Dio-Global Concepts Nig. Ltd v Access Bank Nig. Plc (CA/J/4/2010)[2016] NGCA 17 (27 June 2016) (CA/J/4/2010) [2016] NGCA 17 (26 June 2016);

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Headnote and Holding:

The respondent/plaintiff had sued the appellant/defendant for a liquidated debt following its default in payment and successfully applied for the matter to be placed on the undefended list. There it was heard exclusively on the papers to the respondent/plaintiff’s success. Two issues emerged on appeal: whether the trial court’s judgment contradicted the evidence, and whether the appellant’s notice of intention to defend disclosed a defence on the merits of the case, thereby justifying the matter’s transfer to the general cause list.

The appellate court held in favour of the respondents on both issues, finding first that the court had been thorough in its analysis of the evidence before it, and had crafted a reasoned order reflecting this.

The judge elucidated the purpose of the undefended list as a vehicle for swift justice where a defendant has no credible case. This was one such instance; the court found that the appellant had failed to raise a triable issue warranting the matter’s transfer to the general cause list. The appellant’s allegations of fraud did not conform to the recognised rules for establishing such a claim and were found lack any substance.

The appellant unsuccessfully invoked s 36(1) of the Constitution, contending that its right to a fair hearing had been breached through its being deprived of a comprehensive trial. The court affirmed the lawful function of the undefended list, emphasising that parties are given equal opportunities to be heard via the papers. Where a defendant was unable to raise a triable issue against the plaintiff’s claim, it could not resort to arguing that audi alterem partem had been flouted.

The appeal was dismissed.
 

 

 
 
 
IN THE COURT OF APPEAL
Holden at Yola

 

Between

APPELLANT

DIO - GLOBAL CONCEPTS NIG. LTD. 

and

RESPONDENT

ACCESS BANK NIG. PLC

 

JUDGMENT
(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 Appellant’s 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 Appellant’s brief was filed on 23/9/2015 but deemed properly filed on 8/10/2015. The Respondent’s brief was filed on 15/2/2016 but deemed properly filed on 13/4/2016. The Appellant’s 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 Appellant’s brief and Appellant’s 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 Respondent’s 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 Respondent’s 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 Respondent’s 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 Appellant’s counsel  proceeded with the hearing of the substantive appeal.

The Appellant’s 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 Respondent’s 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 Respondent’s Counsel, who had sat glued to his seat while the Appellant’s 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 Appellant’s 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 Respondent’s 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 party’s 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 Respondent’s 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 Respondent’s 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 Respondent’s Notice of preliminary objection the inward intention of the Respondent’s 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 Appellant’s counsel. Consequently, the Respondent’s 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.
 

JUDGMENT
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 Appellant’s 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 Appellant’s 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 Respondent’s 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 Appellant’s 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 Respondent’s Notice of preliminary objection had been abandoned and consequently struck out. In this sense, the first issue as distilled by the Respondent’s counsel, touching on the abandoned Respondent’s 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 Appellant’s 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 Respondent’s counsel and captured in the subsisting two issues in the Respondent’s brief. I shall therefore, and do hereby adopt and set down the two subsisting issues for determination as distilled by the Respondent’s 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 Appellant’s 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 Appellant’s 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 Respondent’s witness in the affidavit could only have evidential value when taken together with Respondent’s 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 Appellant’s 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 Appellant’s 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 Appellant’s Affidavit using his views or opinions of Exhibit C and contended that it was not the duty of the court below to use Appellant’s Exhibits C to supply the missing link in the Respondent’s 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 Respondent’s 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 Appellant’s 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 Appellant’s 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 Respondent’s 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 Plaintiff’s motion papers, the verifying affidavit and the annexure thereto marked as Exhibits P1 - P11 vis a vis the Defendant’s 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 Plaintiff’s 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 Defendant’s 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 Defendant’s 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 Defendant’s affidavit as against the Plaintiff’s affidavit, more particularly Plaintiff’s 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 Plaintiff’s affidavit in support of the writ with the exhibits annexed and the Defendant’s 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 Plaintiff’s 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 Plaintiff’s 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 plaintiff’s 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 Plaintiff’s affidavit together with Exhibits P1 – P11 and paragraphs 3 (a) – (s) of the Appellant as Defendant’s 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 Respondent’s 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 Respondent’s 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 the Court by way of a full hearing. However, where the Court finds that the Defendant has not disclose any defence on the merit or raised any triable issue, it is under a duty to proceed to enter judgment in favour of the Plaintiff against the Defendant, no more no less.

