ILORIN EAST LOCAL GOVERNMENT v. ALH. WOLI ALASINRIN & ANOR. (2012)

ILORIN EAST LOCAL GOVERNMENT v. ALH. WOLI ALASINRIN & ANOR.

(2012)LCN/5161(CA)

In The Court of Appeal of Nigeria

On Monday, the 20th day of February, 2012

CA/IL/38/2011

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria

Between

ILORIN EAST LOCAL GOVERNMENT Appellant(s)

AND

ALH. WOLI ALASINRIN & ANR. Respondent(s)

RATIO

WHETHER OR NOT PROCEEDINGS TAKEN UNDER UNDEFENDED LIST PROCEDURE ARE SUI GENERIS

Order 22 Rule (1) of the Kwara State High Court (Civil procedure) Rules, allows a claim for debt or liquidated money demand to be taken out and heard under what is called the undefended procedure or Undefended List, when it is adjudged that the defendant has no defence to the action. Of course, it is well known that proceedings taken under the undefended List procedure are Sui generis, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and counsel at the hearing.
The provision states:
“Whenever application is made to a court for issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponents belief there is no defence thereto, the court shall, if satisfied, that there are good grounds for believing, that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.” (Order 22 Rule 1).

WHAT CONSTITUTES A TRIABLE ISSUE

ITA GEORGE MBABA, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the S. D. Kawu (Ag. CJ) of the Kwara State High Court in Suit No. KWS/277/2010, delivered on 1st February, 2011, wherein the learned trial judge gave judgment for the Claimants in a suit earlier placed on the undefended list. The claimants, (now Respondents), had filed the suit against the Appellant (who was defendant at the court below), seeking the payment of N11,492,151.00, being balance of a contract sum and 10% interest, thereon, until the judgment sum was finally liquidated. The Appellant’s Notice of Intention to defend and affidavit thereto did not save the situation, because, after considering the affidavit evidence and the Exhibit C, (a document from the Appellant) the Court concluded that there was no defence to the claim, and gave judgment to the Respondent.
Dissatisfied, Appellant brought this appeal, as per its Notice and Grounds of appeal filed on 31/3/2011, wherein the Appellant raised three (3) grounds of appeal as follows:
“GROUND ONE:
The trial court erred in law when it solely based it’s judgment on Exhibit ‘C’ which is the public document attached by the Claimants/Respondents to their affidavit in support of suit under undefended list without due certification of same as required by law.
PARTICULARS OF ERROR IN LAW:
(a) The Claimants/Respondents brought this claim under undefended list for unpaid balance of the sum of N11,492,151.00 against the Defendant/Appellant.
(b) Exhibit ‘C’ attached to the Claimants/Respondents’ affidavit in support of the writ of summons was the purported extract of the Claimants/Respondents’ file with the Defendant/Appellant describing the transaction between the parties.
(c) Exhibit ‘C’ is regarded as public document which requires certification by the Claimants/Respondents
(d) Exhibit ‘C’ was not so certified by the Claimants/Respondents.
(e) The trial court heavily relied on the said Exhibit ‘C’ in its judgment.
(f) This error occasioned miscarriage of justice against the Defendant/Appellant.
GROUND TWO:
The learned trial court misdirected itself (sic) law when it failed, refused and/or neglected to properly evaluate and consider the Defendant’s/Appellant’s affidavit in support of notice of intention to defend denying the contents of Exhibit ‘C’ attached to the Claimants/Respondents’ affidavit in support of undefended list (sic) as not being emanated from the Defendant/Appellant and same did not form correct positions of the Claimants/Respondents (sic) file with the Defendant before placing the suit under undefended list.
PARTICULARS OF MISDIRECTION
(a)The Defendant/Appellant has denied Exhibit ‘C’ as not emanated from the Defendant/Respondent.
(b) It is equally contained in the Defendant/Appellant affidavit in support of Notice of Intention to defend that the contents of the purported Exhibit ‘C’ is not the position of the Claimants/Respondents filed with the Defendant/Appellant.
(c)The above facts notwithstanding, the trial court still proceeded in placing the suit under undefended list
(d)This misdirection occasioned miscarriage of justice.
GROUND THREE
The trial court erred in law to have placed the suit under undefended list on the face of strong allegation of fraud by Defendant/Appellant against the Claimants/Respondents.
PARTICULARS OF ERROR IN LAW:
(a) The Defendant/Appellant in her affidavit in support of notice of intention to defend raised the issue of fraud in the award of some of the contracts in question to the Claimants/Respondents as one of the reasons for failure of the Defendant/Appellant to release the balance of the contract sum to the Claimants.
(b) The particulars of the alleged fraud were equally supplied.
(c) The issue of fraud raised by the Defendant/Appellant can be sufficiently proved or disproved when the suit is placed on general cause list. The above allegation of fraud was equally not counter (sic) by the claimants/Respondents.
(d) The error occasioned miscarriage of justice against the Defendant/Appellant.”
For relief, the Appellants prayed for an order reversing the judgment of the trial court and substituting it with an order for retrial. (See pages 82 to 84 of the Record of Appeal)
Appellant filed its Brief of argument on 29/6/2011, within time, and on being served with the Respondents’ Brief, filed a Reply Brief on 19/12/2011. It distilled 2 Issues for the determination of the Appeal – namely:
(i) Whether there is need to duly certify a public document to be admissible before a court of taw and if so, whether it was proper for the learned trial court to have solely based its judgment on Exhibit ‘C’, a public document not duly certified. (Grounds 1 and 2).
(ii) Whether allegation of fraud needs be proved beyond reasonable doubt and if so, whether the learned trial court was right to have placed the suit under undefended list and even went ahead to give judgment, despite the strong allegation of fraud raised by the Appellant in her notice of intention to defend (Ground 3).
Appellants’ Brief was settled by O. Yahaya Gobir Esq. with him, J. R. Yusuf (Mrs).
