JOSEPH MANGTUP DIN V. INNOCENT OKOSE (2013)

JOSEPH MANGTUP DIN V. INNOCENT OKOSE

(2013)LCN/6717(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of March, 2013

CA/J/60/2011

RATIO

WHETHER AN AFFIDAVIT IN SUPPORT OF INTENTION TO DEFEND A SUIT MUST DISCLOSE A DEFENCE ON THE MERIT

Where a Notice of intention to defend an action is filed, the court is to consider whether there is defence disclosed on the merit before deciding either to hear the suit as Undefended or to transfer same to the General Cause List for hearing. An affidavit in support of intention to defend a suit on the Undefended List must disclose a defence on the merit. What amounts to a defence on the merit is within the discretion of the trial court. The trial court is to examine the affidavit exhaustively in exercising its discretion at this stage. Flimsy, fanciful or frivolous defenses should not be entertained to prolong the case. It must be a real defence. See Bawa Vs. Phenias (2007) 4 NWLR Pt. 1024 p. 251 @ 263; UTC (Nig.) Ltd. Vs. Pamotie (1989) 2 NWLR Pt.102 p.244 and Sanjory Co. Ltd. Vs. Elabed (1998) 12 NWLR Pt 579 p.538.

WHETHER IN A SUIT ON THE UNDEFENDED LIST, THE COURT MUST TRANSFER THE SUIT TO THE ORDINARY CAUSE LIST FOR DETERMINATION WHERE THE DEFENDANT FILES A NOTICE OF INTENTION TO DEFEND TOGETHER WITH AN AFFIDAVIT IN SUPPORT.

The law is trite, where a defendant files a Notice of Intention to defend together with an affidavit in support in a suit on the Undefended List and there is or are issue(s) of facts disclosed from a comparison of the plaintiff’s affidavit and that of the defendant, the court must transfer the said suit to the ordinary cause list for determination. See Udoaka Vs. Asuquo (2008) 9 NWLR Pt. 1091 P. 15 @ 30. A trial court should not be in a hurry to decide a case on the Undefended List where the affidavit evidence discloses a triable issue. This is so because a defendant should not be shut out from contesting the claim against him unless by his affidavit he has no defence at all. See Denton-wasi Vs. Muoma (2010) 2 NWLR Pt.1177 p.19 @ 43; Jipaze Vs. Okonkwo (1997) 3 NWLR Pt. 62 P. 737; C.C. & (Nig.) Plc. Vs. Samed Invest. Co. Ltd. (2004) 4 NWLR Pt. 651 P. 19 and Egbe Vs. Adefarasin (1985) 1 NWLR Pt. 3 P. 549. Per IBRAHIM SHATA BDLIYA, J.C.A.

ESSENCE OF THE PROCEDURE UNDER THE UNDEFENDED LIST

Before Their Lordships

JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

Between

JOSEPH MANGTUP DINAppellant(s)

AND

INNOCENT OKOSERespondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Plateau State High Court sitting in Jos, delivered on the 14th of October, 2008, in Suit No.PLD/J/185/2008 between Innocent Okose then the Plaintiff and Joseph Mangtup Din then defendant. The facts of the case before the lower court as could be assembled from the affidavit filed by the parties are simple and straight forward. The Respondent (then Plaintiff) sued the appellant (then defendant) claiming the sum of (Five Hundred and Fifty Four Thousand Naira (N554,000.00) being outstanding sum of money for the supply of Plaster of Paris (POP) to the appellant; and 20% interest from 5th May, 2005, until date of final judgment. The suit was, upon application, placed on the Undefended List on 4th June, 2007. After being served with the Writ of Summons together with the affidavit in support, the appellant filed a Notice of Intention to defend supported by an affidavit. In the affidavit filed in support of the Notice of Intention to defend, the appellant averred that he paid the sum of Three Hundred thousand Naira (N300,000.00) to the Respondent in the presence of witnesses though no receipt for such payment was issued to him. He was therefore not indebted to the respondent. The lower court, after considering the Notice of Intention to defend together with the affidavit in support came to conclusion that there was no defence on the merit disclosed, it therefore applied the provisions of Order 23 Rule 3(1) of the Plateau State High Court (Civil Procedure) Rules 1987, (as amended) and entered judgment in the sum of Three Hundred Thousand Naira (N300,000.00) in favour of the respondent. Dissatisfied with that judgment, the appellant appealed to this court vide Notice of Appeal dated 16th and filed on 17th of October, 2008. There are two (2) grounds of appeal which are as follows:
GROUND ONE (1)
The decision of the lower court is against the weight of evidence.
GROUND TWO (2)
The lower court erred in law when it decided that the appellant’s notice of intention to defend and accompanying affidavit did not disclose defence on the merit.