In law, were there are substantial conflicts as to the facts of the case on the affidavits of the parties, it would be sufficient to hold that the Defendant has raised a triable issue as would required further enquiry and thus a transfer of the matter to the general cause list would be made so that the rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial.  See Delta Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt 238) 697.

Now, by the affidavit evidence together with the copious documentary Exhibits of the parties as placed before the court below at the hearing, was the Court below right when it held that the Appellant did not disclose any defence on the merit or triable issue and proceeding to entering judgment in favour of the Respondent against the Appellant and whether such a decision did not deny the Appellant of its right to be fairly heard in proof of the allegations it made in its affidavit, particularly paragraphs 3 (c) – (s) therein?

In considering the facts of this case, with a view to determining whether the court below was right or wrong in its assessment of the affidavit evidence of the parties and the conclusions and findings arrived at, I think we must go back to the very beginning, the genesis of the dispute between the parties. The duty to show defence on the merit or triable issue under the undefended list Procedure was squarely on the Appellant, who was the Defendant at the Court below, which it must do by the depositions in its affidavit in support of its notice of intention to defend together with relevant documentary exhibits, if any showing that it was not indebted to the Respondent and raising either triable issue or creating some doubts on the Respondent’s claim. 

However, on the affidavit and documentary exhibits of the Appellant, having taken time to calmly review them alongside the affidavit and documentary exhibits of the Respondent, as in the printed record, it is very clear to me and I so hold that the court below was right when it held that in respect of paragraphs 8 and 9 of the Respondent’s affidavit together with exhibits P7, P8, P9, P10 and P11 considered with paragraphs 1, 2, 3 (a) –(h),of the Appellant’s affidavit together with exhibits A – C  did not in any way raise any defence on the merit or indeed any triable issue as would have warranted the court below to transfer the matter to the general cause list for further inquiry by way of a full trial.    

There is now left the issue of the allegations bordering largely and squarely on fraud in paragraphs 3 (i) – (s) of the Appellant’s affidavit together with exhibit D in answer to paragraphs 8 and 9 of the Respondent’s affidavit together with Exhibits P7, P8. P9, P10 and P11, as amounting whether or not to a defence on the merit or raising any triable issue and whether the refusal of the Court below to transfer the suit to the general cause list on account of the said allegations was wrong and amounted to a denial of fair hearing to the Appellant? 

In law, an allegation of fraud requires that the particulars of fraud be set out to confer any modicum of seriousness on such an allegation of fraud to warrant further enquiry into it by the Court below. In other words, unless and until an allegation of fraud is expressly made and supported by its particulars it is a non starter as in law mere or bare or banal allegation of fraud, no matter how grave, is of no moment if it is not supported by the relevant particulars as required by law. An allegation of fraud that is merely generic, vague and lacking in the specific and particulars is in law a non-starter and useless.  See PDP V. INEC & Ors (2012) LPELR 9724 (SC) Nishizawa Ltd V. Jethwani (1984) 12 SC 234.  Wellington V. Mutual Society (1880) 5 App Cas 685; UBA & Anor V. Alhaji Babangida Jangaba (2007) 11 NWLR (Pt. 1045) 247; Sanusi Bro Nig Ltd V.  C. C. E. S.A (2001) 11 NWLR (pt. 579) 566.

In Highgrade Maritime Services Ltd V. First Bank of Nigeria Ltd (1991) 1 NWLR (Pt. 167) 290, where Wali JSC., had put it succinctly thus:

                   “It is trite law that where fraud is alleged it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence.”  