The Respondents filed their Brief on 29/11/2011 and the same was deemed duly filed on 6/12/2011. In the Brief, settled by Tunde Olomu Esq., with him Adeleye Adegboye Esq, the Respondents distilled 2 Issues too for the determination of the appeal, namely:
(1) Whether the learned trial judge was not right to have heard the suit under the undefended list.
(2) Whether the learned trial judge was not right to have acted on the attached documents to the affidavit in support of the writ of summons, Exhibit ‘C’ inclusive.
The Respondents’ counsel did not relate any of the Issue(s) to the ground (s) of appeal.
The Appeal was heard on 25/1/2012, when counsel adopted their said briefs and urged us, accordingly.
On Issue 1, Appellant’s counsel submitted that for a public document to be admissible before a court of law the document must have been duly certified; that it is improper for a court to rely solely on a public document not duly certified to give judgment. Counsel said that Exhibit ‘C’, relied upon by the court in placing the suit on the undefended list and consequently delivering judgment for the Respondent, was a purported extract from the 2nd Respondent’s file with the appellant, allegedly describing the transaction between the Respondents and the appellant (See paragraph 8 of the Respondents’ affidavit in support – Pages 3 – 4 of the Record of Appeal) that the trial court solely based its judgment on the said Exhibit ‘C’; that there was no doubt that Exhibit ‘C’, which was the purported comment or minutes by the store officer to the Appellant on the 2nd Respondent (sic) file with the Appellant, falls within the category of public document, having satisfied the requirement of a public document. He relied on Section 109 of the Evidence Act Cap E 14, Laws of the Federation, 2,004, and said that Exhibit ‘C’ is a public document, having purportedly emanated from the store officer to the Appellant, who is regarded as a public officer within the contemplation of Section 109 of the Evidence Act; that as a public document (which he urged us to hold), the Exhibit ‘C’ ought to have been duly certified before it could be produced in proof of its original contents as required by law, moreso since the Appellant had denied the content of the exhibit as emanating from it in its affidavit in support of its notice of intention to defend the suit. (Pages 46 and 49 of the Record). Counsel further relied on the case of The Dagaci of Dere and Ors vs. Dagaci of Ebwa (2006) ALL FWLR (Pt.306) 786 at 839 840 (Paras H – B)
Counsel further submitted that for a photocopy of a public document as in Exhibit ‘C’ to be admissible in evidence, same must be duly certified; that where such a photocopy is not certified, that admission of same has been described as having no legal effect and is a worthless paper. He relied on the case of Chief Ude Okoh vs. Honourable Uchenna Igwesi & ors (2005) ALL FWLR (pt.264) 891 at 902 – 903, and the case of Diokpa Fraucis Onochie & 2 Ors vs. Ferguson Odogwu & 7 Ors (2006) ALL FWLR (Pt.317) 544, where it was held’
“Where inadmissible evidence has been admitted it is the duty of the court not to act upon it. It is immaterial that its admission was as a result of the consent of the opposite party or that party’s default in failing to make objection at the proper time.
The Court of Appeal has the power to reject such evidence and decide the case on legal evidence. Secondly, where evidence by law, is inadmissible in any event, it ought never to be acted upon in court (whether of first instance or of appeal). It is immaterial, that it’s admission in evidence, was, as a result of consent of the opposite party or that party’s default in failing to make objection at the proper time.”
Counsel added that the only instances where wrongful admission of evidence would not itself ground a reversal of a decision by the appeal court is where it appears on appeal that such evidence or decision would have been the same, if such evidence or document had not been admitted or that such evidence cannot reasonably be held to have affected the decision.
Counsel said that in the instant case, the trial judge’s heavy reliance on Exhibit ‘C’ to arrive at its decision has great negative impact on the judgment, as the decision would not have been the same, if the court had not relied on the said Exhibit; that the Exhibit C should not have been admitted.
Counsel further submitted that, where there is a serious challenge of a document, as in this case, where Exhibit ‘C’ was challenged, it is necessary to call the maker of the document challenged to support the document; that it was improper to have placed the suit on the undefended list in the face of the challenge. He relied on Chitex Industries (Nig Ltd vs. Oceanic Bank International (Nig). Ltd (2005) ALL FWLR (Pt.276) 610 at 624, paras D – E:
“Where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document, otherwise no weight should be attached to it.”
He urged us to resolve the issue for the Appellant.
On Issue 11, counsel submitted that where allegation of fraud is raised by any party, and particulars supplied, such allegation of fraud must be proved beyond reasonable doubt, but that this cannot be made possible without calling witness(es) to prove the same. He argued that Appellant, in the affidavit in support of the Notice of Intention to defend the suit, had raised allegation of fraud and supplied particulars thereof (page 48 of the Record); that the learned trial court ought to have placed the suit in the general cause list, since the allegation of fraud required proof beyond reasonable doubt as such proof could only be possible by calling witness(es) to buttress the allegation. He relied on the case of BIEZAN EXCLUSIVE GUEST HOUSE LTD & ORS VS. UNION HOMES SAVINGS AND LOAN LTD (2011) 7 NWLR (Pt.1246) 1 246 at 283 an d 287.
Counsel then submitted the circumstances under which a defendant in an undefended List matter could be granted leave to defend as follows:
(a)where there is alleged misrepresentation by the plaintiff
(b)where the alleged facts are of such nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witness(es) on the accompany affidavit and
(c) where there is allegation of fraud; –
He added that the Appellant had satisfied the (b) and (c) conditions above, to warrant placing the matter on the general cause list, but the court denied the Appellant the right and shut the door of fair hearing on the appellant, by hearing the suit on the undefended list. He relied on the case of University of Nigeria vs. Orazulike Trading Co. Ltd (1989) 5 NWLR (Pt.119) 19 at 29, where the above 3 conditions were stipulated for grant of leave to defend