PARTICULARS OF ERROR
(a) The appellant in paragraphs 17 and 18 of the affidavit in support of Notice of Intention to defend deposed that he paid the sum of Three Hundred Thousand Naira (N300,000.00) to the respondent in the presence of witnesses.
(b) The dispositions in paragraphs 17 and 18 of the appellant’s Notice of Intention to defend creates a dispute between the parties.
(c) It is trite law that once there is a dispute in an affidavit in a case on Undefended List, same ought to be transferred to the General Cause List.
The appeal came up for hearing before the court on 6th of February, 2013. Briefs of Argument were filed and adopted by respective counsel to the parties in accordance with the Rules of Court. In the appellant’s brief of argument, settled by Jim Gotom Esquire of learned counsel, a sole issue was formulated as follows:-
“Whether having regards to the provisions of Order 23 of the Plateau State High Court (Civil Procedure) Rules; 1988, the lower court was right to have entered judgment for the respondent when the appellant affidavit in support of Notice of Intention to defend disclosed triable issues.”
R. E. Ajobiewe Esquire, learned counsel who settled the respondent’s brief of argument also formulated sole issue for determination in the appeal. It is as follows:
“Whether the appellant Notice of Intention to defend and the supporting affidavit disclosed a defence on the merit to warrant the lower court to transfer the suit to the General Cause List.”
The issues formulated in the Briefs of Argument of both parties are not dissimilar in content and effect. I am of the view that the resolution of either would dispose of the appeal one way or the other. For this reason I would adopt the issue formulated by learned counsel to the appellant for the determination of the appeal. It is this:
“Whether having regards to the provisions of Order 23 of the Plateau State High Court (Civil Procedure) Rules; 1987, the lower court was right to have entered judgment for the respondent when the appellant’s affidavit in support of Notice of Intention to defend disclosed triable issues.”
Gotom Esquire, of learned counsel to the appellant did submit that the lower court erred in law when it entered judgment in favour of the respondent pursuant to Order 23 of the Plateau State High Court (Civil Procedure) Rules, 1987. Learned counsel referred to the case of I.H. Limited Vs. Soneb Ent. Ltd. (2010) 4 NWLR Pt. 1185 p. 561 @ 581 wherein the provisions of Order 23(1) and 3(1) of the Rivers State High Court (Civil Procedure) Rule 1, 1987, which is ipssa verba’ with Order 23 Rule (1) and 3(1) of the Plateau State High Court (Civil Procedure) Rules, 1987 was applied and interpreted by the Supreme Court. It was submitted that the lower court was bound by the decision arrived at by the Supreme Court therein, but it failed to do so. That the lower court did not consider the averments contained in paragraphs 16, 17 and 18 of the appellant’s affidavit in support of the Notice of Intention to defend the claims of the respondent. It was further adumbrated that the lower court ought to have considered whether the affidavit of the appellant had disclosed a defence on the merit or not. Having averred in the affidavit in support of the Notice of Intention to defend, that the appellant paid Three Hundred Thousand Naira (N300,000.00) in the presence of witnessed, he ought to have been given opportunity to prove same. In other words, it was argued, an issue had arisen for determination by the court which regard the calling of witnesses. The case of Emill (Nig.) Ltd. Vs. Emunemu (2007) All FWLR Pt. 374 p. 354 was cited to buttress the submission supra.
Learned counsel further submitted that at this stage the appellant was only required to raise a defence on the merit, and not to establish same. Having not shown how it resolved the assertion of paying the sum of Three Hundred Thousand Naira (N300,000.00) in the presence of witnesses, it was an error giving judgment to the respondent under the Undefended List Proceedings. Having disclosed a defence on the merit, it was submitted, the lower court was bound by Order 23 Rule 3(1) of the Plateau State High Court (Civil Procedure) Rule 1, 1987, to transfer the suit 3 to the General Cause List for hearing. It was learned counsel’s view that Order 23 of the said Rules does not in any way empowers the lower court to make findings and arrive at a decision when the affidavit filed in support of the Notice of Intention to defend disclosed a defence on the merit.
Learned counsel then concluded by urging the court to hold that the lower court was in error in deciding the case in favour of the respondent, resolve the issue in appellant’s favour, allow the appeal and set aside the judgment of the lower court.
