SCIRROCCO INT. LIMITED v. UNITY BANK PLC (2016)

SCIRROCCO INT. LIMITED v. UNITY BANK PLC

(2016)LCN/8160(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/K/187/2014

RATIO

APPEAL: DETERMINATION OF AN APPEAL; THE ISSUES AN APPELLATE COURT MAY ADOPT IN THE DETERMINATION OF AN APPEAL

The law is trite, in the determination of an appeal, an appellate Court may adopt the issues formulated for resolution by either or both of the parties or may reframe or restructure or formulate entirely different issues(s) for the just determination of the appeal in so far as they are related or based on the grounds of appeal contained in the Notice of appeal. To reinforce the preposition of the law as enunciated supra, I refer to the case of Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) P. 163 @ 181, wherein the Supreme Court stated that an appellate Court can ignore some or all issues formulated in the briefs of argument and formulate its own issues the way it deems them to be material once they are distilled from the grounds of appeal. In P.S.H.S.M.B. v. Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 399 the Supreme Court further adumbrated that an appellate Court has an unfettered discretion to re-arrange or formulate issues for determination to meet the justice of the case. As a matter of law and procedure, an appellate Court can formulate issues for determination as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In other words, the purpose is to narrow the issue or issues in controversy for accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the grounds of appeal the opposite party cannot complain. See Okoro v. State (1988) 5 NWLR (pt. 94) 255; Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 330) 379; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria, Ugbobia (2003) 2 NWLR (Pt. 804) 399; Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685; Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Akpan v. State (1992) 6 NWLR (Pt. 248) 439. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; WHEN CAN AN ACTION BE MOVED FROM THE UNDEFENDED LIST AND PLACED ON THE ORDINARY LIST
Under the provisions of the above Rules of Court if the party served with the writ of summons and affidavit in a suit under the undefended list delivers to the registrar not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may grant him leave to defend upon such terms as the Court may think just. And where leave to defend is given under the rule, the action shall be moved from the undefended list and placed on the ordinary list.
See Denton – West v. Muoma (2010) 2 NWLR (Pt. 1177) P. 1 @ 37. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; WHETHER THE UNDEFENDED LIST IS DESIGNED TO SHUT OUT A DEFENDANT WHO CAN SHOW THAT THERE IS A TRIABLE ISSUE

The undefended list procedure under Order 23 of the various High Court Rules, is to enable a plaintiff to obtain summary judgment without trial, where his case is patently clear and unassailable. However, it is not designed to shut out a defendant who can show that there is a triable issue. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; WHAT AN AFFIDAFIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND MUST SHOW

Thus, in determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend, it is not necessary for the trial Court to decide at that stage whether the defence has been established. What is required is simply to look at the facts deposed to in the affidavit or counter affidavit, or statement of defence, where applicable, and see if they can prima facie, afford a defence to the action. The affidavit in support of the notice of intention to defend must show that the grounds for seeking to be heard in defence are not frivolous, vague or designed to delay the trial of the action. It must show that there is a dispute between the parties. (Sodipo v. Lemminkainen (1986) 1 NWLR (Pt. 15) 220; Nishizanwa Ltd v. Jethwani (1984) 12 SC 234; F.M.G v. Sani (1990) 4 NWLR (Pt. 147) 688; Okambah Ltd. v. Sule (1990) 7 NWLR (Pt. 160) 1; A. C. B Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342); Olubusola Stores v. Standard Bank of (Nig.) Ltd. (1975) 4SC 51; John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492). As a general principle of law, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bonafide defence, he ought to be granted leave to defend. Where a defendant raises any substantial question of fact which ought to be tried, leave should be granted to him to defend the action. (Adebisi Mcgregor Associates Ltd. v. Nigerian Merchant Bank (1996) 2 NWLR (Pt. 431) 378; University of Nigeria v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19. In an action under the undefended list, in order for the defendant’s affidavit in support of notice of intention to defend to disclose a defence on the merit, the affidavit must not merely contain a general statement that the defendant has a good defence to the action. Such general statement 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 showing reasonable grounds of a bonafide defence.
See NMCB (Nig.) Ltd. v. Obi (2010) 14 NWLR (Pt. 1213) P. 169 @ 184. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; THE IMPLICATION OF THE FAILURE OF THE DEFENDANT TO SHOW IN HIS AFFIDAVIT THAT HE HAS A DEFENCE

The Court is required to consider only the depositions 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 as an undefended suit and enter judgment accordingly without calling on the defendant, even if present in Court, to answer or be heard. However, where there is a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit on the general cause list except where there is documentary evidence by which the conflict could be resolved. Haido v. Usman (2004) 3 NWLR (Pt. 859) 65; Ebong v. Ikpe (2002) 17 NWLR (pt. 797) 504. The undefended list procedure is not intended to shut out a defendant from contesting the suit brought thereunder. Where 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 raises issue that is triable, he will be granted leave to defend the suit. The defendant at that stage need not show a complete defence. It suffices if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. Once a defendant by his affidavit in support of his notice of intention to defend has shown clearly that he has issues arguable and triable therein, it is imperative to let him in to defend the action by transferring such matter to the general cause list of the Court for hearing on Pleadings. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; WHETHER A DEFENDANT IS ENTITLED AS OF RIGHT TO BE GRANTED LEAVE TO DEFEND THE CLAIMS AGAINST HIM WHERE HE GIVES NOTICE OF INTENTION TO DEFEND
The law is trite, where a defendant gives notice of intention to defend under the Undefended List and the affidavit discloses a prima facie defence, he is entitled as of right to be granted leave to defend the claims against him. He cannot be shut out merely because the affidavit does not contain further evidence to prove the defence. See Global Bank Ltd. v. SAINTS (2010) 10 NWLR (pt. 1210) P. 17. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: TRIABLE ISSUE; WHAT IS A TRIABLE ISSUE

