EKYE DEVELOPMENT AREA v. SAPELE BUILDER CO. (NIG) LTD (2021)

EKYE DEVELOPMENT AREA v. SAPELE BUILDER CO. (NIG) LTD

(2021)LCN/15144(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, May 11, 2021

CA/MK/65/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

EKYE DEVELOPMENT AREA APPELANT(S)

And

SAPELE BUILDER COMPANY NIGERIA LTD RESPONDENT(S)

RATIO

NATURE OF PROCEEDINGS UNDER THE UNDEFENDED LIST

The Undefended List procedure is a special procedure of its own class which is meant to achieve a peculiar purpose of hearing and determining claims of debt and liquidated money demands without subjecting such claims to the usual cumbersome process of hearing. Accordingly, it is also a truism that, proceedings under the Undefended List are sui generis, since they are peculiar and special to their class with the intent of delivering summary judgment to a creditor in obvious claims of indebtedness or outstanding monetary claims. Significantly, the essence and purpose of the Undefended List Procedure was established in the case of CHIEF S. S. OBARO V. ALHAJI SALE HASSAN (2013) LPELR-20089 (SC) where ARIWOOLA, J.S.C. at page 18, paras. C-E; opined that: “On the action initiated, pursuant to the Rules on Undefended List Procedure, this Court had opined as follows-per ESO, J.S.C. at page 231 of Chief Harold Sodipo v. Lemninkainen (supra) “An action in the Undefended List, following these Rules, is not a real substitution of trial of actions, but it serves the purpose of reducing congestion in the Courts, by way of creating an avenue for the speedy determination of action…” As an addendum, the law is settled that Undefended List procedure is a truncated system where the ordinary hearing peculiar to our system is rendered unnecessary due to the absence of an issue to be tried or the quantum of the Plaintiff’s claim disputed to necessitate such hearing. It is designed to secure quick justice and to avoid the injustice that may likely to occur when there is no genuine defence on the merits to the Plaintiff’s case. Yes, the procedure is to shorten the hearing of a suit where the Claim is for liquidated sum. In other words, the object of the Rules relating to actions on the Undefended List is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims. See BANK OF THE NORTH VS. INTRA BANK SA (1969) 1 ALL NLR 91. PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING BURDEN PLACED ON A DEFENDANT WILLING TO DEFEND AN ACTION UNDER THE UNDEFENDED LIST

The law is settled that a Defendant who is willing to defend an action under the Undefended List must depose to facts in an Affidavit disclosing a defence on the merits. Now, for an Affidavit to constitute a defence on the merit, the Defendant must set out the defence in the Affidavit. The Affidavit must show or display reasonable grounds that there are some disputed issues between the parties requiring to be heard. The Defendant’s Affidavit must also deal specifically with the Plaintiff’s claim and must throw some doubt on the case of the Plaintiff. Accordingly, where the Affidavit in support of the Notice of Intention to Defend the suit contain enough facts and particulars as to satisfy a reasonable tribunal to remove the case from the Undefended List to the General Cause List, a Court would not hesitate to do so. This was the dictum of the Erudite Law Lord ADIO, J.S.C. at page 13, paragraphs C-E in the case of PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LIMITED V. RHEIN MASS UND SEE SCHIF FART KONTOR GMBH (1997) LPELR-2899 (SC). PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING CIRCUMSTANCES WHERE A SUIT UNDER THE UNDEFENDED LIST SHALL BE TRANSFERRED AND SUBSEQUENTLY ENTERED IN THE GENERAL CAUSE LIST FOR HEARING.

This was the reasoning of the Apex Court per FABIYI, J.S.C. at pages 10-11, paragraphs E-B in the case of G.M.O NWORAH & SONS COMPANY LTD V. AFAM AKPUTA (2010) LPELR-1296 (SC). The law is settled that, where a bona fide issue or triable issues come into existence or, where the Affidavit casts doubt on the Plaintiff’s claim, the suit shall be transferred and subsequently entered in the General Cause List for hearing. It is on this jurisprudential background, with due respect to the learned Trial Judge, that I vehemently hold my considered view that the Lower Court was wrong to have placed the suit under the Undefended List. PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING WHERE AN ALLEGATION OF FRAUD WILL AVAIL A DEFENDANT IN A SUIT PLACED UNDER THE UNDEFENDED LIST