Ajobiewe Esquire, of learned counsel referred to Order 23 Rule 3 of the Plateau State High Court (Civil Procedure) Rules, 1988, and submitted that the lower court was right in entering judgment in favour of the respondent. Learned counsel cited the case of Dala Air Services Ltd. Vs. Sudan Airways Ltd. (2005) 2 FWLR Pt. 260 p.200 @ 2001 wherein the provisions of Order 23 Rule 3(1) of the Kano State High Court (Civil Procedure) Rules, 1988, which is ipssa verba’ with Order 23 Rule 3(1) of the Plateau State High Court (Civil Procedure) Rules, 1988 which was applied and interpreted to the effect that the main focus of the said provisions is the presentation of a real defence on the merit to the claim of a plaintiff under the Undefended List Procedure or Proceedings. It was submitted that the averments in the affidavit of the appellant did not disclose a defence on the merit. This is so because the documents relied upon were totally irrelevant to the case before the lower court.
On the assertion that the appellant deposed to facts in the affidavit in support of the Notice of Intention to defend that he paid the sum of Three Hundred Thousand Naira (N300,000.00) to the respondent in the presence of witnesses, learned counsel responded that the onus is on the appellant to prove same by credit evidence, which he had not. The case of Alcalonu Vs. Omokaro (2003) 3 WRN p. 93 @ 94 was cited in aid. Bare denial of liability, it was submitted, can not suffice for the purposes of Order 23 Rule 3(1) of Rules of Court. The case of UBA Vs. Jargaba (2007) 31 NSCQR P. 144 @ 149 was cited to reinforce the submissions supra. Learned counsel also submitted that the totality of the averments in the affidavit of the appellant is nothing but a sham and skirmishes intended to prolong or delay the hearing of the suit by the lower court, such attitude of parties in a proceedings under the Undefended List Procedure, should not and is not tolerated. The case of UBA Vs. Jargaba supra was relied upon to buttress the submission above. In conclusion, the court was urged to resolve the sole issue in favour of the respondent, dismiss the appeal and affirm the judgment of the lower court.
Was the lower court right when it entered judgment in favour of the Respondent having regard to the provisions of Order 23 Rule 3(1) of the Plateau State High Court (Civil Procedure) Rules, 1988 in view of the averments contained in paragraphs 16, 17 and 18 of the appellant’s affidavit accompanying the Notice of Intention to defend? At this juncture, I think an examination of the provisions of the said Rules is desirable.
Order 23 Rule 3(1) of the said Rules provides:
“1. If the party served with the Writ of Summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit the Court may give him leave to defend upon such terms as the Court may think just.
2. Where leave is given under this rule, the action shall be removed from the Undefended List and placed in the ordinary cause list; and the court may order pleadings, or proceed to hearing without further pleadings.”
The procedural steps to be taken by a court when hearing an action or suit commenced under Order 23 of the Plateau State High Court (Civil Procedure) Rules, 1988, is simple. A Writ of Summons is to be filed before the court in respect of a claim to recover a debt or liquidated money demand accompanied by an affidavit setting forth the grounds upon which the claim is based. The plaintiff is to state that in his opinion there is no defence to the claim. The court is to examine the writ and all documents attached thereto very carefully to ensure compliance with the rules. If the court is satisfied with the compliance of the rules and the grounds upon which the claim is founded, it must enter the suit on the Undefended List. The writ is to be marked accordingly. The marked Writ together with the affidavit in support are to be served on the defendant. The defendant is given five (5) days within which to react or respond having been served as aforesaid. A return date is entered for the hearing of the suit. If the defendant intends to defend the claims, he must file Notice of Intention to defend with an affidavit stating out clearly the grounds of defence. If not disputing the claim no need to file the Notice of Intention to defend. On the return date, the court is to enter judgment in favour of the Plaintiff. But where the affidavit accompanying the Notice of Intention to defend discloses a defence on the merit the Court is to transfer the suit to the general cause list for hearing. The Court may allow the affidavit filed by the parties as the pleadings or it may order for the filing of pleadings as provided by Rules of Court. See OSIFO VS. OKOGBO COMMUNITY BANK LTD. (2006) 15 NWLR Pt. 1002 p. 260 @ 273 and N.C. / CF. (NPL) V. MABOL ASSOCIATION LTD. (2010) 2 NWLR pt. 1179 P. 612 @ 630-631.
