DR. BASIL EJIDIKE V. LIONEL OGUEJIOFOR
(2007)LCN/2588(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of March, 2007
CA/E/21/2005
RATIO
PRACTICE AND PROCEDURE – UNDEFENDED LIST PROCEDURE: WHAT IS A TRIABLE ISSUE IN RELATION TO AN ACTION FILLED UNDER THE UNDEFENDED LIST
“In the case of Frank Muobuike V. Nwigwe (2000) 1 NWLR (Part 642) 620 at page 636 my learned brother Fabiyi JCA had this to say on a triable issue: “The pertinent question which calls for an answer at this stage is: what is a triable issue in relation to an action filed under the undefended list? I strongly feel that a triable issue is an uncontroverted 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 be given a wave of the back-hand.” In the case of Kenfrank (Nig.) Ltd. V. U.B.N. PLC. (2002)15 NWLR (part 789) 46 at page 7 my learned brother Ikongbeh JCA of blessed memory opined as follows: “It is the easiest thing for a very shrewd Defendant or counsel to raise purported triable issues or prepare a conflicting affidavit in support of a notice of intention to defend. But a Court has to be wary, to separate the wheat from the chaff. Ajudge must not allow a Defendant draw a wool over his eyes, even where the facts of a particular case are clear and really incontestable. This is why in the said rules as regards the matter placed on the undefended list, the Court must be satisfied that the Defendant has deposed to facts, which disclose a prima facie or reasonable defence in order to be let in to defend the suit.” PER JAMES OGENYI OGEBE, J.C.A
Before Their Lordships
JAMES OGENYI OGEBEJustice of The Court of Appeal of Nigeria
SOTONYE DENTON-WESTJustice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
Between
DR. BASIL EJIDIKEAppellant(s)
AND
LIONEL OGUEJIOFORRespondent(s)
JAMES OGENYI OGEBE, J.C.A (Delivering the Lead Judgment): The plaintiff/respondent instituted this Suit in Onitsha High Court under the undefended list against the Defendant/Appellant for the s urn of N750,000.00 being money paid to the Defendant/Appellant for five plots of land at the Akpaka Layout, Onitsha and also 20% interest per annum on the said sum from January 2002 until judgment is delivered in the Suit and 5% interest per annum from judgment until the entire sum is liquidated.
On 22/12/2003, the defendant/appellant filed a Notice of Intention to defend with a 37 paragraph affidavit setting out his grounds of defence. The court entertained arguments from both parties on 12/5/2004, 26/5/2004 and 27/7/2004 and thereafter reserved for ruling.
On 29/9/2004, the court delivered its judgment and found as a fact that the defendant had not satisfied the court that there was a triable issue raised by his Notice of Intention to defend and accordingly entered judgment in favour of the plaintiff as per his claim.
The appellant being dissatisfied with the said judgment had appealed to this court.
The learned counsel for the appellant filed a brief on his behalf and formulated 3 issues for determination as follows:
“1. In view of the affidavit in support of the Defendant/Appellants Notice of Intention to defend was the learned trial Judge right in refusing to transfer the suit (which was placed on the Undefended List) to the General Cause List.
2. In view of the fact that the Defendant/Appellant is a disclosed agent of Anambra State Government, is Anambra State Government not a necessary party to this suit for the fact that it is the disclosed principal of the Defendant/Appellant.
3. Was the order of the learned trial Judge right when he entered judgment for the plaintiff/respondent appropriate in view of the conflicts of affidavit evidence of both parties before the learned trial Judge.”
The learned counsel for the respondent also filed a brief and formulated one issue for determination as follows:
“Was the learned trial Judge right in holding that the Defendant’s Notice of Intention to defend has failed to raise any triable issue and accordingly refused to transfer the suit to the general cause list.”
The sole issue formulated by the respondent is the only issue that arises for the disposal of this appeal.
The learned counsel for the appellant in a lengthy submission tried to argue that the appellant in his affidavit of his intention to defend the suit raised a triable issue namely that he collected the disputed amount for Anambra State Government as its agent, and he should not be held personally responsible.
The learned counsel for the respondent on the other hand submitted that the appellant raised no triable issue in his affidavit in support of his Notice of Intention to defend the suit. There was clear evidence that the appellant received the disputed sum from the respondent and failed to allocate him the plots of land requested.
The learned counsel also argued that there, was nothing to show that the money was paid into the account of Anambra State Government, rather it was paid into a private account operated by the appellant and two others.
The facts of this case are relatively simple. The appellant collected the sum of N750,000.00 (Seven hundred and fifty thousand Naira only) from the respondent to help him secure 5 plots of land at Akpata Layout Onitsha.
The appellant was unable to provide the respondent with the plots of land and the respondent then demanded the refund of his money. The appellant has not denied collecting the money from the respondent. His only defence is that he was an agent of the Anambra State Government. There was nothing in his affidavit to show that he was acting as the agent of Anambra State Government in collecting that money which was paid to a personal account. Even ifhe was an agent of Anambra State Government it was his duty to collect the money back from Anambra State Government and pay the respondent who transacted the business directly with him and not with any other person.
In the case of Frank Muobuike V. Nwigwe (2000) 1 NWLR (Part 642) 620 at page 636 my learned brother Fabiyi JCA had this to say on a triable issue:
“The pertinent question which calls for an answer at this stage is: what is a triable issue in relation to an action filed under the undefended list? I strongly feel that a triable issue is an uncontroverted 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 be given a wave of the back-hand.”
