- CL|Undefended List|Fraud|Audi Alterem Partem Principle|Have his cause heard (fair trial)
DIO - GLOBAL CONCEPTS NIG. LTD.
ACCESS BANK NIG. PLC
(DELIVERED BY BIOBELE ABRAHAM GEORGEWILL, JCA)
On 6/5/2009, the Respondent as Plaintiff approached the Gombe State High Court against the Appellant as Defendant vide a writ of summons filed on same date claiming amongst other reliefs the sum of N36, 368, 479. 69 being the debit balance in the Appellants account with the Respondent, which sum the Appellant had defaulted in paying despite demand. On 22/5/2009, the court below in the absence of a notice of intention to defend by the Appellant entered Judgement in favour of the Respondent against the Appellant.
However, by a motion on notice filed on 25/5/2009, the Appellant sought the order of the court below setting aside its Judgement entered on 22/5/2009. The ruling was delivered on 12/6/2009. Consequent upon the setting aside of the Judgement entered in default, the Appellant sought and obtained the leave of the court below by a motion on notice filed on 25/5/2009 and deemed its notice of intention to defend as properly filed and served on 18/6/2009.
The parties having joined issues under the undefended list procedure, the court below proceeded to hear the parties on 18/6/2009 and in a considered ruling delivered on 26/6/2009 it found for the Respondent as Plaintiff as per its clams and entered Judgement against the Appellant. The Appellant was peeved by the said ruling entering Judgement in favour of the Respondent, hence this appeal. See Pages 1- 43, 44 101, 102 109, 110 133, 293 295, 304 307, 308 314 of the Record of Appeal.
This is thus an appeal against the ruling of the Gombe State High Court in Suit No. GM/66M/2009: Intercontinental Bank of Nig Plc (now Access Bank of Nig Plc) Vs Dio - Global Concepts Nig Ltd delivered on 26/6/2009, by A. M. Yakubu J, in which Judgement was entered in favour of the Respondent against the Appellant under the undefended list procedure. The original Notice of Appeal was filed on 6/7/2009 on three grounds at pages 330 336 of the record. However, on 30/6/2015, the Appellant sought and obtained the leave of this court to amend the original Notice of appeal.
The amended Notice of appeal on nine grounds was filed on 24/6/2013 but deemed properly filed on 30/6/2015. The Record of Appeal was transmitted to this court on 7/4/2011 but deemed properly filed on 16/11/2011. The Appellants brief was filed on 23/9/2015 but deemed properly filed on 8/10/2015. The Respondents brief was filed on 15/2/2016 but deemed properly filed on 13/4/2016. The Appellants reply brief was duly filed on 12/5/2016. On 15/2/2016, the Respondent filed a Notice of Preliminary Objection challenging the competence of the Notice of Appeal.
At the hearing of this Appeal on 24/5/2016, H .N. Ugwuala Esq, learned Counsel for the Appellant adopted the Appellants brief and Appellants reply brief as their argument in support of the appeal and urged the court to allow the appeal and to set aside the judgement of the court below and to transfer the Respondents Suit to the General Cause List for hearing before another Judge of the court below. On his part, Musa Bala Esq., who held the brief of H .N. Nwoye Esq., learned Counsel for the Respondent adopted the Respondents brief as their argument in opposition to the appeal and urged the court to dismiss the appeal and affirm the Judgement of the court below.
RULING ON PRELIMINARY OBJECTION
At the hearing of this appeal, the Respondents counsel whose Notice of Preliminary Objection filed on 15/2/2016 was pending did not bother to move or argue the Notice of preliminary objection when the Appellants counsel proceeded with the hearing of the substantive appeal.
The Appellants counsel submitted that the Notice of preliminary objection having not been moved or argued formally at the hearing of the appeal has been abandoned by the Respondent and urged the court to strike out the notice of preliminary objection together with pages 3 9 of the Respondents brief were it was purportedly argued. Counsel relied on Minister of Works and Housing V. Shittu (2008) All FWLR (pt 401) 847 @ p. 862.
