Background
The appellant, Mr. Moses Raphael, was employed by Ubamacco Ventures Limited (“the respondent”) to sell Cadbury products. In March 2012 he admitted converting ₦878,022 of the respondent’s funds into his personal use without authorization and gave a written undertaking (Exhibit 3) to repay the sum by 10 March 2012. He failed to honor the undertaking and, following a demand by letter dated 12 June 2013, still did not refund the amount.
Consequently, the respondent sued for conversion before the Plateau State High Court on 26 June 2013, claiming:
- ₦878,022, the sum converted;
- 10% post-judgment interest until payment;
- costs of the action.
The suit was placed on the Undefended List. The appellant filed a preliminary objection and a notice of intention to defend supported by an affidavit, which the trial court found did not disclose any defence on the merits. On 27 July 2015, judgment was entered for the respondent. The Court of Appeal, Jos Division, on 2 August 2017 (CA/J/157/2016), affirmed that decision. The appellant thereafter appealed to the Supreme Court via an amended notice filed 27 February 2019, deemed properly served on 29 November 2021.
Issues
The Supreme Court distilled two core issues for determination:
- Whether the affidavit in support of the appellant’s notice of intention to defend disclosed a defence on the merits sufficient to remove the suit from the Undefended List and require a full trial.
- Whether the courts below erred by entering judgment for ₦878,022 without deducting ₦110,000 the appellant allegedly paid to the Police on behalf of the respondent.
Ratio Decidendi
The Court’s decision rests on these legal principles:
- Undefended List Procedure: Under Plateau State High Court (Civil Procedure) Rules, Order 23, a defendant served with a writ marked “Undefended List” must file a notice of intention to defend supported by an affidavit disclosing a defence on the merits. A mere preliminary objection or unsubstantiated averments are insufficient to trigger a full trial.
- Defence on the Merits: An affidavit must raise a triable issue, supported by evidence, to warrant transfer from the Undefended List to the general cause list. General denials without proof amount to no defence.
- Evaluation of Evidence: The trial court must weigh all evidence, accepting the more credible and probative material. Concurrent findings of trial and appellate courts enjoy a presumption of correctness unless dislodged by strong contrary evidence.
- Finality of Supreme Court Orders: Under Section 235 of the Constitution, the Supreme Court cannot sit on appeal against its own orders except where a prior decision is per incuriam, contrary to public policy, or perpetuates injustice.
- Measurement of Damages for Conversion: In conversion actions, damages are measured by the value of the goods or money converted. Consequential loss (here, alleged police payment) must be pleaded and proved to be deducted.
Court Findings
- The appellant’s affidavit in support of his notice of intention to defend did not disclose any defence on the merits. It contained general denials and unsubstantiated assertions rather than evidence of triable issues.
- The preliminary objection and notice of intention to defend could not regularize the appeal or displace the Undefended List procedure; the Supreme Court’s order deeming the amended notice properly filed was final and not subject to collateral attack.
- There was no evidence—documentary or testimonial—to substantiate the appellant’s claim of having paid ₦110,000 to the Police on the respondent’s behalf. Mere averments without proof are disregarded.
- The concurrent judgments of the trial court and Court of Appeal were correct, and their factual findings were unassailable on appeal.
- The appeal was grossly devoid of merit and constituted an abuse of process.
Conclusion
Unanimously, the Supreme Court dismissed the appeal, affirming the judgments below and ordering the appellant to pay ₦500,000 toward the respondent’s costs. The appellant’s conversion of ₦878,022 was established by his own undertaking, and no valid defence or offset was proved.
Significance
This decision:
- Clarifies the stringent requirements of the Undefended List procedure, emphasizing that only an affidavit disclosing a bona fide defence on the merits will compel a full trial.
- Reaffirms that general denials without evidentiary support are meaningless in civil procedure.
- Underlines the finality of Supreme Court orders and the narrow scope for their review.
- Affirms the principle that consequential or offsetting claims must be pleaded and proved to affect recovery in conversion suits.
- Deters abuse of process by providing for substantial costs where appeals are groundless.