SAMABEY INTERNATIONAL COMMUNICATIONS LTD. v. CELTEL NIGERIA LTD. (2010)

SAMABEY INTERNATIONAL COMMUNICATIONS LTD. v. CELTEL NIGERIA LTD.

(2010)LCN/3740(CA)

In The Court of Appeal of Nigeria

On Friday, the 26th day of April, 2013

CA/K/131/2010

RATIO

PROCEDURE: NATURE OF THE UNDEFENDED LIST PROCEDURE

The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd. v. Soneb Enterprises Ltd. (2010) 4 NWLR (Pt. 1185) 561, G. M. O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq. (2010) 9 NWLR (Pt.1200) 443, Babale v. Eze (2011) 11 NWLR (Pt. 1257) 48, David v. Jolayemi (2011) 11 NWLR (Pt. 1258) 320

It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice – Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283, Addax Petroleum Development (Nig) Ltd. v. Duke (2010) 8 NWLR (Pt. 1196) 278. Thus, order 23 rule 3 (1) of the High Court of Kano State (Civil procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend.

Now, for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo v. Okogbo Community Bank Ltd. (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A mere general denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiff’s claim – Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429, Tahir v. Kapital Insurance Ltd. (2006) 13 NWLR (Pt 997) 452, David v. Jolayemi supra. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

PROCEDURE: WHAT CONSTITUTES A TRIABLE ISSUE OR A DEFENCE UNDER THE UNDEFENDED LIST PROCEDURE

In Fresco Nig. Ltd Vs NASCO Rice & Cereal Processing Co Ltd. (1998) 11 NWLR (Pt. 573) 227, R. D. Muhammad, JCA stated at page 233 that:

“… leave to defend will only be given where the defendant raises substantial question of fact or law which ought to be tried or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit'”

It must, however, be borne in mind that in considering whether a defendant made out a defence on the merit, a trial Court must never lose sight of the fact that it is not its duty at that point to determine whether the defence has been proved. It should simply look at the facts deposed to and determine if they prima facie afford a defence, not necessarily a complete defence, but one which shows a triable issue. The issue is not whether the defence will succeed or which of the parties will eventually succeed. Once the defendant deposes to facts which are on the face of it reasonable, not a fanciful or make believe defence, and one which raises some doubts regarding the claim of the plaintiff, he should be allowed into defend. In other words, the success of the defence raised at the end of the case is not the criteria or yardstick for measuring whether it amounts to a triable issue or not – Tahir v. Kapital Insurance Ltd. supra, G. M. O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq. supra, Babington-Ashaye v. E. M. A. General Enterprises Ltd. supra, David v. Jolayemi supra.

Therefore, where a defendant has deposed to enough facts which entitle him to interrogate the plaintiff and indeed shows that he has a fair case for defence; reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given the opportunity or leave to join issues with the plaintiff by the court transferring the case to General Cause List for hearing on the merits. On the other hand, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness ,Kenfrank (Nig) Ltd. v. Union Bank of Nigeria Plc (2002) 15 NWLR (Pt. 789) 46, Sanyaolu v. Adekunle (2006) 7 NWLR (Pt.980) 551. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

BANKING LAW: WHETHER A STATEMENT OF ACCOUNT ON ITS OWN AMOUNT TO A SUFFICIENT PROOF TO FIX LIABILITY

Additionally, it is settled law that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account is under an obligation to adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at. Co-Operative Bank Ltd v. Otaigbe (1980) NCLR 215, Yusuf v. African Continental Bank (1986) 1 – 2 SC 49, Habib Nigeria Bank Ltd v. Gifts unique (Nig) Ltd (2004) 15 NWLR (Pt. 896) 405, Wema Bank Plc v. Osilaru (2008) 10 NWLR (Pt.1094) 150. Where there is a dispute on the indebtedness, the party cannot just toss and dump before the Court the statement of account in proof of the indebtedness of the customer for the overall debit balance therein. It must demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at. Biezan Exclusive Guest House Ltd v. Union Homes Savings & Loans Ltd (2011) 7 NWLR (Pt 1246) 246 and Bilante International Ltd v. Nigerian Deposit Insurance Corporation (2011) 15 NWLR (Pt 1270) 407. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

EVIDENCE: MEANING OF AN ADMISSION

Now, an admission is defined as a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. It is settled law that an admission must be full, clear, unambiguous and freely made by a party before a court can rely on it. This is so whether the admission is oral or is contained in a document. Thus, whether an admission is made orally in evidence or in a document, the element of clarity and unambiguity must receive equal emphasis. A court of law cannot admit a document as an admission against a party where the admission lack clarity and is ambiguous – Pan African International Supply Co. Ltd. v. Jkpeez Impex Co. Ltd (2010) 3 NWLR (Pt.1182) 441. In Eigbe v. Nigerian Union of Teachers (2008) 5 NWLR (Pt. 1081) 604, the court held that for the contents of a document to amount to an admission, the statement must be direct, positive, clear and unequivocal. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ABDU ABOKI Justice of The Court of Appeal of Nigeria

T. N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

HABEEB A. O. ABIRU Justice of The Court of Appeal of Nigeria

Between

SAMABEY INTERNATIONAL COMMUNICATIONS LTD. Appellant(s)

