DR. OLATUNBOSUN v. MR. MICHAEL OKAFOR (2012)

DR. OLATUNBOSUN v. MR. MICHAEL OKAFOR

(2012)LCN/5776(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/A/95/2011

RATIO

PROCEDURE: POSITION OF THE LAW GOVERNING THE UNDEFENDED LIST PROCEDURE

By the provision of Order 21 of the Civil Procedure Rules of the High Court of the Capital Territory Abuja, a plaintiff may apply to the High Court, for a Writ of Summons, for a claim under the Undefended List Procedure, to recover a debt or liquidated money demand. He has to support the Writ with an affidavit. By Order 21 rule 3(1) of the Civil Procedure Rules, High Court of Capital Territory, Abuja, a defendant is entitled, if he wishes to contest the claim, to file a Notice of Intention to defend, together with an affidavit disclosing a defence on the merit. The affidavit in support of the notice of intention to defend, should address the plaintiff’s claim in materials particular, without prevarication or generalization. It ought to state whether the defence is for the whole amount or part of it, in which case a definitive averment must be made. See JOHN HOLT VS. FAJEMIROKUN (1961) ALL NLR 492. The Court will then consider the affidavit in support of the Notice of Intention to defend only. See NKWO MARKET COMMUNITY BANK VS. PAUL OBI (2010) 4 SCNJ 81.

Where the trial court satisfies itself, that the defendant did not disclose a defence on the merits, then it shall enter judgment for the plaintiff – HAIDO VS. USMAN (2004) 3 NWLR (Pt. 859) 62.

Where however, the court is satisfied that the defendant had raised a material allegation, then a triable issue arises and so a defence on the merit is disclosed, necessitating a trial – DALA AIR VS. SUDAN AIRWAYS (2005) 3 NWLR (Pt. 912) 394. This is arrived at, only if the court, has given due consideration to the affidavit in support of Notice of Intention to defend.

It is to be noted, that it is not a complete defence that is required at this stage. It is a prima facie defence that is the criterion and its establishment will result in the Suit being transferred to the general cause list for hearing. See BENDEL CONSTRUCTION LTD. VS. ANGLOCEN DEVELOPMENT (Supra); JOS NORTH VS. DANIYAN (2000) 3 WRN 60 and U.B.A. VS. JARGABA (2007) 11 NWLR (Pt. 1045) 247 at 273. A triable issue is as counsel for the respondent had submitted – (i) a difficult point of law has arisen (ii) the facts are in dispute and ought to go to trial (iii) the amount due is in dispute and further evidence to ascertain it is required and (iv) where there is a reasonable ground of a counter-claim. It is therefore clear, that for a defendant to succeed in getting the claim transferred to the general cause list, he must show grounds which are not frivolous, vague or designed to delay the trial and buy time to the chagrin of the plaintiff – OLUBUSOLA STORES VS. STANDARD BANK (1975) NSCC 137. However, where conflicts in the affidavits are shown, and which can only be resolved by calling evidence, then a transfer to the general cause list becomes necessary. See M.C. INVESTMENTS VS. CORE INVESTMENTS (2012) 6 SCNJ (Pt. 1) 111 and U.T.C (NIG) LTD VS. PAMOTEI (1989) 2 NWLR (Pt. 103) 244. PER ABUBAKAR DATTI YAHAYA, J.C.A.

COURT: DUTY OF A COURT IN RELATION TO UNCHALLENGED FACTS

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS EVALUATION OF EVIDENCE MADE BY THE TRIAL COURT

There was no perversion of justice in his decision, and in such a situation, an appellate court lacks the locus to ride on a high horse in order to upset the apple cart, simply because it possesses in its hands, a powerful weapon. It is not entitled to substitute its views, in that regard. See OGUNLANA VS. THE STATE (1995) 5 NWLR (Pt. 395) 266; UZOECHI VS. ONYENWE (1999) 1 NWLR (Pt. 587) 339; SELE VS. THE STATE (1993) 1 NWLR (Pt. 269) 276 and OLOMOSOLA VS. OLARIAWO (2002) 2 NWLR (Pt. 750) 113 and UJAEGBU VS. NWOLODO (2009) 3 NWLR 194. This is because an appellate court concerns itself with the correctness of the decision and not the propriety of the reasons for the decision. See IDIONG VS. IDIONG (2012) WRN (Vol. 13) 169 at 185, and ELUEMUNOH & ANR. VS. CHIZOR OBIDIGWE & ORS. (2012) (VOL. 7) WRN 36 at 56. PER ABUBAKAR DATTI YAHAYA, J.C.A.