In response, the Respondents Counsel, who had sat glued to his seat while the Appellants counsel proceeded with the hearing of the appeal without indicating any intention to move the Notice of preliminary objection, had no reply on law to the contention that the Respondent had abandoned the Notice of preliminary objection. He also did not seek any leave to do so, having not moved the Notice of preliminary objection before the hearing of the substantive appeal. How so sad! Truly, the law is indeed as posited by the Appellants counsel that a Notice of preliminary objection not moved before the hearing of the substantive appeal on the date fixed for the hearing of the appeal is deemed abandoned and thus liable to be struck out by the court.
My Lords, I have always pondered over why a Respondents Notice of preliminary objection which was not moved at the hearing of an appeal is deemed abandoned and liable to be struck out by the court, when by order 18(9)(4) of the Court of Appeal Rules 2011, once an appellate brief has been filed, the court would at the hearing of the appeal deemed it as argued in the event that the affected partys counsel was not in court to adopt same.
The law reports are awash and replete with decisions to the effect that a Notice of preliminary objection not moved at the hearing proper of the appeal is deemed abandoned but hardly, as I have not come across any, has the reason or why it is so deemed abandoned been truly and lucidly explained or proffered in the many decisions on this issue I have taken the time and patience to read through while preparing the materials for the writing of this Judgement. See Nigerian Laboratory Corporation & Anor. V. Pacific Merchant Bank ltd (2012) 15 NWLR (Pt. 1324) 505 @ p. 515. See also AG. Rivers State V. Ude (2006)17 NWLR (Pt. 1008) 436; Maigoro V. Garba (1999) 10 NWLR (Pt. 624) 555; Ajide V. Kelani (1985) 3 NWRL (Pt.12) 248; Onwuka V. Ononuju (2009) 5 SCNJ 65; Regd. Trustees, A .O. N, V. N.A.M.A (2014) 8 NWLR (Pt. 1408) 600 @ pp. 608 610; Tiza & Ors V. Begha (2005) 15 NWLR (Pt 949) 616; Moyosore V. Governor of Kwara State (2012) 5 NWLR (Pt. 1293)242; Igbeke V. Okadigbo (2014) All FWLR (Pt. 710) 1299; Margret Magit V. University of Agriculture & Ors (2005) 19 NWLR (Pt. 959) 211; Garba V. Ummuani (2014) All FWLR (Pt. 722) 1715.
Honestly however, I confess right away that I do not assume to have read all the decisions on this issue and there may still be some other decisions in which such salient reasons why the notice of preliminary objection is deemed abandoned may have been proffered by the courts. It is only for this reason, that I have taken time to do a very hard thinking on this issue and I came to the conclusion that a Respondents notice of preliminary objection is deemed abandoned if not argued or moved at the hearing of the substantive appeal because indeed a Respondent who had filed a notice of preliminary objection challenging the competence of the appeal may as well, as he has the liberty so to do, decide either to withdraw it or simply ignore it for whatever reasons, perhaps known only to him.
In my view therefore, unless and until the Notice of preliminary objection is moved or argued before the hearing of the substantive appeal it would be nigh impossible to expect the court to read the construction of the mind of the Respondents Counsel merely on his face to know what he has in his mind to do with the Notice of preliminary objection unless he rises up to the occasion and moves or argues it before the substantive appeal is heard. It is my view, and I so hold, that it is in law safer for the court to infer from the circumstances of the outward express failure or neglect or refusal to move or argue the Respondents Notice of preliminary objection the inward intention of the Respondents mind not to rely any longer on the Notice of preliminary objection and thus he is deemed to have abandoned it.
