VICTORIA SHOLA VS EZEDIASHI OFILI & 2ORS
March 30, 2025O & O NETWORKS LIMITED V BROAD COMMUNICATIONS LIMITED & ORS
March 30, 2025Legalpedia Citation: (2020) Legalpedia (CA) 38237
In the Court of Appeal
HOLDEN AT BENIN CITY
Sun Nov 29, 2020
Suit Number: CA/B/296/2013
CORAM
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
ADAMU HOBON FHC
ADAMU HOBON FHC
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
ADAMU HOBON FHC
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
ADAMU HOBON FHC
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
ADAMU HOBON FHC
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
MITCHELL CHRISTOPHER CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BIOBELE ABRAHAM GEORGEWILL
PARTIES
UNITED BANK FOR AFRICA PLC
E. I. NATAMA INTERNATIONAL COMPLEX LTD – RESPONDENT
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Respondent as Claimant before the High Court of Edo State, as can be gleaned from the record of appeal was that sometime in 2009, the Respondent, a customer of the Appellant, obtained a loan facility of N3, 000.000.00 with interest from the Appellant and later repaid the loan with the agreed interest. The facility was repeated twice and on each occasion, the Respondent faithfully repaid the loan with interest. Thereafter, the Respondent obtained another facility of N1, 800,000.00 on 15/1/2010 from the Appellant, which the Respondent also repaid with interest. However, without the Respondent’s consent and/or with several misrepresentations, the Appellant deducted and/or collected the sum of N2, 561, 019.17 from the Respondent’s or its Bank account with the Appellant. When the Respondent’s suspicion was aroused and it raised queries, the Appellant froze its account, contrary to the agreement between the parties and thereby, caused damages to the Respondent’s business by the Appellant’s failure to refund to the Respondent the several monies deducted from its account. The Court below heard the matter and placed under its Undefended List and after considering, the affidavits of the parties and the documentary exhibits of the Respondent, in the absence of any documentary exhibits from the Appellant, concluded that the Appellant’s affidavit rather than affording any defense supported the case of the Respondent. It then proceeded to enter judgment in favor of the Respondent as per its claims against the Appellant, hence this appeal.
HELD
Appeal Dismissed
ISSUES
Whether the Court below was right in coming to the conclusion that the Appellant’s Affidavit disclosing its Defense actually supported the case of the Respondent and consequently entering judgment for the Respondent?”
RATIONES DECIDENDI
UNDEFENDED LIST PROCEDURE – RATIONALE FOR THE UNDEFENDED LIST PROCEDURE
“In law, the undefended list procedure provision is usually aimed at dispensing with dispatch cases which are uncontested and also cases where there can be no reasonable doubt that a Claimant is entitled to judgment and it is inexpedient to allow a Defendant to defend for the mere purposes of delay. Thus, it is for the plain and straight forward and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247, where the erudite Tobi JSC.,(God bless his soul) 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 defense on the merit and detail and particulars of defense must be set out. It must not be a half – hearted defense. It must not be defense which is merely fishing for skirmishes all over the place. It must be real defense on the merit and not a counterfeit of it… The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense 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”.
UNDEFENDED LIST PROCEDURE – PROCEDURE TO BE ADOPTED IN A SUIT FILED UNDER THE UNDEFENDED LIST
“The undefended list procedure is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant 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 Claimant 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 and 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 defense to the claims of the Claimant.
However, 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 defense or raised at least triable issue that would need to be further investigated by the Court by way of a full hearing. Where the Court finds that the Defendant has not disclosed any defense or raised any triable issue, it is under a duty to proceed to enter judgment in favor of the Claimant against the Defendant, no more and no less! See NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR -44464 (SC); Akahall & Sons Ltd V. NDIC (2017) LPELR – 41984 (SC); Bona V. Textile Ltd & Anor. V. Asaba Textile Mill Plc., (2012) LPELR – 9828 (SC); Union Bank of Nigeria V. Awman properties Ltd (2018) LPELR – 44376 (SC). PER B.A.GEORGEWILL, J.C.A
But, where there are substantial conflicts as to the facts of the case on the affidavits evidence of the parties, it would be sufficient for the Court to hold that the Defendant has made out a triable issue as would require 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, as anything otherwise in such circumstances would clearly amount to a breach of the right of the Defendant to fair hearing. See Delta Air Services Ltd V. Sudan Airways Ltd(2004) All FWLR (Pt. 238) 697”.
