SLOK (NIG) LTD v. AJAERO (2021)

SLOK (NIG) LTD v. AJAERO

(2021)LCN/15582(CA)

In The Court of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Thursday, November 25, 2021

CA/PH/568/2013

Before Our Lordships:

Paul Obi Elechi Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Between

SLOK NIGERIA LIMITED APPELANT(S)

And

PHILIPH AJAERO (Trading Under the name of PHILIPINO International Services) RESPONDENT(S)

RATIO DECIDENDI

ONUS OF PROOF

It is submitted that it is an established principle of law that he who assert the existence or non-existence of a particular state of facts has the onus in law to establish the existence or non-existence of those state of facts so asserted. See Sections 131(1) and 133(1) of the Evidence Act;A/G, Oyo State vs. Fairlakes Hotels (No. 2) 1989 5 NWLR (Pt. 121) 255 at 258; Ayeni vs. Adesina (2007) 7 NWLR (Pt. 1033) 233 at 264. Also, evidence not controverted are deemed established. See Adusei vs. Adebayo (2013) 3 NWLR (Pt. 1288); Agbola vs. The State. PER PAUL OBI ELECHI, J.C.A.

DUTY OF COURTS TO EVALUATE EXHIBITS

It is trite law that where the trial Court fails to examine and evaluate exhibits thoroughly, an appellate Court is entitled to do so and make findings thereon. See Abi vs. C.B.N (2012) 3 NWLR (Pt. 1286) P. 1 @ 29, Paras. C-E; Garuba vs. Yahaya (2007) 3 NWLR (Pt. 1021) P. 390 @ 414, Paras…, I.B.W.A Ltd. vs. John Elue Const. Co. Ltd (2004) 7 NWLR (Pt. 873) P. 601 @ 614, Paras. G-H; Yaro vs. State (2007) 18 NWLR (Pt. 1066) P.P. 238-239, Paras F-A. The Court is invited to re-examine and re-evaluate exhibits which the trial Court had failed to evaluate or examine to re-evaluate or re-examine the Respondent’s invoices in juxtaposition with the analysis and submissions in paragraphs 3.4-3.5 and hold that the invoices relied upon by the Respondent in proof of his claims are self-contradictory, unreliable and of no probative value to sustain the judgment entered in favour of the Respondent by the learned trial Judge. See Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) @ 586, Paras. D, H. PER PAUL OBI ELECHI, J.C.A.

DUTY OF COURT IN THE ABSENCE OF A COUNTER-AFFIDAVIT

It is contended that it is an established law that in the absence of any denial of the depositions in an affidavit by way of a counter-affidavit and the consequent deeming of such depositions as having been admitted, a Court of law is under a judicial light of the documents or documentary evidence in the case and that where a deposition is in conflict with a documentary evidence in the case of a Court of law is under a judicial duty to reject the deposition even though there is no counter-affidavit in the case. See Onyemelukwe vs. W.A.C.C. Ltd. (1995) 4 NWLR (Pt. 387) 44 at 55; Ekekeugbo vs. Fibresima (1994) 3 NWLR (Pt. 355) 707 at 73. PER PAUL OBI ELECHI, J.C.A.

DOCUMENTARY EVIDENCE

It is an established law that documentary evidence should be a hanger from which to assess oral testimony which in the substantive case is the Respondent’s depositions in his affidavit in support of his case. See Fashanu vs. Adekoya (1974) NSCC, P. 327, Para. 45-50 and Kimdey vs. Military Governor, Gongola State (1988) 2 NWLR (Pt. 77) P. 445 @ 448, Ratio 6. PER PAUL OBI ELECHI, J.C.A.

WHERE GROUND OF APPEAL IS INCOMPETENT

It is trite that a ground of appeal which does not attack a judgment of the trial Court is deemed incompetent and liable to be struck-out. See The Registered Trustees, Pentecostal Assemblies of the World Inc. vs. African Apostolic Christ Church (2002) 15 NWLR (Pt. 790) 424.PER PAUL OBI ELECHI, J.C.A.

PROLIFERATION OF ISSUES

In the case of Consolidated Breweries Plc vs. Aisowieren (Supra), the Court held thus:
“When, on appeal, there is proliferation or prolixity of issues in a brief, the Court merely rebukes, reprimands or cautions counsel. The party does not suffer any serious sanction or penalty.”
In the case of Ika Local Government Area vs. MBA (Supra) @ 696, Paras. B-E where it restated the fact that appellate Court would not punish the defaulting party for proliferation of issues caused by his counsel who settled his Brief of Argument as it is in the substantive appeal.
Also in Rockshell International Limited vs. B.Q.S. Limited (Supra) @ 662, Paras. A-E exercised its discretion in favour of the defaulting party by refusing to strike out the offending issues for determination distilled out of the grounds of appeal on the basis of substantial justice when it held thus:
“The appellate Court frowns at the proliferation of issues but do overlook same in certain circumstances. What is paramount is to critically look at the issues distilled whether they are tied to the grounds of appeal, and faulty only on the basis of repetition. Nevertheless, such practice of distilling more than one issue from ground of appeal should be discouraged as it leads to clumsy, inelegant briefs that lack precision on what the real issues arising from the grounds of appeal entail. In the instant case, the counsel to the Appellant has ungainly distilled 6 issues from four grounds of appeal and lumped them all together. This is improper and made his brief inelegant. However, issues were not struck out in the interest of substantial justice. (Underlining provided for emphasis)
In the instance case at hand, one must take judicial notice of simple fact that the proliferation of issues arose as a result of the inadvertence of counsel and not the Appellant. And so, the mistake of counsel ought not to be visited on the Appellant. Even the ground one of the Appellant’s Amended Notice of Appeal was only faulty on the basis of repetition. Even the Court can on its own discretion, strike out the extra issues in the interest of justice. See Rockshell International Ltd vs. B.Q.S. Ltd (Supra), the Court in dealing with this issue said thus:
“Generally, issues formulated in a Brief of Argument need not coincide with the number of grounds of appeal filed, but more than one issue cannot be tied to one ground of appeal as this amounts to surplusage. The attitude of the appellate Court in such a case is to strike out the extra issue.”
The Honourable Court in exercising its discretion in Chaka vs. Messrs. Aerobell (Nig) Ltd. (Supra) @ 314, Paras. D-E stated thus:
“Where two issues for determination are related to one ground of appeal, it would amount to a proliferation of issues if both of them are argued separately. Consequently, one of the issues must give way to the other.”
The Honourable Court while exercising its discretion in yet another case, Eze vs. Nwaubani (2003) 7 NWLR (Pt. 818) P. 62-63, Paras. H-B allowed the defaulting counsel to apply and withdraw the extra issue when it stated thus: “It is now fairly settled that the issue for determination in an appeal must of necessity be limited, circumscribed and fall within the scope of the ground of appeal filed. It is therefore not usually envisaged that the issue for determination will be more in number than the number of the grounds of appeal.” PER PAUL OBI ELECHI, J.C.A.