In the circumstances therefore, I hold that the Respondent had indeed abandoned the Notice of preliminary objection filed on 15/2/2016 in the instant appeal as rightly and unassailably submitted by the Appellants counsel. Consequently, the Respondents Notice of preliminary objection filed on 15/2/2016, having been found to have been abandoned by the Respondent, is hereby struck out. See Minister of Works and Housing V. Shittu (supra) @ P.862. See also Nigerian Laboratory Corporation & Anor. V. Pacific Merchant Bank Ltd (supra) @ p. 515; Maigoro V. Garba (supra) @ p. 555; Ajide V. Kelani (1985) 3 NWRL (supra) @ p. 248; Tiza & Ors V. Begha (supra) @ p. 616; Moyosore V. Governor of Kwara State (supra) @ p. 242; Garba V. Ummuani (supra) @ p. 1715.
The proceedings leading to the Judgment being appealed against in this appeal was strictly conducted under the undefended list procedure and thus it was a battle fought purely on affidavit and documentary evidence of the parties as placed before the court below.
In the Appellants brief, H. N. Ugwuala Esq., learned counsel for the Appellant had distilled four issues for the determination in this appeal, namely;
1. Did the learned trial judge properly evaluate the evidence of the parties before entering judgment against the Appellant instead of transferring the matter to the general cause list for trial? (Distilled from Grounds 1, 8, and 9) of the Amended Notice of Appeal).
2. Was the learned trial right in resolving the issues of fact raised in paragraph 3(d), (i), (j) and (m) of the Appellants Affidavit in support of its Notice of intention to defend against the Defendant when the Respondent did not challenge or controvert those averments? (Distilled from Grounds 2, 3, 4 and 5 of the Amended Notice of Appeal).
3. Was the learned trial judge right in holding that the Appellant could no longer challenge the correctness of the statement of Account given to it by the Respondent, having not done so before the case? (Distilled from Ground 6 of the Amended Notice of Appeal).
4. Is the judgment of the Lower Court in this matter not a nullity for lack of fair hearing? (Distilled from Ground 7 of the Amended Notice of Appeal)
In the Respondents brief, H. N. Nwoye Esq, learned counsel for the Respondent had distilled three issues for determination in the appeal, namely;
1. Whether issue No. 1 and the Appeal of the Appellant are competent without leave of this Court and evidence of requisite filing fees, to confer jurisdiction on this Court to determine the issue and the Appeal on their merit? (Distilled from the amended Preliminary Objection)
2. Whether the judgment of the trial Court is against the weight of evidence? (Distilled from grounds 1, 8 and 9)
3. Whether the Appellants Notice of intention to defend disclosed defence on the merit to justify transferring of the case to general cause list? (Distilled from Grounds 2, 3, 4, 5, 6 and 7)
However, I have earlier held that the Respondents Notice of preliminary objection had been abandoned and consequently struck out. In this sense, the first issue as distilled by the Respondents counsel, touching on the abandoned Respondents Notice of preliminary objection, no longer arises in this appeal and consequently it is hereby discountenanced.
I have given due and adequate considerations to the facts and evidence, both affidavit and documentary exhibits, relied upon by the parties before the court below as in the printed record. I have also taken time to review the ruling of the court below in which judgment was entered under the undefended list procedure in favour of the Respondent as Plaintiff against the Appellant as Defendant.
I have also duly considered the submissions of counsel in their respective appellate briefs and I am of the view that the four whooping issues as proliferated in the Appellants brief did not bring into proper focus the real issues in contention in this appeal as, in my view, more aptly and concisely distilled by the Respondents counsel and captured in the subsisting two issues in the Respondents brief. I shall therefore, and do hereby adopt and set down the two subsisting issues for determination as distilled by the Respondents counsel as the two apt issues for determination in this appeal, and which I intend to take together, namely
1. Whether the judgment of the trial Court is against the weight of evidence?
2. Whether the Appellants Notice of intention to defend disclosed defence on the merit to justify transferring of the case to general cause list?
In considering these two apt issues, I shall consider them along with the four issues as distilled by the Appellants counsel in the following manner, namely; Issue two of the Respondent shall be taken together with issues 1, 3 and 4 of the Appellant, while issue 3 of the Respondent shall be taken together with issue 2 of the Appellant, but all will be considered and resolved in one fell swoop. Let me therefore, proceed to consider and resolve these issues anon!