What is a triable issue or put it differently, when is a triable issue disclosed by the depositions in an affidavit filed in support of Notice of intention to defend an action under the undefended list procedure? 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 Court. Rather, it involves the consideration or evaluation of the affidavit evidence before the Court for it to determine whether or not a triable issue has been made out by the defence.
See UBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) P. 247 @ 273; GS & FC Ltd v. Obiekezie (1997) 10 NWLR (Pt. 526) P. 527. per. IBRAHIM SHATA BDLIYA, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST: THE GUIDING PRINCIPLES OF LAW GOVERNING THE UNDEFENDED LIST PROCEDURE

The guiding principles of law governing the Undefended List procedure have been enunciated in a litany of decisions of the Courts. For instance in Ataguba & Co. v. Gura (Nig.) Ltd (2005) 8 NWLR (pt. 927) P.429 @ 448, the Supreme Court held that one of the main problems that often arises in the undefended list procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit. In this regard, it must disclose a prima facie defence. The affidavit must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement 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
d. any other circumstances showing reasonable grounds of a bona fide defence.
Under the undefended list procedure, all that a defendant needs to do is to file a notice of intention to defend and also an affidavit disclosing a defence on the merit. An affidavit disclosing a defence on the merit does not mean the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron case defence; all it means is that he must show prima facie that he has a defence to the plaintiff’s action. The defence may fail or succeed but it is not the duty of the trial Court to so determine at that stage. That can only be done at the trial. Thus, in determining whether a defendant would be given leave to defend, Courts should adopt a very liberal approach in this regard. Nya v. Edem (2000) 8 NWLR (Pt. 669) 349; Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 342; Peat Marwick, Ani, Ogunde & Co. V. Okike (1995) 3 NWLR (Pt. 369) 71; Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (Pt.65) 472; Jipreze v. Okonwo (1987) 3 NWLR (Pt. 62) 73; Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538. An affidavit disclosing defence on the merit does not mean that the defendant must show that the defence must succeed at any event or that he must prove an iron cast up defence. All that it means is that the defence must show a prima facie defence to the plaintiff’s claims. The defence may fail or succeed, however, it is not for the Court at this stage to determine the success or not of the defence, it is only at the trial that such can be done. per. IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

Between

SCIRROCCO INT. LIMITED Appellant(s)

AND

UNITY BANK PLC Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court of Justice (hereinafter referred to as the lower Court) in suit No. K/519/2013, delivered on the 6th of February, 2014. By a Writ of Summons the respondent, as plaintiff, instituted suit No. K/519/2013 against the appellant (as defendant) at the lower Court, claiming as follows:
WHEREOF the plaintiff claims against the defendant (Jointly and Severally) for:
i. The sum of N104,145,902.58 being the principal amount plus interest as at 30th September, 2013.
ii. 26% interest on the said loan from 1st October, 2013 until judgment.
iii. 10% Court interest from the date of judgment until the entire amount is liquidated.
Dated this 28th day of October, 2013

Upon an application by the respondent, the suit was placed on the Undefended List, and marked accordingly. The marked Writ together with the supporting affidavit were served on the appellant. The appellant filed a Notice of Intention to defend the claim against it, supported by an affidavit. Learned counsel to the

parties addressed the Court. In a ruling delivered on the 6th of February, 2014, the learned trial judge of the lower Court held that no defence on the merit was disclosed by the depositions in the affidavit in support of the Notice of Intention to defend and accordingly entered judgment in favour of the respondent in terms of the Writ and statement of claim. Dissatisfied with the judgment of the lower Court, the appellant filed a Notice of Appeal on the 18th of February, 2014, consisting of six (6) grounds of appeal. Shorn of their particulars, the six (6) grounds of the Notice of Appeal are as follows:
Ground One (1)
“The lower trial judge erred in law when he held that the Defendant/Appellant has no defence on the merit and therefore refused to transfer the matter to the general cause list.”
Ground Two (2)
“The learned trial judge erred in law when he failed to consider the Defendant’s/Appellant’s defense on the interest charged by the respondent as against the agreed rate applicable to the loan which is 7% per annum.”
Ground Three (3)
“The learned trial judge erred in law in failing to consider the defendant/appellants

defense regarding the several account opened and operated by the plaintiff /respondent at its head office without the authority or consent of the appellant”.
Ground Four (4)
The learned trial judge erred in law when he held that the defendant/appellant is liable to pay the sum of N104, 135,902.58 to the respondent.”
Ground Five (5)
“The learned trial judge misdirected himself and failed to property evaluate the affidavit evidence in support as the Notice of Intention to defend and thereby reached a wrong findings and conclusions not supported by the evidence before him, and therefore totally unwarranted.?
Ground Six (6)
“The decision was against the weight of evidence?.
The appellant sought the following reliefs from this Court:
“(a) An order allowing the appeal and setting aside the judgment and orders of the lower Court in the judgment of the 6th of February 2014.
(b) An order transferring the suit (matter) to the General cause List, and ordering the parties to file pleadings, and
(c) An order transferring the suit K/515/2013 to the Chief Judge of Kano State High Court to be reassigned to another

judge of the said Court.”

The appellant’s brief of argument dated 28th of November, 2014 was deemed filed on the 2nd of December, 2014. The respondent’s brief of argument dated 12th of December, 2014, was deemed filed on the 15th of December, 2014. An appellant’s Reply brief dated 19th of March 2014 was deemed filed on the 9th of November, 2015. The appeal was argued on the 9th of November, 2015 whereat, learned counsel to the parties adopted their respective briefs of argument.