On the aspect of fraud, it is not the law that mere mentioning of fraud under the Undefended List would automatically entice the Court to move the suit to the General Cause List for the hearing of evidence, oral or documentary. This is particularly so because, an allegation of fraud requires the particulars of fraud to be set out in order to confer some modicum of seriousness so as to warrant further enquiry into it by the Court. In other words, unless and until an allegation of fraud is expressly made and supported by its particulars, it is a non-starter; as in law, mere or bare allegation of fraud, no matter how grave it is, is of no moment if it is not supported by the relevant particulars as required by law. The Erudite Law Lord of the Apex Court, ONU, J.S.C. at page 15, paragraphs B-E in the case of EZEKIEL OKOLI V. MORECAB FINANCE NIGERIA LIMITED (2007) LPELR-2463 (SC); opined that: “For an allegation of fraud to avail a Defendant in a suit placed under the Undefended List, it must be on a matter relevant to the case set out by the Plaintiff. See JOHN HOLT LIVERPOOL LTD V. FAJEMIROKUN (1961) ANLR (Reprint) 492 which approved the decision in WALLINGFORD V. MUTUAL SOCIETY (1880) AC 685 at 704 where LORD BLACKBURN said: “If you swear that there was fraud, that will not do. It is difficult to define it but, you must give such an extent of definite facts pointing to fraud as to satisfy the Judge that those are facts which made it reasonable that you should be allowed to raise that defence.” Again, the Apex Court per NGWUTA, J.S.C. (of blessed memory) at page 18, paragraphs D-E in the case of ACTION CONGRESS OF NIGERIA & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2013) LPELR-20300 (SC); succinctly defines fraud to mean: “…the term fraud, from which the word “fraudulent” is derived, is a willful act on the part of any one whereby another person is sought to be deprived of by illegal or inequitable means, what he is entitled to. See ADIMORA V. AJUFO (1988) 3 NWLR (PT. 553) 201.” The 9th Edition of the Black’s Law Dictionary, page 731 defines fraud as follows: “A known misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”.PER IGNATIUS IGWE AGUBE, J.C.A

WHAT IS A PUBLIC DOCUMENT

A document is said to be a public document when it borders on public interest, or the business of the public. Where members of the public do not have any interest in the publication of the document, it cannot be appropriately termed a public document; this is because, a public document is one created over a public matter by a Public Officer, preserved for the good of the public and open for a public inspection and use. See LORD BLACKBURN in STURIA V. FRECCIA (1980) 5 AC 623. In other words, for a document to be admissible as a public document, it should not only be available for public inspection, but should have been brought into existence for that purpose. See SHYLLON V. UNIVERSITY OF IBADAN (2007) 1 NWLR (PT. 1014) 1. Howbeit, Section 102 of the Evidence Act 2011 defines public documents as documents forming the official acts or records of the official acts of: 1. The sovereign authority 2. Official bodies and Tribunals or 3. Public Officers, Legislative, judicial or Executive, whether of Nigeria or elsewhere and 4. Public records kept in Nigeria of private document. Indeed, by the above stated provision, it is abundantly clear that every document that forms official acts or records of official acts of Sovereign bodies, like Governments, whether Federal, State or Local level or of Official Bodies and Tribunals or Public Officers in the Legislature, Judiciary or Executive whether of Nigeria or elsewhere, is a public document and they must be distinguished from private documents or letters. PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING WHERE A CERTIFIED COPY OF A PUBLIC DOCUMENT WILL BE DEEMED INADMISSIBLE

In the instant case, the contention of the learned Counsel for the Appellant is that Exhibit “D” being the Secondary Copy of a public document was admitted and relied upon in evidence by the trial Court without certification. From the provision of Section 102 of the Evidence Act, 2011, there is no doubt that Exhibit “D” being a Certificate of Valuation purportedly submitted by the Respondent is a public document. It is part of the official acts or records of official acts of public officers of Ekye Development Area by virtue of Section 102 (a) (ii) and (iii) of the Evidence Act, 2011. Again, I have carefully and repeatedly perused through the said Exhibit “D” and upon each perusal, what I see is nothing other than photocopy of a document that was not certified. Put differently, the requirement of certification was not satisfied. On the face of the document, there was no evidence indicating that legal fee was paid, there was no certification at the foot of the document stating that, the document was the certified copy of the original or part thereof, no subscription indicating that it was the Officer who issued the document, no name, no title, no seal but only date with signature and therefore inadmissible in evidence. This was the reasoning of the Apex Court per NWEZE, J.S.C.; in the case of SENATOR IYIOLA OMISORE & ANOR V. OGBENI RAUF ADESOJI AREGBESOLA & ORS (2015) LPELR-24803 (SC); where it was held that: “Pursuant to Section 104 of the Evidence Act, 2011, the said document which merely had CTC stamps bearing engraved signatures on them without the subscription of the name and the official title of the officer who certified them, were not properly certified in conformity with the mandatory requirements of Section 104…” Flowing from the above, it suffices therefore to say that the date and signature appearing on the face of the Certificate of Valuation failed to conform with the mandatory requirement as prescribed in the Act. In effect, any document that falls below the required mandatory standard of certification just like Exhibit “D”, is said to be inadmissible as a Certified Copy of a public document. See TABIK INVESTMENT LTD. V. GUARANTY TRUST BANK PLC (2011) LPELR-3131 (SC). PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING THE CERTIFICATION OF COPIES OF ORIGINAL PUBLIC DOCUMENT

