ALHAJI BABANGIDA SA’ADU & ANOR V. PAMA MOTORS NIGERIA LTD. & ANOR (2013)

ALHAJI BABANGIDA SA’ADU & ANOR V. PAMA MOTORS NIGERIA LTD. & ANOR

(2013)LCN/5973(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of February, 2013

CA/J/210/2005

RATIO

UNDEFENDED LIST PROCEDURE: THE OBJECT OF THE UNDEFENDED LIST PROCEDURE

WHEN THE COURT WILL REFUSE TO ALLOW A DEFENDANT TO DEFEND A SUIT AGAINST HIM
It is also settled law that, the courts can refuse to allow a defendant to defend a suit against him/her once they are satisfied that the defendant’s affidavit evidence in support of his/her notice of intention to defend the suit, does not disclose a good defence on the merit or where the grounds of the defence are not clear, straightforward, reasonable, weighty, direct and positive or if it is vague and flimsy.This is because the real essence of the undefended list procedure is to prevent unreasonable delays associated with the ever increasing litigations in our trial courts, in appropriate cases where the claim of the plaintiff from the affidavit evidence is unassailable. Therefore, the object of the rules under the undefended list procedure is to ensure speedy dispatch of certain types of cases involving debts or liquidated money claims, like the instant matter. That is, the procedure is designed to avoid the intricacies of pleadings in normal hearings in our trial courts. Hence, a defendant who has no real defence to the action will not be allowed to dribble and frustrate the plaintiff and cheat him/her out of the judgment that he/she is legitimately entitled to, by delay tactics aimed not at offering any real defence to the action, but at gaining time within which he/she may continue to postpone meeting his/her obligations and indebtedness. See on this, the cases of: (1) M.C. Investments Ltd. v. Core Investments & Capital Marketers Ltd. (2012) LPELR – 7801; (2) Nwankwo v. E.D.C. S.U.A (2007) 5 NWLR (Pt. 1027) p. 377 and (3) Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) p.37.PER OYEBISI FOLAYEMI OMOLEYE, J.C.A

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI BABANGIDA SA’ADU
2. ABISON MOTORS NIGERIA LTD. Appellant(s)