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellant against the decision of the High Court of Justice, Rivers State delivered by the Hon. Justice W.A. Chechay on the 21st May, 2013 in Suit No. PHC/623/2013 i.e Philip Ajaro vs. Slot Nigeria Limited. In the said judgment, the learned trial judge awarded in favour of the Respondent, the sum of N8,515,800.00, cost of N100,000.00 and 10% interest on the judgment sum and cost per annum until paid.

Being dissatisfied with the said decision, the Appellant filed an Amended Notice of Appeal and the Appellant’s Brief of Argument and in response, the Respondent filed a Notice of Preliminary Brief of Argument containing arguments in support of the said Preliminary Objection.

According to the Appellant, the judgment of the trial Court which is been appealed arose from an undefended list proceeding instituted by the Respondent against the Appellant vide a Writ of Summons dated 23rd March, 2013 and accompanied with a verifying affidavit, affidavit in support of the application for undefended list proceedings and attached exhibits. By the case of Respondent as borne out in the affidavit in support of the undefended list, the Respondent claimed that his services was retained by an agent of the Appellant to provide logistics to the Appellant for purposes of transporting its wares (oil and food stuffs) from Total Oil in Trans Amadi Industrial Layout, Port Harcourt to the Appellant’s office at the Onne Port. It was the Respondent’s contention that according to his oral agreement with Engr. Firas, the Appellant’s Operations Manager, he provided logistics for the transportation of the Appellant’s oil and foodstuffs as agreed at different times from May 2008 up to September, 2008. The Respondent further contended that the Appellant became indebted to it to the tune of N8,515,800.00 (Eight Million, Five Hundred and Fifteen Thousand, Eight Hundred Naira only) for the services he rendered to the Appellant for the aforesaid period. It was the Respondent’s contention that he had made formal demand for the payment of the above-stated sum to the Appellant, all to no avail, as the Appellant refused to pay the said debt. Consequently, the Respondent brought an undefended list proceedings against the Appellant to recover the said debt.

The Appellant, however, did not defend the suit by filing its Notice of Intention to Defend and judgment was summarily entered in favour of the Appellant as stated in paragraph 1.1 above on 21st May, 2013. The Appellant has not filed an appeal before this Honourable Court to contest the judgment of the learned trial Judge.

ISSUES FOR DETERMINATION:
The Appellant submitted that the issues which arise for determination in this appeal are as follows:
(1) Whether the learned trial Judge was right to rely on self-contradictory documents, invoices produced by the Respondent in proof of debts purportedly owed him by the Appellant which are unreliable and of no probative value to enter judgment in favour of the Respondent.
(2) Whether the learned trial Judge was right to rely on depositions of the Respondent’s affidavit in support of his application which were in conflict with the documentary evidence produced in proof of his claims to enter judgment in favour of the Respondent.

ARGUMENT
ISSUE 1
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO RELY ON SELF-CONTRADICTORY DOCUMENTS, INVOICES PRODUCED BY THE RESPONDENT IN PROOF OF DEBTS PURPORTEDLY OWED HIM BY THE APPELLANT WHICH ARE UNRELIABLE AND OF NO PROBATIVE VALUE TO ENTER JUDGMENT IN FAVOUR OF THE RESPONDENT.

These rules, it is contended also applies to proceedings fought on the basis of averment in affidavit as in the Respondents suit which gave rise to this appeal. It is the law as contended by the Appellant that the fact that averments in an affidavit was not controverted or challenged by averments in an opposing affidavit is counter-affidavit or further affidavit as the case may be, does not for all intents and purposes totally divest the evidential burden from the position who asserts the existence or non-existence of a state of facts to ensure that the averments deemed admitted in the absence of any opposing affidavit are credible enough to sustain the claims sought from the Court. See Bello vs. A/G Lagos State (2007) 2 NWLR (Pt. 1017) 115 at 136-138; Ogoejeofo vs. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 at 221.

It is further submitted that the learned trial judge erred in law and failed in its judicial duty to go beyond the presumption of those averments been deemed admitted in the absence of any opposing affidavit providing facts in rebuttal to the facts contained in Respondent’s affidavit in support of the Respondent’s suit as it abdicated its judicial duty of ascertaining the veracity and authenticity of the said deemed admitted facts contained in the Respondent’s affidavit in support and the exhibits (invoices) annexed thereto in proof of his claim if they are cogent and strong enough to solely sustain the claims of the Respondent. It is our further submission that had the learned trial Judge gone beyond the presumption of treating those averments in the Respondent’s affidavit in support of his suit as having been admitted in the absence of a counter-affidavit to ascertain the veracity of the contents of the invoices produced in juxtapositions contained in paragraphs 15, 16, 17, and 18 of the said affidavit in proof of the Respondent’s claim at the lower Court, the learned trial Judge under a painstaking judicial evaluation of those invoice would have observed that those invoices were indeed self-contradictory by itself and that it also contradicts the above-mentioned depositions of the Respondent’s said affidavit and consequently is unreliable and of no probative value to sustain the judgment delivered in favour of the Respondent. Those invoices were self-contradictory is founded on the obvious fact that the invoices contain contradictory information or data which cast doubt on the veracity of the information or data contained therein.

Also that an in-depth review of the invoices produced by the Respondent in proof of his claim would reveal without any scintilla of doubt that had the trial Court gone beyond the presumption of facts contained in the Respondent’s affidavit in rebuttal of these invoices properly, it would have observed that they contain conflicting and contradictory information or data which cast heavy doubt on the credibility and probative value. It is submitted that had the learned trial Judge reviewed those invoices painstakingly he would have observed that Invoice No. 0141 purportedly issued on 28/06/2008 shows that it contains information or data relating to a purported debt which accrued as a result of service purportedly rendered on 30/06/2008, Invoice No. 0142 purportedly issued on 23/07/2008 shows that it contains information or data relating to a purported debt which accrued as a result of services purportedly rendered on 29/07/2008, Invoice No. 0143 purportedly issued on 27/08/2008 shows that it contains information or data relating to a purported debt which accrued as a result of services purportedly rendered on 28/08/2008, Invoice No. 0144 purportedly issued on 25/09/2008 shows that it contains information or data relating to a purported debt which accrued as a result of services purportedly rendered on 30/09/2008 and Invoice No. 0140 purportedly issued on 25/05/2008 shows that it contains information or data relating to a purported debt which accrued as a result of services purportedly rendered on 30/05/2008. See pages 9-12 of the Records of Appeal. We submit that from the above-mentioned review that the invoices produced by the Respondent in proof of his case contain information or data relating to debts which arose after the date of issue, whereas it should ordinarily contain information and data relating to debts which arose either before or on the date of issue. The pertinent question here is: could the Respondent demand payment for services that had not been rendered as at the date of issue of those invoices? Or can an invoice be used to make demand for a debt which is yet to accrue?