ISSUES ONE AND TWO TAKEN TOGETHER
(Issues 2 and 3 of the Respondent taken together with issues 1, 2, 3 and 4 of the Appellant)
On his first issue, learned counsel for the Appellant submitted that the learned trial judge did not properly evaluate the evidence of the parties placed before him before he entered judgment against the Appellant and contended that after stating that he had studied the case of the parties and their Affidavits the learned trial judge then stated the general principle of law that the undefended list procedure is a special procedure and proceeded to revioew only the case of the Appellant and thus shifting the primary burden of proof unto the Appellant rather than the Respondent, who was the Pliantiff who asserted and must in law prove. Counsel referred to Section 131(1) of the Evidence Act 2011 and relied on A. S. T. C. V. Quorum Construction Ltd (2004) 1 NWLR (Pt. 855) 601; Kabiru V. Ibrahim (2004) 2 NWLR (Pt. 857) 326; Brifina Ltd V. Intercontinental Bank Ltd (2003) 5 NWLR (Pt. 814) 540; Mat Holding Ltd V. UBA Plc (2003) 2 NWLR (Pt. 803) 71.
Learned counsel for the Appellant further submitted that had the court below performed its first function and considered the case of the Respondent first, before looking for the defence of the Appellant it would have found that the Respondent did not make out a prima facie case capable of shifting the burden on the Appellant to defend and contended that because the entire story told by the Respondents witness in the affidavit could only have evidential value when taken together with Respondents Exhibit P. 10, the purported statement of Account of the Appellant with the Respondent Bank and by the provision of Sections 89 & 90 of the Evidence Act 2011 were inadmissible in evidence. Counsel relied on Oghoyone V. Oghoyone (2010) 3 NWLR (Pt. 1182) 564; Yesufu V. A. C. B. (1976) 4 SC 1; United Bank For Africa Plc V. Sani Abacha Foundation For Peace And Unity & Ors (2004) 3 NWLR (Pt. 861) 516; Unity Life & Insurance Co. Ltd V. International Bank of West Africa Ltd (2001) 7 NWLR (pt. 713) @ Pp. 624 625; Azubuike V. Diamond Bank Plc (2004) 3 NWLR (Pt. 1393) 116 @ P. 132; Haido V. Usman (2004) 3 NWLR (Pt. 859) 64; National Inland Naterways Authority V. Standard Trust Bank Plc (2008) 2 NWLR (Pt. 1072) 483; Habib Nigeria Bank Limited V. Gifts Unique Nigeria Limited (2004) 15 NWLR (Pt. 89) 408; Befareen Pharm. Ltd V. African International Bank Ltd (2005) 17 NWLR (Pt. 954) 230.
On his second issue, learned counsel for the Appellant submitted that in the absence of a further affidavit deposed to by the Respondent to deny or controvert the facts deposed to in the Appellants Affidavit in support of its Notice of intention to defend, particularly paragraphs 3(d), (i), (j), (l), and (m), the court below was wrong to have used his personal views or opinion of Exhibit C attached to the Appellants Affidavit to resolve the issues of fact raised by the Appellant, against the Appellant. Counsel relied on Olojede & Anor V. Olaleye & Anor (2010) 4 NWLR (Pt. 1183) 1 @ 64; Forson V. Calabar Municipal Government & Anor (2004) 9 NWLR (Pt. 878) 227 @ 245; Attorney General, Ondo State V. Attorney General, Ekiti State (2001) 17 NWLR (Pt. 743); Ikoli Ventures Ltd & Ors V. shell Petroleum Development Company of Nigeria Ltd (2008) 12 NWLR (Pt. 1101).
Learned counsel for the Appellant further submitted that the court below was wrong in supplying answers to the averments in the Appellants Affidavit using his views or opinions of Exhibit C and contended that it was not the duty of the court below to use Appellants Exhibits C to supply the missing link in the Respondents claim. Counsel relied on Kabiru V. Ibrahim (2004) 2 NWLR (Pt. 857) 326.