Again, the whole essence of the Court’s insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity. See also G & T. I LTD & ANOR V. WITT & BUSH LTD (2011) LPELR-1333 (SC) 42. PARAS C-E. Thus, by the combined effect of Section 104 and 105 of the Evidence Act, 2011, Certified True Copies may be produced in proof of the contents of public documents or parts thereof of which they purport to be copies. In effect, the essence of demanding for a Certified True Copy of a public document is to assure the authenticity of the document vis-a-vis the original. See G & T. I LTD & ANOR V. WITT & BUSH LTD (supra). This explains why, in the absence of the original document, only such properly certified copies are admissible as secondary copies of the Public Document but no other kind of secondary evidence. PER IGNATIUS IGWE AGUBE, J.C.A

PURPOSE OF FILING AFFIDAVIT IN UNDEFENDED SUIT

CONSEQUENCE OF AN AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND AN ACTION ON THE UNDEFENDED PROCEDURE, NOT BEING THOROUGHLY EXAMINED

The law is settled that cases fought on the Undefended Procedure should be thoroughly examined in determining whether the Affidavit of the Defendant discloses a defence on merit to warrant the matter being transferred to the general cause list or not. From the Records, it is glaring that the Trial Court failed to take cognizance of some of the Defendant/Appellant’s paragraphs of the Affidavit which clearly show the contradictions arising from the contract sum and the confusion as to who issued the Certificate of Valuation (Exhibit “D”). It goes therefore to say that the treatment meted out to the Appellant by the Trial Judge was not transparent as it runs contrary to the principle of “audi alteram partem” meaning “hear the other side”. The Erudite Law Lord of the Apex Court, RHODES-VIVOUR, J.S.C. at page 19, paragraphs D-E in the case of LEADERS OF COMPANY LIMITED & ANOR V. MAJOR GENERAL MUSA BAMAIYI (2010) LPELR-1771 (SC); has this to say on the meaning of audi alteram partem inter alia: “Audi alteram partem, simply means hear the other side, it denotes basic fairness and a generally accepted standard of natural justice. In practice, it means that the Judge should allow parties to be heard and ensure he listens to the point of view or case of each side.” Therefore, it is trite that the inability of the trial Court to transfer the suit to the general cause list for hearing is without more a denial of the Appellant’s right of fair hearing. See the authorities of OBI V. NKWO COMMUNITY BANK LTD (2001) NWLR (PT. 806) 113, ILORIN EAST LOCAL GOVERNMENT V. ALASINRIN & ANOR (2012) LPELR-8400. PER IGNATIUS IGWE AGUBE, J.C.A

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal emanates from the decision of the High Court of Nasarawa State delivered by Hon. Justice AISHA B. ALIYU on the 3rd day of November, 2015 whereof judgment was entered under the Undefended List against the Appellant in the sum of Four Million, Seven Hundred and Forty-eight thousand, five hundred naira (N4,748,500.00). Dissatisfied with the decision of the lower Court, the Appellant invoked the jurisdiction of this Court by a Notice of Appeal dated and filed on the 28th day of January, 2016, containing Four (4) Grounds which I reproduce hereunder albeit without their respective particulars.
“GROUNDS OF APPEAL
GROUND 1:
The learned Trial Court erred in law when despite the Notice of Intention to defend as well as Affidavit disclosing good and credible defence, refused to transfer the case to the General Cause List.
GROUND 2:
The Trial Court erred in law when it based its judgment primarily on inadmissible evidence.
GROUND 3:
The Trial Court erred in law when she based her judgment solely on the Respondent’s claims without considering the

Notice of the Appellant’s Intention to defend.
GROUND 4:
The learned Trial Judge erred in law when it held thus: “I also agree with the learned Counsel to the Plaintiff Odeh O. Simon, that paragraph 3, A-D is the admission of the amount in contention between the Plaintiff and the Defendant, the sum of Eight million seven hundred and forty eight thousand, five hundred naira (N8, 748. 500)”
RELIEF SOUGHT:
1. An Order setting aside the judgment of the Trial Court.
2. An Order transferring the suit to the General Cause List for hearing on the merit.
3. An Order remitting the suit to the Chief Judge of Nasarawa State for re-assignment to another Judge for hearing on the General Cause List.”

STATEMENT OF FACTS:
The case of the Appellant at the trial Court was that the Defendant awarded a contract to him for the construction of Police outpost at Akpanaja Village in Ekye Development Area, Nasarawa State via a Notice of award of contract dated 10th August, 2009 in the total sum of Eight Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira (N8,748,500.00). Thereafter, the Plaintiff accepted

the award of the contract through a letter of acceptance dated 12th August, 2009 which was signed by the Plaintiff’s Managing Director.

