CHIEF (DR.) FELIX MODEBELO V. HAJEDOC NIGERIA LIMITED (2010)

CHIEF (DR.) FELIX MODEBELO V. HAJEDOC NIGERIA LIMITED

(2010)LCN/3652(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of March, 2010

CA/A/42/2008

RATIO

PROCEDURE: WHAT IS A TRIABLE ISSUE UNDER THE UNDEFENDED LIST PROCEDURE

In MUOBIKE VS NWIGWE (2000) 1 NWLR (PT.642) 620 the court held thus:

“A triable issue is an uncontroverted and uncontradicted material allegation contained in the affidavit in support of notice of intention to defend an action filed in the undefended list Such material allegation requires further investigation by the court to unearth the veracity or otherwise of the same. Such must portray a strong defence which cannot and should not just be given a wave of the back hand…” PER UWANI MUSA ABBA AJI, J.C.A.

PROCEDURE: CONTENT OF THE AFFIDAVIT OF THE DEFENDANT UNDER THE UNDEFENDED LIST PROCEDURE

The affidavit in support of the Notice of Intention to Defend must of necessity disclose facts which will at least throw some doubt on the case of the Plaintiff. See ATAGUBA & CO VS GURA NIG. LTD (2005) 8 NWLR (PT927) 429. See also AGRO MILLERS LTD VS C.M.B. (NIG) PLC (1999) 10 NWLR (PT.525) 469 at 478. PER UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria

OFR Justice of The Court of Appeal of Nigeria

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

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

Between

CHIEF (DR.) FELIX MODEBELO
(Carrying on business in the name and
style of National Legislative Summit/Workshop) Appellant(s)