Counsel further submitted that, where the defendant, in an undefended list matter, sets out the ground of his defence in an affidavit which prima facie shows a triable issue requiring a full contest of the action, he is entitled to have the suit transferred to the general cause List; that the defendant, at that stage, does not need to set out a strong defence but rather, a prima facie triable issue to make the suit transferred to the general Cause List; that the Appellant had satisfied that requirement to entitle the suit to be placed on the general Cause List. He relied again on the case of University of Nigeria vs. Orazulike Trading Co. (supra) at 31, where it was held:
“Under Order 7 Rule 14 of the Anambra State High Court (Civil procedure) Rules, it is not necessary for a defendant, who is desirous of having his matter transferred from the undefended to the general List, to satisfy the court of good defence to the action on the merit or disclose such facts as may, be deemed sufficient to entitle him to defend. It is sufficient if the affidavit attached to the notice of intention to defend merely raises a triable Issue to go before the court.” He also relied on the case of Job Charles (Nig.) Ltd & Ors vs. Dr. J.E.N. Okonkwo (2002) FWLR (Pt.117) 1067 at 1085 – 1086 and urged us to hold that the trial judge was wrong to have placed the suit on the undefended List, in the face of prima facie triable issues raised by the Appellant in her affidavit in support of notice of intention to defend, especially as the plaintiff did not file any further affidavit to counter the averments of the Appellant. He relied on page 1083 of the case, where it was held:
“Where the plaintiff failed to file a further affidavit to dispute the averments contained in the affidavit of intention to defend filed by the defendant, the inference is of course that such an averment was true and must be accepted.”
He urged us to allow the Appeal, set aside the decision of the trial court and order for retrial of the case before another judge Learned counsel for the Respondent, on whether the court was not right to have heard the suit under the undefended List, answered that the trial court was right; that it is trite law that where the subject of the litigation is liquidated money demand, and the claimant, as in this case, believes that the defendant has no defence to the action, the same should be heard under the Undefended List procedure; that the essence of this is to avoid the waste of time full hearing would entail. He relied on the case of Chairman Moro Local Government vs. Adelodun Lawal (2008) ALL FWLR (Pt.440) 684; that the trial court has the discretion to place a matter on the undefended list, provided the decrection is exercised judicially and judiciously by the court, in the overall interest of justice; that that was done in this case. He also relied on the ACB Ltd vs. Gwagwada (1994) 4 SCNJ (Pt.11) 268 at 277 – 278, where it was held:
“The significance of the notice of intention to defend is borne out by the affidavit accompanying the notice showing that the grounds for asking to be heard on the defence are not frivolous, vague or designed to delay the trial of the action and must show that there is a dispute between the parties. When the judge is satisfied that there is a prima facie defence then leave ii granted to defend and then pleading may be ordered.”
Counsel submitted that the above condition which must be satisfied by the defendant was not complied by the Appellant; that the affidavit in support of the Notice of Intention to defend did not show a triable issue of law or fact, and did not controvert the existence and execution of the contract in issue.
Counsel added that it is trite principle of law that bare denial of liability or indebtedness to a claim, or vague allegation of fraud against claimant will not suffice for the purpose of placing the suit in the general cause list.
He relied on the case of JOB CHARLES (NIG.) LTD & ORS vs. DR. OKONKWO (supra) at 1081; SENATOR ARUWA vs. MRS ABDULKADIR (2002) FWLR (Pt. 114) 677; COTIA VS SANUSI BROTHERS (2000) 6 SCNJ 453 at 455, where it was held:
“The defendant’s affidavit must condescend upon particulars and as far as possible deal specifically with the plaintiffs’ claim and affidavit, and should also clearly and concisely state what the defence is. A mere denial by defendant of the plaintiffs’ indebtedness is not enough. It is also not enough for the
defendant to show a case of hardship, or a mere inability to pay.”
Counsel submitted further that the trial court will not transfer a mater from the undefended list to the general cause list, if the trial court has reason(s) to believe that, the defence put forward is not real, but a sham, intended to delay and frustrate the plaintiff He relied on the case of ABUBAKAR VS. MODIBO (2003) ALL FWLR (Pt.400) 751 and said that all the defence put by the Appellant before the lower court was a sham and a patent manifestation of the Appellant’s intention to deface the facts of the case, and delay Payment of the debt.
He urged us to hold that the trial judge was right in placing the suit on the undefended list and hearing the same as such.
On Issue 2, whether the court was right to have acted on the Exhibit ‘C’ attached to the affidavit in support, Counsel submitted that the trial Court rightly considered all the Exhibits attached to the affidavits in the case, including the Exhibit ‘C’ and was right to have acted on the same; that there is a plethora of authorities that a document annexed to an affidavit need not be certified. He relied on the case of ADEJUMO v. MILITARY GOVERNOR OF LAGOS STATE (1970) ALL NLR 183; UNILORIN VS. OLUWADARE (2008) ALL FWLR (Pt.441) 839 at 850 and OJUYA VS. NZEOGWU (1996) NWLR (Pt.427) 713, where it was held:
“On case decided on affidavit evidence where attached exhibits are not formally tendered as such in evidence and the contents are not disputed, they cannot be dismissed by a wave of hand on more technicality. The courts have laid down as a guiding principle that they are more interested in the substance than mere form as justice can only be done if the substance of the case is examined.”