AND

1. PAMA MOTORS NIGERIA LTD.
2. ALHAJI HARUNA MUSA Respondent(s)

OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Plateau State, holden at Jos (hereinafter referred to as the trial Court), delivered on 5th May, 2005, by, Hon. Justice L. C. Dakyen.
The brief background facts of this matter are that, sometime in year 2002, the Ministry of Federal Capital Territory, Abuja, awarded a contract for the supply of fire fighting vehicles to some companies. Three of the fire fighting vehicles was sub-contracted to the Appellants. The Appellants in turn sub-contracted the three fire fighting vehicles to the Respondents for the total sum of twenty-two million, eight hundred thousand naira (N22,800,000.00). The three vehicles were supplied by the Respondents. The Appellants as at the commencement of the action which culminated into this appeal, were owing, the Respondents, the sum of eight million, seven hundred and fifty thousand naira (N8,750,000.00) as the outstanding balance of the said contract sum. The Appellants out of the said outstanding sum issued a cheque for the sum of four million, six hundred and sixty-five thousand naira (N4,665,000.00) to the Respondents, but the cheque was returned unpaid.
Therefore, by a motion “ex parte”, dated and filed on 21st July, 2004, the Respondents, before the trial Court, applied for leave to issue a writ against the Appellants for the recovery of the said balance of eight million, seven hundred and fifty thousand naira (N8,750,000.00) and place same in the undefended cause list and mark same as such. Attached to the supporting affidavit of five paragraphs are four Exhibits that is, Exhibits A, B, C and C 1. The application was granted. The Respondents as plaintiffs then, claimed against the Appellants as defendants the following, vide their particulars of claim:
(a) The sum of Eight Million, Seven Hundred and Fifty Thousand Naira (N8,750,000.00) being the balance of three (3) fire fighting vehicles bought by the defendants from the plaintiffs.
(b) Ten per centum (10%) interest from the Day of Judgment, till final Payment.
(c) Costs of the action.
For clarity and easy reference, the germane averments in the particulars of the Respondents’ claim are reproduced thus:
PARTICULARS OF CLAIM
1. The 1st plaintiff is a limited liability company registered under Nigerian Law and the 2nd plaintiff is a businessman and Managing Director of the 1st Plaintiff and both do their business at No. 2 Zaria Road, Jos. (The 1st and 2nd Plaintiffs are hereinafter referred to as the plaintiffs”
2. The 1st Defendant is a businessman and he resides at No. 10 Ndagi Faruk close, Jos and the 1st Defendant is the Managing Director of the 2nd Defendant which is a Limited Liability Company registered under Nigerian Law (the 1st and 2nd Defendants are hereinafter referred to as “the Defendants”).
3. The Defendants bought 2 fire fighting vehicles from the plaintiffs at the cost N16,300,000.00 – (Sixteen Million Three Hundred Thousand Naira) on 11/02/02.
4. The Defendants bought another fire fighting vehicles from the Plaintiffs at the cost of N16,500,000.00 (Six Million Five Hundred Thousand Naira) on 6/4/02.
5. The Defendants made part payments of N300, 000.00 (Three Hundred Thousand Naira) and N250,000.00 Two hundred and Fifty Thousand Naira) at the time of the two purchases respectively leaving the balance of N6,00,000.00 (Sixteen Million Naira) and N6,250,000.00 (Six Million Two and Fifty Thousand Naira) respectively and the total of the balance is N22,250,000.00 Twenty-two Million Two Hundred and Fifty Thousand Naira) and the Defendants sold the 3 fire fighting vehicles to an individual and the Ministry for a very highly profitable rate.
6. The Defendants made various installment payments to the plaintiffs which when added to the payments stated in the preceding paragraphs is N7,050,000.00 (Seven Million and Fifty Thousand Naira) leaving a balance of N15,750,000.00 (Fifteen Million Seven Hundred and Fifty Thousand Naira).
7. The transaction herein took the parties hereto, to the police in Abuja and the Defendants made undertaking to pay N4,665,000.00 (Four Million Six Hundred and Sixty Five Thousand Naira) to the plaintiffs.
8. The Defendants assigned the collection of their money for their contract with Ministry of Federal Capital Territory Abuja (hereinafter referred to as the Ministry”) in the event they performed the contract to the tune of N9,785,000.00 (Nine Million Seven Hundred and Eighty Five Thousand Naira).
9. The Plaintiffs on their approach to the Ministry same were informed by Alhaji Hanafi Musa Moriki Assistant Chief Accountant of the Ministry on the 17/12/2003 in Abuja at 11:40am which information the plaintiffs verily believe that:

a. The Defendants’ balance with the Ministry is N7,000,000.00 (Seven Million Naira).

b. This sum of N7,000,000.00 (Seven Million Naira) is to be paid to the plaintiffs for the assignment of same as aforesaid.

10. The plaintiffs are now pursuing the payment of the said sum of N7,000,000.00 (Seven Million Naira) with the Ministry.

11. The plaintiffs balance with the Defendants now is the sum of N8,750,000.00 (Eight Million Seven Hundred and Fifty Thousand Naira).

12. The Defendants do not have a defence to this action.

13. WHEREOF the plaintiffs claim against the Defendants jointly and severally for:-
(a) The sum of N8,750,000.00 (Eight Million Seven Hundred and Fifty Thousand Naira) being balance of the 3 fire fighting vehicles bought by the Defendants from the plaintiffs.

(b) 10% interest from the Day of Judgment till final payment.

Upon service of the Respondents’ writ on the Appellants, they, that is, the Appellants entered appearance and on 28th September, 2004, filed a Notice of Intention to defend the Respondents’ claim against them. In support of the notice is an affidavit of eighteen paragraphs, with three Exhibits A, B and C. The relevant Company, at about 12:15pm informed Mr. Benson A. Igbanoi Esq. in my presence and to my hearing of the facts (which I verily believe) deposed to in the next paragraphs.

5. That the contracts for the supply of the vehicles, subject – matter of this Suit, to the Defendants knowledge were originally awarded to Messrs Yumn Ltd. and South Chad Ltd. respectively

6. The said companies subsequently sub-contracted same to the 1st Defendant.

7. The Defendants contracted with the Plaintiff to supply the vehicles on the strength and representation that they were “graded, standard, of mercantile quality and in serviceable condition”.

8. The 2nd Plaintiff in company of the Manager delivered the vehicles to the Ministry of the Federal Capital Territory (the employer).