AND

CELTEL NIGERIA LTD. (Trading as Zain) Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the leading Judgment): This is an appeal against the decisions contained in the Ruling and Judgment of the High Court of Kano state in Suit No.K/359/2009 delivered by Honorable Justice A. M. Haliru on the 31st of March, 2010. The Respondent, as plaintiff, commenced an action in suit No.K/359/2009 in the Kano State High Court under the Undefended List Procedure and the original defendants were the Appellant and Zenith Bank Plc. By a writ of summons marked under the undefended List and dated the 25th of August, 2009, the Respondent claimed against the Appellant and Zenith Bank Plc. thus:
a. N51,992,562.32 (Fifty one Million Nine Hundred and Ninety Two Thousand Five Hundred and sixty Two Naira Thirty Two Kobo) being the balance unpaid on the price of the Plaintiff’s products collected by the 1st Defendant and guaranteed by the 2nd Defendant.
b. Alternatively, the Respondent claimed thus:
i. From the 1st Defendant, the sum of N41,992,562.32 (Forty One Million Nine Hundred and Ninety Two Thousand Five Hundred and Sixty Two Naira Thirty Two Kobo) being the principal balance (without prejudice to the amount guaranteed by the 2nd Defendant) unpaid on the price of the Plaintiff’s products collected by the 1st Defendant.
ii. From the 2nd Defendant, the sum of N10,000,000.00 being the amount guaranteed by the 2nd Defendant as primary obligor in respect of the plaintiff’s products collected by the 1st Defendant, which products have not been paid for by the 1st Defendant despite being the debt due for payment and despite demand.
c. Interest on the aforesaid sums at the rate of 10% per annum from the date of judgment until final liquidation.
The writ of summons was supported by an affidavit of facts with several exhibits attached. The Appellant, as first Defendant, filed a notice of intention to defend dated in 2nd of November, 2009 and it was supported by an affidavit of facts with exhibits attached. Zenith Bank Plc, as second Defendant, paid the Respondent the sum of N10 Million in full and final settlement of its obligation and whereupon the lower Court struck out its name as a party in the suit on the application of the Respondent, leaving the Appellant as the only defendant.
The lower Court heard the case of the Respondent under the Undefended List and in a considered Ruling delivered on the 31st of March, 2010, the lower Court refused the Appellant leave to defend and it entered judgment in favour of the Respondent in the sum of N41,992,562.32 (Forty One Million Nine Hundred and Ninety Two Thousand Five Hundred and Six Two Naira Thirty Two Kobo) being the principal balance unpaid on the price of the Respondent’s products collected by the Appellant together with interest at the rate of 10% from 31st of March, 2010 until full satisfaction of the judgment sum. The Appellant was dissatisfied with the judgment and it caused to be filed a notice of appeal dated the 12th of April, 2010 and it contained four grounds of appeal.
Counsel to the Appellant filed an appellant brief of arguments dated the 21st of May, 2010. Counsel to the Respondent filed a respondent brief of arguments dated the 27th of September, 2011 and this was sequel to an order for extension of time to file brief of argument made in favour of the Respondent by this Court on the 20th of September, 2011. At the hearing of the appeal on the 6th of March, 2013, Counsel to the parties relied on and adopted their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellant identified two issues for determination in this appeal and these were:
i. Whether the Appellant by its notice of intention to defend together with the affidavit in support disclosed a defence on the merit to the Respondent’s claim to have warranted a transfer of the suit to the general cause list for full inter-party hearing.
ii. Whether the contents of Exhibit H attached to the Respondent’s affidavit and paragraphs 2 (i) to (q) of the Appellant’s affidavit in support of the notice of intention to defend and other documents attached to the Respondent’s claim constituted sufficient admission of the Respondent’s claim by the Appellant to have warranted judgment being entered in its favour by the trial Court.
Counsel to the Respondent adopted the two issues formulated by the Appellant in his brief of arguments. Reading through the records of appeal and the briefs of arguments of the parties, it is the view of this Court that there is only one issue for determination in this appeal and it is the first issue formulated by the Appellant. The second issue for determination can be conveniently dealt with under the said first issue for determination.
It is pertinent to set out the respective cases presented by the parties before lower Court before delving into the arguments of the parties on the issue for determination. The case of the Respondent in the affidavit of facts in support of its case under the undefended List was that the Appellant was a Strategic Distribution Partner (SDP) of its products and that on the 26th of September, 2008 the Appellant collected and drew credit on physical stock of its products comprising of recharge vouchers, electronic vouchers, virtual airtime, Celtel SIM card and ZTE A61 Handset, all worth N54,500,000.00; copies of the physical stock sale invoices, SDP Dealer order Forms and the statement of account were attached as Exhibits B1-2, C1 2, and D. It was its case that by the terms of the Initiative Guidelines issued to all SDP dealers, the credit facility extended to the Appellant was agreed to be paid up within fourteen days of the credit purchase and that the fourteen days of the Appellant were up by the 14th of October, 2008; a copy of the Initiative Guidelines was Exhibit E. It was its case that the utilization record of the Appellant on the Respondent’s network revealed that the recharge vouchers and other products taken on credit had been utilized and that the Appellant had received value for the products but was deliberately refusing to settle its obligation.
It was the case of the Respondent that the indebtedness of the Appellant as at March 10, 2009 stood at the sum of N51,992,562.32 and the statement of account of the Appellant with the Respondent was Exhibit F. It was its case that on the 12th of March, 2009, it caused a letter of demand for the outstanding indebtedness to be addressed to the Appellant giving seventy two hours within which the money was to be paid up and that the Appellant responded by a letter dated the 24th of March, 2009 admitting the indebtedness but the Appellant refused to pay up the money; copies of the letter of demand and the response thereto were Exhibits G and H. It was its case that it summoned a meeting with the Appellant on its indebtedness and the Appellant promised to liquidate the indebtedness within ninety days and the Appellant stated that it was working on obtaining an overdraft from its bankers; a copy of the minutes of the meeting was Exhibit I. It was its case that the Appellant wrote various letters thereafter and also prompted Intercontinental Bank and one Honorable Safiyanu Ubale Taura to write letters of comfort on the Appellant’s behalf to be appointed the sole distributor for the Respondent’s products in Jigawa State. It was its case that the Appellant failed, refused and/or neglected to settle its indebtedness as mutually understood and agreed.