AND

HAJEDOC NIGERIA LIMITED Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Salisu Garba of the High Court of the F.C.T., Abuja, delivered on the 26th of November, 2007, wherein the learned trial Judge held that the Defendant/Appellant’s Affidavit in support of the Notice of Intention to defend the suit did not disclose any defence on the merit and entered judgment for the Plaintiff/Respondent.
The facts of the case as can be deduced from the records before this court is that on the 1st of August, 2006, the lower court granted the Plaintiff, the Respondent on this appeal, leave to issue, mark and place this suit, which was brought before the lower court, by a motion, ex-parte dated 30th March, 2006 and filed on the 5th of April, 2006, under the Undefended List, where the Plaintiff claimed against the Defendant as follows:
(a) The sum of N1,881,000.00 (One million, eight hundred and eighty one thousand naira) only, being debt owed by the Defendant to the Plaintiff for goods supplied to him.
(b) Interest on the said sum of N1,881,000.00 (One million, eight hundred and eighty one thousand naira) at the rate of 10% from the date of judgment till final liquidation.
(c) Cost of this suit.
Upon service of the Writ of Summons and the accompanying affidavit on the Appellant, the Defendant at the trial court, the Appellant filed a Memorandum of Conditional Appearance, a Notice of Intention to Defend with accompanying affidavit and exhibits as well as a Preliminary Objection all dated and filed on the 3rd of October, 2006.
In the Preliminary Objection the Appellant prayed the trial court to set aside the Writ of Summons in the suit and discharge the Ex-parte Orders earlier granted or strike out and/or dismiss the Plaintiff/Respondent’s suit in its entirety, on the grounds, inter alia, that the Writ is incompetent, fundamentally defective and smacks of procedural irregularities alien to the Rules of Court.
The Respondent responded by a Counter-Affidavit and thereupon Written Addresses were filed and exchanged. The trial Court on the 23rd April, 2007, dismissed the Preliminary Objection for lack of merit. Consequent upon the above, the trial Court on the 26th of November, 2007 entered judgment in favour of the Plaintiff and held that there is nothing in the affidavit in support of the Notice of Intention to Defend, disclosing a defence on merit as contemplated by the provisions of Order 21 Rule 3(1) of the High Court of the F.C.T. (Civil Procedure) Rules, 2004.
The Appellant is aggrieved by this ruling and has appealed to this Honourable Court, vide a Notice of Appeal dated 16th January, 2008 and filed on the 18th of January, 2008, containing two (2) Grounds of Appeal. The Grounds of Appeal without their particulars are hereby reproduced:-
GROUNDS OF APPEAL
Ground One:
The learned trial Judge erred in law when he held that there is nothing in the affidavit in support of the Notice of Intention to Defend, disclosing a defence on the merit as contemplated by the provisions of Order 21 Rule 3(1) of the F.C.T. High Court (Civil Procedure) Rules, 2004.
Ground Two:
The learned trial Judge erred in law when he failed to construe the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’ attached to the Affidavit in support of the Notice of Intention to defend the suit.
In compliance with the Rules and Practice of this Court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by P.A. Onuigbo, Esq., two issues were formulated for determination of the appeal namely:-
Issue One:
Whether the Affidavit in support of the Defendant’s Notice of Intention to defend the suit does not disclose a defence on the merit within the contemplation of Order 21 Rule 3(1) of the F.C.T. High Court (Civil Procedure) Rules, 2004.
Issue Two:
Whether the trial Court was right to have made the findings and judgment in the suit without the construction and application of the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’ attached to the Defendant’s Affidavit in support of the Notice of Intention to defend the suit.
The Respondent’s brief settled by C.E. Okafor, Esq., also formulated two issues for the determination of this appeal to wit:-
ISSUE 1
Whether the Appellant’s Affidavit in support of his Notice of Intention to defend the suit disclosed any defense on the merit such that would have enabled the court to transfer the suit to the general cause list for trial.
ISSUE 2
Whether the Court was right to have given judgment in the suit in favour of the Respondent.
At the hearing of the appeal on the 11th of February, 2010, learned Counsel for the Appellant, P.A. Onuigbo, Esq., adopted and relied on the Appellant’s Brief of Argument dated the 7th day of March, 2008 and filed on the 10th March, 2008 and urged this Honourable Court to hold that the findings and judgment of the trial Court cannot be said to be correct and remit the matter to another jdugmet of the High Court of the F.C.T. Abuja for retrial.