In the instant case the Respondent who was the plaintiff before the lower court took out a Writ of Summons dated 27th May 2007 in suit No.PLD/J185/2007. By a Motion Exparte he sought for an order to place the suit on the undefended list. The order was granted and the suit was placed under the under the undefended list, same was accordingly marked as “undefended”. The 5th of July 2007 was entered as the Return date. The marked Writ of Summons together with the affidavit in support were served on the appellant. The appellant filed a Notice of Intention to defend together with an affidavit on 28th July 2007. On 14th October, 2008, the lower court considered the Notice of Intention to defend the claim and arrived at a decision that no defence on the merit was disclosed by the affidavit filed in support of the Notice. It therefore entered judgment in favour of the appellant in terms of the Writ of Summons. Was the lower court right in entering judgment in favour of the Respondent?
The appellant filed Notice of intention to defend the claims against him by the Respondent. Was there a defence on the merit having regard to the averments in the affidavit supporting the Notice. Paragraphs 3 to 20 of the said affidavit are germane. To fully comprehend and appreciate the intendment of the averments, the said paragraphs are reproduced hereunder:
“3) That paragraphs 3-21 of the plaintiff’s affidavit are not only false but also misleading.
4) That I have known the Plaintiff over the years as a business man who trades in building material under the business name Linnok Investment Company Limited.
5) That paragraph 3 of the affidavit is false as there was no time that I placed an order for Plaster of Paris (herein called POP) in the sum of N734,000.
6) That I purchased cement and POP from the plaintiff, the pop for use of my house, while the cement is for construction of Barkin Ladi L.G.C. stadium to the knowledge of the Plaintiff.
7) That all the purchases for POP and cement were paid for as seen in Exhibit JMD 1 – 14.
8) That I know that the Plaintiff supplied cement for Barkin Ladi for the sum of N490,000.
9) That the Plaintiff was subsequently paid the sum of N490,000 whereupon he did not present the cheque.
10) That the supply for the sum of N754,000 was for cement to Barkin Ladi Local Government Stadium.
11) That I gave the Plaintiff’s a cheque on the understanding that Barkin Ladi Local Government was going to make payment for the contract which she did not.
12) That I informed the Plaintiff not to present the cheque for N734,000 until I clear with Barkin Ladi Local Government but he proceeded to present same.
13) That the Plaintiff came to my house several times and I took time to inform him that I was putting pressure on Barkin Ladi Local Government to pay me as I have also committed my personal resources to the contract.
14) That the Plaintiff on one such visits informed me in the presence of my sister in-law that he was under serious family problems and was in dire need or money as such my sister in-law gave him the sum of N200,000 and not as in circumstances stated in paragraph 15 and 16 of the affidavit.
15) That I have never dodge the Plaintiff or any person for that matter in my own house.
16) That I have sued Barkin Ladi Local Government Council to the knowledge of the Plaintiff. The court processes against Barkin Ladi Government council are annexed herewith as Exhibit JMD B1.
17) That sometimes in August 2006, the Plaintiff came to my house for his money. f then in the presence of my wife and manager Joshua Dading gave the plaintiff the sum of N300,000 cash.
18) That I did not demand for a receipt as I was on my way to Abuja and indeed the business relationship I had with the Plaintiff over years was not that I always asked for receipt for payment. The plaintiff never gave me a receipt for the N200,000 he collected from my sister in law which he had acknowledged.
19) That the Plaintiff has always come to my house for a balance of N254,000 which I informed him that I will pay him as soon as I receive payment from Barkin Ladi Local Government.
20) That I have defence to this suit”.
Where a Notice of intention to defend an action is filed, the court is to consider whether there is defence disclosed on the merit before deciding either to hear the suit as Undefended or to transfer same to the General Cause List for hearing. An affidavit in support of intention to defend a suit on the Undefended List must disclose a defence on the merit. What amounts to a defence on the merit is within the discretion of the trial court. The trial court is to examine the affidavit exhaustively in exercising its discretion at this stage. Flimsy, fanciful or frivolous defenses should not be entertained to prolong the case. It must be a real defence. See Bawa Vs. Phenias (2007) 4 NWLR Pt. 1024 p. 251 @ 263; UTC (Nig.) Ltd. Vs. Pamotie (1989) 2 NWLR Pt.102 p.244 and Sanjory Co. Ltd. Vs. Elabed (1998) 12 NWLR Pt 579 p.538.