9. On arrival in Abuja, the Employer aforesaid out rightly rejected both vehicles for being 1974 models and not roadworthy.

10. The decision of the Employer to reject the vehicles was based on the Evaluation Inspection carried out on them on 30th August, 2002.

The Reports pertaining thereto are herewith attached and marked as EXHIBITS A and B respectively.

11. Further to the aforesaid development, he made spirited representations and sustained entreaties to the Employer pleading that they take delivery of the vehicles despite the defects.

12. The Ministry eventually reviewed the contract and deducted the sum of Six Million and Fifty Thousand Naira (N6,050,000.00) from each vehicle bringing the total deduction to Twelve Million One Hundred Thousand Naira (N12,100,000.00).

13. The Defendants intend to counter-claim for this amount which they lost as a result of the Plaintiffs’ misrepresentation and breach of contract. Copies of the reviewed contract, titled “Addendum” are herewith attached and marked as “EXHIBITS C and D respectively.

14. The balance of the defendants’ money with the Ministry, FCDA (Employer) is N11, 047,000.00 (Eleven Million and Forty Seven Thousand Naira) and not N7, 000,000.00 (Seven Million Naira) as claimed by the Plaintiffs.
15. The Defendants do not know any person in the Ministry by the name of Alhaji Hanafi Musa Moriki.

16. By reason of the foregoing the Defendants have a defence on the merit to the suit and a counter-claim against the Plaintiffs which they shall fully ventilate at the trial if let in to defend.

17. That it will be in the interest of justice and fair play to have this matter transferred to the general cause list for same to be tried on its merit.

In response to the Appellants’ notice of intention to defend, the Respondents on 26th October, 2004, filed a further and better affidavit of four paragraphs. The germane paragraphs of the further and better affidavit are for easy reference reproduced as follows:

(a) The paragraphs contained in the Affidavit in support of Notice of Intention to defend are denied.
(b) The Defendants did not contract with the Plaintiffs to supply vehicles to the Defendants on any representations as alleged at all.
(c) The Plaintiffs imported their vehicles and the 1st Defendant inspected the 2 vehicles sold to the Defendants by the Plaintiffs at the Plaintiffs’ office Algadama Zaria Road, Jos.
(d) The Defendants bought the 2 vehicles as they are without any representation on the part of Defendants.
(e) The Defendants sold the 2 vehicles at a very high rate of profit and same deliberately refused to pay the plaintiffs up till now.
(f) There had not been a condition that anybody will value the 2 vehicles before the Defendants pay the plaintiffs the cost thereof.
(g) The Defendants do not have any defence to the Plaintiffs’ claims.
(h) The Defendants are desirous of delaying meeting their liabilities only.

After due consideration of the respective positions of the parties, the learned trial Judge in his decision delivered, on 5th May, 2005, entered judgment in favour of the Respondents for the sum claimed, ten per centum (10%) interest on the judgment sum with effect from the day after the delivery of the judgment, that is, 6th May, 2005, until the judgment sum is fully liquidated and the sum of eight thousand, one hundred and fifty naira (N8, 150.00) as the costs of the action and against the Appellants. The learned trial Judge substantially held, “inter alia”, thus:

The plaintiffs flatly denied all the defendants averments in their affidavit in support of Notice of Intention to defend in their 4 paragraphs further and better affidavit filed on the 28/10/2004.

From the facts before me as disclosed by the parties’ affidavit and the Exhibits, the transaction between the plaintiffs and the defendants was substantially documentary. There were out right sales of three fire fighting vehicles by the plaintiffs to the defendants, as evidenced by Exhibit A and B. As stated earlier on in this judgment instalmental payments were recorded on Exhibits A and B and when the transaction developed problems, the parties found themselves at Police Force C.I.D Area 10, Garki Abuja where Exhibit C was written by the 1st defendants.
If there were any alleged breach of warranty or conditions, this would have been an opportunity for him to state same, since this took place in June 2003 in the course of instalmental payments after the alleged breach of warranty discovered during the inspection and evaluation of the vehicles in August 2002.