On his third issue, learned counsel for the Appellant submitted that while the Appellant is stopped from disputing the entries made by the bank in the Respondents statement of Account and contended that the law is that the burden is on the Respondent which is claiming a sum of money on the basis of the overall debit balance of a bank statement of Account to prove by credible evidence, how the overall debit balance was arrived at. Counsel relied on Yesufu V. ACB (1980) 11 12 SC 49; Habib Nigeria Bank Ltd V. Gifts Unique (Nig) Ltd (2004) 15 NWLR (Pt. 896) 408.
On his fourth issue, learned counsel for the Appellant also submitted that the judgment of the court below was a nullity in that the Appellant was denied fair hearing by the Court below and contended that the court below assumed the position of the Respondent and substituted its own views and opinion of the Appellants Exhibit C, in the place of evidence, which was not forth coming from Respondent, to resolve the contentious issues raised in paragraphs 3(d), (i), (j) and (m) of the Appellants Affidavit in favour of the Respondent and urged the court to allow the appeal and to set aside the judgment of the court below and to transfer the suit to the general cause list. Counsel relied on Terab V. Lawan (1992) 3 NWLR (Pt. 231) 569; Eze V. Okoloagu (2010) 3 NWLR (Pt. 1180) 183; Mohammed V. Nigeria Army (1997) 7 NWLR (Pt. 557( 232; Tsokwa Motors (Nig) Ltd V. United Bank for Africa Plc (2008) 2 NWLR (Pt. 1071) 347; Agbaeze V. Customary Court Item District (2007) 7 NWLR (Pt. 1071) 196.
On his part, on his second issue, taken as the first issue in this appeal, learned counsel for the Respondent submitted that all the evidence were properly evaluated by the court below and arrived at correct findings and contended that there was no dispute from the record that the claim of the Respondent is for liquidated money demand and the court below was right in entering judgment for the Respondent. Counsel relied on Kenfrank Nig. Ltd V. Union Bank Plc (2003) 2 FR 25; Thor Limited V. First City Merchant Bank Ltd (2006) WRN 1; Barclays Bank DCO V. Hassan (1961) 1 All NLR 836; Das Limited V. Sudan Airways Limited (2004) 47 WRN 56; Federal Military Government of Nigeria & Ors V. Abache Malam Sani (1990) 4 NWLR (Pt. 147) 688 @ P. 699; Saw V. Makim (1889) TLR 72.
On his third issue taken as second isssue in this appeal, learned counsel to the Respondent submitted that it is obligatory for the Appellant to file a Notice of intention to defence with an Affidavit showing defence on the merit to the claims of the Respondent and contended that the mere the filing of an Affidavit and a Notice of intention to defend does not as a matter of course entitle the Appellant to leave to defend the action or to have pleadings ordered in that the Appellant has the duty of showing by the Affidavit that there exists real defense or facts capable of casting doubts on the claims of the Respondent, failing which judgment is liable to be entered against the Appellant by the court below as it rightfuly did. Counsel relied on S. D. P. Nig. Ltd V. Arhoe Joe Nig. Ltd (2005) 44 WRN 120 ratio 3; A. C. B. Ltd V. Gwagwalada (1994) 4 SCNJ 268; Akalonu V. Omokaro (2003) 3 WRN 83; N. M. S. Ltd V. Joasy Pen. Ent. Ltd (2006) 12 WRN 151; Okoli V. Morecab Firm (Nig) Ltd (2007) 33 WRN; UBN Plc V. Edamkue (2004) 34 WRN 50.
My Lords, in deciding to take all these issues together in other to resolve all the contentious issues in this appeal in one fell swoop, I bear in mind that in a proceedings conducted under the undefended list procedure, the real issue is whether a Defendant has disclosed by his affidavit in support of the notice of intention to defend and accompanying documentary exhibits, if any, a defence on the merit or triable issues.