In its affidavit of facts in support of the notice of intention to defend, the Appellant admitted that it was a Strategic Distribution Partner of the Respondent and that in the course of trading, the Respondent supplied goods to it on a credit or cash basis arising from its request for such goods usually contained in the SDP Dealer Order Form duly signed and dated by its Managing Director. It stated that it was a fact that after such requests and submission of the SDP Dealer order Form, they were processed and approved by the appropriate officers of the Respondent and the goods were invoiced and physical collection of the requested goods were taken and were usually signed for and acknowledged by its Managing Director. It was its case that there was never a time its Managing Director ordered for the goods stated in the Respondent’s affidavit and that it never collected the listed goods and that nobody signed on its behalf for the physical collection of the goods contained in Exhibit B1 to the Respondent’s affidavit. It was its case that the signature on Exhibit C2 to the Respondent’s affidavit did not belong to its Managing Director and that nobody signed on its behalf for the physical collection of the goods contained in Exhibit B2 to the Respondent’s affidavit. It was its case that the goods contained in its purported order form, Exhibit C2 to the Respondent’s affidavit, were different from the goods invoiced on the corresponding sales invoice, Exhibit 82 to the Respondent’s affidavit. It was its case that Exhibit D to the Respondent’s affidavit was not a true reflection of its statement of account with the Respondent but a mere computer printout of irrelevant transactions.
It was the case of the Appellant that towards the end of the year 2008, the Respondent was planning an OTC policy of having one dealer per state and that it indicated interest in being appointed as the dealer for Jigawa State and that the Respondent made it a condition precedent to its request being considered that it must accept collecting goods worth N54,500,000.00 as 2008 Sallah Promotional Sales to boost its profile on the understanding that when the OTC policy came on stream, the purported debt would be wiped out. It was its case that it was in furtherance of the said understanding that the Respondent wrote the letter of demand, Exhibit G to the Respondent’s affidavit, and that it responded by Exhibit H wherein it did not admit to owing any amount of money but stressed its interest in the OTC policy. It was its case that in addition to Exhibit H, the Respondent requested it to get a business partner to give the Respondent comfort in appointing it as OTC dealer and that it sourced for one Honorable Safiyanu Ubale Taura who wrote a letter dated 19th of February, 2009; Exhibit SAO 1 to its affidavit. It was its case that it was not eventually appointed as an OTC dealer but that the Respondent turned around to claim a non-existing debt of N51,992,562.32 and that it was not indebted to the Respondent in this sum or in any sum at all. It was its case that nobody attended any meeting on its behalf with the Respondent wherein the admission of any sum as its indebtedness took place and that its Managing Director did not sign Exhibit I to the Respondent’s affidavit to signify that he attended any such meeting. It was its case that it had a good defence to the claims of the Respondent and that it should be granted leave to defend.
In its Ruling on whether the Appellant was entitled to be granted leave to defend the action, the lower Court reproduced the respective cases of the parties on the affidavits and continued thus:
“Now the above portions of the affidavit of the defendant are a direct response to the plaintiff’s claims in its paragraphs 10 and 11 of the affidavit. Paragraph 10 deals with the letter of demand which the 1st defendant admitted receiving -Paragraph 11 deals with admission of the indebtedness by the defendant through its Exhibit H. The defendant admitted writing Exhibit H but denied that it was an admission. The defendant also admitted receiving the goods but shifted the issue of payment to the time when it was going to be considered for appointment to yet to be agreed position.
Now in view of the above it is pertinent to proceed to the consideration of the sole issue for determination to wit: whether in the light of the above facts the plaintiff is entitled to judgment on the undefended list or leave should be given to the defendant to the defend the suit by transferring the case to the general cause list. In doing that it is necessary to consider Exhibit H, since the defendant is not denying the receipt of the goods but is only contesting the propriety of the demand for payment without being considered for the yet to be agreed OCT policy as shown by the defendant’s averments in paragraph 2(n), 2(o) and 2(p) already reproduced above.” (see page 62 of the records)
The lower Court thereafter reproduced the contents of Exhibit H and stated that:
“Now the pertinent question to ask is that could the defendant be said to be indebted to the plaintiff having regard to the plaintiffs affidavit as shown in paragraphs 10 and 11 and Exhibit G and H, especially H reproduced above and in the light of the admission by the defendant in Exhibit H as well as its affidavit in paragraph 2(l), (m), (0) (P) and (q)?
As regards the plaintiff’s position, I am of the view that they have made their case sufficiently as borne out in paragraphs 10 and 11 and Exhibit G and H, in fact the admission by the defendant in Exhibit H is so pervasive with the defendant stating;
‘ALL STEPS WERE TAKEN TO ENABLE US LIQUIDATE WHATEVER IS OUR INDEBTEDNESS TO YOUR COMPANY. AGAIN ALL THESE WERE IN ADDITION TO THE SERIES OF MEETINGS WE HAVE HELD’.
The attempt by the defendant to be clever by half by the introduction of totally alien issues like the putative OCT issue only ended up completely sealing the fate of the defendant in its total liability to the claims of the plaintiff. In effect the plaintiff is entitled to judgment, while the defendant is not entitled to the leave to defend as the notice for leave to defend is completely lacking in merit and it is accordingly refused.” (see page 64 of the records)
Counsel to the Appellant stated in his brief of arguments that the conclusion of the lower Court that the Appellant did not deny the receipt of the goods and was “only contesting the propriety of the demand for payment without being considered for the yet to be agreed OTC policy” cannot be correct in view of the several paragraphs of the Appellant’s affidavit where it denied ordering any such goods or taking physical possession of the goods. Counsel stated that a perusal of Exhibit C1 to the Respondent’s affidavit shows that nobody ordered the alleged goods contained therein and that there was also no indication in Exhibit B1 to the Respondent’s affidavit, the corresponding invoice, of who received the physical goods on behalf of the Appellant, Counsel referred to Exhibit C2 to the Respondent’s affidavit and stated that the signature thereon did not belong to the Managing Director of the Appellant and was clearly different from the signature of the Managing Director on Exhibit H to the Respondent’s affidavit and further that nobody also signed Exhibit B2 to the Respondent’s affidavit, the corresponding invoice, as having collected the physical goods on behalf of the Appellant and that the value of the goods in Exhibit C2 was different from the value on Exhibit B2. Counsel submitted that these facts constituted a defence on the merits and that the lower Court should have transferred the matter to the general cause list and he referred to the cases of Intercity Bank Plc v. Faisal Travel Agency (2006) All FWLR (Pt 341) 1355 and Mbahi v. Fixity Investment Enterprises Co. Ltd. (2005) 3 NWLR (Pt 912) 384.