Counsel added that the court has unfettered power to look at the document placed before it, in the just determination of the suit before it, whether the document was specifically tendered as exhibit or not. He relied on the case of JOSEPH OYEWOLE VS. KARIMU AKANDE (2009) ALL FWLR (Pt.491) 813, where the Supreme Court held:
“It is not dispute that a court is entitled to look at a document in its file writing its judgment or ruling
despite the fact that the document is not tendered and admitted as an exhibit at the trial. This is an exercise of judicial discretion which must be exercised judicially and judiciously.”
He further argued that the Appellant could not have validly raised objection to the admissibility of any document at the trial by way of affidavit evidence, in an undefended list matter, and for this he relied on the case of C.R.P.D. & 1 CO. Ltd vs. OBONGBA (2000) 8 NWLR (Pt.670) 751 at 765, where the court said:
“The proper step for a defendant to a suit under undefended List who intends to raise a legal objection to a document filed by a plaintiff in support of his case is to raise such defence in a proposed statement of defence attached to the defendants’ affidavit in support of the notice of intention to defend… There was no way the appellant could have objected to the admissibility of Exhibits ‘C’ and ‘E’ in its affidavit without running foul of Section 87 of the Evidence Act.”
Thus, counsel submitted, that it is obvious that the undefended list procedure, being a special procedure, needs a special procedure to raising objection to the admissibility of public documents; that in the instant case, much heavy weather has been made by the Appellant on reliance on Exhibit ‘C’ by the trial court; that based on the authorities, cited above, the trial court was right in placing reliance on the Exhibit ‘C’ as the same could not be legally or validly objected to in an undefended list proceedings. He added that the Appellant had even taken a contradictory stand concerning the Exhibit ‘C’ as they initially argued that the document did not emanate from their custody, only to summersault and pontificate that the said exhibit was a public document and required certification. Counsel said that all the argument proffered by appellant on Exhibit ‘C’, with due respect, demonstrated the appellants’ penchant for falsehood and perfidy. On the allegation of fraud by the Appellant, that the trial court ought to have acted on that allegation and place the matter on the general cause list, counsel for the Respondent submitted that the particulars of fraud as listed by the Appellant only related to Exhibits A4 and A5, which the Appellant stated to be of the same date and which are in relation to the same contract in the same villages (pages 47 50 of the Record); that even that averment was far from the truth, because, while Exhibit 44 and A5 relate to contracts awarded the same date, they were in respect of supply and erection of “235 Nos. 33 FT” Concrete Electricity and “300 33 FT” concrete Electricity poles, respectively.
Counsel invited us to peruse the contents of Exhibit 44 and A5 and urged us to discountenance the submission of the Appellant, saying that the Appellants did not even deny the existence of the said Exhibits. He added that the essence of the documents was to draw attention or avert the mind of the court to the fact that Appellant owed the Respondent the said debt (and how the debt came about). He was relying on the case of BATURE VS. SAVANNAH BANK OF NIGERIA LTD (1998) 4 NWLR (PT.546) 438 at 444 where it was held:
“Under the undefended list procedure, trial is by affidavit evidence. This being the case the issue of formal admissibility or inadmissibility of document does not arise in trials under the procedure.”
Finally, counsel said that it is trite law that relevancy of a document is crucial to the admissibility of such document; that the trial judge in his discretion had considered the relevancy of the documents attached to the affidavits in the case and had rightly come to conclusion. He urged us to resolve the issues against the Appellant and dismiss the appeal. Appellant, in its Reply Brief, rather asserted that the authorities relied upon by the Respondent on issue one were more supportive of Appellant’s case than the Respondents’. He conceded that placing a suit under the undefended list is at the discretion of the trial judge, but added that such discretion must be exercised judicially and judiciously.
On the argument that documents annexed to affidavit need not be certified, counsel for the Appellant said that that submission was misleading, as the case of UNILORIN vs. OLUWADARE (supra), relied upon by the Respondent relates to interlocutory proceeding (application for stay of execution), not an undefended list matter.
Counsel for the Appellant also picked a quarrel with the bit of quotation by the Responded of the CRPD & 1 Co. Ltd vs. OBONGBA (supra); saying it was half-quoted and he reproduced what he considered as full quotation of the relevant portion.
I think it is proper to consider the two issues raised in this appeal together and the same can be summarized, thus:-
Was the trial judge right in hearing the case under the undefended List, and relying on the Exhibit ‘C’ to give judgment to the Respondent, considering the issue of the non certification of document?
Order 22 Rule (1) of the Kwara State High Court (Civil procedure) Rules, allows a claim for debt or liquidated money demand to be taken out and heard under what is called the undefended procedure or Undefended List, when it is adjudged that the defendant has no defence to the action. Of course, it is well known that proceedings taken under the undefended List procedure are Sui generis, being in a special class and intended to give summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims, which are indefenceable. It is aimed at killing time and removing undue struggle, thus avoiding the normal process of hearing, which would require filing of pleadings and calling of witnesses to prove the claim, with all the time and energy input, struggle, contention and legal fireworks by the parties and counsel at the hearing.
The provision states:
“Whenever application is made to a court for issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponents belief there is no defence thereto, the court shall, if satisfied, that there are good grounds for believing, that there is no defence thereto, enter the suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.” (Order 22 Rule 1).