C.E. Okafor, Esq., Counsel for the Respondent, adopted and relied the Respondent’s brief of argument dated the 27th day of January, 2009 and filed on the 13th February, 2009 and deemed properly filed and served on the 6th of October, 2009, as their argument in this appeal and urged this Court to dismiss the appeal for lack of merit.
I have carefully considered the issues for determination formulated by the Appellant and the Respondent and it appears to met that all the issues are related. I therefore adopt the issues as formulated by Appellant in the determination of the appeal.
In arguing Issue One (1) to wit: “Whether the Affidavit in support of the Defendant’s Notice of Intention to defend the suit does not disclose a defence on the merit within the contemplation of Order 21 Rule 3(1) of the F.C.T. High Court (Civil Procedure) Rules, 2004, learned Counsel for the Appellant submitted that by the provisions of the above cited rule, where a party served with the writ delivers to a Registrar within 5 days to 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 give him leave to defend upon such terms s the court may think just. According to him, there are plethora of cases on what is a defence on the merit. He placed reliance on the case of MRS. B.F. SANYAOLU VS. ALHAJI ABDULWAHAB ADEKUNLE & ANOR (2006) 7 NWLR (PT. 980) 551 at 565-566 paras. G-A. He cited and relied also on the case of ATAGUBA & CO. VS. GURA NIG. LTD. (2005) 8 NWLR (PT.927) at page 429 at 448 PARAS. E-H.
Learned Counsel further submitted that a look at Exh. ‘HC1’, attached to the Affidavit in support of the Defendant’s Notice of Intention to defend will show that the Plaintiff will be paid for the agreed purchase price of the supplies delivered to the Defendant ‘from the proceeds accruing from the covering of the National Legislative interactive summit/workshop for all stakeholders of the oil company’.
It is submitted that from the above clause as contained in the agreement between the Plaintiff and the Defendant as per Exh. ‘HC1’, two issue arose:-
a) Whether the National Legislative Interactive Summit Workshop for all stakeholders of the oil industry was in fact convened, and if yes,
b) Whether there were proceeds accruing therefrom and the defendant’s was not paid thereof.
Learned Counsel for the Appellant submitted that, those are triable issues which can only be resolved at the witness box after cross-examination and upon preponderance of probabilities after the parties have sufficiently adduced evidence in support of their position thereof and which can only be achieved by transferring the matter to the general cause list for hearing on the merit.
It is his view that, it is not the duty of the court to determine whether the Defendant will ultimately succeed, but to look at the facts averred and see if they can support a prima facie defence on the merit. It is submitted that, where the Defendant’s affidavit raises substantial question of fact or law or both law and facts which throw some doubt on the Plaintiff’s claim or there is an alleged misrepresentation by the Plaintiff or the facts alleged by the Plaintiff are of such a nature as to entitle the Defendant to interrogate the Plaintiff or cross examine the Plaintiff’s witnesses, then the Defendant ought to be allowed to defend the suit on the merit, as in this case. He relied on the authority of GOD’S LITTLE TANERY VS CHRISTOPHER NWADIGBO (2005) 7 NWLR (PT.924) 298 at He relied also on the following cases: ALHAJI ABDULLAHI HAIDO & ANOR VS. ALHAJI SIKIRU USMAN (2004) 3 NWLR (PT.859) 65 at 79 PARAS E-F, USI ENTERPRISES LTD. VS. KOGI STATE GOVERNMENT (2005) 1 NWLR (PT. 908) 494 at 497.
He submitted further that, it is the affidavit in support of Notice of Intention to Defend that is considered by virtue of Order 21 Rule 3(1) of the High Court of the F.C.T. (Civil Procedure) Rules 2004 and not the Plaintiff’s claim in arriving at whether the affidavit disclosed a defence on the merit, yet the trial Court made heavy weather of the Plaintiff’s writ and exhibits when he held thus: “from the averment in the filed by both the Plaintiff and the dispute about the fact that the Plaintiff goods worth the sum of N1,881,000.00 and the Defendant acknowledged the receipt of same via Exhibit B attached to the affidavit in support of the Writ of summons and by Exhibits ‘C&D’, the Defendant promised to pay to the Plaintiff the money he was owing but failed or neglected to do so.”
It is the view of the learned counsel that, the learned trial Judge overstretched the averment in Paragraph 4(o) of the affidavit in support of Notice of Intention to Defend in coming to the conclusion that the said affidavit did not disclose a defence on the merit when he said thus:
“By paragraph 4(o) of the affidavit in support of the Notice of Intention to Defend, it was deposed that the items were given to the Liberal Democratic Party of Nigeria by the Defendant, after the contract between the Defendant and the House Committee on Petroleum was terminated. To my understanding, all the averments in the affidavit in support of the Notice of Intention to defend this suit are in support of the Plaintiff’s case.”