Counsel referred to the contents of Exhibit H to the Respondent’s affidavit and stated that by no means can they be interpreted to mean an admission by the Appellant of being indebted to the Respondent for N41,992,562.32.
Counsel submitted that for a court to rely on an admission to ground a judgment the admission must be full, clear, unambiguous and free and he referred to the case of Asaba ile Mills v. Bona V ile Ltd. (2007) All FWLR (Pt. 364) 336. Counsel stated that the Appellant did not admit any sum as due from it to the Respondent in Exhibit H and that if there was any admission at all, it was uncertain, unclear and unambiguous.
Counsel stated that the Respondent did not file a reply affidavit to the contents of the Appellant’s affidavit of facts and submitted that the new facts therein ought to be treated as admitted and he referred to Haido v. Manduka Motors Ltd. (2000) All FWLR (Pt. 433) 1325. Counsel submitted that the two conditions that must co-exist before a judgment can be entered in favour of a plaintiff under the undefended list procedure as stated in True Grade Engineering Ltd Vs Lead Bank Plc (2008) All FWLR (Pt. 409) 451 were not present in the instant case.
Counsel urged the court to resolve the issue for determination in favour of the Appellant.
In his response arguments, Counsel to the Respondent stated that the mere filing of a notice of intention to defend, supported by an affidavit of facts, did not presuppose that the Appellant has a good defence to the claims of the Respondent. Counsel submitted that the significance of the notice of intention to defend is that the grounds for asking to defend are not frivolous, vague or designed to delay trial of a matter and he referred to the cases of ACB Ltd. v. Gwagwada (1994) 4 SCNJ 268 and Haido v. Usman (2004) 3 NWLR (Pt. 859) 65. Counsel stated that the contents Exhibit H to the Respondent’s affidavit were in total contradiction to the facts deposed to by the Appellant in its affidavit of facts and that the Appellant did not contest in Exhibit H that it did not receive goods from the Respondent to the tune of the amount demanded in Exhibit G. Counsel submitted that Exhibit H provided the Appellant a perfect opportunity to contest the veracity of the claims contained in the demand letter, Exhibit G, but that rather than contest the claims, the Appellant admitted them in Exhibit H. Counsel submitted that there was no ambiguity in Exhibit H and that the admission therein was full, clear and unambiguous and that the contents of the affidavit of facts of the Appellant were an afterthought and cannot thus constitute a triable issue to warrant the matter being sent for trial and he referred to the cases of Kokoorin v. Patigi Local Government (2009) 15 NWLR (Pt.1164) 205 and Nigerian Ports Authority v. Aminu Ibrahim and Co (2010) 3 NWLR (Pt. 1182) 487.
Counsel referred to the payment of N10 Million by Zenith Bank Plc and stated that the Bank would not have paid such a huge sum as a commercial institution if indeed it had not guaranteed the Appellant’s collection of facilities from the Respondent. Counsel stated that the law was settled that the determining factor is whether the affidavit of the Appellant raised a material issue for trial between the parties and he referred to the case of Jos North Local Government v. Daniyan (2000) FWLR (Pt. 21) 872. Counsel stated that when the facts in the affidavit in support of the claims of the Respondent are read along with the contents of the exhibits attached thereto it is very clear that they contain clear admissions on the part of the Appellant. Counsel stated that in a case of this nature, the lower Court had a discretion to either enter judgment or grant leave to defend and that it was a discretion that should be exercised judicially and judiciously and that where the discretion is properly exercised, the appellate court will not interfere. Counsel urged this court to resolve the issue for determination in favour of the Respondent.
It is pertinent to state that the provisions on undefended list in the High Court of Kano state (civil procedure) Rules are adjunct to the course of justice. They are rules of court touching on the administration of justice and the procedure is simply designed to ensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear that the defendant has absolutely no defence to the plaintiff’s case.
The undefended list procedure is a specie of summary judgment evolved by the rules of court for the speedy disposal of otherwise uncontested cases and where there is no reasonable doubt as to the efficacy of the plaintiff’s claims and it would be most unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfuge to dribble his opponent and the court just for the purpose of stalling proceedings and cheating the plaintiff out of reliefs to which he ordinarily would have been entitled – Imoniyame Holdings Ltd. v. Soneb Enterprises Ltd. (2010) 4 NWLR (Pt. 1185) 561, G. M. O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq. (2010) 9 NWLR (Pt.1200) 443, Babale v. Eze (2011) 11 NWLR (Pt. 1257) 48, David v. Jolayemi (2011) 11 NWLR (Pt. 1258) 320
It is not, however, the aim of the undefended list procedure to shut out a defendant who wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice – Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283, Addax Petroleum Development (Nig) Ltd. v. Duke (2010) 8 NWLR (Pt. 1196) 278. Thus, order 23 rule 3 (1) of the High Court of Kano State (Civil procedure) Rules gives a defendant willing to defend a suit placed under the undefended list a leeway and it obligates such a defendant to file a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit, and it states that once a defendant does this, the court will grant him leave to defend.
Now, for an affidavit to constitute a defence on the merit, the defendant must set out the defence in the affidavit and not simply say that he has a defence. The affidavit must show reasonable grounds of defence; that there is some dispute between the parties requiring to be gone into – Osifo v. Okogbo Community Bank Ltd. (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, the defendant’s affidavit must condescend upon particulars and should as far as possible deal specifically with the plaintiff’s claim and affidavit, and state clearly and concisely what the defence is and what facts and documents are relied on to support it. The affidavit in support of the notice of intention to defend must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A mere general denial of the plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defence which will at least throw some doubt on the plaintiff’s claim – Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429, Tahir v. Kapital Insurance Ltd. (2006) 13 NWLR (Pt 997) 452, David v. Jolayemi supra.