The discretion to place a suit on the Undefended List resides with the trial judge, once he is satisfied, based on the depositions of the plaintiff, that there are good grounds to belief that the defendant has no defence to the action. And even when the defendant files a notice of intention to defend and an affidavit thereto, disclosing what he thinks are grounds to defend the action, as per Order 22 Rule 3, the discretion still remains with the trial court to satisfy itself that the affidavit of the defendant discloses “a defence on the merit.”
There are many decided authorities to show that the discretion of the trial judge, once it is exercised judicially and judiciously, cannot be over turned by the strength of the defendant’s argument no matter how strong but merely founded on technicalities of law, to send the case back to the general cause List, as to do so will defeat the essence of the Undefended List proceedings and impeach the discretion of the judge, that there was good grounds to hear the case on the Undefended List.
The trial court, however, has to be liberal in his approach, when scrutinizing the affidavit of the defendant in support of the notice of intention to defend, in order to determine whether a defence on the merit has been disclosed, to justify the call to transfer the case to the general cause List. In the case ARUWA V. ABDULKADIR (2002) FWLR 677 ratio 3, it was held, concerning the defendant’s affidavit, thus:
“… The defendants affidavit must condescend upon particulars and should as far as possible specifically deal with the plaintiff’s claim and the affidavit in support thereof and state clearly and concisely what the defence is and what facts are relied upon to support it. The same affidavit defence should also state whether the defence relates to the whole or part of the claim, and in the latter case, it should specify that part of the claim. A mere general statement or denial, that the defendant is not indebted to the plaintiff is not enough to constitute a defence, unless the grounds on which the defendant relies as showing that he is not indebted are stated in the affidavit.” (MACAULAY v. NAL MERCHANT BANK LTD (1990) 4 NWLR (Pt.144) 283; JIPREZE v. OKONKWO (1987) 3 NWLR (Pt.62) 737; SANTORY CO. LTD VS. ELABEL (1998) 12 NWLR (Pt.579) 539, TIWELL NIG. LTD VS. INLANDS BANK LTD (1997) 3 NWLR (Pt.494) 408 referred to (Emphasis mine).
In the case of JOB CHARLES NIG. LTD VS. OKONKWO (2002) FWLR 1062 ratio 8 and 10, the emphasis was on disclosing ‘triable issue’ by the defendant in the affidavit in support of Notice of Intention to defend; that “if there is such a triable issue the matter would be transferred to the general cause list for trial on pleadings. If however the learned trial judge comes to the conclusion that there is no triable issue disclosed, he will enter judgment in favour of plaintiff as part his claim.”