On the other hand the defendants Exhibits A, B, C and D have no nexus with the plaintiff in that transaction. The transactions in those Exhibits are between Yumn Ltd. and the Employer with the 1st Defendant as a witness, see Exhibit D.
It is my considered view that the defendants have not disclosed any defence at all to the action let alone the defence on the merit.
Dissatisfied with the judgment of the trial court, the Appellants filed this appeal to this court, against it, “vide, their notice and grounds of appeal, containing three grounds of appeal. The learned counsel for the Appellants filed the Appellants’ brief of argument on 4th November, 2005. In it, one issue was formulated for the determination of this appeal, the issue states as follows:
Whether the Appellants, notice of intention to defend and the supporting affidavit, disclosed a defence on the merit, to warrant the suit being transferred to the general cause list?
In the Respondents, brief of argument, dated and filed on 7th December, 2005, the learned counsel for the Respondents adopted the sole issue formulated in the Appellants, brief of argument, already set out above. On the 27th of November, 2012 when the appeal was heard by this court, the learned counsel for both parties identified, adopted and relied on the submissions in their respective briefs of argument. The Appellants’ counsel urged this court to allow the appeal, while the Respondents’ counsel urged this court to dismiss the appeal and uphold the judgment of the trial Court.

Now, I am equally adopting the sole issue formulated in the Appellants’ brief of argument, as I consider same sufficient for the proper resolution of the appeal.
The learned counsel for the Appellants submitted that the several averments contained in the supporting affidavit annexed to the Appellants’ notice of intention to defend the Respondents’ claim, raised triable issues. Hence, in his opinion, the learned trial Judge ought to have transferred the action to the general cause list of the trial Court. That there were substantial disputed issues of facts, especially as touching on the amount the Ministry of Federal Capital Territory, Abuja, that ordered the supply of the three fire fighting vehicles, is still owing them. That is, the Ministry is owing them about eleven million naira and not seven million naira as stated by the Respondents. That as a result of this discrepancy, a doubt has been cast on the Respondents’ claim and the basis of the Respondents’ action being placed on the undefended list assuming the correctness of the indebtedness of the Appellants had been undermined. It was contended in favour of the Appellants that the three fire fighting vehicles supplied to them by the Respondents did not meet the standard, quality and specifications required. That this resulted in the downward review of the contract sum by the awarding authority, thereby making them to lose the sum of twelve million, one hundred thousand naira (N12,100,000), as evidenced by exhibits C and D annexed to the affidavit in support of the notice of intention to defence. That the averments in regard thereof, raised matters of facts, intricate and difficult questions of law, which could only be resolved at full trial, where witnesses would be made to go through the acid test of cross-examination and not by affidavit evidence. That the learned counsel for both parties ought to be ordered to address the court, who will in turn consider same and after its research, render a well-considered decision and resolve the positions of the respective parties. The learned counsel for the Appellants argued that, all the above stated points, together with the fact that the Respondents filed a further and better affidavit in reply to the averments in the affidavit in support of the Appellants’ notice of intention to defend, is a pointer to the fact that, there were persistent and contentious issues in the claim of the Respondents. Consequently, the learned trial Judge ought, in the interest of justice, to have transferred the action to the general cause list of his court, for trial on the merit so as to give the Appellants fair hearing. On these points, he referred to the following cases amid others: (1) F.M.G. v. Sani (1990) 4 NWLR (pt. 147) p. 688; (2) Mat Holdings Ltd. v. U.B.A. Plc. (2003) 2 NWLR (Pt. 803) p. 71 at pgs. 90 – 91; (3) Eurobat. Concept S. A. v. T.I.C. Ltd. (2001) 18 NWLR (Pt. 744) p. 165 at p. 180; (4) C.C.B. (Nig) Plc. v. Samed Invest. Co. Ltd. (2000) 4 NWLR (Pt. 651) p. 19; (5) Jos North L.G. v. Daniyan (2000) 10 NWLR (Pt. 675) p. 281 and (6) U.B.A. v. Immarches (Nig.) Ltd. (2003) 6 NWLR (Pt. 817) p. 529 at pgs. 541-542.