In S.P.D. (Nig) Ltd. v. Arho-Joe (Nig) Ltd. (2006) 3 NWLR (Pt. 966) 173, the Court of Appeal stated that “a triable issue or a defence on the merit under the undefended list procedure is where a defendant’s affidavit in support of the notice of intention to defend is such that requires the plaintiff to explain certain matters with regard to his claim, or throws some doubt on the plaintiff’s claim.” A triable issue is an uncontroverted material allegation contained in the defendant’s affidavit which cannot and should not be given a wave of the back-hand and which requires further investigation by the court to unravel the veracity or otherwise of same. Situations that would give rise to a triable issue includes the existence of (i) dispute as to the facts which ought to be tried; or (ii) real dispute as to the amount due to the party making a claim which would necessitate taking an account to determine the amount; or (iii) reasonable grounds or a fair probability of a bona fide defence – Ataguba & Co v. Gura (Nig) Ltd. supra, G. M. O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq. (2010) 9 NWLR (Pt.1200) 443, Babington-Ashaye v. E. M. A. General Enterprises Ltd. (2011) 10 NWLR (Pt. 1256) 479.
In Fresco Nig. Ltd Vs NASCO Rice & Cereal Processing Co Ltd. (1998) 11 NWLR (Pt. 573) 227, R. D. Muhammad, JCA stated at page 233 that:
“… leave to defend will only be given where the defendant raises substantial question of fact or law which ought to be tried or where he alleges misrepresentation by the plaintiff or where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on the accompanying affidavit'”
It must, however, be borne in mind that in considering whether a defendant made out a defence on the merit, a trial Court must never lose sight of the fact that it is not its duty at that point to determine whether the defence has been proved. It should simply look at the facts deposed to and determine if they prima facie afford a defence, not necessarily a complete defence, but one which shows a triable issue. The issue is not whether the defence will succeed or which of the parties will eventually succeed. Once the defendant deposes to facts which are on the face of it reasonable, not a fanciful or make believe defence, and one which raises some doubts regarding the claim of the plaintiff, he should be allowed into defend. In other words, the success of the defence raised at the end of the case is not the criteria or yardstick for measuring whether it amounts to a triable issue or not – Tahir v. Kapital Insurance Ltd. supra, G. M. O. Nworah & Sons Co. Ltd. v. Afam Akputa Esq. supra, Babington-Ashaye v. E. M. A. General Enterprises Ltd. supra, David v. Jolayemi supra.
Therefore, where a defendant has deposed to enough facts which entitle him to interrogate the plaintiff and indeed shows that he has a fair case for defence; reasonable grounds for setting up a defence or even a fair probability that he has a bona fide defence, he ought to be given the opportunity or leave to join issues with the plaintiff by the court transferring the case to General Cause List for hearing on the merits. On the other hand, a defendant who has no real defence to the action should not be allowed to disturb and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed not at offering any real defence to the action but at gaining time within which to continue to postpone meeting his obligation and indebtedness ,Kenfrank (Nig) Ltd. v. Union Bank of Nigeria Plc (2002) 15 NWLR (Pt. 789) 46, Sanyaolu v. Adekunle (2006) 7 NWLR (Pt.980) 551.
Constituting these principles into a road-map, this Court will now proceed to consider the findings of the learned trial Judge on the case put forward by the Appellant, as defendant, in the affidavit in support of its notice of intend to defend. It was not in dispute in this case that the Appellant was a Strategic Distribution Partner (SDP) of the Respondent with respect to the products of the Respondent such as recharge vouchers, electronic vouchers, virtual airtime, Celtel SIM card and Handsets. The summary of the case of the Respondent was that on the 26th of September, 2008 the Appellant using SDP Dealer Forms collected physical stock of its products amounting to N54,500,000.00 on credit as evidenced by stock sale invoices, SDP Dealer Order Forms and the statement of account, Exhibits B12, C1 – 2, and D. It was the case of the Respondent that the Appellant had fourteen days to pay for the stock and that the Appellant failed to do so despite evidence of utilization of the stock and that the indebtedness of the Appellant as at March 10, 2009 stood at the sum of N51,992,562.32 and consequent on which it caused a letter of demand to be addressed to the Appellant and the Appellant responded thereto admitting the indebtedness but the Appellant refused to pay up the money; copies of the letter of demand and the response thereto were Exhibits G and H. It was its case that the Appellant also admitted its indebtedness at a meeting summoned by the Respondent as evidenced by the minutes of the meeting, Exhibit I.
In its affidavit of facts, the Appellant stated that its requests for stocks from the Respondent on credit are done in the SDP Dealer Order Form duly signed and dated by its Managing Director and that after due process of such requests, the physical collection of the stocks are taken and signed for also by its Managing Director.