In the Appellant’s brief of argument six (6) issues have been formulated from the six (6) grounds of the Notice of Appeal. They are as follows:
“(i). whether the learned trial judge was right in holding that the appellant?s affidavit in support of notice of intention to defend does not disclose a defence on the merit so as to place the suit on the general cause list for trial. In other words, whether the trial judge was right in hearing and entering judgment for the Respondent under the Undefended List Procedure.
(ii). Whether there were conflicts in the respondent affidavit and the appellant?s affidavit. And if this is answered in the positive, whether

the trial Court was not duty bound to call for oral evidence.
(iii) Whether the judge was right in holding that the prevailing interest rate was 26% as against the 7% CBN interest rate.
(iv) Whether the respondent can on its own without the prior consent and approval of the appellant open an account or transfer fund from the account opened on behalf of the appellant.
(v) Whether the learned trial judge was right in holding that the respondent was entitled to the payment of the sum of N104,135,902.58 as an outstanding amount due from the appellant.
(vi). Whether the learned trial judge has properly evaluated the evidence adduced by the appellant”.

In the respondent’s brief of argument a sole issue has been distilled out of the grounds of the Notice of Appeal. It is thus:
“WHETHER THE:- APPELLANT AS DEFENDANT AT THE LOWER – COURT HAS DISCLOSED A DEFENCE ON THE MERIT BY THE AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND TOGETHER WITH THE EXHIBITS ATTACHED THERETO TO COMPEL THE TRANSFER OF THE SUIT TO THE GENERAL CAUSE FOR FULL TRIAL.

The law is trite, in the determination of an appeal, an appellate Court may

adopt the issues formulated for resolution by either or both of the parties or may reframe or restructure or formulate entirely different issues(s) for the just determination of the appeal in so far as they are related or based on the grounds of appeal contained in the Notice of appeal. To reinforce the preposition of the law as enunciated supra, I refer to the case of Chabasaya v. Anwasi (2010) 10 NWLR (Pt.1201) P. 163 @ 181, wherein the Supreme Court stated that an appellate Court can ignore some or all issues formulated in the briefs of argument and formulate its own issues the way it deems them to be material once they are distilled from the grounds of appeal. In P.S.H.S.M.B. v. Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 399 the Supreme Court further adumbrated that an appellate Court has an unfettered discretion to re-arrange or formulate issues for determination to meet the justice of the case.
As a matter of law and procedure, an appellate Court can formulate issues for determination as long as the issues cover the grounds of appeal. The purpose of reframing issue or issues is to lead to a more judicious and proper determination of an appeal. In

other words, the purpose is to narrow the issue or issues in controversy for accuracy, clarity and brevity. As long as the issue or issues reframed, is/are anchored on the grounds of appeal the opposite party cannot complain. See Okoro v. State (1988) 5 NWLR (pt. 94) 255; Latunde v. Lajinfi (1989) 3 NWLR (Pt. 108) 177; Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 5 NWLR (Pt. 330) 379; Ogunbiyi v. Ishola (1996) 6 NWLR (Pt. 452) 12; Lebile v. The Registered Trustees of Cherubim and Seraphim Church of Zion of Nigeria, Ugbobia (2003) 2 NWLR (Pt. 804) 399; Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685; Ogbuanyinya v. Okudo (No. 2) (1990) 4 NWLR (Pt. 146) 551; Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523; Akpan v. State (1992) 6 NWLR (Pt. 248) 439.

Therefore, the issues contained in the appellant’s and the respondent’s briefs of argument are hereunder compressed into three (3) issues, which, if resolved would ultimately determine the appeal.
The three (3) issues are as follows:
(i). “Whether the appellant as the defendant at the lower Court had not by its Notice of intention to defend the claims of the respondent (as the plaintiff)

disclosed a defence on the merit by the affidavit filed in support to compel the lower Court to transfer the suit to the general cause list for trial?. (Grounds 1, 3, five and 6 of the Notice of appeal).
If Issue I is resolved against the appellant:
(ii). Whether the learned trial judge of the lower Court was right in its decision that the respondent (as plaintiff) was entitled to the sum of N104,135,902.58K being outstanding amount of money due from the appellant (ground 4 of the grounds of Notice of appeal).
(iii). Whether the learned trial judge of the lower Court erred in law when he failed to consider the appellant’s defence in respect of claim of interest at the rate of 26% per annum as against the 7% per annum on the loans as agreed to in the agreements between the parties (Ground 2 of the grounds of appeal).

RESOLUTION OF ISSUES
(i) ISSUE I
Issue I is basically questioning the legality of the decision of the lower Court that the affidavit filed in support of the intention to defend the claims against the appellant has not disclosed a defence on the merit, hence the entering of judgment in favour of the

respondent. Oseni Sefullahi Esq. of learned counsel who settled the appellant’s brief of argument outlined the plausible defences as could be gleaned from the affidavit in support of the Notice of intention to defend the suit by the appellant to be the following:-
?a. That the Respondent charged 6% interest on the facility as against the 7% rate of the CBN having converted the facility to commercial loan.
b. That because of the dispute as to the interest rate charged, the real amount owed by the appellant could not be ascertained.
c. That after the deduction of N64,000,000.00 Sixty Four Million Naira claimed by the Respondent as the accrual from the Intercity Bank Loan, no statement of Account was issued to it by the Respondent.
d. That having received N260,000,000.00 facility, the respondent opened a new and separate account at its headquarters in Abuja without the consent of the appellant into which the entire loan disbursement was credited.
e. That the loan was not credited into the appellant’s existing account No. 0005410257 with the respondent in Kano.
f. That no account reconciliation was done between 2010 and 2013

in spite of request by the appellant.?This made the appellant handicapped on what transpired in the account within that period.”