On the other part, the learned counsel for the Respondents submitted that the two transactions for the purchase of three fire fighting vehicles are contained in exhibits A and B annexed to both the Respondents’ affidavit in support of the “ex parte” application and their particulars of claim. That the said transaction was simply that of an unconditional sale and purchase of a specific good, that is, three fire fighting vehicles which the Respondents delivered and possession passed on to the Appellants. That the Respondents were not a party to and unaware of whatever pact the Appellants had with some other parties as shown in Exhibits C and D. That upon the delivery of the goods to the Appellants by them, the Appellants made some instalmental payments to them and the claim of the Respondents was predicated on the unpaid balance of the costs of the said goods. That the averments in the affidavit in support of the Appellants’ Notice of Intention to defend did not disclose that the Appellants have any defence on the merit against the claims of the Respondents, to warrant the learned trial Judge transferring the action to the trial court s general cause list. It was also the contention of the learned counsel for the Respondents that, the averments in the Respondents, further and better affidavit, were those of undisputed facts which did not call for the transfer of the action into the general cause list of the trial court. On this, point, reference was made among others, to the cases of: (1) God’s Little Tannery v. Nwaigbo (2005) 7 NWLR (Pt. 294) p. 298; A.I.B. Ltd. v. Packoplast Nig. Ltd. (2003) 1 NWLR (pt. 802) p. 502 and (3) Tahir v. Udeagbala Holdings Ltd. (2004) 2 NWLR (Pt. 857) p. 438 at pgs. 451 – 452.
The Respondents, case was brought under the “undefended list”, a procedure governed by order 23 rules 1 to 5 of the Plateau state High Court (Civil Procedure) Rules. For easy reference, I hereunder reproduce order 23 thus:

ORDER 23
THE UNDEFENDED LIST

1. Whenever application is made to a court for the issue of writ of summons in respect of a claim to recover a debt or liquidated money demand or any other claim and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto; enter suit for hearing in what shall be called the “Undefended List”, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstance of the particular case.

2. There shall be delivered by the plaintiff to the Registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the Registrar shall annex one such copy to each copy of the writ of summons for service.

3.(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 to defend is given under this rule, the action shall be removed from the Undefended List and placed on the ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.

4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witness before the court to prove this case formally.

5. Nothing herein shall preclude the Court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.

Under the referred rules, a defendant, who, upon being served the plaintiff’s claim with a supporting affidavit, decides to contest the claim, is enjoined to file a notice of intention to defend with an affidavit disclosing a defence on the merit. On the basis of that affidavit, the court may give him leave to defend, in which case, the suit is removed from the “undefended list” and transferred to the “general/ordinary cause list”, for trial upon pleadings.
However, on the other hand, the court may, after studying the affidavit of the defendant and being satisfied that it discloses no defence on the merit, proceed to hear the case as an undefended suit and give judgment thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally, as is usual under the general/ordinary cause list.