See also United Africa Co Ltd V. Taylor (1936) 2 WACA 67; Alhaji Aminu Ishola V. Union Bank of Nigeria Ltd (2005) 6 NWLR (Pt. 922) 422; Wayne (W. Africa) Ltd V. Ekwunife (1989) 5 NWLR (Pt. 122) 422. 

In Ezekiel Okoli V. Morecab Fin. (Nig) Ltd (2007) 14 NWLR (Pt. 1053) 37; Onu JSC., had aptly puts it thus:

                    “For an allegation of fraud to avail a Defendant in a suit placed on the undefended list, it must be on matters relevant to the case put up by the Plaintiff.”  

See also Nishizawa Ltd V. Jethwani, (1984) 12 SC 234; John Holt (Liverpool Ltd) V. John Holt (1961) All NLR (Reprint) 492; Wellington V. Mutual Society (1880) AC 685 @ P. 704; Hajiya Maimuna Garba & Ors V. Alhaji Buba Pate Zaria (2005) 17 NWLR (Pt. 953) 55.

To appreciate the real issues allegedly raised by the Appellants as contended by it to have amounted to triable issues contrary to the findings of the court below, recourse to the relevant exhibits of the Appellant is pertinent and I proceed anon to review exhibits B and D, hereunder reproduced as follows:

EXHIBIT B: This is a letter written on the Appellant’s letter headed paper to the Respondent, dated 27/10/2008 and signed by one Ifeanyi Oriuwa, MD of the Appellant, stating as follows:

                   “RE: Reminder of Application for Statement of Accounts.
                   The above subject matter refers; and reference is made to our letter of 22/7/2008. We are still interested in having our statements of accounts in respect of these accounts from February 2006:

1.    Ifeanyi Oriuwa A/C N0. 00449001000023570
2.    Dio – Global Concepts Nig. Ltd. A/C No. 049.1.21790

                   We need these statements of   accounts urgently to enable us audit our business...............................................
                 Ifeanyi Oriuwa, MD.” 

See page 119 of the record.

EXHIBIT D: This is a letter written on the Appellant’s letter headed paper to the Respondent, dated 30/10/2008 and signed by one Ifeanyi Oriuwa, MD of the Appellant, stating as follows:
                  RE: Restructuring of Current Account Balance to a Term Loan of N30million Facility.
                   I thank you for providing us with the statements of our accounts with your bank. We have carefully studied them and also took a close analysis of our business presently.
                   Our business has been seriously affected to the extent that we cannot be able to meet up the requirement to pay N500, 000. 00 monthly. Accordingly, we hereby decline the offer.

                   However, we are thinking of a way of settling this matter and we need your collaboration to sell off the houses involved and raise sufficient money to liquidate the balance. We hope we will get your cooperation as we look for buyers for the properties.

                 Ifeanyi Oriuwa, MD”

See page 129 of the record.

The Court below found, and quite rightly too in my finding, that the Appellant did not make out any triable issue by its paragraphs 3 (i) – (s)  going  by the content of exhibit D made by the Appellant upon receipt of exhibit P10 at pages 76 – 84 of the record, which is same as exhibit C at pages 120 – 128 of the record, when the allegation of its indebtedness to the Respondent were fresh in the mind of the officials of the Appellant, particularly its MD, the depositions in paragraphs 3(i) – (s) of the Appellants affidavit alleging facts contrary to and no where referred to or supported by exhibit D are all clearly afterthought amounting to caricature. The court below, in my view, showed remarkable understanding and commendably saw through the wools being pulled over its eyes by the half hearted cleverness of the Appellant and arrived correctly at the just and fair finding and I so hold that the defence if any as put up by the Appellant, which indeed was none existence, was at best a caricature.

In my finding therefore, the court below was right to hold that the Appellant failed to make out any case of fraud, or any of its allegation whatever they may amount to, against the Respondent and I hold that this finding by the court below was sound, impeccable and based squarely on the totality of the affidavit evidence of the parties as placed before it, which the court below painstakingly reviewed, evaluated and arrived at these correct findings. I therefore, do not see any reason to disturb such correct findings of the Court below. 