Therefore, it is submitted that an invoice cannot be employed for the purpose of demanding payment for goods or services which have not been supplied or rendered at date of issue, neither can it be employed to make a demand for a debt that has not fallen due or accrued as at the date of issue.

Further submitted by the learned Appellant counsel is the fact that the Respondent’s invoices produced in support of his case which contain information or data of goods and services purportedly supplied on rendered after the date issue show without any scintilla of doubt that those goods and services purportedly supplied or rendered by the Respondent to the Appellant never existed or have not been supplied or rendered and therefore could not have accrued as a debt against the Appellant in favour of the Respondent at the dates those invoices were issued to warrant the Respondent to approach the lower Court vide an undefended proceedings to recover the said purported debt which has not arisen or become liquidated.

It is equally submitted that from the content of those invoices, it is without doubt that they are suborned documents specifically contrived by the Respondent to fraudulently make a formal demand for an unexisting or purported debt in view of the irreconcilable contradictions contained therein. Had the learned trial Judge painstakingly gone beyond the presumption of treating the depositions contained in the Respondent’s affidavit in support of his case as having been admitted by the Appellant’s failure to file a counter-affidavit in rebuttal thereof, to review the content of the Respondent’s invoices which contain information or data of goods or services purportedly supplied or rendered before and after the date those invoices were issued, it will, without doubt arrived at an unimpeachable conclusion that the fulcrum of the Respondent’s claims, the invoices were indeed self-contradictory and therefore unreliable and of no probative value to sustain any claim made thereon.

In view of the above, the Court is urged to resolve this issue in favour of the Appellant.

ISSUE 2:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO RELY ON DEPOSITIONS OF THE RESPONDENT’S AFFIDAVIT IN SUPPORT OF HIS APPLICATION WHICH WERE IN CONFLICT WITH THE DOCUMENTARY EVIDENCE PRODUCED IN PROOF OF HIS CLAIMS TO ENTER JUDGMENT IN FAVOUR OF THE RESPONDENT.

It is submitted that had the learned trial Judge exercised his judicial duty of examining the documentary evidence furnished by the Respondent in proof of his claim, even when the presumption of admission of the facts contained therein had been cast on those invoices by the failure of the Appellant to file a counter-affidavit in denial of the depositions and content of the invoices as held in the case of Onyemelukwe vs. W.A.C.C. (Supra), a cursory of the Respondent’s undefended list proceedings especially invoices nos. 0140, 0141, 0142, 0143 and 0144 would firstly show the invoices contain information or data of goods and services purportedly supplied or rendered by the Respondent to the Appellant before the dates those invoices were issued. Secondly, it will also reveal that same contain information of goods and services purportedly supplied and rendered by the Respondent to the Appellant after the dates those invoices were issued. Also, it would have revealed that by the application of the meaning of an ‘invoice’ those invoices furnished by the Respondent ought not to have included information or data of goods and services purportedly supplied or rendered by the Respondent to the Appellant after the date of issue and that same could not have culminated in a debt(s) or liquidate debt which the Respondent can enforce under the Order 11 Rule 8 of the Rivers State (Civil Procedure) Rule 2010 (“Rules”). Finally, the learned trial Judge would have observed that the entries made in those invoices in respect of the goods or services purportedly supplied or rendered by the Respondent after the dates those invoices were issued, had infact not occurred or become a debt or liquidated debt and therefore is in conflict with the facts contained in the Respondent’s depositions in his affidavit in support of his case, especially paragraphs 15, 16, 17 and 18 thereof which put forward a representation that those goods and services had infact been supplied or rendered by the Respondent to the Appellant at the dates those invoices were issued.

It is an established law that documentary evidence should be a hanger from which to assess oral testimony which in the substantive case is the Respondent’s depositions in his affidavit in support of his case. See Fashanu vs. Adekoya (1974) NSCC, P. 327, Para. 45-50 and Kimdey vs. Military Governor, Gongola State (1988) 2 NWLR (Pt. 77) P. 445 @ 448, Ratio 6. In the substantive case, the content of those invoices which contain both information or data relating to goods or services purportedly supplied or rendered before or after the dates of issue and the debts which allegedly arose from them cannot be used as a hanger to assess or test the veracity of the above-mentioned depositions in the Respondent’s affidavit in support of his case at the trial Court as same is materially in conflict with those depositions which present a state of facts that those goods and services had been supplied or rendered before the dates of issue and that the purported debts accruing therefore had fallen due or had become liquidated for the Respondent to lay claim to same. It is therefore submitted that the entries made after the dates those invoices were issued represent goods or services which have not been supplied or rendered, nor become debts or liquidated debts and are in material conflict with the Respondent’s depositions in his affidavit in support of this suit, especially in paragraphs 15, 16, 17 and 18 of the said affidavit in support of the Respondent’s case where the Respondent made false depositions to the effect that those goods or services have been supplied or rendered by the Respondent to the Appellant and have become debts which are due and liquidated at the dates of issue.

The Court is urged to reject the Respondent’s argument and submission especially paragraphs 15, 16, 17 and 18 of the affidavit of his case on ground that paragraphs 15, 16, 17 and 18 of affidavit in support of his case on the ground that there exist a material conflict between the documentary evidence furnished by the Respondent in proof of those depositions and his claims in the said affidavit of the substantive suit notwithstanding the presumption of admission of facts contained in the Respondent’s affidavit in support of his case by the failure of the Appellant to controvert same by filing a counter-affidavit. See NBN Ltd. vs. SCDC Coy Ltd (1998) 5 NWLR (Pt. 548) 144 at 154.

Consequently, the Court is urged to hold that with the proven contradictions in the Respondent’s invoices and the depositions in the Respondent’s invoices and the Respondent’s said affidavit which has rendered same incapable of establishing how much the Appellant purportedly owes the Respondent in relation to his original claim in respect of goods and services which were purportedly supplied or rendered after the date of issue are not debt which has fallen due or have become liquidated. Those invoices it is submitted will obviously be incapable of establishing the exact amount the Appellant purportedly owes the Respondent.

It is therefore submitted that the learned trial Judge was in error to have held that the Respondent was entitled to judgment in the matter.

The Court is urged to resolve this issue in favour of the Appellant and to allow the appeal and set aside the judgment of the lower Court.