It is trite that, the object of the undefended list procedure is to enable a plaintiff have judgment entered for him/her, in respect of the amount being claimed by him/her, where his/her claim is unarguable in law and where the facts are undisputed and it is rather inexpedient to allow a defendant to defend the claim for mere and tactical purposes of delay. See on this, the cases of: (1) Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) p. 283 at pgs. 324 – 325; (2) Thor Ltd. V. FCMB Ltd. (2005) 14 NWLR (Pt. 946) p.696 and (3) A.C.B. Ltd. V. Gwagwada (1994) 4 NWLR (Pt. 342) p.25. In other words, the purpose of the procedure is to enable the plaintiff obtain summary judgment without trial, where his case is patent, manifest, straightforward and unassailable. I refer on this to the case of: N.M.C.B. (Nig.) Ltd. v. Obi (2010) 14 NWLR (Pt. 1213) p. 169, where I.F. Ogbuagu, J.S.C. restated the purpose and essence of this timeless procedure of a claim under the undefended cause list, in the following very concise words:
It must be borne in mind always and this is also settled 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 the cases of Cow v. Casey (1949) 1 K.B. 481 and Shodipo v. Leminkainen & Ors. (1986) NWLR (Pt. 15) 220. It is not however, designed to shut out a defendant who can show that there is a triable issue. See the case of Nishizawa v. Jethwani (1984) 12 S.C. 124/134. 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 judge, 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. See per Uwais, JSC (as he then was later CJN) in the case of Federal Military Government of Nigeria & 3 Ors. v. Sani (1990) 4 NWLR (Pt. 147) 688; (1990) 7 SCNJ 159, 161, 164. See also the case of Okambah Ltd. v. Alhaji Sulle (1990) 7 NWLR (pt. 160) 1; (1990) 11 SCNJ 1 at 7. In the case of A.C.B. Ltd. v. Gwagwada (1994) 4 SCNJ (Pt.11) 268, it was held that the affidavit in support of the Notice of Intention to Defend, must show that the grounds for asking to be heard in defence, are not frivolous, vague or designed to delay the trial of the action and it must show that there is dispute between the parties as has been demonstrated by the Respondent. See the cases of Olubusola Stores v. Standard Bank of Nig. Ltd. (1975) NSCC 137 and John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) ANLR 513.
It is also settled law that, the courts can refuse to allow a defendant to defend a suit against him/her once they are satisfied that the defendant’s affidavit evidence in support of his/her notice of intention to defend the suit, does not disclose a good defence on the merit or where the grounds of the defence are not clear, straightforward, reasonable, weighty, direct and positive or if it is vague and flimsy.This is because the real essence of the undefended list procedure is to prevent unreasonable delays associated with the ever increasing litigations in our trial courts, in appropriate cases where the claim of the plaintiff from the affidavit evidence is unassailable. Therefore, the object of the rules under the undefended list procedure is to ensure speedy dispatch of certain types of cases involving debts or liquidated money claims, like the instant matter. That is, the procedure is designed to avoid the intricacies of pleadings in normal hearings in our trial courts. Hence, a defendant who has no real defence to the action will not be allowed to dribble and frustrate the plaintiff and cheat him/her out of the judgment that he/she is legitimately entitled to, by delay tactics aimed not at offering any real defence to the action, but at gaining time within which he/she may continue to postpone meeting his/her obligations and indebtedness. See on this, the cases of: (1) M.C. Investments Ltd. v. Core Investments & Capital Marketers Ltd. (2012) LPELR – 7801; (2) Nwankwo v. E.D.C. S.U.A (2007) 5 NWLR (Pt. 1027) p. 377 and (3) Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) p.37.Therefore, for a trial court to transfer a plaintiff’s claim to the general/ordinary cause list of the court, the defendant’s affidavit in support of the notice of intention to defend the plaintiffs claim must condescend upon particulars and should, as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts and documents are relied on to support it. A mere denial of the plaintiff’s claim and affidavit by a defendant as in the instant matter is devoid of any evidential value, not disclosing any tangible defense. A defendant’s affidavit in support of notice of intention to defend must raise a triable issue. I hold that, in the matter at hand, the Appellants’ averments in their supporting affidavit did not deal specifically with the Respondents’ claims. See on this the cases of: (1) Imoniyame Holdings Ltd. v. Soneb Enterprises Ltd. (2010) 1 SCNJ p. 303 and (2) Planwell Watershed Ltd. v. Chief Vincent Ogala (2003) 18 NWLR (Pt. 852) p. 478. Also in the case of: U.B.A. Plc. V. Jargaba (2007) 11 NWLR (Pt. 1045) p.247, the learned Tabai, JSC (Rtd.) at p.275 para. H and p.276, paras. A-B on when leave to defend can be granted stated thus:
A suit initiated under the undefended list procedure can only be considered appropriate for transfer to the general cause list where the defendant’s notice of intention to defend is supported by an affidavit showing that there is a prima facie case or triable issues that needed to be settled upon pleadings tried, tested and determined in oral evidence. The defendant’s affidavit evidence must disclose that there is a real dispute and not merely a frivolous and vague defence designed to delay the quick determination of the action.
As I stated above at the inception of this judgment, although the Appellants are claiming that, the supply of the three fire fighting vehicles was subject to some standard, quality and specifications, the evidence in the record of appeal reveals otherwise. The Respondents’ affidavit clearly shows that the deal between the Appellants and the Respondents was that, the Respondents were commissioned to supply three fire fighting vehicles for a specific amount of money, that is, twenty-two million, eight hundred thousand naira (N22, 800,000.00). The Respondents delivered to the Appellants the said three fire fighting vehicles. The Appellants defaulted in paying the entire money and the Respondents claimed the unpaid balance. From the exhibits tendered in the affidavit evidence of both parties, there is nothing to show that the award for the supply of the three fire fighting vehicles by Respondents was tied to any special specifications. This is because Exhibits C and D tendered by the Appellants have nothing to do with the Respondents. Therefore, the trial Court had the duty, at that point in time, to examine all the exhibits tendered along with parties’ claims and affidavits in determining whether the transaction between the parties raised triable issues, as it rightly did in the instant matter.