It was the case of the Plaintiff that based on the award of the contract, parties further entered into an agreement dated 15th August, 2009 which was signed by all and that it was after the agreement that the Defendant paid to the Plaintiff, the sum of Four Million Naira (N4,000,000.00) only from the total contract sum leaving the balance of Four Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira (N4,748,500.00).

It was the plaintiff’s further case that, he immediately executed the contract by erecting the Police outpost at Akpanaja as specified in the contract agreement and upon completion, a Certificate of Valuation dated 15th February, 2010 was issued to him and that it was stated therein that the balance of the contract sum of Four Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira (N4,748,500.00) shall be paid to him.

Again, he stated that since the completion of the contract, he has repeatedly demanded for the payment of the balance sum but the Defendant has

failed to liquidate the amount and that it was for the above reason that the Defendant wrote a letter dated 13th August, 2013 which was addressed to the Commissioner, Ministry for Local Government and Chieftaincy Affairs, Lafia instructing the Commissioner to pay the Plaintiff the sum of Four Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira (N4,748,500.00) only, being the outstanding amount but all effort to get the balance have been futile.

Consequently, the Appellant maintained that, on the 9th day of July, 2015 the Respondent filed a Motion Ex-parte at the Trial Court which sought the leave to place the suit under the Undefended List as provided for under Order 15 Rule 1 of the Nasarawa State High Court (Civil Procedural) Rules, 2010 and after hearing the suit, on the 27th day of July, 2015 the Trial Court marked and placed the suit under the Undefended List as can be seen at pages 63-64 of the Records.

Still on the above score, he further maintained that he was thereafter served with the Order of the Trial Court marking and placing the Writ under the Undefended List with the Writ of Summons and upon receipt of the said Writ, he

filed a Motion to enter an appearance out of time. The Application was heard on the 2nd day of October, 2015 as can be gleaned at pages 38-46 of the Records.

The Appellant further stated that, upon the hearing of the Application for the regularization of his processes, he filed a Memorandum of Appearance and Notice of Intention to Defend, but the learned Trial Court went ahead to consider arguments of the Intention to Defend on the 3rd day of October, 2015.

On the other hand, the case of the Respondent was that, by Exhibit “A” annexed to the Affidavit in support of the Undefended Writ of Summons filed at the Trial Court, he was awarded a contract for the construction of Police outpost at Akpanaja village in Ekye Development Area on the 10th day of May, 2009, in the sum of Eight Million Seven Hundred and Forty-Eight Thousand, Five Hundred and Fifty naira (N8,748. 550). According to him, Exhibit “B” enveloped his acceptance of the contract while Exhibit “C” contained the formal contract agreement.

It was the case of the Respondent that, in view of the contract which he performed and executed, he was issued a

Certificate of Valuation dated 15th February, 2010 containing the sum of Four Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira only as payment. The Appellant, on the reverse side of the Valuation Certificate wrote the approval for the payment of the outstanding balance due to the Respondent from the contract executed which can be seen at pages 31-32 of the Records.

It was the further case of the Respondent that the Appellant wrote to the Commissioner for Local Government and Chieftaincy Affairs, Nasarawa State requesting that the Respondent be paid her balance from the contract. It was the failure or their refusal to pay that gave birth to the suit at the Trial Court. Again, the statement of the Respondent was that, the Appellant captured in his Affidavit in support of the Notice to Defend that he did not complete the execution of the direct labour work awarded to her and that the contract was 85% executed as captured in Exhibit “A” requesting that the suit be transferred to the General Cause List.

The Honourable Court, upon scrupulous review of the parties’ arguments together with their annexed Exhibits, relied

on the Respondent’s Exhibit “D” being the Certificate of Valuation and held that the Plaintiff completed the contractual obligation vide Exhibit “D” to have entitled him to be paid the balance remaining which was Four Million, Seven Hundred and Forty-Eight Thousand, Five Hundred Naira only as can be seen at page 72, paragraph 5 of the Records. Meanwhile, Reliefs 2 and 3 as contained in the claim of the Respondent was refused despite the provision of Order 25 of the Nasarawa State Civil Procedure Rules, 2010. Dissatisfied with the judgment of the lower Court, the Appellant filed this Appeal.

The Record of Appeal was thereafter transmitted and the Appeal entered in this Court. The Appellant’s Amended Brief of Argument settled by M.J ABOKEE, ESQ., dated 22nd April, 2016 and filed on the 9th day of May, 2016 distilled three (3) issues for the determination to wit:

ISSUES FOR DETERMINATION
1. Whether the Trial Court was right when it placed the suit under the Undefended List and went ahead to give judgment despite strong allegation of fraud raised by the Appellant in her Notice of Intention to Defend?

Whether it is proper for the learned Trial Court to have solely based its judgment on Exhibit “D” a public document not duly certified?
3. Whether the Trial Court was right to have discountenanced some paragraphs of the Appellant’s Affidavit in support of Notice of Intention to Defend as an admission of the amount in dispute?