PROCEDURE: OBJECT OF THE UNDEFENDED LIST PROCEDURE

In the case of BEN THOMAS HOTELS LTD. vs. SEBI FURNITURE COMPANY LTD. (1989) LPELR- 769 (S.C.) at page 21 paras D-F the Supreme Court per Agbaje, J.S.C. held thus:-

“Under this rule once the defendant in an action on the Undefended List fails to deliver the notice of defence and affidavit and is not let in to defend the plaintiff is entitled to judgment once the affidavit in support of the application for writ of summons shows that the defendant has no defence to the action.”

On the return day, the court only considers the defendant’s affidavit supporting the Notice of intention to defend and if it discloses no defence on the merit, the plaintiff shall be entitled to have judgment entered in his favour ex debito justitiae. That was precisely what the lower court did in the instant case.

In the case of Ataguba & Co. v. Gura Nig. Ltd. (2005) LPELR – 584 (SC) the Supreme Court stated the object of undefended list procedure thus:-

“The object of the undefended list procedure is to enable a plaintiff whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a defendant to defend for mere purposes of delay, to enter judgment in respect of the amount claimed:- See Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283 at 324 – 325. One of the main problems that often arise in the undefended suit 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 has been held that it must disclose a prima facie defence: Bendel Construction Co. Ltd. v. Anglocan Development Co. (Nig.) Ltd. (1972) 1 All NLR 153. 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: see John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492. It is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved; that there is a dispute as to the facts which ought to be tried, 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 bona fide defence: Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; F.M.G. v. Sani (1990) 4 NWLR (Pt.147) 688 at 713. To ascertain whether the appellant’s affidavit in support of the notice of intention to defend disclosed a defence on the merit in line with the principles stated above, it is desirable to examine the case put up by each party.” PER HUSSEIN MUKHTAR, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

DR. OLATUNBOSUN Appellant(s)

AND

MR. MICHAEL OKAFOR Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The respondent, as plaintiff, before the High Court of the Federal Capital Territory, Abuja, brought an action against the appellant as defendant, under the provisions of the Undefended List Procedure, pursuant to Order 21 of the Civil Procedure Rules of that court. The reliefs as contained in the Writ of Summons, are –
1. The sum of N5,300.000.00 (Five Million, Three Hundred Thousand Naira only) being the total outstanding debt owed to the Plaintiff by the Defendant.
2. Costs as per Rules of this Hounourable Court.

The defendant, on being served with the Writ, took advantage of Order 21 Rule 3(1) of the Civil Procedure Rules of that court, and filed a Notice of Intention to defend.
The trial court considered the arguments of counsel to both parties, and at the end of the day, entered judgment on 17/2/11 for the respondent, with N20,000 cost to him.
Dissatisfied with that judgment, the appellant herein, filed on the 21/2/11, a Notice of Appeal and three grounds of appeal. The appellant’s brief of argument was settled by his counsel, Mr. K. Olowookere and filed on 1/11/11 but deemed filed on the 5/3/12. The respondent’s brief was filed by his counsel, Chief I. A Nwaiwu on the 9/3/12.

From the three grounds of appeal, two issues were distilled by the appellant thus:
1. Whether the learned trial judge was right when he held that there was no triable issue or any other reasons shown for which there ought to be a trial
2. Whether the trial judge judicially and judiciously exercised his discretion when he entered judgment for the Respondent in the sum of N5,300.000.00 (Five Million, Three Hundred Thousand Naira) only despite the conflicting and irreconcilable affidavit evidence.
The issues identified by the respondent in his brief of argument are in similar vein, and are –
1. Whether the trial judge is right to hold that there is no triable issue without calling any oral evidence.
2. Whether the trial judge having held that there is no triable issue ought to call evidence as to the amount due to the Respondent from the Appellant.

I shall utilise the issues identified by the appellant in deciding this appeal. The story of the respondent before the trial court, is that he leant the sum of N6.8 Million to the appellant, who neglected to pay him back until he obtained the assistance of the Economic and Financial Crimes Commission (EFCC), which helped to recover the sum of N1.5 only from the appellant. Hence his claim before the court, of the balance of N5.3 Million.
On his part, the appellant deposed that he did not obtain any loan from the respondent and that it was the respondent who infact begged him for a loan of N20,000.000. He later on, took N1.6M from the respondent which attracted an interest of N200,000. Instead of loaning the respondent the N20,000.000, he gave him a cheque of N6.8M, made up of N5M loan to the respondent and the N1.8M comprising of the sum of N1.6M he took and the N200,000 interest it attracted. He denied owing the respondent the N5.3 Million claimed, but admitted owing the respondent, N100,000 only.