Learned Counsel also argued that Exhibit ‘HC1’, attached to the Defendant’s affidavit in support of Notice of intention to defend is an agreement with a condition precedent. He referred to the case of TSOKWA OIL MARKETLNG CO. NIG LTD VS BANK OF THE NORTH (2002) 5 SCNJ, 176 at 181 and submitted that there is no where in the affidavit in support of the Plaintiff’s Writ of Summons where it was deposed that the condition precedent to Exhibit ‘HC1’ has been fulfilled. It is his view that the learned trial judge did not consider the purport of Exhibit ‘HC1’ attached to the Defendant’s affidavit in support of the notice of intention to defend the suit before coming to the conclusion that there is no defence on the merit in the Defendant’s affidavit. He concluded on this issue by submitting that the law is trite that a trial Court should enforce the agreement between parties and should not speculate or question the reason for the entering into any agreement unless such agreement is illegal or contrary to public policy. He referred to the case of CHIEF YELE OYENEYIN & ANOR VS DR. AKINKUGBE & ANOR (2001) 1 NWLR (PT 693) 40 at 45.
In arguing his Issue Two to wit: “Whether the trial Court was right to have made the findings and judgment in the suit without the construction and application of the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’ attached to the Defendant’s Affidavit in support of the Notice of Intention to defend the sort, learned Counsel for the Appellant submitted that the contents of the Exhibits should have agitated the mind of the learned trial judge to have transferred the matter to the general cause list to enable the parties adduce evidence in support of their position with respect to he said Exhibits.
According to him, no court or tribunal can do substantial justice in any case where it failed to consider the relevant facts and documents placed before it. He placed reliance on the case of AMBASSADOR AKPANG ADE OBI ODU VS. DONALD ETIM DUKE & ORS (2006) 1 NWLR (PT. 961) 375 at 419 PARAS A-B. He referred also to ATAGUBA & CO. VS. GURA NIG. LTD. (supra) at page 448 Paras E-H and submitted that by the failure and/or neglect of the trial Court to construe and apply the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’ attached in the Defendant’s Affidavit in support of Notice of Intention to defend the suit, it cannot be said that the findings and judgment of the trial court that the said affidavit discloses no defence on the merit was made after a ‘full and exhaustive consideration’, of the Defendant’s Affidavit in support of Notice of Intention to Defend as was enunciated in the case of ATAGUBA & CO VS GURA NIG. LTD (supra).
Learned Counsel for the Appellant also argued that the Court is duty bound to consider the contents of a contractual agreement between the parties and apply the law to a set of proved facts before it. He cited and relied on the case of TOBENNA UDEAGU VS BENUE CEMENT CO. PLC (2006) 2 NWLR (PT.965) 600 at 623, and submitted that, the trial Court is under a duty to construe the contents of Exhibit ‘HC1’, the agreement between the parties that gave rise to the subject matter of the suit before him and apply the law to it before its conclusion that the Defendant’s Affidavit in support of Notice of Intention to Defend does not disclose a defence on the merit and that the failure to do so has occasioned a miscarriage of justice.
He further submitted that, the trial Court misapplied the decision in BATURE VS SAVANNAH BANK LTD (1988) 4 NWLR (PT.546) 438, and that the law is trite that an Appellate Court will interfere with the findings of a trial court if the decision was reached under a wrong principle or mistake of law or under a misapplication of facts. He referred to the following authorities; TSA INDUSTRIES LTD. VS. WEMA INVESTMENT LTD. (2006) 2 NWLR (PT.964) 300 at 314-315; TRADE BANK PLC. VS. YISI NIG. LTD. (2006) 1 NWLR (PT.96) 101; EMMANUEL OSOLU VS. ENGR. UZODINMA OSOLU & 6 ORS. (2003) 6 SCNJ 162 at 168; OGUNDARE OSASONA VS OBA ADETOYINBO AJAYI (2004) 5 SCNJ 82 at 86; and urge this Court to hold that the findings and judgment of the trial Court in the suit cannot be said to be correct and right without the construction and application of the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’, attached to the Defendant’s Affidavit in support of the Notice of Intention to defend the suit, allow the appeal and set aside the judgment of the trial court with a direction that the matter be heard on its merit by another judge of the High Court of the F.C.T.
In his response, learned Counsel for the Respondent considered Issues One and Two together. According to him, the law is tire that a Defendant served with a Writ of Summons filed under the undefended list and an affidavit in support, who desires to defend is expected to deliver to the Registrar at least 5 days to the date fixed for hearing, a notice in writing of his intent to defend together with an affidavit disclosing defence on the merit. The court may or may not give him leave to defend. Where leave is granted, the action is removed from the undefended list and placed on the Ordinary/General Cause List for full trial and the court may therefore order for pleadings or proceed to hear without further pleadings.