In law, once a Defendant discloses a defence on the merit or triable issue, the Suit is transferred to the general cause list without any serious attempt at evaluating and making any specific findings of facts on the case of the parties at that stage by the trial court in order not to prejudge the issues that would ultimately come up for resolution at the substantive trial under the General cause list. However, where the trial court finds that the Defendant has not by the affidavit and documentary evidence, if any, disclosed any defence on the merit or any triable issue, then it would considers the totality of the respective cases of the parties and enter judgment for the Plaintiff.
In the above scenarios, I am unable to see the dichotomy being drawn by both counsel between proper evaluation of evidence and disclosing of a defence on the merit or triabl issues to secure a transfer of the case from the undefended cause list to the general cause list for full hearing. In other words, it is my view that a trial court to arrive at the finding whether or not the Defendant had disclosed a defence on the merit or triable issue as required of him by law under the undefended list procedure, the trial court must evaluate the affidavit and documentary evidence, if any, as placed before it by the parties. I therefore, see a fusion in the carrying out of these seemingly separate but actually joint functions of the trial court and thus necessitating my decision to consider both issues together in this appeal and to resolve them in one fell swoop.
Now, under the Rules of court applicable to the Gombe State High Court, that is the Bauchi State High Court Civil Procedure Rules 1991, Cap 62, Laws of Bauchi State as applicable to Gombe State, by Order 22(1) thereof, a party who intends to issue a writ of summons against another party to be placed under the undefended list of the court below must first approach the court below by means of a motion - exparte seeking to issue and place the writ of summons under the undefended list of the court below.
In law, such a motion, though made exparte, that is without notice to the other intending party, is not granted as of course but can and only be granted upon satisfaction of the court that the party, the Plaintiff has disclosed sufficient interest and materials showing that in his belief the Defendant indeed has no defence to his claim. On its part, to arrive at such a finding, the trial court is under a duty to appraise the affidavit and documentary evidence, if any, placed before it by the Plaintiff in coming to its decision either to grant or refuse the leave sought.
In the instant case, going by the record of appeal, the Respondent as Plaintiff had by a motion exparte filed on 6/5/2009 sought the leave of the court below to issue the writ of summons against the Appellant as Defendant and to place the same under the undefended list of the court below for hearing. The application was duly heard on 11/5/2009 by the court below and the leave sought was duly granted to the Respondent. See pages 1- 43; 291-292 of the record.
At the eventual hearing of the Respondents suit on the merit under the undefended list, the court having earlier on the application of the Appellant set aside its earlier judgment entered in default of appearance in favour of the Respondent, both parties extensively addressed the court through the written addresses and oral submissions of their respective counsel. Subsequently, the court in its ruling delivered on 26/6/2009 entered judgment for the
Respondent as Plaintiff against the Appellant as Defendant, holding under alia thus;
I have meticulously studied the Plaintiffs motion papers, the verifying affidavit and the annexure thereto marked as Exhibits P1 - P11 vis a vis the Defendants notice of intention to defend together with the affidavit evidence in support and the annexure thereto marked as Exhibits A, B, C and D. I have also considered written addresses filed and adopted by counsel with their further oral submissions together with all the case authorities cited in reliance. It is now settled that the procedure under the undefended list is a special procedure, where amongst others, the affidavit in support of the Plaintiffs claim enjoys the status of a statement of claim which must be specifically denied by the Defendant with detailed facts and particulars of the Defence must be set out. ................... From a meticulous study of the Defendants affidavit, this court makes the following findings. .......................... The facts of this case is simply put that after the Defendant requested for and was issued with its statements of account from 27/12/2006 to the 24/10/2008, the Defendant company never complained, challenged it or even raised any observation on its account to the Plaintiff bank on the said statement of account, which makes the statement of account accepted as the true position of things between the parties ............ In fact the Defendant company did not make any complaint or the like even after its receipt of the letter of demand from the Plaintiff. This court holds that the Defendant company cannot now in May 2009 before this court deny the correctness of the statements of account with the Plaintiff bank. It is an afterthought, as rightly submitted by counsel to the Plaintiff to dribble the Plaintiff and delay the defence of this action. All the depositions in the Defendants affidavit in that respect goes to no defence on the merit and this court so holds ........ For this purpose, no flimsy, fanciful or frivolous defence as the ones raised on the Defendants affidavit as against the Plaintiffs affidavit, more particularly Plaintiffs paragraphs 9 & 10, adduced to prolong the case or play for time will suffice. It must be real defence on the merit and not a caricature of it. ................... From the Plaintiffs affidavit in support of the writ with the exhibits annexed and the Defendants affidavit in support of its notice of intention to defend, the Defence has not raised any triable issue nor has it thrown any doubt in the mind of this court on the Plaintiffs claim. ............. This court therefore, holds that judgment shall be entered for the Plaintiff in the circumstances......
