Newsletters

UNDEFENDED LIST SUCCESS AGAINST THE ECOWAS COMMISSION: A Comment on Michael Jonathan Numa SAN v Economic Community of West African States Commission

INTRODUCTION On the 3rd day of February 2025, the High Court of the FCT, Bwari Judicial Division, delivered a landmark judgment under the undefended list procedure, ruling in favour of M. J. Numa & Partners LLP against the Economic Community of West African States (ECOWAS) Commission. The Court awarded $40,000.00 (Forty Thousand United States Dollars) in professional fees alongside post-judgment interest, rejecting the Commission’s motion to transfer the matter to the general cause list. This decision stands out for its careful examination of affidavits, its reinforcement of the principles governing the undefended list, and its broader implications for litigation involving international organisations in Nigeria.

FACTUAL BACKGROUND
In October 2022 ECOWAS engaged our principal Mr Michael Numa, SAN (then SAN designate), to defend the Commission in Temitope Obasaju Stephen v President of ECOWAS Commission before the ECOWAS Community Court of Justice. The engagement letter from the commission had obliged counsel to submit a fee proposal for negotiation by the Commission’s Negotiation Committee. After pleadings were filed and the matter settled out of court, the Committee recommended a fee of $40,000.00 USD (Forty thousand United States Dollars) for the brief as evidenced by the negotiation report which was put in evidence. Although some other obligations of the commission under the report were settled, the claimant’s fee remained outstanding despite repeated demands.

COMMENCEMENT UNDER THE UNDEFENDED LIST
Faced with what appeared to be an uncontested debt, the claimant invoked the provisions of Order 35 of the FCT High Court (Civil Procedure) Rules 2018 praying that the matter be heard and determined under the undefended list procedure. Three heads of relief were sought: the agreed fee, costs in the sum of ₦20,000,000.00 (Twenty Million Naira), and post-judgment interest.

THE DEFENDANT’S NOTICE OF INTENTION TO DEFEND
ECOWAS filed a notice of intention to defend supported by an affidavit deposed to by a litigation secretary. The Commission admitted the engagement but alleged that;
i. the claimant never forwarded a fee proposal,
ii. he filed processes without liaison,
iii. the case never proceeded to trial, and
iv. the Committee’s fee recommendation resulted from a mistaken belief that our mother firm, Karina Tunyan and Company, handled the matter.

Affidavit Objections and the Equity Question
Learned Senior counsel for the claimant; Sunusi Musa, SAN had prayed the Court to strike out the defendant’s affidavit for incompetence, relying on Ibeto v Ogwu and Akinlade v INEC . In riposte, ECOWAS attacked our “verifying affidavit”, contending that the Rules know no such process after a defendant has shown cause. Although, we are of the considered view that the jurisprudence is settled that you can not foreclose affidavit evidence in proceedings commenced by affidavit evidence, we did not get to that bridge.

Ebong J deftly invoked two equitable maxims: equality is equity and he who seeks equity must do equity, to hold that if indulgence were granted to one irregular affidavit it must extend to the other. The Court therefore examined all affidavits on their merits, citing the Supreme Court’s recent guidance on admissible affidavit evidence in Jimoh v Minister FCT ; Oshoh v APC ; and the Court of Appeal’s decisions in Nwobu v Nzeadigo and County International v Reynolds Construction

WHETHER A MERITORIOUS DEFENCE EXISTED
The governing test remains whether the Defendant’s affidavit “discloses a defence on the merits” capable of discrediting the claim (Lewis v UBA). The Court distilled ECOWAS’s four objections and dealt with each:
i. No fee proposal forwarded – Exhibit MJN 2, the fee note dated 14th November 2022, was sufficient notice; the Rules never prescribed a special format.
ii. No liaison before filing – The statement of defence (Exhibit MJN 3C) contained facts only the client could supply, evidencing liaison.
iii. Matter settled out of court – Work already done entitled counsel to fees, although parties could negotiate a reduction; outright refusal was untenable.
iv. Mistaken fee recommendation – Raised for the first time in court many months after unanswered demand letters; the Court deemed it an afterthought and an implied admission under AG Kano State v Sunusi Musa

Finding that none of these points raised a genuine triable issue, the Court relied on the classic statement of purpose in Nishizawa Ltd v Jethwani (1984) 12 SC 124 and the recent Supreme Court restatement in Interchemicals Ltd v Intercontinental Bank Plc : the undefended list shields Claimants from Defendants who “have no genuine defence but wish to dribble their opponent”.

Reliefs Granted
The court awarded a judgment in the amount of $40,000.00 (Forty Thousand United States Dollars). However, the request for costs totalling ₦20,000,000.00 (Twenty Million Naira) was denied due to insufficient evidential support. Additionally, post-judgment interest at the rate of ten percent per annum will accrue until full payment is made.

8.0 SIGNIFICANCE OF THE DECISION
The ruling of the Honourable Court, as delivered by Ebong J., offers significant jurisprudential insights on procedural and substantive justice in civil litigation involving international organisations. In scrutinising the evidentiary value of an affidavit sworn to by a non-principal staff member, the Court admitted the document but subjected its contents to close examination, thereby cautioning against delegating sworn depositions on contentious matters to persons lacking direct knowledge. This approach highlights the delicate balance between procedural compliance and evidentiary integrity. The judgment equally emphasises the importance of prompt engagement with pre-litigation demands, noting that silence, particularly on the part of ECOWAS in this case may be construed as tacit admission.

Furthermore, the Court clarified that early settlement of a dispute does not extinguish a counsel’s right to agreed professional fees; at most, it may warrant a reasonable reduction, but not an outright forfeiture. Ebong J. demonstrated equitable flexibility, overlooking technical defects in favour of substantive justice where neither party was prejudiced. This posture affirms a modern, purposive approach to adjudication, reinforcing the principle that equity must serve both parties with equal candour and without permitting abuse under the cloak of procedural technicality.

CONCLUSION Michael Jonathan Numa SAN v ECOWAS Commission is a textbook illustration of the undefended list in action. The Court’s methodical dismantling of ostensible defences and its refusal to tolerate post-facto excuses preserve the central objective of Order 35: swift justice in liquidated money claims devoid of real controversy. For practitioners, the decision is a reminder to assemble documentary proof early, to craft affidavits that meet both evidential and competency thresholds, and to press for judgment where a recalcitrant debtor has no viable answer. For in-house counsel of international agencies, the message is equally clear: respect negotiated fee agreements or risk an unceremonious judgment debt, complete with accruing interest.

Click to read the full article