Learned counsel further contended that the appellant had raised cogent defences to warrant the transfer of the suit to the General Cause List, more especially the issue of separate accounts opened by the respondent which has not been reconciled by the parties prior to the commencement of the action at the lower Court.?That the lower Court failed to adequately consider the defences put up by the appellant in entering judgment in favour of the respondent under the Undefended List Procedure. It has been pointed out that for a defence on the merit to be disclosed, the affidavit filed in support of the Notice of intention to defend must disclose a substantial triable issue. As to what is a triable issue, learned counsel adumbrated that where the plaintiff is required to explain certain matters with regard to his claim or where the defendant’s affidavit in support of the defence throws doubt on the plaintiff’s claim, suffices for triable issue. The cases of Nwarah & Sons v. Akputa (2010) 3 MJSC P. 1011 and Grahams v.

Esuman (1984) 15 NSCC 733 @ 743 cited to buttress the submissions Supra. That where a triable issue is shown, the Court ought to transfer the suit to the General Cause List for full hearing whereat, the parties are expected to adduce evidence to prove their respective claims.

In order to obtain an order to transfer a suit to the General Cause List, counsel argued that the affidavit in support of the notice of the intention to defend must prima facie establish the following:
(i) a triable issue or a difficult point of law exists in the matter;
(ii) existence of disputes to be tried,
(iii) dispute as to the amount due which requires taking of an account, or
(iv) any other circumstances showing or disclosing grounds of bonafide defence. The case of Ataguba & Co. v. Gura (Nig.) Ltd (2015) 8 NWLR (pt 927) P. 429 @ 448 cited to reinforce the submission supra.

Learned counsel contended that the appellant had satisfied all the requirements for the suit filed by the respondent to be transferred to the general cause list for trial, but the learned trial judge refused to do so on the ground that the appellant failed to show a prima facie

defence on the merit having regard to the depositions in the affidavit filed in support of the Notice of intention to defend. The cases of Okpra v. Gusau (2009) 11 NWLR (Pt. 1151) 61 @ 23 and Jipreze v. Okonwo (1987) 3 NWLR (Pt. 62) p. 237 cited to buttress the reinforce the contention that an affidavit disclosing a defence on the merit does not mean that the defence must show that the same must succeed at any event. All that is required is for the defendant to show that a prima facie defence to the action has been established. The case of Agwueneme v. Eze (1990) 3 NWLR (Pt. 137 P.342 cited in aid. Learned counsel contended that once there is conflict in the affidavit in support of the claims and that in support of the notice of intention to defend the claim, burden of proof arises, and the suit ought to be transferred to the general cause list for trial in order to resolve what is in contention. Learned counsel did urge that the issue under consideration be resolved in favour of the appellant.

For the respondent, Nassir A. Dangiri Esq., contended that by Paragraph 3 (a) to (m) of the affidavit in support of the application of the respondent to place the

writ initiating the suit it has been established that:-
“1. The appellant has applied for and was granted the loans/overdraft banking facilities by the respondent bank (see Paragraph 3 (a) – (m) of the affidavit in support which is at pages 82-83 of the printed record and Exhibits C, D, E, F, F4, G, G1, H and I).
2. That the appellant has since defaulted on the terms and conditions of the offer letters, and the Deed of Mortgage Debenture Agreement which she executed (See Paragraphs 3 (v) of the affidavit in support which is at pages 84 of the printed record).
3. That the agreements (Exhibits C, D, E, F1 – F4, G – G1, H and I) for the loan/overdraft banking facility are UNDER SEAL.
4. The appellant has admitted the debt by signing Exhibits C, D, E, F, H, G, G1, H and I which are contained at pages 94-136 of the printed record.
5. That the offer letters and the Deed of Mortgage Debenture Agreement executed by the appellant under SEAL contain certain terms and conditions of the overdraft banking facilities.
6. Letters of demand were written to the appellant by the respondent to come and pay off the amount but the appellant has

refused, see Exhibit N which is contained at pages 151-152 of the printed record.
7. That the appellant has no defence to the respondent’s claim.
8. That the appellant’s claim is for liquidated money demand.
9. The appellant has admitted her debts in Exhibits SC2 and SC3 that are at pages 214-215 of the printed record.

Learned counsel referred to Paragraphs 3 – 28 of the affidavit in support of the Notice of intention to defend the claims of the respondent and contended that the deposition therein do not disclose a defence on the merit in view of Exhibits C, D, E, F, G, H and I. That having executed the agreements the appellant is bound by same.
That by virtue of Section 128, (1) of the Evidence Act, the appellant cannot deny same. The case of Alfijir Mining v. NIOB (1999) 12 SCNJ P.294 @ 305 cited to buttress the submission supra. That the agreements per Exhibits C, D, E, F, G, H and I being documents, must be construed strictly, and no extraneous matter could be resorted to alter same. The case of; Nishizanwa Ltd v. Jethwani (1984) NSCC P.77 cited to reinforce the submission supra.

?In his further submission, learned counsel

contended that for an action to be transferred from the Undefended List to the general cause list, there must be a defence on the merit, with details and particulars set out. That an affidavit in support of Notice of intention to defence can be said to have raised a triable issue where the depositions contained therein throws doubt on the plaintiff’s claim, or requires the plaintiff to explain certain matters regarding the claims. The case of UBA Plc v. Mode Nigeria Ltd (2001) 13 NWLR (pt. 730) P. 335 cited in aid. That the decision to transfer a suit to the general cause list from the Undefended List, does not depend on the discretion of the Court but on the affidavit evidence placed before the Court through the affidavit filed in support of the Notice of intention to defined the action of the plaintiff. The case of G.S & FC Ltd v. Obiekeze (1997) 10 NWLR (Pt. 526) P.577 cited to buttress the contention supra.

