragraph 4 of the averment of Chief Rufus Odeyemi he was in elsewhere when he was called by his brother who informed him of the case. What all these means is that it is a traditional method of counsel employed to delay cases or buy time." It was submitted that the above findings clearly displayed the mind of the Court in struggling to refuse the appellants' 8

14 application and striving to justify its refusal by alluding to irrelevant facts to deny the grant of o simple application for leave to defend the respondent's claim. The learned counsel for the respondent, however, submitted that the learned trial judge is blameless in refusing the appellants' application for extension of time to file notice of intention to defend, because there was no material furnished by the appellants' to warrant an exercise of the discretion in their favour. See TAIWO OSINUPEBI v. QUADRI SAKA SAIBU & ORS (1982) 49 the Supreme Court of It was submitted for the respondent that in order to justify the exercise of the Court's discretion in extending time within which a procedural step has to be taken, there must be some material upon which to base the exercise of the Court's discretion. Where no material for such exercise has been placed before the Court would certainly give a party in breach of the Rules of Court uninhibited right to extension of time within which to take procedural steps set out in the Rules of Court. In OROBATOR v. AMATA (1981) 5 SC 169, the Supreme Court refused on application for extension 9

15 of time to file the appellant's brief of argument because the reasons adduced for the application were not sufficient to warrant an exercise of the Court's discretion in favour of the applicant. The learned counsel for the respondent contended that the appellants merely chose to whip up sentiments by submitting that the lower Court in refusing the application for extension of time did not consider that the claim was for the whopping sum of N56 million. The questions here, he said, are: did the appellants realize that the claim against them was for that whopping sum when they were delaying their briefing of counsel for over a month after service? Can a reasonable judge grant on indulgence in such circumstance of unexplained delay? The learned counsel for the respondent urged the Court to answer these posers by holding that the appellants did not anywhere in the affidavit in support of their application before the lower Court advance any cogent or convincing reasons to justify their over one-month delay in briefing counsel to defend them. The time-honoured rule is that where no explanation is offered, no indulgence should be given, in matters of 10

16 exercise of discretionary power of Court. See YAR'ADUA & 42 ORS v. C.P.C. & 5 Ors (2011) 10 SC The learned counsel for the respondent contended that the appellants had compounded their problems by basing their application before the lower Court on a pack of falsehood which further disentitled them to the Court's exercise of discretion in their favour. They invented lies before the lower Court and unrepentantly continued towing the same line through their counsel now labouring assiduously to castigate the learned trial judge and the Respondent's counsel in their brief of argument. In OJUKWU v. GOVERNOR, LAGOS STATE (1986) 3 NWLR (Pt. 26) the Court of Appeal held per Nnaemeka-Agu, JCA (as he then was) that where a Court has been misled in an affidavit for obtaining an interim injunction (an equitable relief as in the instant case), the trial judge on discovering the true facts is entitled to discharge the order. The corollary is that if the true facts are discovered before grant of an equitable relief it should be refused and the applicant's deception in the affidavit should be fatal to his application. This is because a person who 11

17 comes to equity must come with clean hands. See AFOLABI v. MUDASHIRU (2010) 3 NWLR (Pt. 1181) 328. Indeed, in all cases, where sufficient facts have deposed in an affidavit, such facts constitute solemn averments rebuttable only by way of filing a counter affidavit. It is rather strange that facts deposed in an affidavit could be thrown on the floor of the Court for oral argument without countering those facts. It is indeed the duty of the Court to accept and act upon such uncontroverted depositions as true. The failure of the respondent therefore to file a counter affidavit places it in an intolerably weak position to satisfy the judge or Court that the depositions are not true. An affidavit sworn by counsel representing a party to the proceedings is unobjectionable by oral argument. The appellant, in this case, has supported his application with an affidavit while the respondent with his eyes wide open choose not to deny or controvert any of those depositions by filing a counter affidavit, the law is trite and elementary that the respondent is deemed to have accepted all the facts deposed in the affidavit. It was therefore 12

18 fundamentally wrong for the learned trial judge to allow oral submissions against sworn affidavit depositions to becloud his sense of justice. It was a duty on the trial Court to accept the uncontroverted depositions as true. It so did, the reasons proffered by the applicant were compelling enough for grant of extension of time. It will otherwise tantamount to stampeding upon the rights of the appellants by completely shutting them out. This issue cannot but be resolved in favour of the appellants and against the respondent. Whether having regard to the fact and circumstance of this case, and Section 133 of the Evidence Act the learned trial judge was right in granting the request of the respondent as undefended under the undefended list procedure when the claims as endorsed on the Writ of Summons is not a liquidated money demand and when there is no evidence justifying the claims of the respondent. The learned counsel for the appellant argued that in this present case, the claim of the respondent before the lower Court was essentially an alleged cumulative interest purportedly charged by the respondent on a facility allegedly granted the 13

