Legalpedia Citation: (2015-05) Legalpedia 20484 (CA)

In the Court of Appeal

Holden at Gombe

Thu May 28, 2015

Suit Number: CA/J/9/2013

CORAM

JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL JUSTICE, COURT OF APPEAL

PARTIES

1. HASKE DUNIYA COMM… LTD.
2. USMAN UMAR HASKE

 

APPELLANTS

DIAMOND BANK PLC

 

RESPONDENTS

AREA(S) OF LAW

CIVIL PROCEDURAL LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an appeal against the Judgment of Gombe State High Court of Justice in Gombe Judicial Division. The Respondent commenced the action at the lower court against the Appellants jointly and severally vide an amended writ of summons and claimed declaratory reliefs, executory orders and legal costs. The lower court refused to transfer the case to the general cause list and thereafter entered Judgment in favour of the Plaintiff now Respondent and against the Defendants now Appellants. The Appellants were dissatisfied with the Judgment and they appealed to this court.

HELD

Appeal dismissed.

 

ISSUES

• Whether or not the trial High Court was right in refusing to transfer the case to the general cause list for a full trial. (Distilled from Grounds 1 & 2)?

RATIONES DECIDENDI

UNDEFENDED LIST – PRIMARY OBJECT OF THE PROVISIONS FOR UNDEFENDED LIST PROCEDURE

Order 23 Rule 3(1) of the High Court of Bauchi State (Civil Procedure) Rules 1987 applicable to Gombe State provides that:-

“If a party served with the writ of summons and affidavit delivers to the Registrar a notice on writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”

 

The recognized primary object of the provisions for undefended list procedure is to enable a court to summarily deal with claims which are unarguable and where the facts are undisputed and it is inexpedient to allow a defendant to defend for mere purposes of delay. It is a unique or special procedure designed to shorten the determination of claims where they are for liquidated sums and to eliminate the technicalities entailed in the usual filing of pleadings and hearing of oral evidence. The procedure is peculiar in its subject and application meant to provide a quick channel for recovery of debt or liquidated sums, yet creating and ensuring an opportunity for fair hearing and doing substantial justice to the parties. See the following cases:-Balko vs. UBN Plc (2003) FWLR Part 180 at 1500 or (2004) 4 NWLR Part 862 Page 123; Macaulay vs. Nal Merchant Bank Ltd (1990) 4 NWLR Part 144 Page 283 at 324 – 325. PER – JIMI OLUKAYODE BADA, J.C.A.

DEFENCE ON THE MERIT – WHEN IS A DEFENCE ON THE MERIT SUFFICIENT

A defence on the merit is sufficient if the affidavit discloses the following:-

(i) The affidavit of a defendant must disclose prima facie bonafide defence. See – Magregor vs. N.M.B (1996) 2 SCNJ Page 72 at 82.

(ii) The affidavit must not merely contain a general statement that the defendant has a good defence, but must set out particulars of facts and the material which if proved would constitute a legal defence. See – Ataguba vs. Gura Ltd (2005) 2 SC at 109.

(iii) That the aggregate of the facts set out clearly and sufficiently in this affidavit disclose a triable issue of law or question or dispute as to the facts which ought to be tried. See – F.M.G vs. Sanni (1990) 4 NWLR Part 147 Page 688; Mohammed vs. Society General Bank (2006) All FWLR Part 340 Page 1182.

(iv) The affidavit must condescend upon the particulars and deal as far as possible with the Plaintiff’s claims. See – Peter Tiwel Nig. Ltd vs. Inland Bank (1997) 3 NWLR Part 494 Page 408; Knight Boudge vs. Atamako (2000) 2 NWLR Part 645 Page 381.

(v) The affidavit must set out clearly the grounds of the defence which must not be frivolous, vague and designed to delay the hearing of the action under the procedure. See: ACB Vs. Gwagwaba (1994) SCNJ Page 268.

 

PER – JIMI OLUKAYODE BADA, J.C.A.