The Respondent stated thus that:
The Respondent via a writ of summons commenced Suit No. PHC/623/2013 at the trial Court against the Appellant under the undefended list procedure claiming the sum of N8,515,800.00 (Eight Million, Five Hundred and Fifteen Thousand, Eight Hundred Naira only) being the amount owed the Claimant by the Defendant as at the 31st of December, 2008 plus interest thereon at the rate of 21% per annum from the 1st of January, 2009 until the date of judgment, and interest on the judgment sum at the rate of 21% per annum from the date of judgment until the judgment sum is fully paid.

The Respondent adopted the following issue for determination, thus:
WHETHER THE TRIAL JUDGE ERRED IN LAW WHEN HE ENTERED JUDGMENT IN FAVOUR OF THE RESPONDENT IN A SUIT BROUGHT UNDER THE UNDEFENDED LIST PROCEDURE WHERE THE APPELLANT AFTER BEING SERVED WITH THE ORIGINATING PROCESSES FAILED TO FILE A NOTICE OF INTENTION TO DEFEND WITH A SUPPORTING AFFIDAVIT? (DISTILLED FROM GROUND 1).

It is submitted that the trial Court was on sound legal footing when it entered judgment in favour of the Respondent. The Undefended List Procedure, under which this suit was brought, is a special procedure which an aggrieved litigant employs in order to get a quick judgment in a subject matter that borders on liquidated money demand. The Undefended List Procedure, by virtue of being a special procedure, is devoid of all the rigours, rules and processes that are obtainable in ordinary suits initiated by regular Writ of Summons or other Originating Processes. The High Court of Rivers State (Civil Procedure Rules) 2010, under which the suit was initiated provided the rules that would guide a Court in adjudicating over a suit brought under the Undefended List Procedure.

Based on the said rules, the Respondent who is been owed by the Appellant having filed a Writ of Summons marked “undefended List” claiming the amount owed and having also filed an affidavit in support and stating therein the basis for the claim and in its belief that the Appellant had no defence to the claim, had done what was expected of it by law and as such, the burden shifted to the Appellant to do its own as required by the same rules. Order 11 Rule 10 & 11 of the said Rules stipulated what a defendant who was served with a Writ of Summons under the Undefended List Procedure and the Court seised of such matter should do. The Appellant did not comply with above rules even when it is trite that rules of Courts are meant to be obeyed. See Ukangwu vs. Pitt (2008) 9 NWLR (Pt. 1093) 583. Learned Respondent counsel then submitted that since the Appellant as Defendant has no defence to the suit of the Respondent, then, the learned trial Judge had no other option other than to enter judgment for the Respondent as per their claim. See Bisong vs. Ekpenyong (2002) FWLR (Pt. 99) 1054, (2002) 5 NWLR (Pt. 812) 156 at 162; Imoniyame Holdings Ltd vs. Soneb Ent. Ltd. (2010) ALL FWLR (Pt. 517) 627 at 636.

At this juncture, it is submitted that a succinct look at the Appellant’s Brief of Argument shows clearly that under issue one, the Appellant’s grouse with the judgment of the trial Court stems from the fact that the trial Judge entered judgment in favour of the Respondent despite the fact that some of the invoices which were attached to the affidavit in support of the suit were allegedly contradictory. Either the Appellant is highly misconceived or desires to pull wool over the ever vigilant eyes of this Honourable Court. The Writ of Summons having been marked and placed under the Undefended List was subject to a special procedure as provided by the Rules of the trial Court and it is long settled law that the Undefended List Procedure is a special procedure that requires a special process.

He therefore reiterated his earlier submission that the Appellant having failed to file a Notice of Intention to defend with a supporting affidavit disclosing a defence, the trial Court had no other option than to enter judgment in favour of the Respondent. The Appellant’s argument would have made little sense if and only if it had filed the said notice and affidavit pursuant to which the trial Court would have found the basis, ground or platform to carry out an evaluation of the facts before it. See Belhope Plastic Industries vs. Ema Nerama Technical Coy. Ltd (2010) ALL FWLR (Pt. 509) 515 at 536.

It is also submitted that a holistic look at the Appellant’s Brief of Argument clearly shows a subtle attempt to substitute same for evidence. The Appellant, through its Brief of Argument is attempting to introduce facts which it ought to have placed before the trial Court through a Notice of Intention to Defend and a supporting affidavit for consideration. That it is indeed is a feeble attempt at repairing a fundamental flaw in its case through its Brief of Argument but most unfortunately, it is too late in the day to attempt to do so, particularly as it is trite that addresses of counsel cannot act as a substitute for evidence, which means that the Appellant’s Brief of Argument, no matter how brilliant it is, cannot take the place of the affidavit in support of a Notice of Intention to defend through which the Appellant ought to have disclosed a defence to the trial Court if it had any. See Chabasaya vs. Anwasi (2010) ALL FWLR (Pt. 528) at (860-861); Niger Construction Ltd vs. Okugbeni (1987) 4 NWLR (Pt. 67) 787 at 792; Obodo vs. Olumu & Anor (1987) 3 NWLR (Pt. 59) 111 at 123.

The Appellant in its Brief of Argument made heavy weather of the fact that the trial Court did not properly evaluate the evidence before it, before entering the judgment in favour of the Respondent. See Ogoejeofo vs. Ogoejeofo (Supra); Bello vs. A/G Lagos State (Supra); Buhari vs. Obasanjo (Supra) and Onyemelukwe vs. W.A.C.C. (Supra) amongst others. It is submitted that these authorities so cited are not applicable as they can be distinguished from the case. Also, that one trend that runs through all of them is that they are not cases under the Undefended List Procedure and as such are subject to different rules even though they bothered in affidavits and the weighing contentions affidavit evidence against a counter-affidavit or other Court processes. Therefore, the evaluation of evidence as strongly canvassed by the Appellant does not apply in a suit commenced under the Undefended List. See Dala Air Services Ltd vs. Sudan Airways Ltd. (2004) ALL FWLR (Pt. 238) 684 at 697.

The Court is urged to uphold the judgment of the trial Court and consequently dismiss the appeal.

The Respondent filed a Notice of Preliminary Objection and the Respondent’s Brief of Argument containing arguments in support of the said Preliminary Objection.

The issue for determination under the Preliminary Objection is:
“WHETHER THE APPELLANT’S BRIEF OF ARGUMENT DATED THE 16TH DAY OF JUNE, 2016 AND FILED ON THE 17TH DAY OF JUNE, 2016 IS INCOMPETENT AND IF IT IS, WHETHER THIS HONOURABLE COURT CAN ENTERTAIN SAME.”