On what constitutes ‘triable issue’, the court held:
“Given the meaning of the words “triable issue” or “bonafide issue” as a genuine issue and “one which will preclude entry of summary judgment whenever there is the slightest doubt as to the facts; there can be no gain saying it that Notice of Intention to defend raised triable issues in the sense that an impartial umpire will be prompted to call for details facts on both sides. (JIPREZE v. OKONWKO (supra); OBI v. NKWO MARKET COMMUNITY BANK LTD (2001) 2 NWLR (pt.696) 113 referred to).
Also in the case of COTIA v. SANUSI BROTHERS (2000) 6 SCNJ 453 at 455, the Supreme Court had said:
“The defendant’s affidavit must condescend upon particulars and as far as possible dear specifically with plaintiff’s claim and affidavit, and should also clearly and concisely state what the defence is.  A mere denial by defendant of the plaintiff’s indebtedness is not enough. It is also not enough for the defendant to show a case of hardship, or a mere inability to pay.”In the instant case, the claim before the lower court was; “the Claimant claimed from the defendant a sum of N11,492, 151.00k only, being the balance of the contract sum, and 10% interest thereon until the judgment sum is finally liquidated (page 2 of the Record).
The facts show that sometime between 1998 and 2001 the Defendant awarded to the claimant contracts worth N26,992, 151.00 out of which the sum of N15,500,00.00 was paid to the Claimant between 2005 and 2009 upon performing the jobs, leaving a balance of N11,492, 151.00 unpaid, despite repeated demands.
The Defendant did not deny the contracts and the part payment of the N15,500,000.00 for the job. The Claimants (Respondents) exhibited contract papers and the demand notices as exhibits, and also were able to produce (in photocopies) a good part of the 2nd Claimant’s file with the Defendant (Appellant), including the demand letters for the payment of the outstanding debt, together with the various endorsements by the officers of the Appellant in respect of the debt, and the same formed Exhibit ‘C’.
Pages 19 to 29 of the Record of Appeal carry some interesting and illuminating information about the entire jobs (contracts) awarded to the 2nd Respondent by the Appellant, the payments, the outstanding debt and what the Appellant was saying about the debt, as the Exhibit ‘C’ disclosed about 22 endorsements/minutes of various officers of the Appellant on the debt.
For instance, on a demand letter by the Respondents dated 24/5/2005, addressed to the Chairman of the Appellant, the Chairman endorsed therein to the Accountant to cheek the records properly and feed him back. – In the attempt to cheek the job and contract .That was endorsed on 27/5/2005
The Respondent’s letter had also tabulated the different jobs they did for the Appellant between 1998 and December 2001, with outstanding balance of N26,992, 151.00 owed to them by the Appellant. The lengthy minutes that followed the chairman’s inquiry said (in pat):
“Please be aware that on 27th of May, 2005, the Executive Chairman, upon receipt of a letter from Alasinrin W. Nig. Ltd asking for settlement of outstanding contract indebtedness owed to it by the L.G. directed me to make verification and establish the authenticity of the submissions of aforementioned. In its own letter, it puts the figure of N26,992,151.00 as the amount outstanding as at December 2001 . But after thorough checking, I have been able to establish that the real amount owed the contractor is N25,939,792.00 (See the attached analysis).
In this regard please help cause the HOD works to forward the sum of N25,939,792.00 to the authority for approval as genuine liability to the Alasinrin w. Nig. Ltd.”
Signed
30/8/2405
Other minutes and endorsements were made by 4 other officers to the demand letter which confirmed the debt of N25,939,792.00 to the company (2nd Respondent).
The Respondents wrote again on 23/1/2010, through their Lawyer, Tunde Olomu Esq. and in paragraph 2 of the letter acknowledged payment of part of the contract sum leaving outstanding balance of N11,492,151.00 still unpaid, and thereupon demanded settlement The letter was again endorsed by the chairman for treatment. The many minutes/endorsements that followed showed that the job had been done and completed and payment made in part. The HOD’s endorsement, among other information, said:
“The job has been verified and found to have been executed and completed but details, of the outstanding payment could further be verified from the treasury records as I am aware that further payment were made during the tenure of the last administration of Alhaji Bababunde Saad. It is the treasury that can give the precise account of outstanding liabilities to this contractor.”
Sigd.
22/3/2010
The Cashier II was thereupon directed to go through the Local Government Cash Book from year 1998, to confirm the outstanding payment to the contractor. After all the findings and series of minutes which also disclosed that some of their financial records were with the EFCC and ICPC, the Store Officer was directed on 15/5/201 0 as follows:
“Go thru from pg 6 – 11 you will realize that said contractor is being owed of a huge sum of money to the tune of N17,492,1 51 .00 in other (sic) to get the fact you are require (sic) to being all the related file concerning Alasinrin W. Nig. Ltd so as to forward it to authority for verification and payment.”
Sigd
15/5/2010
The same officer who directed the store officer wrote to the HOD works on 19/5/2010 to say that “The Contractor’s file had been traced as requested for. It is in file 1E LG/WLH/011/98 that all necessary documents … concerning works dept on contractor request, was found…”
Based on that the HOD works endorsed to the DPM that “The Contractors’ documents as contained in his file of contract record is readily available and attached to this file for your digestion as requested..” Your further action please.”
Sigd
1/6/2010
I took the time to reproduce the relevant endorsements of the officers of the Appellant in this appeal to show that there was clear admission of the claim of the Respondents before the learned trial judge, as per available authentic records from the file of the Respondents with the Appellant.
Meanwhile, the Appellant’s affidavit in support of the Notice of intention to defend, dated 13/1/2011, though admitting the contract awarded to the Respondents attempted to deny the execution of the contract and to plead fraud in the award of the contract by previous officers of the Appellant. See paragraphs 4 (a) (b) (g) of the affidavit, where they alleged:
(a)That series of contracts were allegedly awarded to the 2nd claimant’s (sic) between 1998 – 2001 with their respective dates of completion as evidence in the letter of award of contracts granted to the 2nd claimant.
(b) That the claimants failed and refused to perform these contracts satisfactorily as there was no single evidence of completion of the sand (sic) contracts/projects…
(g) That the defendant suspected fraud in the award of contracts awarded by the previous administration as contained in exhibits 4 5 attached to the claimant’s affidavit in support of undefended list and requested the claimants to explain gray areas.
Of course, those averments were clearly on conflict with another one deposed to by the same servant of the Appellant, Grace Alabi of Works Department on the same 13/1/2011, when she averred in paragraphs 3, 4 and 6 thereof, as follows (that was their affidavit in support of their preliminary objection );
(3) That I know as a fact that the defendant awarded series of contract(s) to the claimants between 1998 – 2001.
(4) That this is evidenced in exhibits A1 – A5 attached to the claimants affidavit in support of the undefended list…
(6) That I know as a fact that the claimants failed to produce evidence of completion of the respective contracts awarded to  the claimants by the defendant.”
Thus, whereas in the latter affidavit, the contracts were admitted as duly awarded by the defendant (Appellant) but that the claimants failed to produce evidence of completion of the respective contracts, in the former affidavit, Appellant called the contracts ‘alleged contracts’, saying that they suspected fraud in the award of the contracts by the previous Administrators of the Local Government, and the claimants failed and refused to perform these contracts satisfactorily (not failed to produce evidence of completion )
Of course, all those averments become the needed means of showing or demonstrating the ease with which they said Mrs Grace F Alabi and the Appellant could lie on oath concerning the case, in the light of the endorsements/minutes in Exhibit ‘C’!