See pages 311 - 314 of the record.
My Lords, the fulcrum of this appeal, which is aptly encapsulated in the issues for determination under consideration is the vexed issue of when proceedings under the undefended list procedure can properly be invoked by a party and how is it defended by the other party and when should such a claim be transferred to the general cause list.
In law, the undefended list procedure provision is usually aimed at dispensing with dispatch cases which are virtually uncontested and cases where there can be no reasonable doubt that a Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247, where the erudite Tobi JSC., had lucidly explained the rationale for the undefended list procedure thus:
For an action to be transferred from the undefended list to the general cause list there must be a defence on the merit and detail and particulars of defence must be set out. It must not be a half hearted defence. It must not be a defence which is merely fishing for skirmishes all over the place. It must be real defence on the merit and not a counterfeit of it. ............. The undefended list proceeding is a truncated form of ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the Plaintiffs claim disputed to necessitate such a hearing....... The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiffs case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum
See also Agro Millers Limited V. Confidential Merchant Bank (Nig) Plc (1997) 10 NWLR (Pt. 525) 469.
The facts of this case as it relates to the relationship between the Appellant, a customer, and the Respondent, a banker, is clearly that of Banker/Customer relationship as set out in paragraphs 8 and 9 of the Respondent as Plaintiffs affidavit together with Exhibits P1 P11 and paragraphs 3 (a) (s) of the Appellant as Defendants affidavit together with Exhibits A D. While the Appellant contends vehemently that these facts taken together raised triable issues for which the Respondent suit ought to have been transferred to the General Cause list of the court below for hearing, the Respondent contends vehemently too but to the contrary that the facts as relied upon by the Appellant raised no triable issue but were mere sham and leaving the court below none other option than to enter judgment as it did in favour of the Respondent as per its claims against the Appellant, there being nothing to be transferred to the General Cause list for trial..
Having taken a calm look at the affidavit and documentary evidence of the parties as in the printed record and the judgment of the court below, I am of the view that it clearly understood and properly evaluated and considered the entirety of the facts and evidence, both affidavit and documentary as placed before it by the parties in the hearing of the Respondents suit under the Undefended List procedure of the Rules of the court below as can readily be seem in the excerpts of the said judgment earlier reproduced in this judgment in extenso.
Under the undefended list procedure, going by the several judicial authorities on the essence of this procedure, it is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defence to the claim of the Plaintiff against him and there is nothing worth being further investigated by the Court on the affidavit evidence of the parties. It is to be noted here, and very pertinently too, that in granting leave to the Respondent as Plaintiff to place the suit under the undefended list, the court below had considered the case of the Respondent as shown in the verifying affidavit in support and had found it to have disclosed at least a prima facie case necessitating the placing of the Respondents suit under the undefended list. The court below having done so, the very straight forward, and if I dare say very simple uncomplicated procedure on the date fixed for hearing of the suit placed under the undefended list, is that the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defence on the merit.
In arriving at such a finding, the Court would critically securitize and examine the affidavits and documentary Exhibits, if any, of the parties to determine at that stage if the Defendant has disclosed any defence on the merit or raised at least triable issue that would need to be further investigated into by th