⦿ CASE SUMMARY OF:
Faro Bottling Company Limited v. Lawrence Osuji (2001) – CA
by PipAr Chima
⦿ LITE HOLDING
For a claim to be placed in the undefended cause list, the defendant must not have shown any reasonable defence to the suit.
⦿ AREA OF LAW
Undefended cause list;
Faro Bottling Company Limited
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
* FOR THE RESPONDENT
The defendant is a company which manufactures soft drinks with the trade name “Africola” and has its head office and factory located in Jimeta – Yola, Adamawa State.
Plaintiff said the defendant, through its employers approached him on 12/1/94 and 20/1/95 with a request that he should borrow the company 200 and 100 empty crates of Africola on the two respective dates. He said it was agreed that in consideration of the deal, the defendant was to supply the plaintiff 15 (fifteen) crates of Africola soft drinks, liquid contents only every month for the period his 300 crates of empty Africola bottles remained in the possession of the defendant.
That the said agreement was accordingly reduced to writing and signed by parties, the manager of the defendant having signed same for and on behalf of the company. The plaintiff said that in compliance with the agreement, defendant supplied him with 15 (fifteen) crates of the liquid contents of Africola drinks in the months of January, February, March, April, June and July, 1995 but that it defaulted to so supply him in the month of May, 1995 and subsequent to the July, 1995 supply.
The failure he said persisted for 36 (Thirty-six) months up to and including the month of June, 1998. The total number of crates due to the plaintiff and outstanding against the defendant therefore amounted to 540 (Five Hundred and Forty). That defendant failed and/or refused to supply the plaintiff with the soft drinks and as well failed to return to him his empty crates. The plaintiff valued each of the 300 empty crates which he loaned to the defendant at ₦400.00. As well, he gave the value of the liquid contents of 540 crates as ₦108,000.00 each crate having cost ₦200.00.
In the event, he claimed against the defendant a total sum of (₦228,000.00). In order to vindicate his rights, the plaintiff took out a writ of summons under the undefended list claiming the said sum.
Now on the date fixed for hearing, learned counsel for the plaintiff moved the court to hold that the affidavit defendant company filed and relied upon did not disclose defence on the merit. Learned counsel for the defence vehemently argued the contrary. In a reserved ruling delivered on 1/12/98, the learned trial Judge found that the affidavit in support of the notice of intention to defend disclosed no defence on the merit. He therefore refused to give the defendant leave to defend the suit. He accordingly found for the plaintiff and gave judgment in his favour and in terms of his writ. This spurred up the appeal.
1. Whether the learned trial Judge was right when he determined the suit under the undefended list.
2. Whether the defendant’s affidavit in support of notice of intention to defend did not disclose a defence on merit.
3. Whether from the contents of exhibits I and II there was an agreement or contract between the plaintiff and the defendant.
⦿ RESOLUTION OF ISSUE(S)
ISSUES 1 & 2 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. From the respondent’s claim it is crystally clear that his case is a demand which can be determined with exactness based on what the respondent claimed was an agreement he reached with the appellant. The amount respondent claimed is capable of ascertainment by mathematical computation and thus qualifies as a liquidated claim. It will therefore be wrong to contend that the respondent’s claim was not in the nature of liquidated money demand as learned counsel for the appellant argued indeed beyond saying that the claim was not in the nature of liquidated money demand no reason was given to justify the assertion. I find it absolutely irrational for the appellant to believe that it is only the company that can say what the costs of the liquid contents of the soft drinks and empty crates were at the time of the action. In any event, the appellant failed to say what the costs were if indeed there is conflict with the respondent’s evidence. Evidently therefore, appellant had failed to justify his view that respondent’s claim before the court below was not a liquidated money demand.
ii. Whereas the respondent averred at paragraph 4 of his supporting affidavit that he gave the appellant 300 empty crates of Africola drinks on loan, appellant denied receiving any such loan. See paragraph 3 of its affidavit. Respondent’s averment that appellant had agreed to supply him with fifteen (15) crates of Africola drinks (liquid contents only) monthly for the period deponent’s empty crates remained in the possession of the appellant was strongly denied. In answer to that and as contained in paragraphs 5 to 10 of the appellant’s affidavit, the appellant sought to show that respondent’s exhibits I and II are no documents that can be relied upon as agreement to give rise to binding contractual terms. Appellant is on a very strong wicket. Unlike a conventional written agreement, Exhibit 1 of the respondent is an unloading control form. It has not shown any contracting parties what the contract was all about and what consideration there is to any of the contracting parties remain as silent as blowing muted trumpet. It is just an “Unloading Control” form duly signed by an undisclosed store keeper and undisclosed salesman/customer. It is perhaps apt to reproduce the document.