In the Reply brief, learned counsel to the appellant pointed out that, Exhibits SC2 and SC3 cannot be an admission of the claims of the respondent?s claim. It has been further submitted that the Court ought to have considered the

entire depositions in the affidavits and all the materials before it in deciding whether there has been admission of the claims or not. That the appellant did not admit the claims of the respondent.

In conclusion, learned counsel submitted that the appellant has no defence to the respondent’s claims. That the respondent’s claim cannot be disputed in law in view of the affidavit in support of the writ vis-a-vis the depositions of the appellant contained in the affidavit in support of the Notice of intention to defend the claims against him. That this Court should be guided by the decision in; Nishizanwa Ltd v. Jethwani; Macanlay v. NAL Merchant Bank Plc and Sasegbon’s Laws of Nigeria First Edition Vol. 6 (Pt.11) Paragraphs 2252 to 2258 at pages 593 – 597, and to resolve issue 1 against the appellant.
?
Order 23 Rule 3(1) of the Kano State High Court (Civil Procedure) Rules, provides thus:
“3(1) If the party served with the writ of summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit

disclosing a defence on the merit, the Court may give his leave to defend upon such terms as the Court may think just.”
Under the provisions of the above Rules of Court if the party served with the writ of summons and affidavit in a suit under the undefended list delivers to the registrar not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the Court may grant him leave to defend upon such terms as the Court may think just. And where leave to defend is given under the rule, the action shall be moved from the undefended list and placed on the ordinary list.
See Denton – West v. Muoma (2010) 2 NWLR (Pt. 1177) P. 1 @ 37.

?Thus, in determining whether a defendant has a good defence to the action or has disclosed such facts as may be

deemed sufficient to entitle him to defend, it is not necessary for the trial Court to decide at that stage whether the defence has been established. What is required is simply to look at the facts deposed to in the affidavit or counter affidavit, or statement of defence, where applicable, and see if they can prima facie, afford a defence to the action. The affidavit in support of the notice of intention to defend must show that the grounds for seeking to be heard in defence are not frivolous, vague or designed to delay the trial of the action. It must show that there is a dispute between the parties. (Sodipo v. Lemminkainen (1986) 1 NWLR (Pt. 15) 220; Nishizanwa Ltd v. Jethwani (1984) 12 SC 234; F.M.G v. Sani (1990) 4 NWLR (Pt. 147) 688; Okambah Ltd. v. Sule (1990) 7 NWLR (Pt. 160) 1; A. C. B Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342); Olubusola Stores v. Standard Bank of (Nig.) Ltd. (1975) 4SC 51; John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492).

?As a general principle of law, where a defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bonafide

defence, he ought to be granted leave to defend. Where a defendant raises any substantial question of fact which ought to be tried, leave should be granted to him to defend the action. (Adebisi Mcgregor Associates Ltd. v. Nigerian Merchant Bank (1996) 2 NWLR (Pt. 431) 378; University of Nigeria v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19.

In an action under the undefended list, in order for the defendant’s affidavit in support of notice of intention to defend to disclose a defence on the merit, the affidavit must not merely contain a general statement that the defendant has a good defence to the action. Such general statement 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 showing reasonable grounds of a bonafide defence.
See NMCB (Nig.) Ltd. v. Obi (2010) 14 NWLR (Pt. 1213) P. 169 @

184.

The Court is required to consider only the depositions 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 as an undefended suit and enter judgment accordingly without calling on the defendant, even if present in Court, to answer or be heard. However, where there is a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit on the general cause list except where there is documentary evidence by which the conflict could be resolved. Haido v. Usman (2004) 3 NWLR (Pt. 859) 65; Ebong v. Ikpe (2002) 17 NWLR (pt. 797) 504.
The undefended list procedure is not intended to shut out a defendant from contesting the suit brought thereunder. Where 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 raises issue that is triable, he will be granted leave to defend the

suit. The defendant at that stage need not show a complete defence. It suffices if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. Once a defendant by his affidavit in support of his notice of intention to defend has shown clearly that he has issues arguable and triable therein, it is imperative to let him in to defend the action by transferring such matter to the general cause list of the Court for hearing on Pleadings.

The affidavit filed by the appellant in support of the Notice of intention to defend can be found on pages 205 to 211 of the record of appeal. To fully comprehend and appreciate the import and purport of the depositions contained therein, same is reproduced hereunder in full.

AFFIDAVIT IN SUPPORT OF NOTICE OF INTENTION TO DEFEND
“I Alhaji Suleiman Halilu, an adult male Muslim, of No. 3 Masaka Avenue, Hausawa, Kano do make oath and state as follows:
1. I am the Managing Director of the Defendant Company.
2. I am by virtue of my position, conversant with the facts of this case.
3. In the year 2000, the Defendant took a loan from Intercity Bank Plc. And

a Mortgage Debenture in the sum of Twenty Five Million, One Hundred and Thirty Five Thousand Naira (N25,135,000.00) was executed as a security for the loan.
4. In 2006, Intercity Bank Plc. Merged with other legacy Banks to form Unity Bank Plc.
5. In December 2002 the Defendant applied for another overdraft of Fifty Million Naira (N50,000,000.00) from Unity Bank Plc. This was approved but not disbursed.
6. The same overdraft in the sum of Fifty Million Naira was reinstated in 2009 and utilized by the Defendant in respect of which the Defendant made several repayments. However, no statement of accounts was issued to the defendant showing disbursements and repayments as well as application of interest in spite of demands by the Defendant to enable it properly reconcile the accounts.
7. In 2010, the Central Bank of Nigeria introduced an Intervention Fund for Refinancing/Restructuring of Industries through the Bank of Industry. The fund was intended to support the Revitalization of Manufacturing Industries. The Defendant applied to take advantage of the facility.
8. In May, 2010, the Defendant applied for that facility through the