In fact Appellant’s shameful effort to disown and discount the importance attached to Exhibit C by the trial court further paints the Appellant’s handlers as dishonest and discredited schemers, who see the court as a place to play games with the truth and act the ostrich, burying its head in the sand, thinking it is hid from probing eyes!
In paragraph 4 (k) of their affidavit in support of the Notice to defend, Appellant had alleged that Exhibit ‘C’ did not emanate from the defendant and that the same did not form the correct contents of the claimants’ file with the defendant, but in paragraph 4 (n) the expressed surprise ‘when the claimant filed and served this suit on the defendant and purports-Exhibit ‘C’ attached … to be extract of the claimant defendant. They quickly insinuated that the file got lost and that they had directed/requested the claimants to present the certificate of completion/performance of the contracts! (Paragraph 4 (o).
Appellant should therefore not quarrel (with or be surprised at Exhibit ‘C’) as it appears the Respondents had simply taken up the challenge in paragraph 4 (o) of the Appellant’s affidavit to produce the proof of their performance of the contracts, And they (Respondents) did it perfectly by producing photo copies of the minutes and endorsements of the officers of the Appellant on their (Respondents) claim.
Incidentally, the Appellant have not denied any of the endorsements, apart from the general claim that Exhibit C did not emanate from it and did not form part of the 2nd Respondents file with the Appellant. That being the position of the Appellant on Exhibit ‘C’, Appellant should therefore not bother itself that the document was not certified! This is because, the entire argument on the non-certification of Exhibit ‘C’ can only make sense upon admission that the same formed part of public/official recordings from the covers of the Appellant!
I think the Appellant was simply overwhelmed and outwitted, when the Respondents came up with the Exhibit C, to affirm their stand that the Appellant had no defence to the claim Thus, while trying to disown the document (Exhibit C), the Appellant also tried to rely on it and use same. It alleged that the claimants’ file with the defendant had been missing from the registry, since June 2010 and all effort to trace it proved abortive; that the 1st claimant was aware of the missing file! All that appeared to be an effort to criminalize the claimants (who emerged with the contents of the alleged missing file), and to set the stage to discount it from applying to establish their claim, on the ground of inadmissibility, for not being certified   as public document.
Appellant cannot be allowed to approbate and reprobate at the same time disowning the Exhibit C and, at the same time, admitting it and pleading it should be certified!
I do not think the issue, of certification of a secondary evidence (photocopy) as in Exhibit C, can arise in this case, being one fought on affidavit evidence, and the Respondents not claiming to have obtained it from the Appellant, lawfully. I do not think the court should concern itself with how a party came by a particular evidence which is relevant to his case and applies to settle the issues in controvercy. Where the Appellant cannot be trusted to keep faith with the agreement it had with the Respondents in respect of completing payment for the contracts performed for it, the law should not question the Respondent on how it got the requisite proof, in the custody of the Appellant, to establish their claim, as it is obvious then Appellant who even accused its previous administrators of fraud, to evade its responsibility, would not willingly surrender the needed proofs to the Respondents.
I think, the law would be very naive and unserious to expect a vital document gotten , anyhow or by unconventional method from the covers/custody of an adverse party, to be certified by the same adverse party, who is ready to deny the document, before reliance can be placed on it, where the court is satisfied that the document is relevant and credible.
That reasoning, it appears, guided the learned trial judge when he held for the Respondent. His findings were unassailable, when he said;
“I have carefully gone through the affidavit in support of the summons and the attached exhibits and find as follows;
(1) That by exhibits A1, A2, A3, A4 and A5 the defendant awarded various contracts to the claimant totalling N26,992,151.00k between 1998 and 2001
(2) According to learned counsel to the claimant in his letter of 23rd of January, 2010, addressed tot he defendant the amount remaining unpaid as at that date stood at N11,492, 151.00k. This figure of the indebtedness of the defendant tot he claimant is confirmed by the store officer to the defendant in PARA ‘B’ of Exhibit C attached to the affidavit in support of writ of summons. On the basis of the facts in the affidavit and exhibits in support of the writ of summon, it is established beyond any shadow of debt that the defendant is indebted to the claimant in the sum of N11,492,151.00”
It is instructive that Appellant did not appeal against that findings, but only tried to fault the court’s reliance on Exhibit ‘C’, for not being certified copy, That means they would not quarrel, if the document had been certified, not that the contents (endorsements/minutes) were faulted.
I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the court and to be used, once the court is satisfied that it is credible. Being already an evidence before the court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the court, unlike pleading which must be converted to evidence at the trial at which time issues of admissibility of an exhibit is decided The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms). It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the court can attach probative value to it.
In the case of MAGNUSSON VS. KOIKI (1993) 12 SCNJ 114 held 5, the Supreme Court said:
“Averments of facts on pleadings must be distinguished from facts deposed to in affidavit in support of application before a court. Whereas the former, unless admitted, constitutes no evidence, the latter are by law, evidence upon which a court of law may, in appropriate cases, act.”
IN H.S. ENGINEERING LTD VS. AS. YAKUBU LTD (2009) 175 LRCN 134, ratio 2, it was held  – ‘It is now settled law that an affidavit evidence  constitutes evidence and any deposition therein not challenged is deemed admitted.’ See also the unreported decision of this court in CA/IL/83/2010 (Adebiyi v. Umar), delivered on 31/1/2012, page 11.The Respondent had cited and relied on the case of OJUYA VS NZEOGWU (1996) NWLR (pt.427) 713 to the effect that:
“On a case decided on affidavit evidence, where the attached exhibits are not formally tendered as such evidence and the contents are not disputed, they cannot be dismissed by a wave of hand on mere technically…”
This has support in the case of CRPD & 1 CO. LTD v. OBONGBA (200) 89 NWLR (PT.670) 751 at 765 (which was also relied upon by the Appellant), when it said:
“The proper step for a defendant for a suit under undefended list who intends to raise a legal objection to a document filed by a plaintiff in support of his case is to raise such defence in a proposed statement of defence attached to the defendants’ affidavit in support of the notice of intention to defend … only certified copies of public documents are admissible in evidence in legal proceeding and any objection to admissibility of public document  not properly certified can be raised during trial. In the instant case, there was; no way the appellant could have objected to the admissibility of exhibits ‘C’ and ‘E’ in its affidavit without running foul of section 87 of the Evidence Act.” (Emphasis mine)
Section 87 of the Evidence Act says ‘An affidavit shall not contain extraneous matter, by way of objection or prayer or legal argument or conclusion.’
Of course, to say that a document exhibited to an affidavit is a photocopy (which it should be) and should be certified before the court can use it is a legal argument and prayer, offending the rules of affidavit, and meant to drag or frustrate a simple case of debt which is not denied.
The law is clear, as per the case of BATURE VS SAVANNAH BANK OF NIGERIA LTD (1998) 4 NWLR (pt.546) 438 at 444 that ‘Under the issue of formal admissibility or inadmissibility of document does not arise in trials under the procedure.’
I therefore resolve the two issues against the Appellant and hold that the appeal lacks merit and is doomed to fail.
It is accordingly dismissed, as I affirm the judgment of the trial court in the suit KWS/277/2010.
Appellant shall bear the cost of this Appeal assessed at N50,000.00 (Fifty thousand naira) only, to the  Respondents.