UNCHALLENGED EVIDENCE – ATTITUDE OF COURT TO UNCHALLENGED EVIDENCE
“I therefore, have no difficulty whatsoever holding, as aptly contended by the counsel for the Respondent, that by the failure to respond with details and where necessary documentary exhibits, to the specific facts as contained in the Respondent’s affidavit and copious documentary exhibits, the Appellant is in law deemed to have admitted the facts as deposed to by the Respondent, which are left unchallenged. A Court of law has the plenitude of power to receive and act on unchallenged evidence, whether it is oral, affidavit and or documentary. See Section 123 of the Evidence Act, 2011. See also Obumseli & Anor. V. Uwakkwe (2019) LPELR – 46937 (SC); APC V. INEC & Ors (2014) LPELR – 24036 (SC); Tukur V. Uba & Ors (2012) LPELR – 9337 (SC); Akiti V. Oyekunle (2018) LPELR – 43721 (SC); Owuru & Anor V. Adigwu & Anor (2017) LPELR – 42763 (SC); Mato V. Hembe & Ors (2017) LPELR – 42765 (SC).
AFFIDAVIT EVIDENCE – STATUS OF FACTS DEPOSED BY A PARTY WHERE SUCH FACTS IS NOT WITHIN HIS PERSONAL KNOWLEDGE
“In coming to the above finding, I have also looked at the bare depositions as contained in the Appellant’s affidavit and considered the circumstances and position of the deponent to the facts to which she deposed therein and it does appear to me that these were facts not within her personal knowledge and in the absence of the documents which would clearly evidence these depositions, the entire deposition in paragraphs 4 (a) – (i) of the Appellant’s affidavit, being at best mostly documentary hearsay offensive to several provisions of the law dealing with affidavit evidence and were thus not only unhelpful to the case of the Appellant but also failed woefully to disclose any defense to the claims of the Respondent. See Section 115(1), (3) & (4) of the Evidence Act 2011. See also AGIP (Nig.) Ltd. V. AGIP Petroleum International & Ors (2010) Vol. 181 LRCN 119 @ p. 131; Jimoh V. Hon. Minister Federal Capital Territory & Ors (2018) LPELR – 46329 (SC).
DOCUMENTARY EVIDENCE – CONSEQUENCE OF A FAILURE BY A PARTY TO PRODUCE RELEVANT DOCUMENTARY EVIDENCE
“My lords, the failure or neglect to exhibit any of the documents, clearly in the custody of the Appellant, in support of the diverse depositions in the Appellant’s affidavit comes across to me as not only deliberate but also shocking and indefensible by the Appellant. How else can one explain the failure by the Respondent, a very reputable Bank in Nigeria, of which a Court can take judicial notice thereof, to place before the Court below loan documents, cheques, receipts of payment, payment authorization, statement of account in its business relationship with the Respondent. I cannot therefore, but draw the inference. as vehemently urged upon us by the Respondent’s counsel that the Appellant deliberately failed to produce those relevant and vital documentary evidence because it knew very well that if produced the evidence in those documents would have been glaringly unfavorable to the Appellant. See Section 167 (d) of the Evidence Act 2011. See also Okereke V. Umahi & Ors (2016) LPELR – 400035 (SC); Haruna V. Modibbo (2004) 16 NWLR (Pt. 900) 487; Audu V. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 S S. GMBH V. T. D. Industries Ltd (210) 11 NWLR (Pt. 1206) 589; Buhari & Anor. V. Obasanjo and Ors (2005) 12 NWLR (Pt. 941) 1; Aremu V. Adetoro (2007) 49 WRN 1, Onuwaje V. Ogbeide (1991) 3 NWLR (Pt. 178) 147; UBA Ltd V. Ibhafidion (1994) 1 NWLR (Pt 318) 90; Tsokwa Motors Nig Ltd V. Awoniyi (1994) 1 NWLR (Pt 586) 1999; Agbi V. Ogbe & Ors (2007) 10 WRN 144;
Consequently, I hold that the depositions in the Appellant’s affidavit not only remained bare and thus unproved but did not also raise any triable issue or amounted to any defense to the claims of the Respondent against the Appellant as was rightly held by the Court below. See Titanlaye V. David (2013) LPELR – 20160 (CA) @ p. 11. See also Hussani Isa Zakirai V. Salisu Dan Azumi Muhammad &Ors (2017) LPELR – 42349 (SC); Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445; Fashanu V. Adekoya (1974) 4 SC 83; Fawehinmi V. IGP & Ors (2002) LPELR – 1258 (SC).