disbursing agent (the Plaintiff)
9. The facility was granted to the Defendant under the Central Bank of Nigeria Intervention Fund for Refinancing/Restructuring of Term Loan Facility of Two Hundred and Sixty Million Naira (N260,000,000.00) with a maximum interest rate of 7% per annum.
10. The said Two Hundred and Sixty Million Naira facility was approved and disbursed by Central Bank of Nigeria through the Bank of Industry on to Unity Bank Plc.
11. Upon the receipt of the Two Hundred and Sixty Million Naira facility, the plaintiff debited the sum of Sixty Four Million Naira to offset the alleged indebtedness of the Defendant.
12. The plaintiff claimed that the Sixty Four Million Naira deducted was the accrual from the Intercity Bank loan.
No statement of account was given to the effect by the plaintiff.
?13. upon the receipt of the Two Hundred and Sixty Million Naira facility, the plaintiff opened a new account at its headquarters in Abuja (without the consent of the Defendant), into which the entire loan disbursement was credited, instead of crediting it into the Defendant’s existing account in Kano (Account Number

0005410257).
14. The Defendant had no access to the account in Abuja. The funds were only disbursed to the Kano account in piecemeal. However, interest was charged on the entire amount as reflected in the Abuja account.
15. No account reconciliation was done between 2010 and 2013 in spite of requests by the Defendant, therefore it was impossible for the Defendant to know what transpired in the account within that period.
16. The Defendant requested in a letter dated 1st November, 2011, that the plaintiff close the second account being operated at the head office of the plaintiff and to merge the balance with the first account being operated in the Kano branch. The letter is hereby marked as Exhibit SC I.
17. The lifespan of the facility granted to the Defendant under the Central Bank of Nigeria Refinancing/Restructuring Intervention Fund is seven years beginning in 2010, to end in 2017. Payment was to be made in quarterly installments of Ten Million Naira at an interest rate of 7%.
18. In January 2012, there was a massive Boko Haram attack in Kano which gave rise to a Force Majeure situation of insecurity that was beyond the control

of the Defendant.
19. The insecurity situation continued in Kano for most of 2012 and has remained n especially in the North East Region of the country, a major market for the Defendant’s products. This affected and continues to affect all businesses in the region. It became practically impossible to meet up with the quarterly installment payments.
20. The Defendant promptly informed the plaintiff and requested for a rescheduling of the payment of the facility via a letter dated 17th July 2012. The letter dated 17th July is hereby marked as Exhibit SC 2.
21. The plaintiff unilaterally, without recourse to the Defendant claimed to have repaid the Central Bank of Nigeria the arrears of the quarterly installments and converted it to a loan, charging the Defendant exorbitant interest at the rate of 26% per annum which is beyond any realistic repayment for an industrial manufacturing company on a long term financing basis.
22. The Central Bank of Nigeria Intervention Fund was provided by the Bank to resuscitate industries. However, the plaintiff unilaterally took the decision without consulting the Central Bank and other parties involved.<br< p=””

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23. I am aware that the plaintiff as agent of the Central Bank of Nigeria in the disbursement of the intervention fund made no effort to assist the Defendant in the light of the security situation to restructure the facility which in any event remained valid for the agreed tenure of seven years expiring in 2017.
24. The plaintiff has failed or refused to provide the Defendant with statements of account and therefore the Defendant would not know the interest charged on the account on the loan and overdraft granted to it.
25. As a result, the Defendant cannot ascertain whether the amount claimed by the plaintiff is the actual amount due to it.
26. The plaintiff is aware that the Defendant is finalizing a contract manufacture agreement for export of Moringa Tea and that production to that effect will start as soon as the National Agency for Food and Drug Administration and Control (NAFDAC) gives its approval. A copy of the letter dated 23rd December 2013, formally informing the plaintiff of this contract is hereby marked as Exhibit SC 3.
27. Under this arrangement the Defendant will generate funds to honor its obligation to the plaintiff

and continue production.
28. I am informed by A. B. Mahmoud SAN at his office on 20th January 2014 it about 12:00 noon and I verily believe him to be true as follows:
a. That the Defendant has a defense on merit.
b. That several issues have arisen which can only be resolved by leading evidence.
c. That the matter ought to be transferred to the General Cause List.
d. The transfer will not prejudice the plaintiff and it will be in the interest of justice to transfer the matter to the General Cause List.
29. I depose to this Affidavit in good faith, verily believing the content to be true and correct and in accordance with the Oaths Act.
—————–
DEPONENT
Sworn to at the High Court Registry, Kano.
This 21 day of January, 2014.
Before Me
SIGNED
Commissioner for Oaths”.

The material depositions as to whether a defence on the merit has been disclosed or not are those contained in Paragraphs 6, 9, 12, 13, 14, 15, 17, 21, 24, 25 and 26 of the affidavit in support of intention to defend. As enunciated in NMGB (Nig.) Ltd. v. Obi (2010) 14 NWLR (Pt. 1213) P. 169 @ 188, the Undefended List procedure is not

intended to shut out a defendant from contesting the suit brought thereunder. Where 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 raises issue that is triable, he will be granted leave to defend the suit. The defendant at this stage needs not show a complete defence. It suffices if the defence set up shows that there is a triable issue or that for some other reasons there ought to be a trial. Once a defendant by his affidavit in support of his notice of intention to defend has shown clearly that he has issues arguable and triable therein, it is imperative to let in the defendant to defend the action by transferring such matter to the general cause list of the Court for hearing on pleadings.
The law is trite, where a defendant gives notice of intention to defend under the Undefended List and the affidavit discloses a prima facie defence, he is entitled as of right to be granted leave to defend the claims against him. He cannot be shut out merely because the affidavit does not contain further evidence to prove the defence. See Global Bank Ltd. v. SAINTS (2010) 10

