06/06/2023
*AKINSOLA & ANOR. vs. EYINNAYA(2022)LCN/16153*
*(CA)*
*ISSUE:* DEMAND LETTER-
Whether a demand letter written by a lawyer without affixing bar seal is incompetent and ipso facto cannot spawn a cause of action for recovery of debt(Issue is mine)
*PRINCIPLE:*
"It is settled that in a suit for recovery of debt, a cause of action will accrue when a debtor fails to pay his debt after a demand to pay the debt has been made. See the case of UNION BANK OF NIGERIA LTD. VS. OKI (1999) 8 NWLR (PT.614) 255; AMEDE VS. UNITED BANK FOR AFRICA PLC (2008) 8 NWLR (PT.1090) 623; AKAT (NIG.) LTD. & ANOR. v. UNITY BANK (2016) LPELR-40198 (CA).
Thus, in order to commence action under the Undefended List Procedure, a Demand Letter must be served on the Debtor.
In this instant case, the Respondent had served the Appellants a Demand Letter for the sum of N8,000,000 (Eight Million Naira). This letter was acknowledged by the Appellants in their letter to the Respondent where they did not deny their indebtedness but rather claimed to have a meeting with the Respondent to resolve their indebtedness. The law is settled that where the Defendant fails to query the debt stated in the Demand Letter, then the debtor will be deemed to have admitted his indebtedness in respect of the quoted figures.
In BEVERLY DEVELOPMENT & REALTIES LTD. VS. TEC ENGINEERING CO. (NIG.) LTD. (2020) LPELR-52023 (CA), this Court Per ABIRU, JCA, held as follows: “It is settled law that where a creditor writes letters of demand to a debtor requesting settlement of debt and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due.” See also O.M. NWOYE & SONS COMPANY LTD. VS. CO-OPERATIVE AND COMMERCE BANK (NIG.) PLC (1993) 8 NWLR (PT.310) 210; NAGEBU CO. (NIG.) LTD. VS. UNITY BANK PLC (2014) 7 NWLR (PT.1405) 42; TILLEY GYADO & CO. (NIG.) LTD. VS. ACCESS BANK PLC (2019) 6 NWLR (PT.1669) 399.
In this instant case, the Appellants has admitted in his reply to the Demand Letter dated 20th June, 2016, his indebtedness to the sum of N8,000,000 (Eight Million Naira) as demanded by the Respondent. The indebtedness was not in dispute.
However, the learned Counsel to the Appellants is claiming that the Demand Letter served on the Appellants did not comply with the rules of Professional Conduct as the letter did not have the Seal and Stamp of the Nigerian Bar Association affixed to the Letter and as such the letter is incompetent and no cause of action has accrued.
The question is does the failure to attach Seal and Stamp of the Nigerian Bar Association render the Demand Letter served on the Appellants incompetent?
The fact that NBA Seal and Stamp was not affixed on the Demand Letter does not render the Demand Letter served on the Appellants incompetent, null and void. See SENATOR BELLO SARAKIN YAKI & ANOR. VS. SENATOR ATIKU BAGUDU & 2 ORS. (2015) 18 NWLR (PART 1491) PAGE 288; TANIMU VS. RABIU(2018) 4 NWLR (PART 1610) PAGE 505.
The Appellants acknowledged the receipt of the Demand Letter by responding to the letter vide his letter dated 28th June, 2016 acknowledging their indebtedness and now are trying to use technicalities to discountenance that said Demand Letter.
In NNEJI & ORS. VS. CHUKWU & ORS. (1988) LPELR-2058 (SC), the Supreme Court, Per Oputa, JSC, defined technicality as follows: "What is a technicality? A technical error is one committed in the course of a trial, but without prejudice to a party. It is an error, which is purely abstract and harmless for practical purposes. “Technical” relates to details rather than principle.”
Also in YUSUF VS. ADEGOKE & ANOR. (2007) LPELR-3534 (SC), the Supreme Court Per Niki Tobi, JCA, defined technicality as follows: "What is technicality? In Adeniji VS. The State (1992) 4 NWLR (Pt.234) 248, I said at page 265: “I realize that Courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a Court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much so that it has become not only a cliché but also an enigma in our jurisprudence. In most cases when the Courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drum drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the lost letters without much ado, and with little or no regard to the injustice that will be caused the opponent.”
From the foregoing judicial authorities, technicality does not harm other party. It goes to the details rather than the principle. The learned Counsel to the Appellants is attempting to use abstract or inordinate legalism to becloud the merit of this appeal with little or no regard for the cause of justice.
In AERONAUTICAL ENGINEERING & TECH. SERVICES LTD. VS. NORTHWALES MILITARY AVIATION SERVICES LTD. (2020) LPELR-52267 (CA), this Court Per Dongbam-Mensem, JCA, held as follows: “The Courts have long moved away from the era of technicalities to a regime of justice. I crave indulgence to quote extensively the dictum of my Lord, Bage, JSC, in the case of HON. JUSTICE TITUS ADEWUYI OYEYEMI (RTD.) & ORS. V. HON. TIMOTHY OWOEYE & ANOR. (2017) LPELR-41903 (SC) thus: “Our duty as an Apex Court is to do substantial justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (NRMAFC) VS. JOHNSON (2007) 49 WRN pages 169-170 where Per Odili, JCA, (as he then was) opined as follows: The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to not pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. V. ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT.766) at 476-417. The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because, blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.” See also AJAKAIYE V. IDEHIA (1991) 8 NWLR (PT.364) 504; ARTRA IND. LTD. V. NBC (1997) 1 NWLR (Pt.483) 574; DAKAT V. DASHE (1997) 12 NWLR (PT.531) 46; BENSON V. NIGERIA AGIP CO. LTD. (1982) 5 SC 1. The Courts are constantly enjoined to do justice and not sacrifice justice on the altar of technicalities. To accede to the submissions of the Appellants is to mete out injustice on the Respondent as the claim of the Appellants is hinged on a mere technicality which should not be allowed to stand. See also ATAOBE & ANOR. VS. ITIVEH (2017) LPELR-43323 (CA); NEPA VS AUWAL (2010) LPELR-4577 (CA); KARIMAT GLOBAL TRADE LINKS LTD. & ANOR. VS. UNITY BANK PLC (2014) LPELR-23986 (CA); MTN NIGERIA COMMUNICATIONS LTD. VS. ALUKO & ANOR. (2013) LPELR-20473 (CA).
Thus, from the foregoing judicial authorities, the Courts are enjoined to do justice and not sacrifice justice on the altar of technicalities. To accede to the submissions of the Appellants is to mete out injustice on the Respondent as the claim of the Appellants in this issue is hinged on a mere technicality, which should not be allowed to stand.
Thus, from the foregoing analysis, issue 2 is hereby resolved in favour of the Respondent and against the Appellants." Per BANJOKO, JCA.
*Courtesy: Lawrence Udo Edet, Esq.*
*(Providing legal principles & solutions)*
*6-6-2023*