In the case of Kenfrank (Nig.) Ltd. V. V.B.N. PLC. (2002)15 NWLR (part 789) 46 at page 7 my learned brother Ikongbeh JCA of blessed memory opined as follows:
“It is the easiest thing for a very shrewd Defendant or counsel to raise purported triable issues or prepare a conflicting affidavit in support of a notice of intention to defend. But a Court has to be wary, to separate the wheat from the chaff. Ajudge must not allow a Defendant draw a wool over his eyes, even where the facts of a particular case are clear and really incontestable. This is why in the said rules as regards the matter placed on the undefended list, the Court must be satisfied that the Defendant has deposed to facts, which disclose a prima facie or reasonable defence in order to be let in to defend the suit.”
I have studied this case very carefully, it is very clear to me that the appellant had no genuine defence to the respondent’s claim. His affidavit of his Notice of intention to defend raised no triable issue that would necessitate the trial judge to transfer the case to the General Cause List.
I see no merit whatsoever in this appeal and I hereby dismiss it and affirm the decision of the trial court. The appellant shall pay costs of N7,500.00 to the respondent for this appeal.
SOTONYE DENTON-WEST, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother JAMES OGENYI OGEBE, J.C.A., just delivered and I am in full agreement with his reasoning and conclusion in its entirety However, I would like to add this contribution as it relates to matters brought under the undefended list. In this appeal, three issues were formulated by the Appellant whilst one issue was formulated by the Respondent. The facts and issues arising from this appeal have been fully set out and dealt with in the lead judgment. In fact after a glean of the issues before the court only one sole issue stood out for determination in this appeal which was the issue as formulated by the Respondent thus:
“Was the learned trial Judge right in holding that the Defendant’s notice of intention to defend has failed to raise any triable issue and accordingly refused to transfer the suit to the general cause list.”
I therefore need not go into the facts of the case which has been fully orchestrated in the lead judgment but only want to articulate on the issue and use of notice-of-intention to defend under undefended list in our courts. It seems to me that each case bothering on notice of intention to defend under the undefended list must be taken by itself and carefully weighted against all the facts at the disposal of the lower court and we must try to remember that we are to interpret the notice of intention to defend as sensible people when the parties are face to face in court in the action brought under the undefended list. It is desirable that the court below allow the defendant to come and defend the suit and the so-called discretion of the court exercised under the undefended list be discarded since that is a discretion usually exercise on affidavit evidence of both parties. It should be borne in mind that an affidavit mayor may not fully disclose the case of the party relying on such affidavit. Therefore, should such a party be shut out from access to justice as a result of controversy over affidavits. These are quite technical issues and could be subject to a lot of ramifications and so the application without more of relying on mere affidavit evidence to allow or disallow a party from contesting an action could be very dicey and technical in coming to a conclusion that a man has no defence just because the affidavit he relies upon in the discretion of the judge does not disclose sufficient triable issue in the action. There could be error in the exercise of this discretion. I for one know that there is only one Being to whom no error may be imputed.
We are all subject to error, and so must very carefully weigh the import of affidavits of both parties before coming to the conclusion that a matter can or cannot be heard under the undefended list. See Bello v. Attorney General, Lagos State (2007) 2 NWLR mU017) at 115. Remawa v. NACB & F Co. Ltd. (2007) 2NWLR (pt.1017) at 155. However, it is desirable never to shut out a defendant that desires to defend.
In this appeal, there is no doubt that it is clear that the disputed amount of N750,000.00 (Seven hundred and fifty thousand Naira only) was paid to the Defendants/Appellant by the Respondent for 5 plots of land at Akpata Layout Onitsha. Naturally the respondent is only interested in the refund of the money or the 5 plots of land and not whether the Anambra State Government was a party or not in the action. After all the money was paid into the appellant’s account by the respondent and not into Anambra State Government account. The appellant in his affidavit has not made out a sufficient defence to the action. In U.R.N Plc v. Edamkue (2005) 7 NWLR page 520 at 549. AKPIROROH, J.C.A., delivering the lead judgment said:
“From the above paragraphs of the appellant’s affidavit, it has not disclosed any defence on the merits to the respondent’s action. In the absence of any compelling facts made out in the affidavit of the appellant, the trial judge was perfectly justified in entering judgment in favour of the respondents against the appellant.”
See also I.T.V. Ltd. v. O.C.R Ltd. (2005) 5 NWLR page 94 and Rivers State Government v. Specialist Konsult (2005) 7 NWLR (Pt. 923 at 145.
I endorse the fact that this appeal is lacking in merit and ought to be dismissed and same is hereby dismissed. I abide also by all the consequential orders made in the lead judgment.
JIMI OLUKAYODE BADA, J.C.A: I have read before now the judgment of my learned brother JAMES OGENYI OGEBE, JCA and I agree with the reasoning and conclusion therein. The sole issue raised in this appeal has been exhaustively dealt with by my learned brother, as a result I have nothing more useful to add. The appeal is also dismissed by me. I abide by the consequential Orders, including Order as to cost.
Appearances
Chinweike Obioji Esq.For Appellant
AND
B.A. Ogbuli Esq.For Respondent