NWLR (pt. 1210) P. 17. Where triable issues are raised by the affidavit in support of the Notice of intention to defend, the Court has no alternative but to transfer the suit to the general cause list for hearing, see NC/CAPI v. NABOL Associates Ltd (2010) 2 NWLR (Pt. 1179) P. 622.

matters with regards to his claim or where the affidavit throws a doubt on the Plaintiff’s claim.
See UBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) P. 247 @ 273 and UBA Plc v. Mode Nigeria Ltd. (2001) 13 NWLR (Pt. 730) P. 335. In Nwrah & Sons v. Akputa (2010) 3 MJSC P. 1 @ 10, the Supreme Court held that if a defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection arises, an issue where the plaintiff will be required to explain certain matters with regards to his claim or where the affidavit throws a doubt on the plaintiff’s claim, such brings the parties within the concept of joining issues as explained in Grahams v. Esumai (1984) 15 NSCC 733 @ 743, in such a situation a triable issue comes into existence. Whenever a bona fide issue or triable issue comes into existence the case ought to be entered in the general cause list. The Court has a duty to ensure fair hearing even in cases under the undefended List Procedure.

Applying the principles of law on when a triable issue has arisen by the depositions in the affidavit filed in support of the intention to defend an

action, to the instant case at hand, the depositions contained in Paragraphs 6, 9, 12, 13, 14, 15, 17, 21, 24 and 25 of the affidavit supporting the Notice of intention to defend the claims of the respondent by the appellant, there are disputes as to the reconciliation of the accounts; the interest rate; how the amount claimed was arrived at; the disbursement of the loan and the conversion of the loan to commercial loan at an exorbitant interest rate of 26% as against the rate of 7% agreed to by the parties. These are the issues which the trial Court ought to have termed triable issues. In a matter under the undefended list procedure, the Court must adopt a very liberal approach. This was the position of the Court in Okpara v. Gusau (2009) 11 NWLR (pt. 1151) P. 1 @ 23 para C. Also see the case of Jipreze v. Okonkwo (1987) 3 NWLR (pt. 62) 737.

procedure is the consideration of whether the defendant’s affidavit in support of notice of intention to defend discloses a defence on the merit. In this regard, it must disclose a prima facie defence. The affidavit must not contain merely a general statement that the defendant has a good defence to the action. Such a general statement 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
d. any other circumstances showing reasonable grounds of a bona fide defence.
?Under the undefended list procedure, all that a defendant needs to do is to file a notice of intention to defend and also an affidavit disclosing a defence on the merit. An affidavit disclosing a defence on the merit does not mean the defendant must show that his defence must succeed at any event or that he must show a rock proof or iron case defence; all it means is

that he must show prima facie that he has a defence to the plaintiff’s action. The defence may fail or succeed but it is not the duty of the trial Court to so determine at that stage. That can only be done at the trial. Thus, in determining whether a defendant would be given leave to defend, Courts should adopt a very liberal approach in this regard. Nya v. Edem (2000) 8 NWLR (Pt. 669) 349; Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 342; Peat Marwick, Ani, Ogunde & Co. V. Okike (1995) 3 NWLR (Pt. 369) 71; Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (Pt.65) 472; Jipreze v. Okonwo (1987) 3 NWLR (Pt. 62) 73; Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538.
An affidavit disclosing defence on the merit does not mean that the defendant must show that the defence must succeed at any event or that he must prove an iron cast up defence. All that it means is that the defence must show a prima facie defence to the plaintiff’s claims. The defence may fail or succeed, however, it is not for the Court at this stage to determine the success or not of the defence, it is only at the trial that such can be done. See Agwuneme v. Eze (1990) 3 NWLR

(Pt.137) P.342.

In this regard, the depositions contained in Paragraphs 6, 9, 12, 13, 14, 15, 17, 21, 24 and 25 of the affidavit filed in support of the Notice of intention to defend the claims of the respondent by the appellant have, prima facie, disclosed defence on the merit, whether same can succeed at the trial or not, is not to be considered at this stage.
For as pointed out in H.R Ltd. v. F Investment Ltd (2007) 5 NWLR (Pt. 1027) P.326 @ 329:-
“Under the undefended list procedure, what is required is simply to look at the facts deposed to in the counter-affidavit or indeed the facts averred in the statement of defence, where applicable, and see if they can prima facie afford a defence to the action. In that regard, a complete defence need not be shown. It will suffice if the defence set up shows that there is triable issue or question or that for some other reason there ought to be a trial”.
Under the undefended list procedure, the affidavit accompanying the application by the defendant to defend must disclose a defence showing that there is a triable issue. In other words, the triable issue envisaged should not be at large but

related to the defendant’s defence. Defence are of facts which, if proved, would exonerate the defendant from the plaintiff’s claim. The affidavit is required to set up a defence against the plaintiff’s claim and not to rake up fresh suit or cause or causes of action against the plaintiff. The onus is on the defendant under the undefended list procedure to show by his affidavit evidence that he has a defence on the merit to warrant the transfer of the suit to the general cause list. He must disclose a triable issue or a prima facie defence or a plausible defence in his affidavit. It must not be a fanciful or sham defence.