It is submitted that the issues for determination as contained in briefs of argument meant for Appellate processes are mandatorily derived from the grounds of appeal with which the said appeal was initiated. Also that for an issue raised in the brief of argument to be competent, same must arise from a ground of appeal as contained in the Notice of Appeal and the said ground from which the issue arose must also be identified. Learned counsel submitted that a look at the issues for determination as contained on page 2, paragraph 2.1 of the Appellant’s Brief of Argument shows clearly that both are beret of grounds from which they are derived. See Ejiogu vs. Irona (2008) ALL FWLR (Pt. 442) 1066 at 1085-1086.

It is submitted that the Appellant having not identified and stated in its Brief of Argument the grounds of appeal from which its issues for determination were distilled or derived, the said issues and indeed the Brief of Argument are incompetent and as such should be struck-out. The Court is urged to so do. It is stated without conceding that the failure of the Appellant to identify and state the grounds from which the issues for determination arose is not fatal, he submitted that the Appellants Brief of Argument is still incompetent since the two issues for determination stated therein can at best be said to have arisen from the same ground of appeal which is ground one.

Also stated is that a succinct look at the Appellant’s Amended Notice of Appeal dated the 16th day of June, 2016 and filed on the 17th day of June, 2016 shows clearly that the said Notice of Appeal contains only two grounds of appeal one of which is the omnibus ground of appeal. It is our further submission that a juxtaposition of ground 1 as contained in the Notice of Appeal vis-a-viz the issue one as contained in the Appellant’s Brief of Argument shows clearly that both are the same whilst paragraph G of the particulars of error in relation to the same ground 1, is one and the same with issue 2 on the Appellant’s Brief of Argument, argued on paragraph 4.0 page 7 of the said Brief of Argument. It is obvious that the said issues could only have been formulated from the said ground 1 and thus, is guilty of proliferation of issues from the same ground of appeal. It is trite that it has long been settled by the Appellate Court that where more than one issue arises from the same ground of appeal, such issues are either struck-out or discountenanced. See Ikalama vs. Derekoma (2008) ALL FWLR (Pt. 433) P. 1376 at 1383-1384. The Appellants distilled two issues as well as the 6th Respondents issues 1, 2 and 3 are incompetent because all the issues raised are a total proliferation of issues on same ground of appeal. Also, Appellant’s issue 1, 2 and 4 which is normal anyway. But in issue no. 2, it is also distilled from the same grounds 1, 2, 3 and 4. In effect therefore, ground one has distilled two issues, ground two has also raised two issues and same applied to Appellants ground 4 from which same issues have been raised. This is not allowed in law. See Iweka vs. SCOA Nig. Ltd (2000) FWLR (Pt. 15) 2524, (2007) 7 NWLR (Pt. 664) 325; UBA Plc vs. Mode Nig. Ltd (2001) FWLR (Pt. 40) 1664; SCOA Nig Plc vs. Mohammad (2004) 4 NWLR (Pt. 862) 20; Ironbar vs. Cross River Dev. Authority (2004) 2 NWLR (Pt. 857) 411. The Appellant’s and 6th Respondent’s issues are completely discountenanced as they are incompetent. See also Okonobor vs. D. Edegbe & Sons Transport Coy. Ltd (2010) 17 NWLR (Pt. 1221) 1818 at 189; Ogori vs. Umagba (1995) 9 NWLR (Pt. 419) 283 at 297.

Ground 1 of the Appellants could be said to have derived issue one and two for determination and does not challenge the ratio of the judgment appealed against the Appellant.

A ground of appeal must attack the decision of the lower Court only on issues decided by the Court. See Babalola vs. The State (1989) 4 NWLR (Pt. 348) 1; Enigbokan vs. American Int’l Insurance Co. Nig. Ltd (1994) 6 NWLR (Pt. 348) 1, (1994) 6 SCNJ 168.

Also grounds 1 & 2 of the cross-appeal are not framed on what the learned trial judge decided but on what it failed to hold or decide. They are both incompetent and are liable to be struck-out. See Onafowokan vs. Wema Bank Plc (2011) 12 NWLR (Pt. 1260) 24; MBN Plc vs. Nwobodo (2005) 14 NWLR (Pt. 945) 379); Egbe vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590.

In conclusion, it is submitted that the issues for determination in the Appellant’s Brief of Argument are incompetent because the grounds from which they were derived was not identified and stated, the said issues can at best be said to have been derived from the same ground of appeal which is ground 1 and the said ground 1 is verbose, lengthy and argumentative and does challenge ratio of the judgment of the trial Court and as such the said issues and the said ground 1 should be struck-out and the appeal should be dismissed.

The Court is urged to so hold.

On whether the ground of appeal from which the Appellant distilled its issues for determination did attack the judgment delivered by the trial Court against the Appellant, it is submitted that the ground of appeal from which the Appellant’s issues for determination was distilled from all shades of review attacked the ratio of the judgment appealed against by the Appellant in this appeal.

The Court was referred to ground 1 of the Appellant’s Amended Notice of Appeal from which the issues for determination was distilled from adequately attacked the judgment of the lower Court and is therefore not incompetent. The Court is urged to hold that ground 1 of the Appellant’s Amended Notice of Appeal is competent.
On the reply brief, the Court is urged to hold that the issue formulated from ground 1 of the Appellant’s Amended Notice of Appeal is incompetent on the ground that the Respondent did not file any cross-appeal nor Respondent notice in the appeal and therefore is not permitted to formulate an issue which is not based on the grounds of Appellant’s Amended Notice of Appeal.

Also submitted is that the fact the Appellant did not defend the suit, the Appellant has the constitutional right to appeal the judgment of the trial Court by contending that even where there is no Notice of Intention to defend filed by the Defendant, the learned trial Judge has a duty in law to inquire or examine whether the claimant has made out his claim in the affidavit accompanying the writ. See Intercontinental Bank Ltd vs. Brifina Ltd. (2012) 13 NWLR (Pt. 1316) 1 at 15.

In conclusion, the Court is urged to dismiss the Preliminary Objection and consequently to allow the appeal.

In the Appellant’s response to the Respondent’s Preliminary Objection and Appellant’s reply brief, the Appellant contended that in paragraphs 3-3.6 of the Respondent’s Brief of Argument in support of the Preliminary Objection, the Respondent submitted that the Appellant formulated two issues for determination from a ground of appeal contained in the Appellantâs Amended Notice of Appeal dated 16/6/2017 and precisely ground one, and therefore urged the Court to either strike-out the issues or discountenanced same. Though admitted by the Appellant but still submitted that the Courts attitude with respect to the propriety of formulating more than one issue for determination from a ground of appeal, the law or the Courts attitude to this is not one cast in stall that does not admit the exercise of discretion by the Court when an Appellant’s/Respondent’s counsel in an appeal formulates more than one issue for determination from a ground of appeal. It is submitted that the procedural law regarding appellate Court’s attitude to formulating more than one issue for determination from a ground of appeal and striking out or discountenancing also clothes the Appellate Courts with discretion to deal with such circumstances in a way or manner that is agreeable with substantial justice either by allowing the defaulting counsel on his application to abandon the extra issue for determination or the Honourable Court striking out or discountenancing the extra issue for determination. See Rockshell International Ltd. vs. B.Q.S Ltd. (Supra); Eze vs. Nwaubani (2003) 7 NWLR (Pt. 818) 50 at 62-63; Chaka vs. Messrs Aerobell Nig. Ltd (Supra).