These facts were not denied or challenged by the Respondent in a reply affidavit and the law is that they will be deemed admitted – Asol (Nig) Ltd Vs Access Bank (Nig) Plc (2009) 10 NWLR (Pt. 1149) 283 and First Bank of Nigeria Plc v. Ndarake & Sons (Nig) Ltd. (2009) 15 NWLR (Pt.1164) 406. The Appellant stated in its affidavit that there was never a time its Managing Director ordered for the alleged goods and neither did it collect any such goods and that nobody signed on its behalf for the physical collection of the goods contained in Exhibit 81 to the Respondent’s affidavit. The Appellant stated that the signature on Exhibit C2 to the Respondent’s affidavit did not belong to its Managing Director and that nobody signed on its behalf for the physical collection of the goods contained in Exhibit B2 to the Respondent’s affidavit. A look at the SDP Dealer Order Forms, Exhibits C1 and C2 (pages 21 and 22 of the records), shows the name of the customer who ordered the goods listed in Exhibit C1 and said to amount to N41,057,500.00 was not mentioned and neither was the signature of the person who made the order contained therein. The Managing Director of the Appellant deposed to and signed the affidavit of facts and it was not in dispute that Exhibit H was also signed by the Managing Director of the Appellant. Looking at the signatures on the affidavit and on Exhibit H (see page 30 of the records), it is very obvious that they are different from the signature of the person said to have made the order for the goods listed in Exhibit C2 amounting to N21,529,700.00 on behalf of the Appellant.
Further, looking at the sales invoices, Exhibits B1 and B2 (see pages 20 and 21 of the records) evidencing the delivery of the alleged goods, the name and the signature of the person who collected the goods on behalf of the Appellant were not stated. Also, the Appellant stated in its affidavit that the goods contained in its purported order form, Exhibit C2, were different from the goods invoiced on the corresponding sales invoice, Exhibit B2. A look at the two exhibits confirmed the assertion of the Appellant and also the amount of the goods listed on Exhibit C2 was N21,529,700.00 while the amount invoiced on Exhibit B2 was N13,442,500.00; no explanation was offered for the discrepancy. The Appellant further stated in the affidavit that Exhibit D was not a true reflection of its statement of account with the Respondent but a mere computer printout of irrelevant transactions. The claim of the Respondent before the lower Court was for the sum of N51,992,562.32. Looking at Exhibit D (see page 24 of the records), nowhere therein was this sum mentioned nor was there any indication of how the Respondent arrived at this sum as the state of the indebtedness of the Appellant as at 10th of March, 2009.
Additionally, it is settled law that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account is under an obligation to adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at. Co-Operative Bank Ltd v. Otaigbe (1980) NCLR 215, Yusuf v. African Continental Bank (1986) 1 – 2 SC 49, Habib Nigeria Bank Ltd v. Gifts unique (Nig) Ltd (2004) 15 NWLR (Pt. 896) 405, Wema Bank Plc v. Osilaru (2008) 10 NWLR (Pt.1094) 150. Where there is a dispute on the indebtedness, the party cannot just toss and dump before the Court the statement of account in proof of the indebtedness of the customer for the overall debit balance therein. It must demonstrate through oral evidence given by an official who is familiar with the accounts, how the debit balance was arrived at. Biezan Exclusive Guest House Ltd v. Union Homes Savings & Loans Ltd (2011) 7 NWLR (Pt 1246) 246 and Bilante International Ltd v. Nigerian Deposit Insurance Corporation (2011) 15 NWLR (Pt 1270) 407.
There was thus a need for the Respondent to lead oral evidence to show how the said debt in the sum of N51,992,562.32 accrued.
The lower Court relied on the contents of the letter of demand and the response thereto, Exhibits G and H, in reaching its conclusion that the Appellant admitted being indebted to the Respondent in the said sum of N51,992,562.32 and it, on this basis, held that the Appellant was not deserving of being granted leave to defend this matter. Exhibit G read thus:
“RE: SALLAH 2008 AIRTIME PROMOTION ‘E2’80” LETTER OF DEMAND
The above subject matter refers.
Our records show that as at 10th of March, 2009, your promotional indebtedness to Zain stood at the sum of N51,992,562.32 (Fifty one Million Nine Hundred and Ninety Two Thousand Five Hundred and Sixty Two Naira Thirty Two Kobo)
The debt arose from trading activities with Zain including to the Sallah special promotion held in September 2009 through which your company as a distributor of Zain products received airtime stock in the sum of N54,500,000.00 (Fifty Four Million Five Hundred Thousand Naira). You will recall that by the terms of the special promotion, you were obliged to pay for the products within 14 days, but to date you have failed, neglected and or refused to fully pay the said amount in the amount due.
In the circumstances, we hereby formally demand that you make payment of the said N51,992,562.32 principal sum within seventy two (72 hours) of the receipt of this letter, failing which, the company shall take all available civil and criminal action against you remedies without further recourse. Please note that the company shall be applying interest at the commercial rate to the outstanding principal sum from the date on which same became due until final liquidation.”
The Appellant responded by Exhibit H which read thus:
“Your letter of March 12, 2009 but which was delivered to us on the 23rd instant in the above-named connection refers.
In answer to your demand/request as contained in your letter under reference, we would like to take you back memory lane to the beginning of our relationship and how we have fared so far.
Our application for appointment as Strategic Distribution Partners for Celtel Nigeria Limited was granted vide your letter of Provisional offer of Appointment dated July 26, 2007. Since then, our relationship has been mutually beneficial resulting in our winning the 2005 – 2006 Trade Partners Award for Excellence and Outstanding Loyalty.