Upon receipt of the Appellant’s Brief of Argument, the learned Counsel for the Respondent J.E. AGBO, ESQ., who settled the Respondent’s Brief of Argument adopted the Appellant’s three (3) issues for determination.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE:
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT PLACED THE SUIT UNDER THE UNDEFENDED LIST AND WENT AHEAD TO GIVE JUDGMENT DESPITE STRONG ALLEGATION OF FRAUD RAISED BY THE APPELLANT IN HER NOTICE OF INTENTION TO DEFEND?”

On this first issue which was distilled from Grounds 1 and 3 of the Appellant’s Notice of Appeal, the learned Counsel for the Appellant contended that when allegation of fraud is raised in any judicial proceedings by any party, such allegation must be proved beyond

reasonable doubt and this cannot be made possible without calling for witnesses to prove same. He further couched that the Appellant by paragraph 3 (c), (d), (e) and (f) of his Deposition was resolute on the nature of the contract sum paid for as he referred us to page 41 of the Records and maintained that no Counter-Affidavit was filed by the Respondent to disagree with the Appellant’s position highlighted above bordering on the allegation of fraud which the learned Trial Court ought to have taken into consideration and place the suit on the General Cause List since the allegation of fraud required proof beyond reasonable doubt BIEZAN EXCLUSIVE GUEST HOUSE & ORS V. UNION HOMES SAVINGS AND LOAN LTD (2011) 7 NWLR (PT. 1246) AT 283 & 287; referred.

The learned Counsel for the Appellant further contended that, it has been held in a number of judicial authorities that the circumstances under which a Defendant in an Undefended List matter could be granted leave to defend are as:
a. Where there is an illegal misrepresentation by the Plaintiff
b. Where the alleged facts are such a nature as to entitle the Defendant to interrogate the

Plaintiff or to cross-examine his witness on the accompanying Affidavit
c. Where there is allegation of fraud.

Accordingly, it was the argument of the learned Counsel for the Appellant that he has satisfied all the conditions listed above to warrant the Trial Court placing the matter on the General Cause List for proper trial but the Court apparently elected to shut the doors of fair hearing on him by determining the suit under the Undefended List Procedure. For the above submission, he referred us again to the case of UNIVERSITY OF NIGERIA V. ORAZULIKE TRADING CO. LTD (1989) NWLR (PT. 119) 19 AT 29. The learned Counsel also pointed out that the Appellant set out the grounds of his defence in an Affidavit of Intention to Defend which prima facie disclosed triable issues requiring a full contest of an action, hence, entitling him to have the suit transferred to the Ordinary or General Cause List. ORDER 15 (5) OF THE NASARAWA STATE HIGH COURT CIVIL PROCEDURE RULE, 2010; referred in urging us to resolve the first issue in favour of the Appellant.

Consequently, on the above contention, the learned Counsel for the Appellant submitted that, it was

convincing enough that the inference from the non-filing of Further Affidavit to disprove the averments contained in the Appellant’s Affidavit of Intention to Defend when such claim was vehemently contested was only a fact that such an averment was true and must be accepted by the Court PHILIP VS. EBA ODAN COMM. & IND. CO. LTD. (2012) ALL FWLR (PT. 650) PG. 1254 AT 1271-1272 PARAS A-B and DANGOTE GEN. TEXTILE PRODUCTION LTD. & ORS V. HASCON & 1 OR (2013) 8 SCM 212 AT 214-217; referred.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO:
“WHETHER IT IS PROPER FOR THE LEARNED TRIAL COURT TO HAVE SOLELY BASED ITS JUDGMENT ON EXHIBIT “D” A PUBLIC DOCUMENT NOT DULY CERTIFIED?”

On this issue which is distilled from Ground 2 of the Notice of Appeal, the learned Counsel for the Appellant contended that for a public document to be admissible in proceedings or form the basis of any decision, same must have been duly certified, for it is improper for a Court to rely solely on a public document not duly certified to give its judgment. He submitted that there was no doubt that Exhibit

“D” falls within the category of a public document under Section 102 of the Evidence Act having purportedly emanated from Ekye Local Government Area which was regarded as a Public Institution. Howbeit, he further submitted that only Certified True Copies of the said document can be admissible in proof of the original but the Trial Court relied solely on Exhibit “D” to give its judgment.

Accordingly, it was his submission that the Trial Court could not have relied on Exhibit “D” which was not certified. CHIEF OKOH V. HON. UCHENNA IGWESI & ORS (2005) ALL FWLR (PT. 264) 891 AT 902- 903, DIOKPA FRANCIS ONOCHIE & 2 ORS V. FERGUSON ODOGWU & 7 ORS (2006) ALL FWLR (PT. 317) 544; CHITEX INDUSTRIES LTD v.OCEANIC BANK INTERNATIONAL (NIG.) LTD (2005) ALL FWLR (PT. 276) 610 AT 624 PARAS. D-E; FAWEHINMI V. IGP (2000) ALL FWLR (PT. 12) & AJIBOYE V. DURU (2010) ALL FWLR (507) PG 136 AT 177; were all cited and relied upon to buttress the above submission.