Further submission is that the exercise of the unfettered discretion of the Appellate Courts defect in favour of the defaulting party in remedying defect in his brief of argument occasioned by formulating more than one issue for determination from one ground of appeal is most time predicated on the practice of the Honourable Court not punishing the litigant for proliferation of issues contained in his Brief of Argument or the Honourable Court’s practice of doing substantial justice rather than technical justice in the matter. See Consolidated Breweries Plc vs. Aisowieren (Supra) Rockshell International Ltd vs. B.Q.S Ltd (Supra).

In this case, the Court is urged to take judicial notice of the fact that the proliferation of issues arose out of the inadvertence of counsel and not the Appellant, especially ground one of the Appellant’s Amended Notice of Appeal and was only faulty on the oasis of repetition. On the basis of the above, the Court is urged to exercise its discretion in favour of the Appellant.

The Respondent’s Preliminary Objection is predicated on procedural technicality aimed at achieving technical victory at the expense of substantive justice. The current era of dispensation of justice is tilted towards doing substantial justice rather than technical justice, as such, once it is not shown that failure to uphold technicality has not occasioned a miscarriage of justice the Court would opt to lean against technicalities in the interest of doing substantive justice. See Anie vs. Uzorka (1993) 8 NWLR (Pt. 309) P. 1 at 24, Para. D; Falobi vs. Falobi (1976) 1 NMLR 169; State vs. Gwonto (1983) 1 SCNLR 142; Bello vs. A/G, Oyo State (1986) 6 NWLR (Pt. 45) 828; Okonjo vs. Odje (1985) 10 SC 267. Despite the Appellant counsel’s inadvertence in formulating issues for determination from ground one of its Amended Notice of Appeal, it is crystal clear that the Respondent has not suffered any miscarriage of justice as a result of the aforesaid nor furnish particulars to that effect to enable the Court to exercise its discretion in favour of the Respondent by striking out the issues for determination.

It is then submitted that the Respondents ground of objection, that is proliferation of issues only affects the form of the Appellant’s Brief. See Rockshell International Ltd vs. B.Q.S Ltd (Supra).

Finally, the Court is urged to hold that ground one of the Appellant’s Amended Notice of Appeal from which the issues for determination was distilled from adequately attacked the judgment of the trial Court and is therefore not competent.

Other arguments in the Appellant’s reply brief amounted to re-arguing the issues already demonstrated in the Appellant’s Brief of Argument. It is hereby discountenanced.

RESOLUTION OF ISSUES
First, on the Preliminary Objection of the Respondent. The said Respondent’s Brief of Argument dated the 19th day of September, 2016 but filed on 8th November, 2016 contains the Respondent’s Preliminary Objection to the jurisdiction of this Court to entertain this appeal due to the fact that the Appellant’s/Respondent’s Brief of Argument dated 16th day of June, 2016 and filed on the 17th day of June, 2016. That ground one as contained in the Appellant’s/Respondent’s Amended Notice of Appeal dated 16th day of June, 2016 and filed on the 17th day of June, 2016 are incompetent.

The grounds of the Preliminary Objection are as follows:
1. That the issues for determination as contained in the Appellant Brief of Argument are beret of grounds of appeal from where they arose.
2. That the issues for determination as contained in the Appellant’s Brief of Argument arose from one ground of appeal as contained in the Appellant’s Amended Notice of Appeal.
3. That the ground one on the Amended Notice of appeal does not challenge the ratio of the judgment of the trial Court and it is verbose, lengthy and argumentative.

In this argument in support of the Preliminary Objection, learned Respondent’s counsel accused the Appellant of being guilty of proliferation of issues from ground one of the Amended Notice of Appeal. Such issues are liable to be struck-out or discountenanced. See Ikaluma vs. Derekoma (Supra). Even though the above represents the true position of the law, but the Court’s attitude with respect to the propriety of formulating more than one issue for determination from a ground of appeal, the Court’s attitude to this is not one cast in steel that does not admit the exercise of discretion by the Court when an Appellant counsel in an appeal formulate more than one issue for determination from a ground of appeal.
In the case of Consolidated Breweries Plc vs. Aisowieren (Supra), the Court held thus:
“When, on appeal, there is proliferation or prolixity of issues in a brief, the Court merely rebukes, reprimands or cautions counsel. The party does not suffer any serious sanction or penalty.”
In the case of Ika Local Government Area vs. MBA (Supra) @ 696, Paras. B-E where it restated the fact that appellate Court would not punish the defaulting party for proliferation of issues caused by his counsel who settled his Brief of Argument as it is in the substantive appeal.
Also in Rockshell International Limited vs. B.Q.S. Limited (Supra) @ 662, Paras. A-E exercised its discretion in favour of the defaulting party by refusing to strike out the offending issues for determination distilled out of the grounds of appeal on the basis of substantial justice when it held thus:
“The appellate Court frowns at the proliferation of issues but do overlook same in certain circumstances. What is paramount is to critically look at the issues distilled whether they are tied to the grounds of appeal, and faulty only on the basis of repetition. Nevertheless, such practice of distilling more than one issue from ground of appeal should be discouraged as it leads to clumsy, inelegant briefs that lack precision on what the real issues arising from the grounds of appeal entail. In the instant case, the counsel to the Appellant has ungainly distilled 6 issues from four grounds of appeal and lumped them all together. This is improper and made his brief inelegant. However, issues were not struck out in the interest of substantial justice. (Underlining provided for emphasis)
In the instance case at hand, one must take judicial notice of simple fact that the proliferation of issues arose as a result of the inadvertence of counsel and not the Appellant. And so, the mistake of counsel ought not to be visited on the Appellant. Even the ground one of the Appellant’s Amended Notice of Appeal was only faulty on the basis of repetition. Even the Court can on its own discretion, strike out the extra issues in the interest of justice. See Rockshell International Ltd vs. B.Q.S. Ltd (Supra), the Court in dealing with this issue said thus:
“Generally, issues formulated in a Brief of Argument need not coincide with the number of grounds of appeal filed, but more than one issue cannot be tied to one ground of appeal as this amounts to surplusage. The attitude of the appellate Court in such a case is to strike out the extra issue.”
The Honourable Court in exercising its discretion in Chaka vs. Messrs. Aerobell (Nig) Ltd. (Supra) @ 314, Paras. D-E stated thus:
“Where two issues for determination are related to one ground of appeal, it would amount to a proliferation of issues if both of them are argued separately. Consequently, one of the issues must give way to the other.”
The Honourable Court while exercising its discretion in yet another case, Eze vs. Nwaubani (2003) 7 NWLR (Pt. 818) P. 62-63, Paras. H-B allowed the defaulting counsel to apply and withdraw the extra issue when it stated thus: “It is now fairly settled that the issue for determination in an appeal must of necessity be limited, circumscribed and fall within the scope of the ground of appeal filed. It is therefore not usually envisaged that the issue for determination will be more in number than the number of the grounds of appeal.”
From the above decided authorities and other submission of the Appellant challenging the Preliminary Objection, I come to the conclusion that the Preliminary Objection has no merit as the issues for determination contained in the Appellant’s Brief of Argument are not bereft of the grounds of appeal from where they arose. The Preliminary Objection is hereby dismissed.