Where the reverse is the case, the suit shall be heard as undefended and judgment given accordingly. This encapsulates the provisions of Order 21 Rules 3(1) (2) and (4) of the High Court of the F.C.T. Rules (2004). He further submitted that a court has only one duty, namely to see whether the Defendant filed a Notice of Intention to defend together with an Affidavit disclosing a defence on the merit. He referred to the following cases:- ADEWUNMI VS SOCIETE GENERALE BANK PLC (1998) 6 NWLR (PT.552) 152; PETER TIWELI NIG. LTD. VS. INLAND BANK NIG. LTD. (1997) 3 NWLR (PT.494) 408; CROWN MERCHANT BANK VS. LEADWAY ASSURANCE CO. (1997) 7 NWLR (PT.529) 405.
Learned Counsel for the Respondent further opined that Exhibits ‘HC1’, ‘HC2’ and ‘HC3’, attached to the Defendant/Appellant’s written submission in support of the Defendant’s Notice of Intention to defend and its Affidavit Preliminary Objection dated and filed on the 3rd of October, 2006. On the preliminary objection and after due consideration of the Exhibits ‘HC1’, ‘HC2’ and ‘HC3’, attached thereto, dismissed the Preliminary Objection.
Learned Counsel’s argument is that the Defendant/Appellant’s contention that the trial court did not exercise its discretion judicially and judiciously in not construing and applying the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’, attached to the Defendant’s Affidavit in support of the Notice of Intention to defend before coming to the conclusion in the judgment is misconceived. It is submitted that the trial Court in its ruling on the Defendant/Appellant’s Notice of Preliminary Objection, exhaustively made its findings known on the Exhibits. It is also submitted that, by making reference to this earlier Ruling in the judgment, it shows that the trial court does not intend to overrule itself on the findings earlier made on those Exhibits and that those findings by incorporation, remain the decision of the court on the Exhibits and the issues predicated on them. He further submitted that, when the court held in its judgment that “there is nothing in the Affidavit in support of the Notice of Intention to defend, disclosing a defence on the merit”, it simply implies that the Court has exhaustively considered the said Affidavit and all annexures thereto and found nothing compelling and triable.
He also argued that the second and third contention of the Appellant that the trial court considered the Affidavit in support of the Writ of Summons under the undefended list instead of the Affidavit in support of the Notice of Intention to defend as contemplated by the Rules is greatly misconstrued. It is his view that, what the court did, is to place the Affidavit in support of the Notice of Intention to defend side by side with the Affidavit in support of the Writ of Summons to see whether the former discloses any defence on the merit. He referred to pages 88-89 of the Records of Appeal and submitted that the Appellant’s Affidavit in support of the Notice of Intention to defend does not contain any defence on the merit and referred to the case of ATAGUBA & CO VS. GURA NIG. LTD. (2005) 5 MJSC 156 at 185 PARA C-F as well as the following cases: AGRO MILLERS LTD. VS. C.M.B. (NIG.) PLC. (1997) 10 NWLR (PT.525) 469; MAT HOLDINGS LTD. VS. UBA PLC (2003) 2 NWLR (PT.863) 8; MOBIKE VS. NWIGWE (2000) NWLR (PT. 642) 620. He therefore urged this court to dismiss the appeal for lack of merit.
I shall, consider the two issues raised by the Appellant together in the determination of this appeal.
Order 21 Rule 3, and 4 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2004 deals with Undefended List Procedure. It provides:-
After a thorough appraisal of all the arguments canvassed by both learned counsel, the question that agitates the mind is;
“Was the learned trial Judge right to have held that the defendant/appellant did not disclose any defence on the merit in his affidavit in support of the Notice of Intention to defend, to warrant the Court transfer the suit to the General Cause List, which compelled him to give judgment in favour of the plaintiff?”
To answer this question, it is necessary to consider the Exhibits before the lower court, particularly Exhibit ‘HC1’, which to the mind of the Defendant/Appellant, ought to have swayed the mind of the lower court to transfer the matter to the general cause list. All the Exhibits tendered by both Counsel, did not dispute the fact that there was a contractual agreement between the parties to which the sum of N1,881,000.00 (One Million, Eight Hundred and Eighty One Thousand Naira) accrued to the Plaintiff, by the Defendant. See Exhibits ‘A’, ‘B’, ‘C’, ‘D’ and ‘D1’ at pages 9-16 of the Records. A proper perusal of the Exhibits will reveal that there was indeed a contractual agreement between the parties and there has been a failure on the part of the Defendant/Appellant to fulfil his own obligation. The Defendant’s defence is the clause on Exhibit ‘HC1’. What is the purport of this Exhibit to this suit? For ease of reference, the said clause is hereby reproduced (see page 30 of the Records).