My lords, on the totality of the evidence as in the printed record, it is very clear and I so hold that the allegations of fraud and other sundry ones in paragraphs 3 (i) – (s) of the Appellant’s affidavit as were unsupported by even its Exhibit D, were clearly an afterthought merely intended to inaugurate a false defence with a view to postponing the judgment day, particularly on the face of the clear admissions of the Appellant in Exhibit D written to the Respondent accepting its liability as contained in the statement of accounts in Exhibits P10 as well as Exhibit C and suggesting way and means of liquidating its indebtedness to the Respondent arising from the N30, 000, 000. 00 loan facility made available to it by the Respondent. The intended defence or issues or facts or allegations so forcefully argued in the Appellant’s brief as amounting to a triable issue, with respect to Appellant’s counsel, were a complete farce and a sham aimed merely at denying the Respondent of its right to the immediate judgment which it rightly deserved under the undefended list procedure. 

I cannot therefore, but agree completely with the apt and unassailable submission of learned counsel for the Respondent that the Appellant did not make out any allegation of fraud or any other allegations at all against the Respondent that could in the least be taken seriously having not when the matters were fresh in its mind, as reflected in Exhibit D, raised or supply any particulars of such alleged fraud as required by law and thus failed woefully to raise neither any defence on the merit nor any triable issue as required by law to warrant the transfer of the Suit to the general cause list for trial.
In G.M.O Nworam and Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @ pp. 101 – 102, the Supreme Court stated emphatically thus: 

         “If a Defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to raise a preliminary objection as in the instant case, raises an issues where the Plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff’s claim, such brings the parties within the concept of ‘joining issues’.  In such a situation, a triable issue comes into existence. Whenever a bona-fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The Court has a duty to ensure fair hearing even in cases under the undefended list procedure” 

In the circumstances therefore, I have no difficulty holding firmly that the Court below was perfectly right in refusing the Appellant to come in to defend the Suit on the merit having not made out any defence or triable issue on the strength of its affidavit and documentary Exhibits placed before it. Its evaluation of the affidavit and documentary exhibits of the parties, as in the record, was meticulous, flawless and proper and its findings and conclusions reached thereon are sound, apt and impeccable and must therefore, be allowed to stand. 

It was submitted for the Appellant that the Court below was not expected at the stage of considering the suit under the undefended list to determine whether there was an established defence as its only duty was to look at issues raised by the Appellant as Defendant to determine whether there exist triable issues and not to demolish the Appellant’s case without even considering the case of the Respondent and thus shifting the initial burden of proof away from the Respondent, which was the Plaintiff unto the Appellant which was Defendant before the court below. 

I have asked myself what are the Appellant’s exhibits, some of which I have reproduced earlier in this judgment, capable of creating or throwing up and indeed created or thrown up any doubts on the claims of the Respondent against the Appellant? Now, Exhibit B, in my view, rather shows that the Appellant in its dealings with the Respondent treated the two accounts of Dio – Global Concepts Nig. Ltd and its MD, Ifeanyi Oriuwa, as jointly managed, when it was the Appellant that requested for both statements of accounts from the Respondent on its letter headed paper. Furthermore, by Exhibit D, the Appellant had no complaint against its indebtedness in Exhibits P10 and C, but merely pleaded for ways of liquidating its indebtedness including selling off its properties. See pages 110 – 114 of the record.  The court below saw no doubts created by the affidavit and exhibits of the Appellant on the claims of the Respondent. I too, having critically reviewed the entirety of the affidavit and exhibits of the parties as in the record, see no doubt created by the Appellant on the claims of the Respondent.   