ISSUE 1
In arguing Issue No. 1, learned counsel for the appellant, Olowookere, referred to paragraphs, 3, 4, 5, 6, 10, 11, 12, 15 and 16 of the affidavit in support of the claim, and paragraphs 5, 6, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 27, 28, 29, 30, 33 and 34 of the affidavit in support of the Notice of intention to defend, as the relevant depositions. He then recounted extracts from the judgment of the trial court which it said, demonstrated how improbable, the story of the appellant was, especially as to the reason why he issued the post-dated cheque of N6.8 Million to the respondent. Learned counsel submitted, that what the trial judge did, was to prematurely evaluate the defence of the appellant with a conclusion that it would not succeed, by resorting to logic, legal reasoning and personal projections and conclusions, instead of relying on the evidence before him. Counsel argued that this is wrong since a court can only base its judgment on facts presented to it and ought not to supply missing links, relying on ADISA VS. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 500 F-G. Counsel also referred to N.A.B. VS. FELLY KEME (1995) 4 NWLR (Pt. 387) 100; BALOGUN VS. BOLAJI (1981) 1 CHCJ 258; JIPREZE VS. OKONKWO (1987) 3 NWLR (Pt. 62) 737; PENEJI VS. INT’L TRANSACTIONS LTD. (2000) 11 NWLR (Pt. 678) 252 and DELTA STATE GOVERNMENT VS. OKON (2002) 2 NWLR (Pt. 752) 665, to submit that once a defendant sets out grounds in an affidavit, which prima facie show a defence on the merit, or a triable issue, then he is entitled to be allowed to defend the case in a full trial. He also placed reliance on SNIG NIG LTD. VS. OMORUKU NIG LTD. (2003) FWLR (Pt. 186) at 596 – 597 to submit that the trial judge ought not to have concerned himself at that stage, with the proof of the defence. Furthermore, since there were irreconcilable conflicts in the affidavits he argued, the calling of evidence is the only open path to resolving the issue – AGWUNEME VS. EZE (1990) 3 NWLR (Pt. 137) 242.

Counsel also submitted that the appellant had admitted partial indebtedness in the sum of N100,000 only, having paid N1.5 Million, which has therefore discharged the burden of proof on him, especially as the respondent had failed to challenge the deposition in the affidavit in support of the Notice of Intention to defend, by filing a reply or a further affidavit in rebuttal. He placed reliance on IKONO L.G.C. VS. DE BEACON FINANCE AND SECURITY LTD (2002) 4 NWLR (Pt. 756) 128 at 142 and JOB CHARLES NIG LTD. VS. OKONKWO (2002) FWLR (Pt. 117) 1067 to submit that where facts contained in an affidavit are not challenged, then they are deemed admitted and that the trial judge ought to have accepted the depositions of the appellant as established, without need for further proof, since they have not been challenged. He argued that the trial judge was wrong to hold that there were no triable issues or other reasons shown, to allow a trial. He urged us to resolve this issue in favour of the appellant.

On this issue, learned counsel for the respondent held a contrary view. He submitted that a defendant’s affidavit in support of a Notice of Intention to defend, must disclose a defence on the merit i.e. a prima facie defence, relying on the case of BENDEL CONSTRUCTION CO. LTD VS. ANGLOCEN DEVELOPMENT CO. (NIG) LTD. (1972) 1 ALL NLR 153. He emphasized that the affidavit must contain statements backed by particulars to constitute a defence, a triable issue or a difficult point of law, a dispute on facts or dispute as to the real amount due or that there is bonafide defence – NISHI ZAWA LTD VS. JETHWANI (1984) 12 SCJ 34 and FMG VS. SANI (1990) 4 NWLR (Pt. 147) 688 at 713.

Learned counsel submitted that the appellant did not disclose the triable issues (the material allegations requiring further investigation) he raised in his notice of intention to defend. Since the trial court had held that the appellant did not disclose a defence on the merits, there was no need to call evidence to support the plaintiff’s claim, he argued. He urged us to agree with the trial judge that the defence put up was a sham defence and so resolve the issue in favour of the respondent.