IGNATIUS IGWE AGUBE, J.C.A.: I agree.

OBANDE OGBUINYA, J.C.A.: I have had the opportunity of reading in draft the reading judgment delivered by my learned brother, Ita G. Mbaba, JCA, and I agree with his reasons and conclusions.
In determining whether a party usually a defendant has disclosed a triable issue or defence on the merit under the, undefended list proceeding, a specie of summary judgment, the Supreme Court had invented some guiding principles to guide the trial courts. Those evolved principles were restated in the case of Ataguba & co. v. Gura (Nig.) Ltd.. (2005) 8 NWLR (pt 927) 429 at 448 when Edozie, JSC, stated:
…One of the main problems that often arise in the undefended suit procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit’ It is sufficient the affidavit discloses a triable issue or that a difficult point of law is involved, that there is dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a bonafide defence: Nishizawa Ltd v. Jethwani (984) 12 SC 23; F.M.G. v. Sani (1990) 4 NWLR (pt.147) 688 at 713.The appellants’ case does not fall within the province of any of these hallowed considerations. By the appellant’s undiluted and unsolicited admission of the liquidated sum of N11,492,151.00, claimed by the respondents, in exhibit C, it is indisputable that the need to take any account, as to the certainty or exactitude of the claimed sum, never arose before the lower court. By the same token, the admission, the best evidence in any proceedings, put paid to disputations as to any knotty point of law or facts which would have necessitated a transfer of the respondents, suit to the general cause list for adjudication by way of giving of evidence. The admission made all the appellant’s contrived defence on the merit arid. Incidentally, the law frowns, seriously, upon a litigant, such as the appellant’ who procrastinates over his indebtedness to another party by erecting a sham or a phantom defence in order to cheat a creditor out of his legitimately entitled judgment in an undefended list procedure. See Okoti v. Morecab Finance (Nig) Ltd. (2007) 14 NWLR (pt 1053) 37. The appellant should pay its admitted debt to the respondents. Equity cannot allow it to enjoy the best of two worlds, take the benefit of an executed job without the corresponding burden of payment.
It is for the above reason, coupled with more comprehensive reasons adduced in the leading judgment, that I, too, find the appeal unmeritorious and I visit dismissal on it. I abide by the orders made in the leading judgment.

Appearances

O.Y Gobir Esq, with him J.R. Yusuf (Mrs.)For Appellant

AND

Tunde Olomu Esq. with him Adeleye Adegboye Esq.For Respondent