The Court below having found that the Appellant did not make out any allegation against the Respondent’s claim, and there being no defence or triable issue, held that the only option left for it was to proceed to enter judgment under the undefended list procedure against the Appellant in favour of the Respondent. The court below was right. It is the indeed the dictates of the law so to do. See pages 311 – 314 of the Record. See also Nnabude V. G.N.G. (W/A) Ltd (2012) All FWLR (Pt. 619) @ p. 1198, where it was held that:

“In determining whether or not the Appellant had put up a good defence to the action filed against him, it did not behove upon a trial judge to consider at that stage whether the defence had actually been established. At that crucial stage of the trial, what was required was simply to look at the facts deposed in a counter-Affidavit, where applicable and determine prima-facie if it affords a defense to the action.” 
In the 4th issue as distilled by the Appellant’ counsel and under consideration too, it was the contention of the Appellant that on the totality of the evidence placed before the Court below by the parties, this was not a proper case for it to have proceeded to enter judgment for the Respondent without letting in the Appellant to defend the suit on the merit and that by so doing it breached the right of the Appellant to fair hearing as guaranteed by Section 36(1) of the Constitution of Nigeria 1999 as amended. 

A calm but critical look at the Undefended list procedure provisions of Order 22 of the Bauchi State High Court Civil Procedure Rules 1991, as applicable to Gombe State High Court, will readily reveal the duties imposed on each of the parties and indeed the Court below when dealing with matters placed under the undefended list procedure provisions of the Rules of the Court below. It is the duty of the Plaintiff to show through his verifying affidavit and the relevant documentary Exhibits if any that in his belief the Defendant has no defence to his claims against him. Upon service, the Defendant who believes that he has a good defence to the claim of the Plaintiff is to file his notice of intention to defend together with his affidavit and documentary Exhibits if any joining issues with the Plaintiff and disclosing facts amounting to defence on the merit or raising triable issue. 

At the hearing of the suit under the undefended list, the duty of the Court is to carefully examine and critically scrutinize the totality of the affidavit and documentary evidence if any of the parties placed before it to see if the Defendant has disclosed any defence on the merit or raised any triable issue. Once the Court determines that the Defendant has disclosed a defence or raised triable issue, the only duty left is to let in the Defendant to defend the claim on the merit by transferring it to the general cause list for full trial on the merit. However, where the Court finds that the Defendant has neither disclosed any defence on the merit nor raised any triable issue, there is no other option left for the Court than to proceed to enter judgment against the Defendant in favour of the Plaintiff as per his claim(s).         

In the proceedings under review as can be found on the printed record, it is clear and I so hold that the Court below was perfectly in order in its conduct of the proceedings under the undefended list and having found that the Appellant did not disclose any defence on the merit or indeed raise any triable issue, was right to have proceeded to enter judgment in favour of the Respondent against the Appellant. In law, the Court below had no option under the relevant Rules of that Court than to proceed to enter judgment against the Appellant as it rightly did in the judgment appealed against in this appeal. The right to fair hearing is not, by the mere fact of a suit being decided under the undefended list procedure without more, breached by a court in entering judgment in line with the enabling rules of court, such as Order 22 of the Rules of the court below.

It was further submitted that the Appellant, who filed an affidavit,  had addressed and called on the Court below to allow it to defend the claims of the Respondent but was not so allowed, that the refusal of leave to defend and the entering of judgment in the circumstances against the Appellant under the undefended list in favour of the Respondent was an infringement of the Appellant’s right to fair hearing as enshrined in Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 as (amended).

On the other hand, it was submitted for the Respondent that it is a well established principle of Law that the rules of Court providing for a case to be placed on the Undefended List is deliberately designed to allow for a quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed off and contended that the issue of fair hearing raised by the Appellant does not avail the Appellant. .

The questions readily arising from these divergent contentions are whether the court below was under a duty to transfer the Respondent’s suit from the undefended list unless and until the Appellant has made out at least triable issue even if not a defence on the merit and whether a judgment entered under the undefended list on the failure of a Defendant to make out any prima facie defence or triable issue is one in contravention of the right to fair hearing merely at the whims and caprice of a Defendant, who merely finds in the words “fair hearing” a convenient as well as handy mantra to postpone the day of reckoning or judgment? 