The defence of the Appellants is that, they lost a certain amount of money because, according to them, the Respondents did not supply the three vehicles according to the required specifications and that in the transaction, the Respondents were the renegrades. However, in my well considered view, the depositions of the Appellants in this regard, amount to bare assertions, and without more, the trial Court could and did not act upon same, against the Respondents.
I have already set out above, all the relevant averments in the affidavits in support of the contending positions of the parties. I am at one with the learned counsel for the Respondents, as well as the correct findings of the learned trial Judge that, the Appellants’ affidavit in support of their Notice of Intention to defend did not, in the slightest way, contest or deny their indebtedness to the Respondents. Curiously, the Appellants did not react to the said averments in the Respondents’ affidavit and particulars of claim, for instance, they did not deny or affirm that, they had made some payments to the Respondents and that the Respondents were merely claiming the balance of the agreed supply sum. The Appellants were said to have paid a total sum of seven million, fifty thousand naira (N7,050,000.00), leaving a balance of fifteen million, seven hundred and fifty thousand naira (N15,750,000.00), see paragraphs 5 and 6 of the Respondents’ particulars of claim, at pages 31 to 32 of the record of appeal. The fact that, out of the said balance, the Appellants linked the Respondents with the Ministry of Federal Capital Territory for the collection of the sum of seven million naira (N7, 000,000.00), that is, this sum should be paid to the Respondents directly, was equally not responded to by the Appellants in their supporting affidavit of the notice of intention to defend. Also not reacted to by the Appellants is the assertion of the Respondents, that, the balance being owed the Respondents by the Appellants is eight million, seven hundred and fifty thousand naira (N8,750,000.00). The Appellants also did not make any reference to the role of the Nigerian Police, Abuja in getting the two parties to settle amicably, when their relationship became strained. And that sequel to this, the Appellants promised to liquidate the balance and pursuant to the promise, the Appellants actually issued a cheque for the sum of four million, six hundred and sixty-five thousand naira (N4,665,000.00) to the Respondents, but the cheque was returned unpaid, see paragraphs 5 and 7 of the Respondents’ particulars of claim at page 32 and exhibits C and C1 at pages 19 and 20, all of the record of appeal. As I stated above in the penultimate and previous paragraphs herein, the Appellants did not do as much as, respond or react to the said averments in the Respondents affidavit and particulars of claim, not even by way of general traversements, in their affidavit in support of Notice of Intention to defend. In my firm opinion, there are no material conflicts in the affidavit evidence before the trial Court. I hold that the Appellants’ affidavit evidence contained in their notice of intention to defend is not a rebuttal of the Respondents’ affidavit evidence.
The Appellants’ learned counsel also contended that, the filing of a further and better affidavit by the Respondents in response to the affidavit in support of the Notice of Intention to defend, did portend that there were triable issues in the matter. With respect to the learned counsel for the Appellants, I do not share this view, this is because, no new issue(s) was/were raised in the said further and better affidavit of the Respondents.
Exhibits A, B, C and D annexed to the Appellants’ notice of intention to defend, “ex facie”, did not in any way advance the case of the Appellants. They do not relate to or support the transaction between the Respondents and the Appellants. No reference was made to the Respondents in any of the said exhibits A, B, C and D in respect of the transaction between the Respondents and the Appellants.
Consequent upon my above elucidation, I am in complete alignment with the submissions of the learned counsel for the Respondents and hold that, the Appellants did not satisfy the requirements of the law, sufficient enough to warrant the Respondents’ claim being transferred to the General Cause List of the trial court. Also, there being no material conflict in the affidavit evidence of both parties, it was not necessary to call for oral evidence for the resolution of any such conflict. Therefore, I further hold that, the learned trial Judge was very right to find that, the Notice of Intention to defend the Respondents, claim, before the trial court did not disclose a defence on the merit and welt justified in denying the Appellants leave to defend the said suit of the Respondents by placing same in the general/ordinary cause list of the trial court.
It is my strong view and I hold that the contemplation of order 23 rule 3(2) is that, for the court to transfer a matter from the undefended cause list, the defendant’s deposition in his/her affidavit must show a good defence to the plaintiff’s claim. In the instant matter, I agree with the learned trial Judge that, the Appellants’ depositions in their affidavit in support of the notice of intention to defend, did not reveal tangible defence to the Respondents, claim. The learned trial Judge pursuant to order 23 rule 4, was in order to enter judgment in favour of the Respondents and against the Appellants, in the sums claimed in the particulars of claim filed by the Respondents.
On the above note, I hold that this appeal is bereft of merit and is hereby dismissed. Consequently, I uphold and affirm in its entirety, the judgment of the trial court, that is, the High Court of Justice, Plateau state, holden in Jos, delivered by Hon. Justice L. C. Dakyen, on 5th May, 2005.
The Respondents are entitled to and I award to them the costs of this appeal, which I assess at fifty thousand naira (N50, 000.00) and against the Appellants.