It is not the duty of the court when considering the affidavit in support of the Notice of Intention to defend a suit on the Undefended List to see whether the defence being put up would succeed or whether the defence has been proved or established. The court’s duty is only to look at the facts deposed to in order to determine if there is a prima facie defence which shows a triable issue. See Nishizawa Ltd. Vs. Jethwani (1984) 12 SC 234 and FMG Vs. Sani (1990) 4 NWLR Pt.147 p. 688. A triable issue is said to be raised when it precludes the court from entering judgment after considering the affidavit in support of the Notice of Intention to defend the suit. See Osifo Vs. Okogbo Com. Bank Ltd. (2006) 15 NWLR Pt.1002 p.260 @ 274; Jipceze Vs. Okunkwo (1987) 2 NWLR Pt. 62 P. 737; Olubusola Stores Vs. Standard Bank (Nig.) Ltd. (1975) 1 SC 51 and Obi Vs. Nkwo Market Com. Bank Ltd. (2001) 2 NWLR Pt. 696 P. 113.
Mr. Gotom Esquire, for the appellant did submit that the lower court failed to consider the averments in paragraphs 16, 17 and 18 of the affidavit in support of the Notice of Intention to defend. That the said averments, if properly considered, would have shown that there was triable issue, which is, whether the appellant did pay the sum of Three Hundred Thousand Naira (N300,000.00) to the respondent in the presence of witnesses or not. Learned counsel contended that his submission was supported by the decision of the Supreme Court in the case of J. H. Limited Vs. Soneb Ent. Ltd. (2010) 4 NWLR Pt. 1185 p.1, which the lower court ignored. Ajobiewe Esquire for the respondent was of different view. It was his submission that the averments of the appellant in paragraphs 16, 17 and 18 of the affidavit supporting the Notice of Intention to defend was a total sham intended to only prolong the hearing of the suit. That the lower court was right in entering judgment in favour of the respondent’s having failed to disclose defence on the merit as required by law in proceedings under the Undefended List procedure.
I think it is important to state at this juncture that the defence to a claim under the Undefended List procedure is of a special nature unlike in other cases on the General Cause list. At this stage the defence need not be proved or established. It is only to create a doubt in the mind of the court on the case of the plaintiff. In other words, a triable issue which could be determined one way or the other must exist having regard to the averments in the affidavit in support of the Notice of Intention to defend the suit. In Trade Bank Plc. Vs. Spring Fin. Ltd. (2009) 12 NWLR Pt.1155 p. 369 @ 385, this court held that a complete and comprehensive defence need not be shown in the affidavit in support of the defendant’s Notice of Intention to defend an action on the Undefended List. It is sufficient that the defendant is able to show that there is triable issue or question raised in the affidavit. In short, there must be a dispute between the parties. It is not necessary for the court to consider if the defence is meritorious or not having regard to the averments in the affidavit and the documents, if any, exhibited. The duty of the court at this stage is to, simply look at the facts deposed in the affidavit to see if those facts can, prima facie, afford a defence to the claim.
In paragraphs 17 and 18 of the affidavit in support of the Intention to defend the claims of the respondent, the appellant averred as follows:
”17. That sometimes in August 2006, the plaintiff came to my house for his money. I then in the presence of my wife and Manager Joshua Dading gave the plaintiff the sum of N300,00.00 cash.
18. That I did not demand for a receipt as I was on my way to Abuja and indeed the business relationship I had with the plaintiff over years was not that I always asked for receipt for payment. The plaintiff never gave me a receipt for the sum of N200,000.00 he collected from my sister in-law which he has acknowledged.
In concluding his ruling of 14th of October, 2008, the learned trial judge had this to say on pages 85 – 86 of the record of appeal:
“Because looking at the nature and state of the affidavit evidence in support of the Notice of Intention to defend, there is not much in the way of a defence. Like T. S. Oyelade Esq., Learned counsel to the plaintiff said, what the defendant is seeking to show as a defence is what the Courts have described as sham defence. Indeed, the defendant in catching straws tried to link or bring in Barkin Ladi Local government and one Kalwa Nigerian Limited claiming it is him who has sued Barkin Ladi for some money, in a bid to show that, that Local government in indebted to him. But the certified Court process attached as exhibit even if considered would be of no use to the defendant as it has no link to the transaction in question before this court.
Exhibit B and C exhibited to the plaintiff’s affidavit are both of them cheques bearing the name of the defendant, Joseph Mangtup Din issued by the defendant to the plaintiff’s name, Innocent Okose! There is no reference to the name Linnok Investment Co. or Kalwa Nig. Ltd. As shown in the documents exhibited by the defendant in his Notice of intention to defend. But very importantly, as I have earlier said, the averments in the defendant’s affidavit are full of contradictions, rendering the whole of no use to the Court. I am indeed very much in agreement with Learned counsel to the plaintiff that the defendant’s affidavit in support of his Notice of intention to defend has not disclosed any defence on the merit and I hold so.”