Again, it was his further submission that where a document was challenged and impugned as un-authentic, the maker of the said document ought to have been called to support the document otherwise, no

weight would be attached to it and that the Trial Court ought to have expunged same as relying on same to enter judgment under the Undefended List ran contrary to the fundamentals of the law. The learned Counsel to the Appellant in the light of the foregoing arguments, finally urged this Court to resolve this issue in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER THREE:
“WHETHER THE TRIAL COURT WAS RIGHT TO HAVE DISCOUNTENANCED SOME PARAGRAPHS OF THE APPELLANT’S AFFIDAVIT IN SUPPORT OF NOTICE OF INTENTION TO DEFEND AS AN ADMISSION OF THE AMOUNT IN DISPUTE?”

On this issue which is distilled from Ground 4 of the Appellant’s Notice of Appeal, the learned Counsel for the Appellant contended that the significance of the Notice of Intention to Defend was borne out by the Affidavit accompanying the Notice showing that the grounds for asking to be heard on the defence were not frivolous, vague or designed to delay the trial of the action and must show that there was a dispute between the parties such that a trial Court was only required to see if there was prima facie defence so

that the Defendant would be granted leave to defend.

It was his argument that the Appellant’s Affidavit of Intention to defend condescends upon particulars as far as possible on the Respondent’s claim for the balance of contract sum which was not completed, almost casting serious doubt on the execution of the alleged contract such that the trial Court ought to have given opportunities to parties to be heard on facts raised bona fide by the Appellant. The inability of the trial Court to transfer the suit to the General Cause List for hearing without more, according to the learned Counsel, denied the Appellant’s right of fair hearing OBI V. NKWO COMMUNITY BANK LTD. (2001) NWLR (PT. 806) 113, ILORIN EAST LOCAL GOVERNMENT V. ALASINRIN & ANOR (2012) LPELR-8400.

It was his submission on the above contention that, the act of the trial Court was against the express provision of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and that the trial Court gave effect to the Rules under the Undefended List proceeding which enabled the Respondent to score a technical victory at the expense of hearing on

the merit without considering the Appellant’s side of the case and went further to resolve same as can be seen at page 70 of the Records. For this submission, he also referred us to the case of NYESOM V. PETERSIDE & ORS (2016) LPELR-40036; to finally urge this Court to resolve issue three in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER ONE:
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT PLACED THE SUIT UNDER THE UNDEFENDED LIST AND WENT AHEAD TO GIVE JUDGMENT DESPITE STRONG ALLEGATION OF FRAUD RAISED BY THE APPELLANT IN HER NOTICE OF INTENTION TO DEFEND?”

On this issue, the learned Counsel for the Respondent contended that, the Appellant’s issue one was formulated outside the Grounds of Appeal as there was no ground attacking the grant of the Motion Ex-parte to place the suit under the Undefended List and that the Appellant cannot frame and argue an issue against placing the suit under the Undefended List of the Court.

According to the learned Counsel for the Respondent, the Trial Court rightly applied the provision of Order 15 Rule 1 of the Nasarawa State High Court (Civil Procedure) Rules, 2010,

by marking and placing the suit under the Undefended List and that as at the time of hearing the matter at the trial Court, there was no Notice of Intention to defend the suit neither was there any allegation of fraud raised before the Court. Consequently, he added, it is not tenable for the Appellant to argue that the trial Court ought to have placed the suit on the General or Ordinary Cause List for witnesses to be called.

The learned Counsel for the Respondent contended that it was upon the service of the Writ of Summons marked and placed under the Undefended List that a Defendant is required to file a Notice of Intention to Defend. Order 15 Rule 3 of the Nasarawa State High Court Civil Procedure Rules, 2010 was cited and relied upon in so submitting.

On another score, he contended that, what amounted to an Affidavit disclosing a defence on merit had long been settled in plethora of authorities and does not include an Affidavit whose intent is merely designed to pull wool over the face of the Court. UDEMBA V. MORECAB FIN NIG LTD (2003) 1 NWLR (PT. 800) 96 PP. 109 and ATAGUBA V. GURA NIG LTD (2005) 18

NWLR (PP 24-25); referred.

It was the learned Counsel to the Respondent’s further submission that the documents exhibited by the Respondent at the trial Court were both comprehensive and convincing that the Notice of Intention to Defend with its Affidavit could not dislodge the position of the law as reliance was again placed on AJAGUNGBADE III VS. ADEYELU II (2001) 16 NWLR 126 PT. 738, UDEORAH V. NWAKONOBI (2003) 16 NWLR (PT. 8110) 643 PP. 675 and JINADU VS. ESUROMBI ARO (2009) 35 WRN; in support of the above submission.