19 appellants. This is contained on page 2 of the Record of proceedings reproduced as follows; "The claimant's claim against the defendants jointly and severally is for the liquidated sum of Fifty-Six Million, Five Hundred and Thirty-Eight Thousand, Five hundred and Seventy Naira, Sixty-Three Kobo (N56,538,570.63) being the principal and accrued interest owed the claimant on account of overdraft facilities granted to and utilized by the 1st defendant on her current account No with the claimant's Murtala Mohammed Way, Ilorin Branch and due to the claimant but remaining unpaid by the defendants despite repeated demands including the claimant's solicitors' letter of demand of 12th July The said overdraft facilities were secured by deeds of legal mortgage over the 1st defendant's filling station covered by Certificate of Occupancy No. KW and the 2nd defendant's residential property known as No. 4, Owa Kajolo Street, GRA, Ilorin, covered by Certificate of Occupancy No. KW 2966." From the endorsed claim of the respondent as quoted above, it cannot be disputed that the claim of N56,538, essentially includes the purported 14

20 accrued but unspecified interest. This is corroborated by the depositions of the respondent in her affidavit on pages 3 and 4 of the Record of proceedings. It has not been explained how the interest became accrued in respect of the facility of N7,500, and how the respondent came about the sum of N56,538, as flowing from the principal sum and accrued interest. The rate of interest was never specified by the respondent who had a duty to do so. The Supreme Court in SURVEYOR B. J. AKPAN v. A.I.P.I.C. Ltd. (2013) LPELR pg. SC. 96/ per GALADIMA, J.S.C. Delivering the lead judgment observed as follows: "Generally, a claim for interest under the undefended list bears the same principles as in a claim under the general cause list. Any Plaintiff claiming interest under the undefended list must disclose in his affidavit how his right to interest accrues and how the rate thereof was arrived at." There is nothing in the affidavit of the respondent in support of the summons (on pages 3-5 of the Record of Appeal) disclosing the respondents' right to the interest, the rate of such interest and the criteria by which the rate 15

21 was calculated. It was submitted for the appellants that an unspecified rate of claim of interest in respect of a loan facility cannot be said to be liquidated money demand that could be brought pursuant to Order 23 of Kwara State High Court (Civil Procedure) Rules 2005 without a clear evidence of the agreement to in respect of the specific interest rate and how the interest become accrued. In Dantama v. Unity Bank Plc (2015) LPELR CA/S/81/2014 Muhammed Shuaibu, J.C.A. held thus: "And since interest still has to be proved and assessed a decision which purported to consider interest on a liquidated money demand denies the jurisdiction to the Court under the undefended list procedure. A Court determining a claim under the undefended list procedure cannot expand its jurisdiction by assessing interest claimed in the suit since the procedure is available for speedy judgment on a liquidated money demand only or debt where the defendant has no defence. EKERETE v. U.B.A. PLC (2005) NWLR (Pt. 930) 401 at 414." This is more so when there is no shred of evidence from the respondent on how the interest become accrued from the original 16

22 facility of N7,500,000 at an interest rate of 24% per annum to N56,538, Though the interest rate is subject to change(s) depending on money market conditions, but it was never altered to best of the appellants' knowledge. The provisions of Order 23 does not derogate from the provisions of Section 133 of the Evidence Act which requires the plaintiff to prove his entitlement to the reliefs sought for. InODU v. AGBOR-HEMESON (2004) FWLR (Pt. 188) 935 at , where Olagunju, JCA succinctly captures the point thus: "The two conditions must co-exist before the plaintiff can be entitled to judgment as of right. But this is with a further qualification that failure of the plaintiff to satisfy the primary condition relieves the defendant of the need to discharge the duty of what defence he has because of the more fundamental requirement of the principle of burden of proof in civil matters as stipulated by Sections of the Evidence Act which is tacitly incorporated as part of the procedure for summary trial of the undefended list variety but by no means eliminated by that made of trial. In other words until the Court is satisfied 17