The learned trial judge did not address his mind to the averments of the appellant in paragraphs 17 and 18 to the affidavit in support of intention to defend. If he had done so, he would have realized that by the averments in the said paragraphs 17 and 18 aforesaid, the appellant had disputed the claim of Three Hundred Thousand Naira (N300,000.00) having alleged to have paid same to the respondent in the presence of his wife and one Joshua, the Manager. At this stage it is not required of him to prove the averments in paragraphs 17 and 18 by cogent credible evidence. He is only required to depose to facts that could be proved or established by evidence at the trial after the suit might have been transferred to the General Cause List for hearing. I am fortified by the position of the law in this regard which has been clearly stated in a plethora of decided cases by the Supreme Court and this Court. For instance in David Vs. Jalayami (2011) 11 NWLR Pt. 1258, this Court held that a defence on the merit for the purposes of the Undefended List procedure may encompass a defence in law as well as on facts. The defendant is to put forward some facts which cast doubt on the claim of the plaintiffs. The defence on the merit under this procedure is not same as defence in a litigation in a case on the General Cause List where evidence must be adduced to prove an issue on the preponderance of evidence or balance of probability. All that is required under the Undefended List procedure is for the defendant to lay the foundation for the existence of a triable issue(s). See also Alaguba Co. Ltd. Vs. Gura (Nig.) Ltd. (2005) 8 NWM Pt. 927 p. 429 and Nortex (Nig.) Ltd. Vs. Franco Tools Co. Ltd. (1997) 4 NWLR Pt. 501 P.603.
By the averments in paragraphs 17 and 18 of his affidavit in support of intention to defence the suit, the appellant had shown that there was an issue to be tried, that is, whether he had paid the sum of Three Hundred Thousand Naira (N300,000.00) being claimed by the respondent or not having alleged or asserted that same was paid in the presence of his wife and Joshua, the Manager. At this stage the appellant is not required to produced evidence of payment of the said sum of money. By merely alleging that he had paid the said sum of money to the respondent in the presence of witnesses, he has introduced facts which created the basis of an issue to be resolved by evidence at the trial if the suit is transfer to the General Cause List. In UBA Plc. Vs. Jargaba (2007) 11 NWLR Pt.1045 p.247 @ 273, the Supreme Court held that the decision as to whether or not a defence under the Undefended List procedure discloses a triable issue does not depend on the discretion of the judge. Rather it involves the evaluation of the affidavit evidence for it to determine whether or not a triable issue has been made out by the defence. A defendant’s affidavit in support of Notice of Intention to defend a suit on the Undefended List raises a triable issue when the affidavit is such that the plaintiff’s will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim. See also UBA Plc. Vs. Mode Nigeria Ltd. (2001) 3 NWLR Pt.730 P.335.
As earlier alluded to in this judgment, the appellant in the affidavit in support of Notice of Intention to defend the claim against him, asserted that he had paid the outstanding sum of Three Hundred Thousand Naira (N300,000.00) to the respondent in the presence of witnesses. Is the respondent not required to disprove this assertion? How can he do so? He cannot file further affidavit or counter-affidavit at this stage in the Undefended List Procedure. The only way out is for the matter to be transferred to the General Cause List for hearing so that evidence would be adduced by the appellant to prove his assertion or for the respondent to disprove the assertion of the appellant. By the decision of the lower court whereby it held that the appellant’s affidavit did not disclose a defence on the merit, it had deprived the appellant the opportunity of establishing his defence against the claim of the respondent.
The law is trite, where a defendant files a Notice of Intention to defend together with an affidavit in support in a suit on the Undefended List and there is or are issue(s) of facts disclosed from a comparison of the plaintiff’s affidavit and that of the defendant, the court must transfer the said suit to the ordinary cause list for determination. See Udoaka Vs. Asuquo (2008) 9 NWLR Pt. 1091 P. 15 @ 30. A trial court should not be in a hurry to decide a case on the Undefended List where the affidavit evidence discloses a triable issue. This is so because a defendant should not be shut out from contesting the claim against him unless by his affidavit he has no defence at all. See Denton-wasi Vs. Muoma (2010) 2 NWLR Pt.1177 p.19 @ 43; Jipaze Vs. Okonkwo (1997) 3 NWLR Pt. 62 P. 737; C.C. & (Nig.) Plc. Vs. Samed Invest. Co. Ltd. (2004) 4 NWLR Pt. 651 P. 19 and Egbe Vs. Adefarasin (1985) 1 NWLR Pt. 3 P. 549.
I am not unmindful of what the Supreme Court said in the case of UBA Vs. Jargaba (2007) 31 NSCQR P. 144 @ 140 that:
“For an action to be transferred to the general cause list there must be a defence on the merit and details and particulars of defence must be set out. It must not be a half-hearted defence, it must not be a defence which is merely fishing for skirmisher all over the place. A case is not transferred to the general cause list as a matter of course or routine, but on proper scrutiny of the averments in support of the notice to defend for this purpose, no flimsy, fanciful or frivolous defence adduced to prolong the case or play for time will suffice. It must be a real defence on the merit and not a caricature of it.”
This is not the case here. In this instant case the averments contained in paragraphs 17 and 18 of the affidavit in support of the Notice of Intention to defend filed by the appellant, if proved, would be a total defence to the claim of Three Hundred Thousand Naira (N300,000.00) by the respondent. The averments by the appellant can only be proved or established by evidence at a trial by the lower court. There is therefore a triable issue shown by the appellant to warrant the transfer of the suit to the General Cause List for hearing. Therefore, having held that the averments contained in paragraphs 17 and 18 of the affidavit filed in support of the intention to defend has disclosed a defence on the merit, suit No.PLD/J/185/2008 ought to be transferred to the General Cause List for it to be heard and determined on the merit. In the result, the sole issue formulated earlier in this judgment is hereby resolved in favour of the appellant. The appeal succeeds. The judgment of the lower court dated 14th of October, 2008 is hereby set aside. Case be remitted to the lower court for hearing by another judge of the said Court. Parties to bear the cost of the appeal individually.