iii. Exhibit II on the other hand is a note prepared to “Whom it may concern” by an undisclosed person. The signatory neither said what the 300 crates deposited by the respondent was all about nor even referred to Exhibit 1. The learned trial judge himself and rightly too in my view made the following pertinent finding while delivering his judgment. Said he: “The issue for determination here is whether Exhibit 2 which has the heading ‘To Whom It May Concern’ can be regarded as the contract agreement between the parties. It is my considered view that the document as it is would not pass the test of what in law amounts to a contract document, since in law a contract has to be executed and or signed by the contracting parties.” Having found Exhibit II which forms the basis of the respondent’s claim not to be a contract agreement at all, the learned trial Judge ought to have found that the appellant had, in his affidavit, disclosed facts to justify placing the suit under the general cause list.
iv. From the above it seems clear that the appellant had deposed to facts in its affidavit evidence which would prima facie afford it a defence to the action since the respondent’s case was built around exhibits I and II which the learned trial judge himself found not to constitute contract agreement. As the ruling of the court below turned out the defence put forward by the appellant was disregarded. This is against the true spirit of order 23 of the rules of the court below.
2. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The above issue easily resolves itself when the finding of the court below is taken into consideration. Specifically talking about Exhibit II, the learned trial Judge found correctly too in my view that it was not a contract document. Since as the learned trial Judge found, the exhibit contained nothing to show that it was “executed and/or signed” it must retain its status as a worthless document. Which is to say that it is no document evidencing any valid and existing agreement.
ii. From the document itself, what is clear is that the writer intended to express the “REMARKS” he had about 100 empty crates he received from a Lawrence Osuji which he transferred from “load in” to load out form No. 035086. But what the 100 empty crates he received from Lawrence Osuji represent remains uncertain. Certainly, Exhibit I is no contractual document and the document itself has not pretended to be one.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Mangaji, JCA
On the whole, this appeal succeeds and is hereby allowed. The ruling of Lawi J. delivered on 1/12/98 is hereby set aside and in its place an order is hereby made that leave is granted to the appellant to defend the Suit NO. ADSY/77M/98. The said suit is hereby removed and placed on the general cause list for hearing before a Judge of the High Court of Adamawa State other than Lawi J. Appellant is entitled to costs which I assess and fix at ₦4,000.00
⦿ CONTRIBUTIONS OF OTHER JUSTICES TO ISSUE(S)
⦿ REFERENCED (STATUTE)
⦿ REFERENCED (CASE)
Okambah Ltd. v. Sule (1990) 7 NWLR (Pt. 160), (1990) 11 SCNJ 1 Kawu JSC while adverting to the contents of an affidavit in support of the notice of intention to defend pointed out thus:- “In determining whether a defendant has good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend it is not necessary for the trial Judge to decide at that state whether the defence have been established. What is required is simply to look at the facts deposed to in the counter affidavit or indeed the facts averred in the of defence where applicable and see if they can prima facie defence to the action.”
⦿ REFERENCED (OTHERS)
Black’s Law Dictionary, Sixth Edition said of “liquidated demand”, in the following: “…Amount claimed is a “liquidated demand,” if it is susceptible of being made certain in amount by mathematical calculations from factors which are or ought to be in possession or knowledge of party to be charged.”
⦿ NOTABLE DICTA
Be that as it may, the crucial issue to consider is whether the appellant’s affidavit in support of notice of intention to defend did disclose a defence on the merit. This has to be determined from the background of the facts in the affidavit in relation to the respondent’s affidavit. I must however say that in the determination whether a defendant has a good defence to the action the state was not reached for the trial court to find whether the defence had proved its case. All that is required of the defendant is to disclose in the affidavit a prima facie case why he should be let in to defend the suit. – Mangaji, JCA. Faro v. Osuji (2001)
⦿ SIMILAR JUDGEMENTS