NOTICE OF INTENTION TO DEFEND – THE PRIMARY DUTY OF A TRIAL COURT TO EXAMINE EVIDENCE PUT FORWARD WHERE THE NOTICE OF INTENTION TO DEFEND IS FILED

Where the notice of intention to defend together with an affidavit has been filed, it is the primary duty of a trial court to closely examine the evidence put forward by the Defendant in the affidavit along with any document that may be exhibited thereto in order to make a finding or come to the conclusion on whether a defence on the merit as required by the rules of court was shown or disclosed. The examination involves a consideration of the averments contained in the Defendant’s affidavit as well as the affidavit of the Plaintiff which they are meant to challenged. Because it is peculiar, the consideration of the case is entirely based on affidavit evidence filed by the parties. This would enable the trial court to examine the case put up by each of the parties. PER – JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE – ESSENCE OF THE PROCEDURE UNDER THE UNDEFENDED LIST

Going by several judicial authorities on the essence of the procedure under the undefended list it is a pretty very straight forward one. It is primarily geared toward the attainment of speedy but substantial justice in cases in which the Defendant really has no defence to the claim of the Plaintiff against him.

There was just one duty on the Court below which is to determine on the affidavit evidence of the parties whether the Appellant, as Defendant, had made out a prima facie defence or triable issue to warrant the transfer of the suit from the undefended list to the general cause list for hearing and determination. PER – BIOBELE ABRAHAM GEORGEWILL. JCA. 

PROOF – WHETHER OR NOT ADMITTED FACTS NEEDS FURTHER PROOF

It is the law that facts admitted need no further proof. It is also the law that unchallenged credible evidence is good evidence on which a Court can act. See Adike V. Obiareri (2002) 4 NWLR (Pt. 758) 537; Onyege V. Ebere (2004) 3 NWLR (Pt. 889) 26; Cameroon Airlines V. Mike Otutuizu (2005) 9 NWLR (Pt. 929) 202; C BNV. Okojie (2004) 10 NWLR (Pt. 882) 488; Agagu V. Dawodu (1990) 7 NWLR (Pt. 160) 65. PER – BIOBELE ABRAHAM GEORGEWILL. JCA.

NOTICE OF INTENTION TO DEFEND – THE POSITION OF THE LAW WHERE NO REAL DISPUTE ARISES AS TO THE SPECIFIC FACTS WHICH THE CLAIMS ARE BASED FROM THE AFFIDAVIT OF THE NOTICE OF INTENTION TO DEFEND

Where no real dispute arises as to the specific facts upon which the claims are based from the affidavit of the notice of intention to defend, a defence on the merit would be absent and a defendant in such a situation not be entitled to the grant of leave to defend the action or transfer of the case to general cause list. PER – JIMI OLUKAYODE BADA, J.C.A.

UNDEFENDED LIST PROCEDURE – THE POSITION OF THE LAW WHERE THE COURT FINDS OUT THAT THE AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND CONTAINS NO TRIABLE ISSUE OR PRIMA FACIE DEFENCE

The very straight forward, and if I dare say very simple uncomplicated procedure under the undefended list, is that on the date fixed for hearing by the Court of a case placed under the undefended list, the Court would look at the affidavit in support of the notice of intention to defend, If any, and determine whether it discloses any prima facie defence or triable issue. Once the Court finds that in the affidavit in support of the Notice of intention to defend, no triable issue or prima facie defence has been made out that is the end of the matter, the Court proceeds to enter judgment for the Plaintiff against the Defendant. It is therefore, only where the Defendant had in the affidavit in support of the notice of intention to defence made out triable issue or prima facie defence that the Court would transfer the case to the general cause list. See Delta Air Service Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt. 238) 697. See also Ugwu V. Emenogba (2009) All FWLR (pt. 499) 496; Okpara V. Gusau (2009) All FWLR (Pt. 460) 801; Okoro V. Okoro (2009) All FWLR (Pt. 489) 480: PER – BIOBELE ABRAHAM GEORGEWILL. JCA.

CASES CITED

STATUTES REFERRED TO

High Court of Bauchi State (Civil Procedure) Rules 1987 applicable to Gombe State

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