JUMMAI HANNATU SANKEY, J.C.A.: I have read the Judgment prepared and delivered by my learned brother, Bdliya, J.C.A. and I agree with him that there is merit in the Appeal.
Under the Undefended List procedure, (in the instant case as provided for under order 23 of the High court civil procedure Rules of Plateau State, 1987 (as amended), a defendant who intends to defend a suit filed against him is requires to file a Notice of intention to defend the suit accompanied by an affidavit disclosing a defence on the merit. What this means is that the affidavit must not contain merely a general statement that a defendant has a good defence to the action. It must be supported by particulars which, if proved, would constitute a defence. It is sufficient if the affidavit discloses:
(a) A triable issue or that a difficult part of law is involved;
(b) That there is a dispute as to the facts which ought to be tried;
(c) That there is a real dispute as to the amount due which requires the taking of an account to determine, or any other circumstances which show reasonable grounds of a bona fide defence.
See Imoniyame Holdings Ltd v Soneb Enterprises Ltd (2010) Ltd SCNJ 303; Nkwo Market Community Bank (Nig.) Ltd v. Obi (2010) 4 SCNJ 81.

It is settled law that the purpose of the procedure under the undefended list is to enable the plaintiff obtain summary judgment without trial, where his case is patently clear and unassailable. see Sodipo v Leminkainen (1986) NWLR (Pt.15) 220. The undefended list proceedings is not intended to shut out a defendant from contesting the suit brought thereunder. See Nishizawa V Jethwani (1984) 12 SC 124. Where once a defendant can show in his affidavit that he has a defence on the merit, or there is a serious conflict in the affidavit of the parties or it raises an issue that is triable, it is on the side of justice to let him in to defend the action by transferring such matter to the general cause list of the court for hearing on pleadings. See Adebisi Macgregor Associates Ltd v Nigerian Merchant Bank Ltd (1996) 2 SCNJ 72.
In an action brought under this procedure, the court is required to consider only the evidence contained in the affidavit filed by the defendant in support of the Notice of intention to defend the suit. Once the court comes to the conclusion that the affidavit does not disclose a defence on the merit or a triable issue, then the court is to proceed with the hearing of the suit as an undefended suit and enter judgment accordingly without calling on the defendant, even if present in court, to answer or be heard.
Where however there is a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved. In that circumstance, it becomes mandatory to enter the suit on the general cause list for a full trial. See Ebong v Ikpe (2000) 17 NWLR (Pt.797) 504.
The Appellant herein expressly and specifically by paragraphs 17 and 18 of his affidavit challenged the amount of Five Hundred and Fifty Four Thousand Naira (N554,000.00) claimed by the Respondent by alleging that he had indeed paid the sum of N300,000.00 out of that sum to him in the presence of witnesses who could testify to same. For ease of reference, the said paragraphs state as follows:
“17) That sometimes in 2006, the Plaintiff came to my house for his money. I then in the presence of my wife and manager Joshua Dading gave the plaintiff the sum of N300,000.00 cash.
18) That I did not demand for a receipt as I was on my way to Abuja and indeed the business relationship i had with the Plaintiff over the years was not that I always asked for receipt for payment. The plaintiff never gave me a receipt for the N200,000.00 he collected from my sister in-law which he acknowledged.”
There was therefore an apparent conflict in the affidavit evidence before the trial Court that required full hearing on the general cause list to resolve, and this was enough to decline the Respondent’s application to have the suit heard as an undefended suit.
For all intents and purposes, there is a serious and contentious dispute between the parties that can only be resolved in a hearing of the Appellant’s suit on the merit which will and ought to be contested on pleadings filed by the parties. In other words, the Appellant has disclosed in his affidavit in support of his Notice of intention to defend the suit triable issues or a defence on the merit to warrant the transfer of the suit to the general cause list in accordance with order 23 Rules (2) & (3) of the High court (Civil Procedure) Rules of Plateau State, 1987 (as amended).
It must be borne in mind that the undefended list procedure is a peculiar procedure intended only to apply to cases where there can be no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for the mere purpose of delay. As stated by Ogweugbu, JSC in Adebisi Macgregor Associates Ltd v Nigerian Merchant Bank Ltd (supra) at page 81 of the law report, “That it is for the plain and straight forward and not for the devious and crafty.” As a general principle, where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a reasonable probability that he has a bona fide defence, he ought to have leave to defend. See University of Nigeria V Orazuluike Trading Co. Ltd (1989) 5 NWLR (Pt.119) 19.
In all the circumstances, I agree with my lord, Bdliya, J.C.A. in the lead Judgment that, from the affidavit in support of the Notice of intention to defend, there are triable issues which warrant a transfer of the suit to the general cause list to enable parties file and exchange pleadings and have the matter determined on the merit. I therefore agree that the Appeal be allowed and that the matter be remitted to the Plateau State High Court to be heard and determined by another Judge of that court.
The result is that I also allow the Appeal. I abide by the consequential orders, including the order on costs.