The area of law governing the Undefended List Procedure is fairly well settled. The nature of the claim under the Undefended List Procedure, is a claim or an action for a debt or a liquidated sum. This means that it is an amount previously agreed to by the parties, or which can be precisely determined from the agreement of the parties. The purpose is for the plaintiff who has an incontestable claim, to obtain judgment fairly, easily, summarily, without having to go into full trial with all its attendant expenses and time – consumption. It therefore ensures quick dispensation of justice, in support of the well-known adage, that justice delayed, is justice denied.
By the provision of Order 21 of the Civil Procedure Rules of the High Court of the Capital Territory Abuja, a plaintiff may apply to the High Court, for a Writ of Summons, for a claim under the Undefended List Procedure, to recover a debt or liquidated money demand. He has to support the Writ with an affidavit. By Order 21 rule 3(1) of the Civil Procedure Rules, High Court of Capital Territory, Abuja, a defendant is entitled, if he wishes to contest the claim, to file a Notice of Intention to defend, together with an affidavit disclosing a defence on the merit. The affidavit in support of the notice of intention to defend, should address the plaintiff’s claim in materials particular, without prevarication or generalization. It ought to state whether the defence is for the whole amount or part of it, in which case a definitive averment must be made. See JOHN HOLT VS. FAJEMIROKUN (1961) ALL NLR 492. The Court will then consider the affidavit in support of the Notice of Intention to defend only. See NKWO MARKET COMMUNITY BANK VS. PAUL OBI (2010) 4 SCNJ 81.
Where the trial court satisfies itself, that the defendant did not disclose a defence on the merits, then it shall enter judgment for the plaintiff – HAIDO VS. USMAN (2004) 3 NWLR (Pt. 859) 62.
Where however, the court is satisfied that the defendant had raised a material allegation, then a triable issue arises and so a defence on the merit is disclosed, necessitating a trial – DALA AIR VS. SUDAN AIRWAYS (2005) 3 NWLR (Pt. 912) 394. This is arrived at, only if the court, has given due consideration to the affidavit in support of Notice of Intention to defend.
It is to be noted, that it is not a complete defence that is required at this stage. It is a prima facie defence that is the criterion and its establishment will result in the Suit being transferred to the general cause list for hearing. See BENDEL CONSTRUCTION LTD. VS. ANGLOCEN DEVELOPMENT (Supra); JOS NORTH VS. DANIYAN (2000) 3 WRN 60 and U.B.A. VS. JARGABA (2007) 11 NWLR (Pt. 1045) 247 at 273. A triable issue is as counsel for the respondent had submitted – (i) a difficult point of law has arisen (ii) the facts are in dispute and ought to go to trial (iii) the amount due is in dispute and further evidence to ascertain it is required and (iv) where there is a reasonable ground of a counter-claim. It is therefore clear, that for a defendant to succeed in getting the claim transferred to the general cause list, he must show grounds which are not frivolous, vague or designed to delay the trial and buy time to the chagrin of the plaintiff – OLUBUSOLA STORES VS. STANDARD BANK (1975) NSCC 137. However, where conflicts in the affidavits are shown, and which can only be resolved by calling evidence, then a transfer to the general cause list becomes necessary. See M.C. INVESTMENTS VS. CORE INVESTMENTS (2012) 6 SCNJ (Pt. 1) 111 and U.T.C (NIG) LTD VS. PAMOTEI (1989) 2 NWLR (Pt. 103) 244.

In the instant appeal, the Appellant at pages 15 – 17 of his brief, and relying on SNIG NIG LTD VS. OMORUKU (Supra) and AGWUNEME VS. EZE (Supra), argued that there are irreconcilable conflicts in the two affidavits of the two parties, which ought to have necessitated the transfer of the Suit, to the general cause list. Basically, the law is that once there are irreconcilable conflicts in the two affidavits, that would warrant the calling of evidence to resolve, then a transfer becomes inevitable. Is the position of the appellant correct?