“WHEREAS:
The seller has supplied to the buyer on credit on the 6th day of February, 2002, the goods/products more particularly described in the schedule to his agreement for a total sum of N1,881,000.00 (One Million, Eight Hundred and Eighty One Thousand Naira only) a breakdown of which per product is also contained in the schedule to this agreement, upon the term that the buyer shall pay to the seller the agreed purchase price from proceeds accruing from the convening of the National Legislative Interactive Summit/Workshop for all Stakeholders of the Oil Industry”. (Underlining mine) Can the above reproduced clause in Exhibit ‘HC1’ be said to be a defence on the merit?
Learned Counsel for the Defendant/Appellant made heavy weather over this clause. It is however my firm view that by virtue of all the Exhibits before the lower court, the fact has been undisputably established that the contractual agreement between the parties was breached by the Defendant.
The concluding part of Exhibit ‘HC1’ is to wit:
“IT IS HEREBY AGREED AS FOLLOWS:
1. The buyer shall pay to the seller the sum of N1,881,000.00 (one million, eight hundred and eighty-one thousand naira) referred to in clause one supra in full and final satisfaction of the contract sum.
2. The seller shall not be paid the contract sum referred to paragraph 1 (one) supra until after 3O days of the date of supply of the items referred to in the schedule to this agreement.” (underlining mine) (see page 30 of the Records)
The Defendant/Appellant’s defence that the said items are to be paid for from the proceeds of the workshop, is of no moment. What is important is that by virtue of Exhibit ‘HC1’, the parties agreed that after 30 days of the receipt of the goods afore mentioned, the Defendant ought to pay the Plaintiff the sum of N1,881,000.00 (one million, eight hundred and eighty-one thousand naira), in full and final satisfaction of the contract sum and this the Defendant/Appellant has failed to do.
In paragraph 4 of the Plaintiff/Respondent’s Motion Exparte for an Order of Court, granting leave to the Plaintiff/Applicant to issue and place the Writ of Summons under the undefended list, the Plaintiff averred thus:
Paragraph 4
That Alhaji Abdullah/ Edoclue, the Managing Director of the Plaintiff/Applicant informed me on Monday the 27th of March, 2006 at about 10.00 am in the course of my duties in my office in the above mentioned chambers and I verily believe him to be true and correct as follows:-
a. That by a letter of award of contract made and dated the 1st of February, 2002, the Defendant/Respondent awarded a contract for the supply of the following items worth N1, 881,000.00 (one million, eight hundred and eighty-one thousand naira) to the Plaintiff/Applicant:
i. 2 nos Computer Accessories, inks
ii. 2 nos Laminators
iii. 2 nos Perferators
iv. 2 nos Stable Binders
v. 2 nos Gulletlne Cutters
vi. 10 nos Rims of Paper
vii. 1 no Electronic Board
viii. 1 no Projector
ix. 2 nos Laptops
x. 1 no Photocopier
I attach hereto a copy of the letter marked as Exhibit ‘A’.
b. That pursuant to the Exhibit ‘A’, the said items were purchased by the Plaintiff/Applicant and supplied to the Defendant/Respondent who duly acknowledged receipt of the items vide a delivery Note/Receiving Order made and dated the 6th of February, 2002. I attach hereto a copy of the Delivery Note marked as Exhibit ‘B’.
c. That after the receipt of the goods, the Defendant/Respondent by a letter dated the 18th of March, 2002 further confirmed the receipt of the goods and pleaded for time to pay for them by the 30th of April, 2002. I attach hereto a copy of the letter marked as Exhibit ‘C’.
d. That despite repeated demands including the Plaintiff/Applicant’s letter dated 18th March, 2002 and the Defendant/Respondent’s undertaking dated 11th December, 2002, the Defendant/Respondent has refused to pay the said sum of N11,881,000.00 (one million, eight hundred and eighty-one thousand naira) to the Plaintiff/Applicant. I attach hereto a copy of the Plaintiff/Applicant’s letter aforesaid and the undertaking marked as Exhibits ‘D’ and ‘E’ respectively.
e. That the Defendant/Respondent failed to settle this debt even after he was duly informed vided (sic) Exhibit ‘D’ that the said sum of N1,881,000.00 (one million, eight hundred and eighty-one thousand naira) used to execute the contract was a loan secured from the bank at the bank’s lending rate of 22%.
f.That the Defendant/Respondent has till date not settled the debt.
g. that the Defendant/Respondent has no defence to the claim.
There is nothing in the Defendant/Appellant’s Affidavit in support of the Notice of Intention to Defend that controverted these averments, and I find that there are no triable issues in the affidavit in support of the notice. In MUOBIKE VS NWIGWE (2000) 1 NWLR (PT.642) 620 the court held thus:

Under the undefended list procedure, the Defendant’s Affidavit must condescend upon particulars and should as far as possible deal specifically with the Plaintiff’s claim and affidavit and state clearly and concisely, what the defence is and what facts and documents are relied on to support it.
The affidavit in support of the Notice of Intention to Defend must of necessity disclose facts which will at least throw some doubt on the case of the Plaintiff. See ATAGUBA & CO VS GURA NIG. LTD (2005) 8 NWLR (PT927) 429. See also AGRO MILLERS LTD VS C.M.B. (NIG) PLC (1999) 10 NWLR (PT.525) 469 at 478.
The learned trial Judge duly considered all the Exhibits tendered before him, including the contents of Exhibits ‘HC1’, ‘HC2’ and ‘HC3’ attached to the Appellant’s Notice of Intention to Defend before coming to the conclusion that there is nothing in the affidavit in support of the Notice of Intention to defend disclosing a defence on the merit. His finding at page 89-90 of the Record to wit:
“…I hold the view that there is nothing in the affidavit in support of the Notice of Intention to Defend disclosing a defence on the merit as contemplated by the provision of Order 21, Rule 3 (1) of the Rules of this Court 2004. By the provision of Order 21 Rule 4 of the Rules of this Court, where the Defendant is not given leave to defend by the court, the suit shall be heard as an undefended suit and judgment given according… In view of what I stated above, I am of the opinion that there is nothing in the affidavit in support of the Notice of Intention to defend disclosing defence on merit to warrant this Court transfer the suit to the general cause list cannot
be faulted…”
I am of the view that, all the reasons and/or explanations averred by the Defendant/Appellant in his Notice of Intention to Defend, occasioning his inability to pay the Plaintiff/Respondent, after repeated demands to do same, are immaterial to the agreement between the parties. Justice must at all times be seen to be done. The facts have been established that:
1. The Plaintiff/Respondent purchased and delivered to the Defendant/Appellant, goods worth N1,881,000.00 (one million, eight hundred and eighty-one thousand naira), and the Defendant/Appellant acknowledged the receipt of same;
2. The Defendant/Appellant has failed to pay the contract sum of N1,881,000.00 (one million, eight hundred and eighty-one thousand naira) 30 days after the receipt of the goods as agreed upon by the parties per Exhibit ‘HC1′ despite repeated demands by the Plaintiff/Respondent;
3. By virtue of paragraph 4 (e) of the Plaintiff/Respondent’ Affidavit in support of the Motion-Exparte for an Order of Court, granting leave to the Plaintiff/Applicant to issue and place the Writ of Summons under the Undefended List, the money used by the Plaintiff to execute the contract was a loan secured from the bank with the bank’s lending rate of 22%.
Consequent upon the above, the two issues formulated by the Appellant are hereby resolved against him and in favour of the Respondent. The appeal therefore lacks merit and it is hereby dismissed.
The judgment of the lower court delivered on the 26th November, 2007 is hereby affirmed. There shall be costs assessed at N25, 000 in favour of the Respondent against the Appellant.

RABIU DANLAMI MUHAMMAD, J.C.A.: I agree.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my Lord, UWANI MUSA ABBA AJI, J.C.A just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that this appeal lacks merit and it is dismissed by me.

Appearances

P. A. Onuigbo, Esq.For Appellant

AND

C. E. Okafor, Esq.For Respondent