Again, as a result of our outstanding performance and commitment to excellence, dedication and sense of responsibility, Intercontinental Bank Plc wrote to you a letter dated 23rd February, 2009 and headed “comfort Letter confirming to you that “SAMABEY INTERNATIONAL COMMUNICATIONS LIMITED is their valued customer with good record of transactions in that letter the bank recommended us for the issuance of order to cash (OTC) to enable us operate as the sole distributor for Zain Nigeria in Jigawa State.
Again, we got an Honorable Member of the House of Representatives, Hon. Safiyanu Ubale Taura, to partner with us which partnership can only be successful if we are appointed as the sole distributor of your products in Jigawa State (OTC). All these steps were taken to enable us liquidate whatever is our indebtedness to your company. Again, all these were in addition to the series of meetings we have held, to your knowledge, with Access Bank Plc to finance us to the tune of any amount if only we were given the sole distributorship of your products in Jigawa State. We reiterate our commitment to service our account with your company if only you favourably consider our application to be appointed as your sole distributor (OTC) in Jigawa State.
Our undertaking/commitment in our letter of 3rd February, 2009 to you also lends credence to our readiness to liquidate our indebtedness to you if given the opportunity to serve in the capacity applied for, based on our track record of good and excellent Performances.”
Now, an admission is defined as a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. It is settled law that an admission must be full, clear, unambiguous and freely made by a party before a court can rely on it. This is so whether the admission is oral or is contained in a document. Thus, whether an admission is made orally in evidence or in a document, the element of clarity and unambiguity must receive equal emphasis. A court of law cannot admit a document as an admission against a party where the admission lack clarity and is ambiguous – Pan African International Supply Co. Ltd. v. Jkpeez Impex Co. Ltd (2010) 3 NWLR (Pt.1182) 441. In Eigbe v. Nigerian Union of Teachers (2008) 5 NWLR (Pt. 1081) 604, the court held that for the contents of a document to amount to an admission, the statement must be direct, positive, clear and unequivocal.
In applying these principles to the contents of Exhibit H, this Court must bear in mind that it must go for the ordinary meaning of the words used in the document to arrive at the intention of the maker of the document – Abbey v. Alex (1999) 14 NWLR (Pt. 637) 148 and Isulight (Nig) Ltd v. Jackson (2005) 11 NWLR (Pt. 937) 631. Reading the contents of the document, it is the view of this Court that by no stretch of interpretation can they be said to constitute an admission by the Appellant that it was indebted to the Respondent in the sum of N51,992,562.32. While the wordings of the document show that the Appellant admitted some general indebtedness to the Respondent, it did not admit the sum of N51,992,562.32 and the law is that such an admission cannot be relied upon by a court to enter judgment in a particular sum Addax Petroleum Development (Nig) Ltd. v. Duke (2010) 8 NWLR (Pt. 1196) 278.
Further, the contents of Exhibit H cannot be looked at in isolation, but as part of the total case presented by the Appellant. It was the case of the Appellant in its affidavit that the whole transaction of it collecting goods worth N54,500,000.00 as 2008 Sallah Promotional sales was not real, and was a make believe transaction, created by the parties on an understanding that it was to boost its profile to enable it take benefit from the OTC policy that the Respondent was about to introduce. The Appellant stated that the understanding was that when the OTC policy came on stream, the purported debt would be wiped out. The Appellant said that it was in furtherance of the said understanding that the Respondent wrote the letter of demand, Exhibit G, and that it responded by Exhibit H. These assertions of the Appellant were not countered by the Respondent.
The facts deposed to in the affidavit filed by the Appellant in support of the notice of intention to defend threw some doubt on the Respondent’s claim and showed that the Respondent needed to offer some explanation in support of its claims. They raised matters that demanded further investigation by the lower Court and the Appellant was entitled to the grant of leave to defend the action in the circumstances. As was explained by Omokri, JCA in Addax petroleum Development (Nig) Ltd v. Duke supra at Pages 303-304:
“Where a defendant to a suit on the undefended list files a notice of intention to defend in good time together with an affidavit in support of same, the court should as a matter of duty, subject the affidavit to close scrutiny. If it discloses even the slightest defence on merits, the Judge is duty bound to have the suit transferred from the undefended to the ordinary cause list for a full trial to take place. In other words, where from the generality of the deposition of the defendant in the affidavit in support of the notice of intention to defend a suit on the undefended list, there is obviously some reasonable contest, it is better for the trial court to play safe and have the matter transferred from the undefended list to the general cause list. No party is in disadvantage by such a decision as the adducing of evidence makes for a fair and more proper adjudication of the case”
This court finds merit in this appeal. The appeal is allowed and the decisions contained in the Ruling and Judgment of the High Court of Kano State in suit No.K/359/2009 delivered by Honorable Justice A. M. Haliru on the 31st of March, 2010 are hereby set aside. The Appellant is granted leave to defend this action. This matter is hereby remitted to the Chief Judge of the High Court of Kano State for re-assignment to another Judge for trial. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.