23 that the plaintiff's claims to which the defendant is invited to plead by filing a notice of intention to defend disclose a prima facie case the point cannot be said to have been reached where the burden of proof can, in law, be deemed to have shifted to the defendant within the principle enunciated in Elemo v. Omotude (1968) WMLR - 359, 361, i. It is clear that the appellants herein have done all it takes on their part to deliver to the Registrar a notice in writing that they intend to defend the suit together with an affidavit disclosing a defence on the merit. They were entitled in those circumstances to obtain leave from the trial Court to defend the suit on such items as the Court may think just. The disclosure of a prima facie defence on the merit in the appellants' affidavit entitles them to an order giving them leave to defend. I cannot see justice done in shutting out the appellants and coercing them in to payment of a disputed amount without trial. That was tantamount to jungle justice to which a Court of justice must never subscribe. The Court below wrongly treated the claim of the respondent under the undefended list and granted the claim 18

24 given the facts and circumstances of this case. The second issue is similarly resolved in favour of the appellants, against the respondent. The resolutions of both issues in favour of the appellants clearly bring to light the creditable nature of this appeal. The appeal accordingly succeeds and is hereby allowed. Accordingly the judgment of the lower Court delivered on delivered on 11th June, 2014 is hereby set aside. In the stead thereof, the suit is remitted to the general cause list for trial on merit to afford the parties equal opportunity of ventilating their grievances. It is accordingly further ordered that the suit be remitted to the Hon. Chief Judge of Kwara State for assignment to another judge of the Court for trial under the general cause list. The appellants are entitled to costs assessed at One Hundred Thousand Naira (N100,000.00) against the respondent. CHIDI NWAOMA UWA, J.C.A.: I read in advance the draft of the judgment of my learned brother DR. HUSSEIN MUKHTAR, JCA. I agree that the appeal be and is hereby allowed for the comprehensive reasoning of my learned brother in the leading 19

25 judgment. I abide by the order made as to costs. UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the judgment just delivered by my learned brother HUSSEIN MUKHTAR, JCA. I agree with the conclusion therein. However I will wish to express my view on issue 1. Mr. Wahab Ismail for the Appellants submitted that the trial Court was wrong in refusing to allow the Appellants to defend the suit by dismissing their application for extension of time to file their Notice of intention to defend and an affidavit of defence out of time. He argued that the learned trial Judge was wrong to have allowed the Respondent's counsel to adduce facts from the bar to contradict the sworn deposition in the affidavit in support of the Appellants' application for extension of time to file notice of intention to defend out of time. The learned counsel submitted that facts deposed to in an affidavit could only be challenged by a counter affidavit. He referred to: Gambari v. Ilori (2003) All FWLR (Pt. 177) 901; Ogualaji v. A.G. Rivers State (1997) 5 SCNJ 24. He added that oral submission of counsel from the bar cannot displace sworn affidavit evidence. See: 20

26 Vossil v. Pass Industries Ltd. (2000) All FWLR (Pt. 19) 418 at 427; Maikudi v. Musa (2004) All FWLR (Pt. 230) From Paragraph 1.28 to 1.68 at pages 7-17 of the Appellants' brief Mr. Ismail argued strenuously that the trial Court took extraneous and irrelevant matters into consideration in refusing the Appellants' application. He relied on: Machido Ahmed v. Sokoto State House of Assembly (2002) 15 NWLR (Pt. 791) 239; Suleiman v. C.O.P. (2008) FWLR (Pt. 425) 1627; Mokwe v. Ezeuko (2001) FWLR (Pt. 38) 1275; Achibong v. Ita (2004) All FWLR (Pt. 179) 930; Enyika v. Shell B.P. (1997) 10 NWLR (Pt. 526) 651; Izevbigie v. Olobor (2005) All FWLR (Pt. 290) 1546; Akpabio v. State (1994) 7-8 SCNJ 429 etc. He submitted that contrary to the holding of the lower Court, if the learned trial Judge had examined and made use of the record, the facts in the Appellants' affidavit would not have been declared false as the record supports the Appellants' position that the 2nd Appellant was not available at the time the service of writ was effected on the 1st Appellants' company secretary as confirmed in the proceeding. He urged the Court to upturn the 21

27 decision of the trial Court refusing the Appellants' application for extension of time. In reaction, in the brief prepared by Mr. M. A. Bello, it was submitted for the Respondent that the trial Judge was right in refusing the application as no material was furnished by the Appellants to warrant an exercise of the discretion of the Court. He relied on:taiwo Osinupebi v. Quadri Saka Saibu & Ors. (1982) 7 SC. 49, Orobator v. Amata (1981) 5 SC 169; Nwora v. Nwabueze (2011) 15 NWLR (Pt. 1271). The learned counsel for the Respondent reproduced Paragraphs 2, 3, 4 and 6 of the Appellants' affidavit in support of their application to submit that the facts therein are false. He referred to pages 32 and 33 of the record. He contended that since the relief the Appellants sought are equitable reliefs, they are bound to come with clean hands or fail as was rightly followed by the trial Court. He referred to: Afolabi v. Mudashiru (2010) 3 NWLR (Pt. 1181) 328; C.O.E. Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191) 423; Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1289) 17 etc. The learned counsel in the Respondent's brief contended 22