In Aso Motel Kaduna Ltd V. Deyemo (2006) 7 NWLR (Pt. 978)80 @ Pp. 121 – 122, the Court explained the relationship between the undefended list procedure and the right to fair hearing thus: 

“This Court categorically stated the rationale for undefended list procedure in the case of Mat Holdings Ltd V. U.B.A Plc. (2003) 2 NWLR (Pt. 803) 71 @ P. 90.  The Court states: ‘The rules of Court providing for cases to be placed under the undefended list are deliberately designed to allow for quick dispensation of justice to avoid unnecessarily clogging our legal system with proceedings which could otherwise have been easily and quickly disposed of.  Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defences directed at frustrating the Plaintiff out of judgment he well deserves.  A case should not be transferred from undefended list to the general cause list merely on the whims and caprices of a Defendant who merely finds the words ‘fair hearing’ a convenient as well as handy slogan.” 

In J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ P. 518, the Supreme Court threw further light on this salient issue thus:

          “The principle of fair hearing is not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away.  It is a fundamental right of universal application.  Thus, in the instant case, the submission of the learned counsel for the Respondent that the principles of fair hearing, particularly the rule of audi alteram partem, has no application to proceedings under the undefended list is strange.  In fact, Order 23 of the High Court of Ondo State (Civil Procedure) Rules 1987 does not take away the right of fair hearing of any party to the undefended list procedure.  Rather, it confers equal right to fair hearing to the parties.  In particular, Order 23(3)(1) confers express right to file a notice of intention to defend the action placed under the undefended list by virtue of Rule 1 Order 23, upon service of the processes on him and, the Court, after going through the affidavit, any grant him leave to defend the action and remove the Suit from the undefended list to the genera cause list to be dealt with accordingly.  It is only when the Defendant/Respondent fails or neglect to avail himself of the opportunity offered him by Order 23(3)(1) that the Court is empowered by Order 23(4) to enter judgment in the Suit, in which case, it is obvious  that truly the Defendant/Respondent has no defence to the action of the Plaintiff.  Thus failure or neglect of a Defendant/Respondent to avail himself of the opportunity to be heard is not a denial of the right to fair hearing.”

In law, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensue from the conduct of the Court in the hearing of a case. See Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771. See also Ofapo V. Sonmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi  V. Thomas Aplin & Co Ltd (1972) All NLR 413.

Having averted my mind to the succinct provisions of Section 36 (1) of the Constitution 1999 as amended and the provision dealing with undefended list procedure as applicable to the Gombe State High, in the light of the affidavit evidence of the parties as in the printed record and the correct finding that the Appellant did not disclose any defence on the merit or raised any triable issue, I hold that the Appellant who as allowed by the Rules of the Court below and was granted the indulgence even outside the time prescribed to file its affidavit and written address of its counsel and was duly heard at the hearing of the suit under the undefended list by the court below on 18/6/2009 leading to the judgment of the Court below was not in any way denied of its right to fair hearing as it was duly heard as allowed by law under the undefended list procedure of the Rules of the Court below. See pages 304 - 307 of the record.

My lords, having considered the correct position of the law on the issue of fair hearing vis a vis proceedings and judgments under the undefended list procedure, I am of the view and I so hold firmly that the Court below was right in entering judgment against the Appellant in favour of the Respondent and the issue whether the entering of judgment against the Appellant amounted to a denial of the right to fair hearing of the Appellant as guaranteed by Section 36(1) of the Constitution of Nigeria as amended as contended by the Appellant was not in the least made out. It was indeed dead on arrival. 