Predicated on the above contention, it was the further submission of the learned Counsel for the Respondent that the trial Court acted rightly according to the law when she relied on the Respondent’s documentary evidence to enter judgment under the Undefended List. He further submitted that, when a judgment of a Court is right as in the circumstances of the instant case, an Appellate Court is not bound to disturb such decision even if the reasons are wrong.

He further contended that the Appellant’s argument on the effect that he raised an allegation of fraud goes to no moment because, such an allegation has no

bearing as to warrant the Defendant to interrogate the Plaintiff together with its exhibits and that in the opinion of the Court, Exhibits tendered by the Plaintiff were self-explanatory which did not require any further cross-examination. The allegation of fraud raised before the Trial Court, according to the learned Counsel was a criminal allegation by which standard of proof ought to have been beyond reasonable doubt but, the Appellant failed to exhibit any record of conviction in respect of the alleged fraud against the Respondent.

Still on the above contention, the learned Counsel for the Respondent argued that, the alleged misrepresentation raised by the Appellant was grossly misconceived as there was no element of misrepresentation in the formation of the contract between parties but the Appellant is at the point of discharging her own financial obligation seeking to evade responsibilities and liabilities arising from the contract and that Exhibit “A” attached to the Notice of Intention to Defend was not signed by the parties to the contract and the author of the said Exhibit was not known therefore such document cannot be relied upon to

transfer any suit under the Undefended List to the General Cause List.

In concluding his argument on the above issue, the learned Counsel for the Respondent finally urged us to hold that the Appellant’s Notice of Intention to defend did not raise any triable issues, sufficient to warrant the transfer of the case to the General Cause List for evidence to be led and that this issue was couched to attack the placing of the suit under the Undefended List of the Court as he again urged this Court to resolve this issue in favour of the Respondent.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER TWO:
“WHETHER IT IS PROPER FOR THE LEARNED TRIAL COURT TO HAVE BASED JUDGMENT ON EXHIBIT “D” A PUBLIC DOCUMENT NOT DULY CERTIFIED?”

On this issue, the learned Counsel for the Respondent answered the question posed therein in the affirmative and urged this Court to hold that the judgment delivered by the trial Court was properly rooted on admissible and credible evidence that should not be set aside by this Court. According to him, Exhibit “D” relied upon by the trial Court to enter judgment in

favour of the Respondent was the Certificate of Valuation evidencing the completion and execution of the contract which the Certificate states the various benefits and liabilities of the parties to the contract.

It was his submission on the above that, communications and documents forming part of the transactions between two contracting parties cannot be said to be a public document merely because, the document was prepared from a public office or by a public Officer. ABUUL V. BENSU (2003) 16 NWLR (PT. 845) 59 PG. 76-77 PARAS. E-E; referred.

Therefore, he urged this Court to hold that contractual documents between the Government or Public Officer and the Private individual cannot be said to be a public document merely because the Government was involved in the making of the contract document as he finally urged us to resolve this issue in favour of the Respondent against the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER THREE:
“WHETHER THE TRIAL COURT WAS RIGHT TO HAVE DISCOUNTENANCED SOME PARAGRAPHS OF THE APPELLANT’S AFFIDAVIT IN SUPPORT OF HIS NOTICE OF INTENTION TO DEFEND AS AN ADMISSION OF THE

AMOUNT IN DISPUTE?”

On this issue, the learned Counsel for the Respondent contended that the trial Court acted within the confines of the provision prescribed under the Undefended List practice and procedure and the Appellant cannot be heard complaining of a denial of fair hearing as it was not enough to prepare conflicting Affidavit against the suit placed under the Undefended List just to hoodwink the Court to transfer same to the General cause List for the purpose delaying justice.

Placing reliance on ATAGUBA V. GURU NIG. LTD. (2005) 18 WRN 1 (PT. 19), he contended that the Cause of action open to the Court after a Defendant in an action under the Undefended List has initiated his intention to defend the suit depends on whether a triable issue was raised on the merit or not and that in the instant case, the Respondent’s Affidavit in support of the Notice of Intention to Defend did not disclose any defence on the merit neither did it raise any triable issues as to propel the matter to be transferred to the General Cause List for full trial to be conducted.

According to him, this Court, in the case of UDEMBA V MORECABA FINANCE NIG. LTD. (2003) 1 NWLR (PT. 800) 96 PG. 109 D-G;

clearly stated that an Affidavit in support of a Notice of Intention to Defend must disclose a triable issue on the merit and nothing more. Therefore, it was his submission that, a Defendant who has no tenable triable issue should not be allowed to hide under the cloak of an imagined fraud with no shred of particulars to delay justice NISHIZAWA V. JETHWANI (1984) 12 SC 234; referred.