On the main appeal, the following issues are hereby adopted for the determination of the appeal:
(1) Whether the learned trial Judge was right to rely on self-contradictory documents, invoices produced by the Respondent in proof of debts purportedly owed him by the Appellant which are unreliable and of no probative value to enter judgment in favour of the Respondent.
(2) Whether the learned trial Judge was right to rely on depositions of the Respondent’s affidavit in support of his application which were in conflict with the documentary evidence produced in proof of his claims to enter judgment in favour of the Respondent.

Under this issue, the Appellant had argued that though it is the law that the fact that averments in an affidavit was not controverted or challenged by way of opposing affidavit i.e counter-affidavit or even further affidavit as the case may be does not for all intents and purposes totally divest the evidential burden from the person who asserts the evidence or non-existence of the state of facts to ensure that the averments deemed admitted in the absence of any opposing affidavit are credible enough to sustain the claims sought from the Court. He relied on the authorities of Ogoejeofo vs. Ogoejeofo (Supra) and Bello vs. A/G Lagos State (Supra). It is on the basis of the above that, it is submitted by learned counsel that the learned trial Judge erred in law and failed in its duty to go beyond the presumption of those facts been admitted in the absence of a counter-affidavit providing facts in rebuttal to the facts contained in the Respondent affidavit in support of the Respondent’s suit as it abdicated its judicial duty of ascertaining the veracity and authenticity of the said deemed admitted facts contained in the Respondent’s affidavit in support and the exhibits (invoices) annexed thereto in proof of its claim if they are cogent and strong enough to solely sustain the claims of the Respondent.

Also admitted by Appellant is that had the trial Judge embarked on an in-depth review of the invoices produced by the Respondent in proof of his claim, it will observe some conflicting and contradictory information or data which could have cast heavy doubt on the credibility and probative value of the exhibits.

The Undefended List Procedure under which the suit is brought is a special procedure which an aggrieved litigant employs in order to get a quick judgment in a subject matter that borders on liquidated money demand. The Undefended List Procedure by virtue of being a special procedure is devoid of all the rigours, rules and processes that are obtainable in ordinary suits initiated by regular Writ of Summons or other originating processes. The High Court of Rivers State (Civil Procedure Rules) 2010 under which this suit was initiated, provided the Rules that would guide a Court in adjudicating over a suit brought under the Undefended List Procedure.
Order 11 Rule 8(1) of the said Rule states thus:
“Where a claimant in respect of a claim to recover debt or liquidated money demand believes that there is no defence to his claim, he shall commence an action to recover such a debt or liquidated money demand by a writ of summons marked “undefended list” and shall support the writ with an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there was no defence thereto.”

Based on the said rules, the Respondent who is been owed by the Appellant having filed a Writ of Summons marked “undefended list” claiming the amount owed and having also filed an affidavit in support and stating therein the basis for the claim and its belief that the Appellant had no defence to the claim, had done what was expected of it by law and as such, the burden shifted to the Appellant to do its own as required by the same Rules. For the sake of clarity, Order 11 Rules 10 and 11 of the said Rules stipulated what a Defendant, who was served with a Writ of Summons under the Undefended List Procedure and the Court seised of such matter should do when it stated thus:
“If a party served with a writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the Court shall, if satisfied, remove the suit from the undefended list and place it on the General Cause List and the Claimant shall comply with Order 3 Rule 2 and the case shall proceed in the normal way”. While Order 11 Rule 11 stated thus: “Where a Defendant neglects to deliver the notice of intention to defend and affidavit prescribed by Rule 10 or the affidavit does not disclose a defence on the merit and the Court is satisfied that the suit is one that ought to be heard under the Undefended List, it shall be heard as an undefended suit, and judgment given thereon, without calling upon the Claimant to prove his case formally.”

The pertinent question to be asked at this juncture is whether the Appellant complied with the Rules of the trial Court? It is trite law that rules of Courts are meant to be obeyed and the brunt of any decision to disobey same shall be solely borne by the person who took the said decision. See the case of Ukangwu vs. Pitt (2008) 9 NWLR (Pt. 1093) P. 583 at 592, Para. D wherein this Honourable Court per Mshelia (JCA) stated thus:
“It is settled that rules of Court are made to be obeyed. Any party who deliberately ignores our Rules of Court does so at his own peril. I also dismiss the appeal for the same reasons contained in the lead judgment and abide by the consequential order of cost made therein.”