In my finding therefore, the Appellant was duly afforded equal opportunity with the Respondent to be heard and was indeed even heard first before the Respondent was heard by the court below before it delivered its judgment in favour of the Respondent against the Appellant. It is never the law and may that day never come when a party who loses a case would by that fact alone without more allege and sustain an allegation of denial of fair hearing just because he had lost a case in Court. This seems to me to be the only hue and cry of the Appellant in this appeal against the judgment of the Court below merely because it went against it. In Aso Motel Kaduna Ltd V. Deyemo (supra) @ pp. 121 – 122, the Court in considering the issue of fair hearing vis a vis the procedure under the summary judgment procedure, which is akin to the procedure under the undefended list, had reasoned thus:

“The contention of the Appellant that he was not given fair hearing does not hold water as the only duty expected of the learned trial judge was not to afford the Appellant’s counsel the opportunity to address the Court.  The only business of the day left after hearing the motion is to proceed to give judgment if there is no defence.  If there is however a defence, the case should be transferred to the general cause list for hearing and determination.” 
See also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.

An allegation of denial of the right to fair hearing, a constitutionally guaranteed right of the citizen, is a very grave allegation whenever made and therefore, must not be made carelessly or lackadaisically or lightly against the Court merely to cause distraction from the real issues in contention between the parties before the Court. This is so because in law once an allegation of denial of fair hearing is made out against any proceedings and or judgment, it renders it a nullity, regardless of the merit or otherwise of the cases of the parties. I hold that the Appellant’s right to fair hearing was scrupulously observed and accorded its rightful place by the Court below and thus the complaint of denial of right to fair hearing against the Court below by the Appellant was highly misconceived and lacking in merit. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.

In the circumstances therefore, I have no difficulty holding firmly that the Court below was perfectly right in entering judgment against the Appellant in favour of the Respondent on the facts, affidavit evidence and circumstances of this case as in the printed record and in line with the applicable principles of law.   

My lords, in passing I thought I should pause, having enjoyed reading the brilliant judgment of the court below under review in this appeal, to highly commend the inspiring and well articulated piece of judgment of the court below delivered by A. M. Yakubu J., of the Gombe State High Court and I hereby so commend him.  
Now, having resolved all the issues for determination in favour of the Respondent against the Appellant, it follows therefore, that this appeal lacks merit and is thus liable to be dismissed. I hereby so dismiss it without much ado! 

In the result, the ruling of the Gombe State High Court entering judgment in Suit No: GM/66m/2009: Intercontinental Bank of Nigeria Plc. (now Access Bank of Nigeria Plc) V. Dio – Global Concepts Nig. Ltd. delivered on 26/6/2009 by A. M. Yakubu, J., is hereby affirmed.
There shall be cost of N100, 000. 00 against the Appellant in favour of the Respondent. 

JUMMAI HANNATU SANKEY, J.C.A.
I have read in draft the Judgment of my learned brother, Georgewill, J.C.A., and I agree with him. Matters on the undefended list do not routinely find their way there. They find themselves there when the adjectival law says so. 

Like my learned brother, I have examined the affidavit of the Appellant (as Defendant) and I agree that it did not disclose any defence on the merit, and so the learned trial Judge acted rightly when he refused to let the Appellant in, and instead proceeded to enter Judgment in favour of the Respondent.

The law is trite that the court can refuse to let in a defendant to defend a suit, when once it is satisfied that the defendant’s affidavit does not disclose a good defence on the merit, or where the ground of defence is not clear and reasonable, or it is flimsy or vague. It must be stressed that the object of the Undefended List procedure is to prevent unnecessary delay in proper cases, or where the claim of the plaintiff from the affidavit evidence is unassailable. See Nworah V Akputa (2010) LPELR-1296(SC); Macaulay V NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283; (1990) 6 SCNJ 117; Okamba Ltd V Sule (1990) 7 NWLR (Pt. 160) 1; (1990) 11 SCNJ 1; UTC Nig Ltd V Pamotei (1989) 2 NWLR (Pt. 103) 244; (1989) 3 SCNJ 79. 

Accordingly, I also dismiss the Appeal. I endorse the consequential orders in the lead Judgment.
       
SAIDU TANKO HUSAINI
I agree.?

COUNSEL

H. N. Ugwuala Esq., learned Counsel for the Appellant.
Musa Bala Esq., holding the brief of H .N. Nwoye Esq., learned Counsel for the Respondent.