Learned counsel for the appellant has not sufficiently identified the irreconcilable conflicts in the two affidavits, to warrant the transfer. Simply because one affidavit has depositions contrary to another affidavit of the opposing party, does not per se, mean that there are irreconcilable conflicts. After all, in a contest, there has to be two sides. This cannot therefore be stretched, to say that in all cases when such differences occur, then oral evidence, or a transfer to the general cause list must be ordered. I have not seen the irreconcilable conflicts the appellant sought to say, exist. Instead, and this is of crucial importance, the conflict is glaringly to be found in the story of the appellant before the trial court, in his affidavit in support of the Notice of Intention to defend, and between it and the exhibits attached thereto. They are –
(a) In paragraph 5 of the affidavit in support of the Notice of Intention to defend, Appellant categorically and clearly denied taking “any money” as loan from the respondent, in these words: –
“I know as a fact that contrary to the deposition in paragraph 3 of the plaintiff’s affidavit, I never approached the plaintiff for any form of help whether financial or otherwise and I never collected any interest free loan or any money at all neither totaling N6,800.000 (Six Million Eight Hundred Thousand Naira) only nor any other amount under any condition whatsoever from the plaintiff” (Emphasis mine)

But in paragraph 12 of his affidavit, the Appellant deposed to the fact that –
“Before the maturity period of the sum I had invested, I requested the plaintiff to give me N1.600,000 (One Million, Six Hundred Thousand Naira Only) to meet an urgent family need and he informed me that he would charge an interest of N200.000 upon repayment.” !

Which of these two glaring conflicting depositions in the same affidavit of the Appellant, would a court take into consideration in deciding whether a defence on the merits had been disclosed? Clearly, the trial judge ought to wonder as he did, which deposition he was to take account of, since the two cannot be correct as they are irreconcilable. His predicament was palpable, even if it is true and plausible, that the appellant took a loan of N1.6 Million from someone (the respondent) who was putting a lot of pressure on him, to loan him the sum of N20 Million.
(b) In paragraphs 12 and 13 of the affidavit in support of the Notice of Intention to defend, the Appellant deposed to the fact that he took loan of N1.6 Million from the respondent, with N200,000 interest on this sum. But Exhibit B attached to the Affidavit in support of the Notice of Intention to defend, to be found at pages 41 – 43 of the record of appeal, is a letter written by counsel to the Appellant on the 6/5/10, to the counsel to the respondent. In it, it is stated that the loan the appellant took from the respondent, was N1.5 Million, with an interest of N300,000 on this sum!

These are two irreconcilable conflicts and contradictions in the story of the appellant, which the trial court rightly identified and took into consideration in arriving at the conclusion it did. The exhibit is a document, a hanger upon which the depositions in the said paragraphs 12 and 13, would be viewed.
(c) At paragraph 6 of the affidavit in support of the Notice of Intention to defend, the appellant deposed to the fact that –
“In response to paragraph 4 of the plaintiff’s affidavit in support, the plaintiff never requested the refund of the sum of N6,800.000 (Six Million, Eight Hundred Thousand Naira) only from me as I never borrowed any such sum from him or anybody else.”
But Exhibit MO2, attached to the Affidavit in support of the claim, found at pages 7 and 8 of the record of appeal, is such a request by the respondent to the appellant, on the 11/9/08, for the refund of N6.8 Million loaned to the respondent! This is another irreconcilable conflict, especially as the appellant never denied knowing or receiving Exhibit MO2!

When a defendant in an Undefended List Procedure exhibits glaring and irreconcilable conflicts and contradictions in his story (in the Affidavit in Support of the Notice of Intention to defend and attached Exhibits) before the trial court, the inevitable conclusion it would reach, and rightly too, is that such defendant was not sincere and had only presented a sham defence in order to driblle and riggle out of his obligation. In such a scenario, no court would allow such defendant to pull wool over its eyes in order to force it to transfer the claim to the general cause list. See ABDULLAHI VS. BUHARI (2004) 17 NWLR (Pt. 902) 278.

Apart from the contradictions in the affidavit of the Appellant and other documents, highlighted above, before the trial court, his depositions were bare and barren in some materials particular. At paragraphs 11, 14 and 16 of the affidavit in support of the Notice of Intention to defend, the appellant deposed to the fact that he made some investments and it was on the maturity of the investment, that he issued the cheque of N6.8 Million to the respondent, but later stopped it being honoured, because the respondent had refused to return an earlier post-dated cheque he issued to the respondent. This is a very material issue that a trial court would take into consideration, to see whether a prima facie evidence had been disclosed, not as to whether the defence had been proved.

Now, the appellant failed to depose to the nature of the investment, the time it was made, and when it matured. This would have put into proper perspective, the liquidity of the appellant at the time he issued the cheque of N6.8 Million to the respondent, which was returned un-paid. It would have disclosed the merit on the defence of the only admitted indebtedness of the appellant to the respondent, in the sum of N100,000 only, and that he had the funds at the particular point in time, to give a loan of N5 Million to the respondent, as he deposed to.