The Appellant having willfully disobeyed the rules of the trial Court by refusing to file a defence despite having the opportunity to so do, the Appellant should bear the brunt of such a decision, particularly as the Appellant did not proffer any reason why it chose not to put up any defence at the trial Court, no matter how flimsy, therefore, the Appellant should not be aided by this Honourable Court, rather the Appellant should either stand or fall with the said decision. See Tanko vs. First Bank of Nigeria Plc (2004) ALL FWLR (Pt. 210) P. 1354 at 1365-1388 Para. E-H stated thus:
“It can easily be seen in the instant appeal from the affidavit in support of the action as well as the annexures attached to the affidavit marked Exhibits A-F that the Respondent as Plaintiff clearly established his claim for the outstanding amount against the Appellant. It should be noted that Appellant as Defendant failed or neglected to file a Notice of Intention to defend together with an affidavit disclosing a defence … The learned trial Judge in my opinion has no option than to enter judgment for the Appellant for the sum of money claimed.” See also Bisong vs. Ekpenyong (2002) FWLR (Pt. 99) 1054, (2002) 5 NWLR (Pt. 812) 156 at 162.
It is clear that from the rules of the trial Court and decided authorities, a Court before which a matter is brought under the Undefended List Procedure is simply expected to weigh the Notice of Intention to defend and affidavit in support of same and decide if the same has made out a defence to the suit, if it does, then the suit would be transferred to the general cause list, if not, judgment would be entered in favour of the Claimant. See Imoniyame Holdings Ltd. vs. Soneb Ent. Ltd. (2010) ALL FWLR (Pt. 517) P. 627 at 636 Para. E-G wherein the Supreme Court stated thus:
“It very important at this stage to remember that the action was instituted under the undefended list procedure and that no evidence other than the affidavit evidence intended to show that in the opinion of the Plaintiffs, the Defendants have no defence to the action and that of the Defendants intended to disclose any defence thereto on the merit is required by the rules of Court. What the trial Court is required to do at that stage is simply to consider the affidavits and decide whether the affidavit of the defence discloses any defence to the action, not a resolution of the conflicts or contending positions of the parties so as to arrive at a judgment as to which of the parties is right or entitled to judgment on the merit. The Court can only enter judgment for the Plaintiffs if it comes to the conclusion that the affidavit of the Defendants has disclosed no defence to the action. Wherein it discloses a defence, the Court is not to proceed to determine the case on the affidavit evidence as filed but enjoined by law to remove the suit from the undefended list and enter same in the general cause list to be dealt with accordingly as by pleadings and calling of evidence, addresses before judgment is entered either way. The importance of the above becomes apparent when the issues raised in this appeal are considered.”
In the instant case, it is not in contention that the Appellant did not file a Notice of Intention to Defend which invariably means that it had no defence to the suit. That suit being on the undefended list, the trial Court had either of two things to do; give judgment in favour of the Respondent or transfer the suit to the general cause list if the Appellant’s Notice of Intention to Defend the suit and the affidavit in support of same disclosed a defence to the suit. Since the Appellant failed to file a Notice of Intention to Defend, the only option available to the trial Court was to enter judgment in favour of the Respondent.
The lower Court did exactly what the law required of it in the peculiar circumstance of the case.

The Appellant in its Brief of Argument made heavy weather of the fact that the trial Court did not properly evaluate evidence before him before entering judgment in favour of the Respondent and in support of the said assertion, it called in aid some authorities to wit: Ogoejeofo vs. Ogoejeofo (Supra); Bello vs. A/G Lagos State (Supra); Buhari vs. Obasanjo (Supra); Onyemelukwe vs. W.A.C.C. (Supra) amongst others. A critical examination of these authorities cited by the Appellant’s counsel show that they are not applicable to this case and can also be distinguished therefrom. However, one trend that seem to run through all of the said authorities is that they are not cases under the Undefended List Procedure and as such were subjected to different rules of procedure even though they bothered on affidavits and the weighing of contentions affidavit evidence against either a counter-affidavit or other Court processes.
On the basis of the above, the Appellant submission on the lack of evaluation by the trial Court cannot hold as it does not apply in a suit commenced under the Undefended List Procedure. In the case of Dala Air Services Ltd. vs. Sudan Airways Ltd. (2004) ALL FWLR (Pt. 238) 684 at 697, the Court held: “Issue No. 2 – Whether the trial Judge properly evaluated the affidavit evidence before him. This issue involves the evaluation of evidence placed before the trial Court, which in essence is concerned with proper evaluation of evidence before the trial Judge. In proceedings under the Undefended List, the evaluation of evidence is clearly premature. The issue at stake at this stage is for the trial Judge to examine the affidavit in support of the Notice of Intention to defend and if he is satisfied that a triable issue or question is raised, then the Appellant could be given leave to defend. The question at this stage is whether the Appellant raised a substantial question or defence which prima facie ought to go on trial. Therefore, the issue that whether the defence is proved or not can only arise where the trial Judge has given the Defendant leave to defend so that proof is an issue for determination after the hearing of evidence and at the time of evaluating the totality of the evidence adduced by the Defendant. See Federal Military Government of Nigeria & Ors vs. Abache Malam Sani (1990) 4 NWLR (Pt. 147) 688 at 699; Saw vs. Makim (1889) TLR 72. Consequently, the issue dealing with the learned trial Judge properly evaluating evidence before him is irrelevant.”

In view of the above, this issue is resolved in favour of the Respondent.

It is worthy of note that the Undefended List Procedure under which this suit is brought is a special procedure which an aggrieved litigant employs in order to get quick judgment on a subject matter that borders on liquidated money demand. As a result, it is devoid of the rigours, rules and procedures that are obtainable in ordinary Writ of Summons or other originating processes. See Order 11 Rule 8(1) of the High Court of Rivers State (Civil Procedures) Rule 2010.

It may be recalled that the Appellant did not file a Notice of Intention to defend the suit made by the Respondent as required by Order 11 Rule 8(1) of the High Court of Rivers State (Civil Procedures) Rule 2010. All the averments in the affidavit in support of the writ in the ‘Undefended List’ were rightly in law considered by the trial Court to be true, correct and admitted by the Appellant. In fact, that was why the matter was heard as undefended and judgment entered accordingly pursuant to Order 23 Rule 4 of the above Rule.
The Appellant disobeyed the rules governing the suits initiated under the ‘Undefended List’ procedure by failing to file an intention to defend the suit. It is trite that rules of Court are meant to be obeyed and the brunt of any decision to disobey shall be borne solely by the person who took the decision. See Ukangwu vs. Pitt (Supra). In the absence of a defence, which of course means that he has no defence. The only option left or the trial Court is to give judgment in favour of the Respondent.
Therefore, the learned trial Judge was right to rely on the depositions of the Respondent’s affidavit in support of his application which were in conflict with the documentary evidence produced in proof of his claims to enter judgment in favour of the Respondent.

This issue is resolved in favour of the Respondent. Having resolved the two issues for determination in this appeal in favour of the Respondent, the fate of this appeal is already known. The appeal has no merit and it is hereby dismissed. There is a cost of N100,000.00 in favour of the Respondent payable by the Appellant.
Appeal Dismissed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, PAUL OBI ELECHI, JCA obliged me the opportunity of reading in draft the lead judgment just delivered.

I subscribe to the reasoning and conclusion reached by my noble Lordship in the lead judgment with nothing useful to add therein.

The appeal as constituted is bereft of merit and it is hereby dismissed. The decision of the lower Court is affirmed as delivered by Hon. Justice W. A. Chechay on the 21st of May, 2013 in suit No. PHC/623/2013.

I abide by the order as to costs of N200,000.00 awarded in favour of the Respondent against the Appellant.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment delivered by my learned brother, PAUL OBI ELECHI, JCA.

I agree with the reasoning and order stated in the judgment and which I hereby adopt as mine.

Appearances:

C. I. Obimba, Esq., with him, P. A. Obimba, Esq. holding the brief of Dr. C. Okorie For Appellant(s)

O.V. Frank Briggs, Esq., with him, M. O. Anago, Esq. For Respondent(s)