ABDU ABOKI, J.C.A.: I have the privilege of reading before now the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, which has just been delivered. I entirely agree with his conclusion that there is merit in this appeal. I abide by the consequential order as to costs contained therein.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had the privilege of reading before now the Judgment just delivered by learned brother, Abiru, J.C.A., and I am in total agreement with him. As was expressed in African International Bank v. Packoplast Nigeria Limited (2003) 1 NWLR Part 802 page 502, the Undefendannt List procedure requires that the sum to be recovered should be clear cut debt for which is an incontestable proof against the defendant ex-facie, and a liquidated demand which the defendant must have no defence. The Appellant, in its affidavit, filed along with its Notice of Intention to Defend, clearly asserted some facts that complicated and cast some doubt on the liquidated monetary demand of the Respondent. I think, as the trial court observed, the Appellant was trying to be ‘smart’ in Exhibit H. It labored vigorously to down-play it’s alleged indebtedness to the Appellant in the sum of N51,992,562.32k as demonstrated in Exhibit G. I must equally observe that the Respondent subtly and cleverly trivialized the said indebtedness and then rubbed in issues centered on it’s interest in the Respondent’s (OTC) Policy, which it claimed would enable it liquidate whatever it’s indebtedness to the Respondent was. Along the ladder again, in Exhibit H, it stated its readiness to liquidate it’s indebtedness to the Respondent if given the opportunity to serve in the capacity applied. In Exhibit G, the sum of N51,992,562.32k was mentioned by the Respondent, as the Appellant’s indebted to it, but, this was never disputed by the Appellant at the earliest opportunity it had to challenge the figure or dispute the sum being claimed by the Respondent. Exhibit G was emphatic as to what it conveyed and, the scenario painted therein, it was never faulted by the Appellant in Exhibit H. The question remains, why did Zenith Bank Plc, a renowned Bank in Nigeria pay its liability under the Guarantee Agreement if it were not satisfied that the Appellant is indeed indebted to the Respondent? Or was it playing Father Christmas to the Respondent?
Be that as it may, the Appellant, in it’s affidavit filed along with it’s Notice of Intention to defend, flatly denied owing the Respondent in the said sum of N51,992,862.32k or in any sum at all. The Appellant even tried to ridicule the claim of the Respondent made in the alternative which took cognizance of the sum of N10,000,000.00k formerly guaranteed by Zenith Bank Plc. which has since been paid by Zenith Bank Plc. to the Respondent. Disputations were made over the contents of almost all the Exhibits attached to the Respondent’s affidavit in support of it’s claim. It, therefore, seems clear that there is need to adduce oral evidence to resolve the conflicting issues raised by the parties in their affidavits. I hereby allow this appeal and abide by the orders made in the main judgment.

Appearances

Mr. A. U. MustaphaFor Appellant

AND

Mr. J. O. Morohundiya with D. V. KangaFor Respondent