In the absence of deposition in the affidavit in support of Notice of Intention to defend of these crucial facts, which are materials particular, the trial judge had no sufficient facts before him, to reach a conclusion that prima facie defence had been established or that there was a triable issue.

Learned counsel also argued that the respondent did not challenge or contradict the facts contained in the appellant’s affidavit in support of the Notice of Intention to defend, by filing a Reply or a further affidavit in rebuttal to the facts. Those facts must therefore be deemed admitted, relying on IKONO L.G.C. VS. DE BEACON FINANCE AND SECURITY LTD (2002) 4 NWLR (Pt. 756) 128 at 242.

I think counsel has lost sight of the procedure in issue. There is no place for a further affidavit or a reply in an Undefended List Procedure. Once a defendant files a Notice of Intention to defend, supported by an affidavit, the court is required to look at the affidavit and see whether a defence on the merit has been disclosed. The plaintiff does not have the right to file a Reply or a further affidavit. Filing such a reply will tend to remove the issue from the Undefended List Procedure.

Also, an affidavit in support of a Notice of Intention to defend, is not a counter affidavit, the facts of which would be deemed admitted if there is no challenge to it by way of a further affidavit. The case of IKONO L.G.C. VS. DE BEACON FINANCE AND SECURITY LTD (Supra) does not therefore apply to the situation at hand.

Furthermore, it is not in all respects, that a court must accept unchallenged facts. It has a duty and it is entitled to reject depositions or facts that are contradictory or against proven factual situations. It certainly has the power to hold that facts deposed, are not sufficient to enable it reach a conclusion or accept a particular position. Here, the trial judge discountenanced the contradictory depositions.
On the whole, the trial judge appreciated the facts as deposed to in the affidavit, correctly applied the law and arrived at the right decision. He did not hold the position that a complete defence was needed at that stage. He correctly held that the onus was on the appellant to show a prima facie defence, which he did not. Hence the judgment for the respondent. There was no perversion of justice in his decision, and in such a situation, an appellate court lacks the locus to ride on a high horse in order to upset the apple cart, simply because it possesses in its hands, a powerful weapon. It is not entitled to substitute its views, in that regard. See OGUNLANA VS. THE STATE (1995) 5 NWLR (Pt. 395) 266; UZOECHI VS. ONYENWE (1999) 1 NWLR (Pt. 587) 339; SELE VS. THE STATE (1993) 1 NWLR (Pt. 269) 276 and OLOMOSOLA VS. OLARIAWO (2002) 2 NWLR (Pt. 750) 113 and UJAEGBU VS. NWOLODO (2009) 3 NWLR 194. This is because an appellate court concerns itself with the correctness of the decision and not the propriety of the reasons for the decision. See IDIONG VS. IDIONG (2012) WRN (Vol. 13) 169 at 185, and ELUEMUNOH & ANR. VS. CHIZOR OBIDIGWE & ORS. (2012) (VOL. 7) WRN 36 at 56.
Since the trial court’s decision was right, this court cannot interfere. Issue No 1 is resolved in favour of the respondent and against the appellant.

ISSUE 2
Learned counsel for the appellant submitted under Issue 2, that the appellant had effectively denied being indebted to the respondent, except in the admitted sum of N100,000. He argued that in view of the position of the deposition in the affidavit, to the effect that the appellant loaned N5 Million to the respondent, which the respondent never denied, the trial judge ought to have given judgment to the respondent in the admitted sum of N100,000 only and should have transferred the balance of the claimed sum, to the general cause list for hearing. He backed up his argument by stating that apart from the cheque the respondent placed before the court, no other material was placed before it to show that the respondent advanced the claimed sum to the appellant. He referred to IKPALA ESTATE HOTELS LTD. VS. NEPA (2004) ALL FWLR (Pt. 236) 362 at 380 and PAVLOVIC IVAN VS. BILANTE INTERNATIONAL LTD (1988) 5 NWLR (Pt. 550) 396. Learned counsel argued that the trial judge discountenanced the issue of the dispute of N5 Million loan, with the N200,000 interest and went ahead erroneously, to enter judgment for the respondent in the claimed sum. He therefore urged us to resolve this Issue in favour of the appellant.