28 that regardless of any other materials before the trial Court which the Appellants referred to as extraneous, the foregoing is sufficient to sustain the decision of the learned trial Judge refusing the application for extension of time. He cited: Ifelodun Local Government Area v. Bello (supra) Okoye v. Centre Point Merchant Bank Ltd. (2008) 7-12 S.C. 1. On failure of the Respondent to file a counter affidavit and the fact that the trial Court ought to have believed the facts therein as uncontroverted, the learned counsel submitted that this is not an absolute rule as exceptions abound. He relied on:okoye v. Centre Point Merchant Bank Ltd. (supra); Francis v. Citec Int'l Estate Ltd (2010) 16 NWLR (Pt. 1219) 243. The Court was finally urged to hold that the trial Court rightly and properly exercised its discretion in refusing the Appellants' motion for extension of time to file their Notice of Intentions to defend, and that the trial Court's decision ought not to be disturbed. He urged the Court to dismiss the appeal on this ground. The powers of a Court to grant an extension of time for a party to carry out an act which he is out of time 23

29 by the rules of Court or statute to do is discretionary. It is equity-stemmed and as such guarded by the equitable principle that he who comes to equity must come with clean hands. See:Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1289) 17. It is never granted as a matter of course, but judiciously and judicially, considering relevant facts placed before the Court without allowing extrinsic or extraneous matters come into play in the decision, ensuring the material (facts) relied on for the grant agree with the principles of law while bearing in mind that the rules of Court were first and foremost made to be obeyed; and as such once there is any breach of the rule the Judge without leaning to his sentiments, his whims and caprices or allowing his hunch sway him will only rely on cogent, verifiable, compelling reasons to make him step out of the straight jacket of the rules to grant the application out of time. The material fact to be furnished by an Applicant seeking for extension of time is placed before the Court by way of affidavit evidence. Such evidence once unchallenged, uncontroverted, credible is admitted by the Court. Ogualaji v. A.G. 24

30 Rivers State (1997) 5 SCNJ 24. The law requires that an affidavit evidence may only be challenged by a counter affidavit. Generally where there is the absence of a counter affidavit, that implies absence of a challenge to the fact and in law it means the fact is deemed to be correct and established. See: Honda Place Ltd. v. Globe Motors Holdings Nig. Ltd. (2005) 7 SC. (Pt. 111) 182; Lijadu v. Lijadu (1991) 1 NWLR (169) 627. The law forbids a party who failed to file a counter affidavit to the facts deposed to in support of an affidavit to orally and casually challenge the sworn facts in the affidavit. See: Ogualaji v. A.G. Rivers State (1997) 5 SCNJ 24. The learned counsel for the Appellant argued that the trial Court should have utilized and relied on the sworn depositions in the affidavit in support of the motion for extension of time (to file Notice of Intention to defend and affidavit showing defence on the merit); since the Respondent did not file a counter affidavit in challenge of the facts deposed to in the affidavit, and to have granted the application. The facts placed before the trial Court to sway it to exercise its discretion in his favour 25

31 is as per Paragraphs 2, 3, 4, 5 and 6 of the affidavit in support of Appellants' application in particular. The paragraphs which can be found at page 33 of the record are reproduced hereunder: "2. That I was in the office on 9th May, 2014 when the secretary of the 1st Defendant brought the copy of the Court process served on their company to my boss. 3. That in my presence my boss Olu Ajiboye, Esq. asked of the whereabouts of the 2nd Defendant from the secretary and he said he has traveled before they were served and I verily believe her. 4. That the secretary of the 1st Defendant informed me that Bailiff of this Court just brought copies of this process without Court order to their company. 5. That my boss told me and I verily believe him that the time to file Notice of intention to defend has expired since 10th May, 2014 and I verily believe him. 6. That the failure to file the said Notice of intention defend is not deliberate but due to the absence of Defendant who know the fact of this case." From the foregoing, the fact deemed admitted by the Respondent upon which the Appellants contend the learned trial judge 26