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UNDEFENDED LIST PROCEDURE – ON WHOM LIES THE ONUS TO ESTABLISH TRIABLE ISSUES UNDER THE UNDEFENDED LIST PROCEDURE
“The duty to show defense or triable issue under the undefended list Procedure was squarely on the Appellant, the Defendant before the Court below, and which it must do by the clear positive and direct depositions in the affidavit in support of its Notice of Intention to Defend together with relevant documentary exhibits, where essential, showing that it did not carry out any unauthorized deductions from the Respondent’s account as alleged by the Respondent and thereby raising either triable issue or creating some doubts on the Respondent’s claim.
UNDEFENDED LIST PROCEDURE – WHETHER THE TRANSFER OF A SUIT FROM THE UNDEFENDED LIST TO THE GENERAL CAUSE LIST CAN BE GRANTED AS A MATTER OF COURSE
“I cannot therefore, but agree completely with the apt and unassailable submission of Counsel for the Respondent that the Appellant did not make out even an iota of triable issue as required of it by law in an action placed under the Undefended List for same to be transferred to the General Cause list for full trial at plenary. In law the transfer of a suit placed under the undefended list to the General Cause list for full trial is not and has never been and cannot be just as a matter of course for the asking by a Defendant! See G.M.O Nworam and Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @Pp. 101-102,where the Supreme Court stated emphatically thus:
“If a Defendant’s affidavit in support of the notice of intention to defend, where one is filed…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”-
UNDEFENDED LIST PROCEDURE – ISSUE FAIR HEARING UNDER THE UNDEFENDED LIST PROCEDURE
“Now, the issue of fair hearing as fundamental and sacrosanct as it is, being a constitutional guaranteed right, must be raised genuinely and bona fide and never mischievously or lackadaisically or mala fide. Once a Court hearing matter placed under the Undefended list comes to a conclusion that a Defendant, by his affidavit in support of his Notice of Intention to Defend, did not make out any triable issue against the Respondent’s claim, the only option open or left for such a Court is to proceed to enter judgment against the Defendant in favor of the Claimant. Thus, 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 the Court below. 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:
“…..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 defenses 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. ”
See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ P. 518, where the Supreme Court threw further light on the issue fair hearing under the Undefended List procedure inter alia 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 principle of fair hearing, particularly the rule of audi alteram partem, has no application to proceedings under the undefended list is strange…Rather it confers equal right to fair hearing to the parties…It is only when the Defendant/Respondent fails or neglects to avail himself of the opportunity offered him…that the Court is empowered…to enter judgment in the Suit…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.”-
FAIR HEARING – TRUE TEST OF FAIR HEARING
“My lords, 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 Section36(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) I NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413”.
DENIAL OF THE RIGHT TO FAIR HEARING – CONSEQUENCE OF AN ALLEGATION OF A DENIAL OF THE RIGHT TO FAIR HEARING IN PROCEEDINGS
“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. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1979 as amended|
Constitution of the Federal Republic of Nigeria 1999 as amended|
Evidence Act 2011|High Court Civil Procedure Rules 1988|