Learned counsel for the respondent submitted on this Issue, that the claim of the respondent as plaintiff, before the trial court, was ascertainable and was therefore a liquidated money demand. Apart from the deposition in the affidavit in support, Exhibit MO1, the Wema Bank cheque, Exhibit MO2, the letter to EFCC and Exhibit MO3, the Memorandum of settlement, had established the claim he said. On the other hand, he argued, the appellant did not exhibit any document to show he was not owing the plaintiff at all, or was owing a lesser amount. The trial court was therefore right, when it held that there was no triable issue, when it entered judgment in the claimed sum. He urged us to resolve the issue in favour of the respondent.

In paragraph 5:08 of the appellant’s brief, it was submitted in part, that: –
“…..apart from the cheque which the Respondent placed before the court, no other material was placed before the Court to show that the Respondent advanced the disputed sum to the appellant.”

This is not a correct submission as the facts speak otherwise. The cheque in which the claim was predicated upon and which was returned un-paid is Exhibit MO1 – page 6 of the record of proceedings. Apart from it, there is Exhibit MO2 to be found at page 7 of the record. This exhibit, is a letter written to the Chairman of the EFCC by counsel to the respondent, on the 11/9/08, showing that the respondent had advanced the claimed sum of N6.8 Million to the appellant who had refused to pay, and who had issued Exhibit MO1 which was returned un-paid. Exhibit MO3 does not bear any signature and cannot therefore be relied upon to establish the claim. It is therefore clear, that the respondent had indeed placed two documents which on the face value, have helped to back the deposition in the affidavit in support of the claim, and which are consistent with the position of the respondent both in the trial court and in this Court. On the contrary, Exhibit B attached to the affidavit in support of Notice of Intention to defend, materially contradicted paragraph 12 of the said affidavit. Whereas the affidavit deposed to the fact that the appellant took a loan of N1.6 Million with N200,000 interest, the exhibit B said the loan taken by the appellant was N1.5 Million with a N300,000 interest! Apart from this exhibit B, no other document was placed before the trial court to show that the appellant only took a loan of N1.6 Million from the respondent, and not N6.8 Million. It is interesting to note that even in this Court, the appellant is going by his story in his affidavit, that he took a loan of N1.6 Million with an interest of N200,000, thereby contradicting his assertion in exhibit B, an exhibit which is supposed to support his deposition. It has instead, exposed his inconsistencies, steering the trial court in the direction of concluding that there was no triable issue shown.

At paragraph 5.16 of the appellant’s brief, it was submitted that there was a dispute as to whether a loan of N5 Million “was to be advanced to the respondent by the appellant.”
Actually it was not a dispute as such in the sense that the appellant deposed to it, and the respondent denied it in an affidavit. It was only the appellant that deposed to that fact in his affidavit in support of the Notice of Intention to defend. The respondent did not have the opportunity to deny this (since that would not have been in keeping with the procedure under the undefended list). It was the appellant who raised it and it was he who had the onus of providing sufficient particulars, to disclose the merit of that defence. Raising a red herring could not satisfy the requirement.

At any rate, as shown earlier in this judgment, the appellant had seriously contradicted himself in his affidavit in support of his Notice of Intention to defend, when at one instance, he denied taking loan of any amount from the respondent, and at another admitted taking a loan from the respondent. Even the amount he said he borrowed from the respondent, was uncertain because he had also contradicted himself in that regard. These points obviously played the role of making the trial judge to conclude that what the appellant put up, was a sham defence, not a defence on the merit as required. He was right. The issue of entering judgment in the claimed sum “despite conflicting and irreconcilable affidavit evidence” does not arise as it is not borne by the record. Again, the issue of entering judgment for the respondent in the sum of N100,000 only therefore did not arise. This is because even if it is taken, that the appellant’s total indebtedness to the respondent, is N1.8 Million, made up of principal plus interest and he had paid N1.5 Million, through the EFCC, then by simple arithmetic, the outstanding indebtedness is N300,000, and not N100,000, as he deposed to and admitted! He was just being clever by half!! Issue two is resolved in favour of the respondent and against the appellant.

On the whole therefore, this appeal is totally lacking in merit and it is dismissed. The judgment of the trial court, delivered on the 17/2/11, is hereby affirmed, with N50,000 costs to the respondent against the appellant.