32 was duty bound to rely upon in the grant of his application, is that: the 2nd Appellant who is the Managing Director of the 1st Appellant had travelled and was not available when the process was served on the 1st Appellant and that it was impossible to know the facts of this case needed for the defence. While it is correct that the Respondent who did not file a counter affidavit could not challenge the facts therein; but ipso-facto the non existence of a counter affidavit does not outrightly shut out the Respondent from challenging the application nor does it compel the Court to exercise its discretion in favour of the Appellant without more. A Respondent who fails to file a counter affidavit is in law permitted to challenge an application on point of law. This in my view is what the learned counsel for the Respondent did at the trial Court when he submitted that the Appellants had not placed material facts to sway it to grant the application and also that the Appellants did not approach the trial Court with clean hands. To determine whether the Appellants had placed material facts before the Court to warrant it to exercise its discretion in 27

33 its favour, the contents of Paragraphs 2, 3, 4, 5 and 6 of the Appellants' affidavit in particular have to be examined. By the averment in Paragraph 2, it was only on 9th May, 2014 that the originating processes were sent to the Appellants' counsel. The seeming explanation for the delay is the 2nd Appellant who had traveled before the Appellants were served. The Appellants did not give particulars as to when he traveled, to where, so that the Court could be convinced that he could not be reached for the purpose of supplying the facts required could not be reached for the purpose of supplying the facts required for the preparation of the affidavit showing defence on the merits; and when he returned to make the trial Court know there was no inordinate delay after his return in affording their counsel with the processes they were served. From the affidavit evidence in support of the Appellants' application, it does appear to me that the Appellants lost sight of the fact that the grant of their application was not as of right; that in law they were obligated to explain the delay in filing their Notice of intention to defend and the affidavit showing 28

34 defence on its merits. In my view the Appellants did not supply flesh to the skeletal reasons they adduced for filing out of time. Since rules of Court are meant to be obeyed, the Appellants needed to adduce enough material facts upon which the trial Court would have based its exercise of discretionary power in extending the time for them to take the procedural step as required in law. It is my opinion that the Appellants' affidavit of fact lacked the necessary particulars that could convince and sway the mind of the trial Court to exercise its discretion in their favour. I therefore hold that the affidavit evidence failed to advance cogent and convincing reasons to justify their delay in briefing their counsel and their subsequent out of time to take the required procedural step. Accordingly, since there is no sufficient explanation for the delay, the time-honoured rule that no indulgence should be given in matters of exercise of discretionary power of Court in situations such as this was rightly followed by the trial Court. See: NLC & Anor v. PMB Ltd (2012) 15 NWLR (Pt. 1324) 505. Still on non filing of a counter affidavit by the Respondent, I 29

35 have read the authorities cited by the Appellants and I agree with them on the general principle that as in this case, the failure of the Respondent to file a counteraffidavit, the facts should ordinarily be deemed correct and believed by the Court to exercise its discretionary power in their favour. However, as argued by the Respondent, this general principle is not absolute. The application to extend the time allowed by the rules for a procedural step to be taken being an equitable relief whoever that approaches the Court for the exercise of its discretion to grant such a relief must stand before the Court with clean hands, as he who comes to equity must come with clean hands. See: Afolabi v. Mudashiru (2010) 3 NWLR (Pt. 1181) 328; C. O. E. Ekiadolor v. Osayande (2010) 6 NWLR (Pt. 1191) 423; Ifelodun Local Government v. Bello (2012) 4 NWLR (Pt. 1189) 17. This principle has eroded the absolute nature of the principle that once there is failure to file a counter affidavit, the Court is bound to accept the affidavit evidence since equity cannot stand injustice or unfair play. Affidavit evidence is therefore not sacrosanct. The facts deposed to therein is 30

36 subject to evaluation by the Court to ascertain its veracity, cogency and authenticity. See: Okoye v. Centre Point Merchant Bonk Ltd (2008) 7-12 S.C. 1. The learned counsel for the Respondent referred to pages 32 and 32 of the supplementary record and argued that in the light of said pages vis-à-vis the depositions in the Appellants' affidavit particularly the paragraphs reproduced above; the Appellants hands are not clean and so they approached the Court seeking equitable relief with their hands unclean and as such the trial Court rightly refused to grant their relief. By Paragraphs 32 and 33 of the supplementary Record, the 2nd Appellant was served and personally signed the Court process that was served on him on 8th April, This is to say as at 8th April, 2014; the 2nd Appellant who knew the facts the Appellants required for their affidavit to show defence on its merit was not only available by reason of the fact that he either did not travel as alleged by Paragraph 2 of Appellants affidavit or that he was back from this journey; but was fully aware of the claim of the Respondent. There is no where the affidavit of service or the 31