RAPHAEL CHIKWE AGBO, J.C.A: I have read before now the judgment delivered by Omoleye, JCA and I agree with both her reasoning and conclusions. I too dismiss the appeal with costs against the appellants assessed at N50, 000.00

JUMMAI HANNATU SANKEY, J.C.A.: I had a preview of the Judgment just delivered by my learned brother, Omoleye, J.C.A., and I am in complete agreement with his reasoning and conclusions in resolving the sole issue arising for determination in this matter.
The action of the Respondents, who were the Plaintiffs at the trial High Court, against the Appellants, who were the Defendants, was brought on the Undefended List procedure of the High Court (Civil Procedure) Rules of Plateau State, 1987, Order 23 thereof.
At the trial Court, the question which called for resolution was whether the suit should be tried under the Undefended List or under the General Cause List. In doing substantial justice, the crucial factor to guide the court is whether or not the Appellants were indebted to the Respondents in relation to the contract for the supply of the Fire Engines. The issue for determination is therefore simple and straightforward. As rightly observed by the trial Court, the affidavit of the Appellants in support of their Notice of intention to defend is totally bereft of any prima facie defence to the claim of the Respondents. Instead, it introduced matters which were extraneous and not pertinent to the extant contract between the Respondents and the Appellants by introducing terms of agreement between the Appellants and a third party, an agreement to which the Respondents where neither privy nor party to.
The whole purpose of the Undefended List procedure under Order 23 of the Rules of the trial High Court is to facilitate the obtaining of short and quick judgment without proceeding to full trial. The Rule is therefore for proceeding to hear, with despatch, cases which are virtually uncontested having regard to the nature of the dispute between the parties. It is to enable the plaintiff obtain quick judgment in clear cases where the defendant has no defence to the claim of debt or liquidated money demand by the plaintiff. It is also to prevent unnecessary delay in proper cases or where the claim of the plaintiff from the affidavit evidence is unassailable. See Okunrinboye V. Skye Bank Plc. (2009) 2 SCNJ 341.
The object of the affidavit of a defendant under this Rule is that of disclosing the ground for asking the court to be allowed in to defend the suit. It is to disclose or show the dispute between the parties which needs to be tried. The Undefended List procedure, now well established in our Civil Legal System, is defined in the various High Court Civil Procedure Rules of the States in this Country and numerous other decided authorities by our courts of record. It is made in respect of a claim to recover a debt or a liquidated money demand. Proceedings under these rules are conducted on affidavit evidence. See Nworah V. Akputa (2010) 3 SCNJ 1; Macaulay V. Nal Merchant Bank Ltd (1990) 6 SCNJ 17; Okamba Ltd v. Alhaji Sule (1990) 11 SCNJ 1.
The court must first scrutinise the affidavit evidence of the defendant attached to the Notice of intention to defend and to decide whether or not a defence has indeed been made out prima facie on the affidavit evidence. The court can refuse to let in a defendant when once it is satisfied that the defendant’s affidavit does not disclose a defence on the merit, or where the ground of defence is not clear and reasonable or it is flimsy or vague. It is only in the absence of compelling facts that a triable issue or bona fide issue for trial has been made out in the defendant’s affidavit in support of his Notice of intention to defend or, in the absence of any such Notice of intention to defend, that a trial court can enter judgment in favour of the plaintiff on the Undefended List. See Imoniyame V. Soneb Enterprises Ltd. (2010) 1 SCNJ 303.
It is in the light of all the above, and for the more detailed reasons articulated in the lead Judgment of my lord, Omoleye, J.C.A., that I find the Appeal entirely without merit. I also dismiss same and abide by the orders made in the lead Judgment, including the order on costs.

Appearances

A. B. James with C. H. NwazuoFor Appellant

AND

A. A. Sangei with B.S. AhmadFor Respondent