HUSSEIN MUKHTAR, J.C.A.: The suit at the court below was filed against the Appellant by the Respondent under the undefended list, which is a procedure meant for expeditious hearing and determination of claims for liquidated money demand, debt or the like where the defendant has either failed to file a notice of intention to defend within the time frame provided by the Rules of the trial court or has failed to show any arguable defence in the affidavit supporting the notice of intention to defend. In either case the trial court is entitled to proceed to hear the case as undefended and enter judgment for the plaintiff on the return day. In the case of BEN THOMAS HOTELS LTD. vs. SEBI FURNITURE COMPANY LTD. (1989) LPELR- 769 (S.C.) at page 21 paras D-F the Supreme Court per Agbaje, J.S.C. held thus:-
“Under this rule once the defendant in an action on the Undefended List fails to deliver the notice of defence and affidavit and is not let in to defend the plaintiff is entitled to judgment once the affidavit in support of the application for writ of summons shows that the defendant has no defence to the action.”
On the return day, the court only considers the defendant’s affidavit supporting the Notice of intention to defend and if it discloses no defence on the merit, the plaintiff shall be entitled to have judgment entered in his favour ex debito justitiae. That was precisely what the lower court did in the instant case.
In the case of Ataguba & Co. v. Gura Nig. Ltd. (2005) LPELR – 584 (SC) the Supreme Court stated the object of undefended list procedure thus:-
“The object of the undefended list procedure is to enable a plaintiff whose claim is unarguable in law and where the facts are undisputed, and it is inexpedient to allow a defendant to defend for mere purposes of delay, to enter judgment in respect of the amount claimed:- See Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) 283 at 324 – 325. One of the main problems that often arise in the undefended suit 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 has been held that it must disclose a prima facie defence: Bendel Construction Co. Ltd. v. Anglocan Development Co. (Nig.) Ltd. (1972) 1 All NLR 153. 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: see John Holt & Co. (Liverpool) Ltd. v. Fajemirokun (1961) All NLR 492. It is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved; that there is a dispute as to the facts which ought to be tried, 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 bona fide defence: Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; F.M.G. v. Sani (1990) 4 NWLR (Pt.147) 688 at 713. To ascertain whether the appellant’s affidavit in support of the notice of intention to defend disclosed a defence on the merit in line with the principles stated above, it is desirable to examine the case put up by each party.”

The foregoing and the more detailed reasons given by my learned brother YAHAYA, J.C.A. in the lead judgment have built up compelling reasons for my total agreement with the conclusion that the appeal is bereft of merit and deserves nothing other than dismissal. The appeal is hereby dismissed and the decision of the lower court delivered on the 17th February, 2011 accordingly affirmed.
I subscribe to the consequential orders in the lead judgment inclusive of that as to costs.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the judgment of my learned brother Yahaya JCA just delivered. His lordship has dealt extensively with the Issues identified and I agree with his conclusion that this Appeal is devoid of merit.

The Respondent commenced the suit on the undefended list. The Appellant as defendant filed a Notice of intention to defend with an affidavit. The duty on him is to disclose in the affidavit a defence on the merit or a triable issue. The duty on the Court is to consider the affidavit evidence filed by the defendant to defend the suit and make findings on whether there are good grounds for believing that there is or no defence to the plaintiffs claim.
It is sufficient if the affidavit discloses the following: (a) triable issue on a difficult part of law involved (b) that there is a dispute as to the facts which ought to be tried (c) that there is a dispute as to the amount due or (d) any other circumstance that reflects Bona fide defence. See Ataguba & Co v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt 927) 429; Federal Military Govt. v. Sanni (1990) 7 SCNJ 159.

Where the affidavits on material facts to be adjudicated upon are diametrically at variance, the Court must not pick and choose or believe one and reject the other, it is only by resorting to viva voice evidence that the Court will resolve the conflicts on the facts.
However, where the conflicts in the affidavit do not affect the material substance before the Court the decision may be based on the evidence in those affidavits and there will be no need to resort to calling for oral evidence to resolve immaterial facts. Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550; Falobi v. Fabbi (1976) 9 – 10 SC 1; FBN Plc v. May Med. Clinks (2001) 9 NWLR (Pt.717) 28.

Furthermore, where the defendant’s affidavit of defence contains conflicts and contradictions, the inevitable conclusion is that his evidence is not a defence. A defence must be direct to be held to be triable. Self contradiction in the affidavit in support of notice to defend cannot be a ground for placing a suit on the undefended list to the general list as in the instant appeal. The Appellant in the instant appeal contradicted himself in his affidavit when he kept vibrating on whether he took a loan or he did not.
For the above and the fuller reasoning in the lead judgment, I agree that this appeal lacks merit and is hereby dismissed. I abide by the consequential order.

Appearances

Mr. K. Olowookere, Ogunsola Olarunsola and I. Okoye (Miss.)For Appellant

AND

Chief I. A Nwaiwu and C. OnyeozonFor Respondent