PETER OLABISI IGE, J.C.A.: I have read in advance the Judgment just delivered by my learned brother, Bdliya JCA.
The sole issue for determination as formulated by the Appellant is:-
“Whether having regards to the provision of Order 23 of the Plateau State High Court (Civil Procedure) Rules 1987 the lower court was right to have entered Judgment for the Respondent when the Appellant’s affidavit in support of Notice of Intention to Defend disclosed triable issue”
The Respondent had alleged that the Appellant was owing him the sum of N754,000.00 (seven Hundred and fifty four thousand Naira) as a result of the Appellant’s request to the Respondent to supply Plaster of Paris (P.O.P) for his house at 2, Wase Close G.R.A. Jos. The Appellant paid the sum of N200,000.00 out of the contract sum.
In the Affidavit of Notice of intention to defend the action the Appellant as Defendant denied the story or facts put forward by the Respondent. The Appellant stated that the contract was for the supply of cement for the Construction of Barkin Ladi Local Government Stadium and that he had paid out of the debt of N754,000.00 for the cement supplied to the tune of N500,000.00 in two installments of N200,000.00 and N300,000.00 respectively to the Respondent. That the said sum of N300,000.00 was paid to the Respondent in the presence of Appellant’s wife and his manager one Joshua Dading. That the Respondent did not give him receipt just as he did when he paid him N200,000.00.
He admitted owing the Respondent the sum of N254,000.00 which he said was the balance of the debt. This he stated in paragraph 19 of his Affidavit in support of his Notice of intention to defend.
On 31st day of July, 2007 the Respondent learned counsel T. S Oyelade Esq., applied for Judgment in the sum of N254,000.00 admitted by the Appellant. Notwithstanding the vehement objection of the Appellant’s learned counsel, the learned trial Judge on 3rd day of August 2007 in a considered Ruling entered Judgment in favour of Respondent in the sum of N254,000.00 leaving the sum of N300,000.00 in contention.
On 14th day of October, 2008 the learned trial Judge decided that the Appellant has not disclosed any defence on the merit. The learned trial Judge said on pages 85 – 86 of the record thus:-
“Mrs M. R. Panguru, Learned Counsel who appeared for the defendant has very little to urge in favour of the defendant; and rightly so in my view.
Because looking at the nature and state of the affidavit evidence in support of the Notice of intention to defend, there is not much in the way of a defence. Like T. S. Oyelade Esq., Learned Counsel to the Plaintiff said, what the defendant seeking to show as a defence is what the Courts have described as a sham defence. Indeed the defendant incarching straws tried to link or bring in Barkin Ladi Local Government and one Kalwa Nigeria Limited claiming it is him who has sued Barkin Ladi for some money, in a bid to show that, that Local Government in indebted to him. But the uncertified Court process attached as Exhibit even if considered would be of no use to the defendant as it has no link to the transaction in question before this Court. Exhibit B and C exhibited to the plaintiff’s affidavit are both of them cheques bearing the name of the defendant, Joseph Mangtup Din issued by the defendant to the plaintiff in plaintiff’s name, Innocent Okose! There is no reference to the name Linnok Investment Co. or Kalwa Nig. Ltd. As shown in the documents exhibited by the defendant in his Notice of intention to defend. But Very importantly, as I have earlier said, the averments in the defendant’s affidavit are full of contradictions, rendering the whole of no use of the Court. I am indeed very much in agreement with Learned Counsel to the Plaintiff that the defendant’s affidavit in support of his Notice of Intention to defend has not disclosed any defence on the merit and I hold so.”
As can be seen from the portion of the Judgment just quoted the learned trial Judge was of the view that what the Appellant presented were buddle of contradictions in his Affidavit and therefore a sham defence. He further stated that the suit Appellant sought to rely on had nothing to do with the action culminating in this appeal.
There is nothing on record to show that apart from paragraph 19 of the affidavit in support of Notice of intention to defend, that the Appellant’s learned Counsel admitted the alleged balance of N300,000.00 debt. The learned trial Judge has a bounden duty to consider on its merit the Affidavit of the Appellant in order to discern whether it disclosed a prima facie defence and NOT necessarily a defence that will at that stage of proceeding be a complete answer to the Respondent’s case.
It is therefore necessary or essential to examine critically the case of the claimant to see whether it is airtight, clear and unassailable so as to deprive the defendant the right to defend. See:
1. A. A. MACAULAY VS NAL MERCHANT BANK LTD (1990) 4 NWLR (PART 144) 283 AT 305 – 306 PER AGBAYE JSC.
2. FEDERAL MILITARY GOVERNMENT OF NIGERIA & ORS VS ABACHA MALLAM SANI (1990) 4 NWLR (PART 147) 688 AT 703 H-704 E.
The applicable rules in undefended list is not designed to shut out a defendant who can put forward triable issues as in this case against the Plaintiff’s application for Judgment.
There is glaring conflicts in the Affidavit of the Respondent and that of the Appellant particularly as to the claim of the Respondent that Appellant was owing N554,000.00 while the Appellant claimed he was only owing N254,000.00. The learned trial Judge ought to have in the circumstances of this case allowed the matter to be transferred to the general cause list for hearing and determination on the merit. See INTERCONTINENAL BANK LTD VS BRINA LIMITED (2012) 8 SCM 145 AT 154 C-F where GALADIMA JSC held:-
“In consideration of an action brought under undefended list by the plaintiff, the trial Judge is faced with a decision whether to hear the case or transfer it to the General Cause List. He must have to begin with the careful scrutiny of the plaintiff’s claim and be satisfied that the action is not contentious and one that should be placed on the undefended list. The defendant is not invited to defend an action before the Court is satisfied that there is a prima facie case calling for a defence. That will be tantamount to casting the onus of proof on the defendant. This offends against the fundamental principle of our law that requires the plaintiff to first establish a prima facie case before the defendant can be called upon to defend the case: See S.138 of the Evidence Act and Alade V. Aborishade (1960) 5 FSC.165 Owoade V. Omitola (1988) 19 NSCC (pt.1) 802 at 808.
See also FEDERAL AIRPORT AUTHORTTY OF NIGERIA VS. WAMAL EXPRESS SERVICE (NIG) LIMITED (2011) 8 NWLR (PART 1249) 219 AT 257 F- H PER MUHAMMAD JSC.
In my considered view the court below was wrong when he entered Judgment for the Respondent in the disputed sum of N300,000.00 (Three Hundred Thousand Naira). For the above reason and the fuller reasons set out in the Judgment of my Learned Brother I allow the appeal and I endorse the consequential orders contained therein including the order on costs.