As earlier alluded to in this judgment, the depositions in Paragraphs 3-28 of the affidavit in support of the Notice of intention to defend by the appellant has disclosed that there are a triable issues; there is dispute as to the amount due and the interests to be charged on the loan facilities obtained which requires the taking of an account or reconciliation of same, all these are defences to the claim of the appellant which the learned trial judge did not seriously adverted his mind to, rather, more emphasis was placed on whether the

defences have been proved or not. The law is trite, under the undefended list procedure, the defendant has no duty to prove the defence(s), he is only expected to show that prima facie, defence has been disclosed by the depositions in the supporting affidavit to the Notice of intention to defend. See H.R. Ltd v. F Investment Ltd (2002) 5 NWLR page 326; Ebong v. Ikpe (2002) 17 NWLR (Pt.797) P.504; Fromchal (Nig.) v. NAB Ltd (1995) 8 NWLR (pt. 412) P. 176 and UTC v. Pamotei (1989) 2 NWLR (Pt. 103) P. 244. I cannot therefore subscribe to the finding and decision of the learned trial Judge of the lower Court on pages 20 – 21 of the record of appeal that:
“The defendant was evasive in its attempt to put up a defence on the merits. The defendant affidavit/defence is such that the plaintiff will not be asked or required to proffer an explanation for certain matters or any matter with regard to its claim and did not seriously question the plaintiff claims. And it is the law that a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay

tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to post pone meeting his obligation and indebtedness. (See the case of Okoli v. Morecab Finance (Nig.) Ltd (2007) All FWLR (Pt. 369) 1164 S.C).”

The law is trite, to secure the transfer of a suit under the undefended list to the general cause list, the defendant must disclose or raise in the affidavit accompanying the notice of intention to defend a defence on the merit. See H.R Ltd v. F. Investment Ltd (2007) 5 NWLR (Pt 27) P. 326 @ 344. The appellant, as shown earlier in this judgment, has had, by the depositions contained in Paragraphs 3-28, more especially Paragraphs 6, 9, 12, 13, 14, 15, 17, 21, 24 and 25 thereof, raised triable issues which could only be determined a Court of law at a trial where evidence would be adduced by the parties. The foregoing preposition of the principles of law regarding the undefended list procedure has the support in the pronouncement of the Supreme Court in the case of UBA Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) P. 247 @ 278, wherein it was enunciated that for a matter to be transferred from the undefended

list to the general cause list, the defendant’s affidavit in support of notice of intention to defend must show or disclose enough facts to satisfy a reasonable Tribunal that the defendant has a defence to the action. Such facts must require the plaintiff to proffer explanation for certain matters with regard to his claim or seriously question the plaintiffs claim. In effect, the defendant’s defence must not be a sham, frivolous, vague or fanciful or designed to delay the trial of the action. Rather, it must show that there is a dispute between the contending parties to be tried.

In the instant case Paragraphs 6, 9, 13, 14, 15, 17, 21, 22 and 25 of the affidavit accompanying the notice of intention to defend the claims of the appellant by the respondent have shown there exist dispute as to the reconciliation of accounts; the interest rate; how the amount claimed have been arrived at; the disbursements of the loans and the rate of interest of 26% instead of 7%. All these issues which are triable, constitute the plausible defence to the claims of the respondent by the appellant. In the result, issue 1 is hereby resolved in favour of the appellants that is,

the learned trial judge of the lower Court was not right when he arrived at the decision that the appellant’s affidavit accompanying the notice of intention to defend the claims by the respondent did not disclose defence on the merit to warrant the transfer of the suit to the general cause for hearing.

With the resolution of issue one in favour of the appellant, is there the need to delve into the other issues and resolve them? I do not think there is the need to do so. This is so because even if all the other three Issues are resolved in favour of the respondents, it would be purely academic in that it would be of no utilitarian value to the respondents having resolved issue one in favour of the appellant. When is a suit said to be an academic exercise? In the case of Hallmark Bank Plc. v. Obasanjo (2014) 4 NWLR (Pt. 139) P. 209 @ 225, it was held that a suit is said to be lifeless or an academic exercise when a decision arrived at in the matter will not ensure any advantage or right or confer any benefit on the successful litigation. See also Ogbonua v. President, FRN (1995) 6 NWLR (Pt. 404) P. 658.
?Appellate Courts do not entertain issues which

will amount to embarking on an academic voyage. To consider the other issue in this appeal would tantamount to academic exercise which is frowned at by the law. See Olori v. Motors Co. Ltd v. UBN of Nigeria Plc (2006) 10 NWLR (Pt. 989) P. 586.

In the final analysis, the appellant’s appeal succeeds. The judgment of the lower Court delivered on the 6th of February 2014, in suit No. K/519/2013 is hereby set aside. Having found and held that the depositions contained in the affidavit accompanying the notice of intention to defend has disclosed a prima facie defence, I now make an order pursuant to the provisions of Section 15 of the Court of Appeal Act (2010 amendment) transferring suit No. K/519/2013 to the general cause list for hearing by the lower Court. The Parties are hereby ordered to file their pleadings in accordance with the relevant provisions of the Kano State High Court (Civil Procedure) Rules. The case is hereby remitted to the Kano State Chief Judge for a re-trial de novo before any judge of that Court, other than Justice Ibrahim Musa Karaye. The appellant is entitled to costs assessed at N50,000.00. Same is awarded to him.

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UWANI MUSA ABBA AJI, J.C.A.: I have read in draft the lead judgment of my learned brother, Ibrahim Shata Bdliya, JCA, just delivered.
I agree with the reasoning and conclusions of my learned brother that the appeal has merit.

It is for the reasons therein contained in the judgment that I also allow the appeal and set aside the judgment of the lower Court delivered on the 6th day of February, 2014. It is ordered that the case be remitted to the Chief Judge of Kano State for retrial before another judge of the High Court. I also abide by the consequential order as to costs.

?ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, IBRAHIM SHATA BDLIYA JCA before it was delivered. I agree that the appeal is meritorious and same is allowed by me. I abide by the consequential orders.

Appearances

Oseni Sefullahi, Esq.For Appellant

AND

Nassir A. Dangiri, Esq.For Respondent