Still on the above issue, it was his further contention that the Notice of Intention with the Affidavit in support filed by the Appellant was adequately considered by the trial Court and was found to be devoid of defence on the merit, rather, it was held to be an admission of the debt. He finally submitted that this Court should discountenance the entire submissions of the Appellant and dismiss this Appeal for lacking in merit and substance.

RESOLUTION OF ISSUES:
ISSUE NUMBER ONE:
“WHETHER THE TRIAL COURT WAS RIGHT WHEN IT PLACED THE SUIT UNDER THE UNDEFENDED LIST AND WENT AHEAD TO GIVE JUDGMENT DESPITE STRONG ALLEGATION OF FRAUD RAISED BY THE APPELLANT IN HER NOTICE OF INTENTION TO DEFEND.”

determination of action…”
As an addendum, the law is settled that Undefended List procedure is a truncated system where the ordinary hearing peculiar to our system is rendered unnecessary due to the absence of an issue to be tried or the quantum of the Plaintiff’s claim disputed to necessitate such hearing. It is designed to secure quick justice and to avoid the injustice that may likely to occur when there is no genuine defence on the merits to the Plaintiff’s case. Yes, the procedure is to shorten the hearing of a suit where the Claim is for liquidated sum. In other words, the object of the Rules relating to actions on the Undefended List is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims. See BANK OF THE NORTH VS. INTRA BANK SA (1969) 1 ALL NLR 91.
Order 15 Rule 1 of the Nasarawa State High Court (Civil Procedural) Rules, 2010, stipulates that:
“Whenever an Application is made to a Court for the issuance of a 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 “Undefenced List”, and mark the Writ of Summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.”

It is pertinent at this juncture to categorically state that the vexed issue which birthed this Appeal as contended by the learned Counsel for the Appellant is that, the trial Court strongly refused to place the suit under the General Cause List so as to afford him the opportunity of being heard.

Notwithstanding that the Undefended List was designed to get rid of those matters that may unduly delay the hearing and disposal of cases by causing congestion in our Courts, this popular and expeditious procedure dealing with liquidated money demand that can be ascertained was not judiciously and religiously complied with by the trial Court as prescribed in the above cited provision of the Rule.

The law is settled that a Defendant who is willing to defend an action under the Undefended List must depose to facts in an Affidavit disclosing a defence on the merits. Now, for an Affidavit to constitute a defence on the merit, the Defendant must set out the defence in the Affidavit. The Affidavit must show or display reasonable grounds that there are some disputed issues between the parties requiring to be heard. The Defendant’s Affidavit must also deal specifically with the Plaintiff’s claim and must throw some doubt on the case of the Plaintiff.
Accordingly, where the Affidavit in support of the Notice of Intention to Defend the suit contain enough facts and particulars as to satisfy a reasonable tribunal to remove the case from the Undefended List to the General Cause List, a Court would not hesitate to do so. This was the dictum of the Erudite Law Lord ADIO, J.S.C. at page 13, paragraphs C-E in the case of PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LIMITED V. RHEIN MASS UND SEE SCHIF FART KONTOR GMBH (1997) LPELR-2899 (SC).

As can be gleaned from the Records, it is obvious and beyond reasonable doubt that the

Appellant’s/Defendant’s Notice of Intention to Defend set out controversial issues as contained in the Affidavit which call for hearing and for purposes of reference and clarity, the said Affidavit evidence shall be reproduced hereunder:
“3(a) states that the Defendant awarded the Plaintiff a direct labour work and not contract for the construction of the Police outpost at Akpanaja Village in Ekye Development Area at the sum of Eight million, seven hundred and forty-eight thousand, five hundred naira (N8,748,500.00) only.
b. That the Defendant did not issue a Certificate of Valuation for the payment of a total sum of Four million, seven hundred and forty-eight thousand, five hundred naira (N4,748,500.00) only.
c. That the Plaintiff was paid the sum of Four million, five hundred thousand naira (N4,500,000.00) only for the percentage of the work done.
d. That the Plaintiff did not complete the said work as to warrant the payment of the outstanding balance which stood at Four million, two hundred and forty eight thousand naira (N4,248, 000.00) only.
e. That only 85% of the work was done as shown at No. 6 of the

document attached as Exhibit “A”. Moreso, it was a direct labour and not a contract per se.
f. That the Plaintiff is not entitled to the balance of the contract sum as claimed, having not completed the contract.
g. That the Police outpost in respect of which the contract was awarded to the Plaintiff is yet to be completed.”

On the contrary, paragraphs B, C, D, E, F, G and H of the Respondent’s Affidavit in support of the Writ of Summons set out issues that requires explanation to be made by the Appellant as follows:
b. That the Defendant awarded a contract to him for the construction of Police outpost at Akpanaja Village in Ekye Development Area, Nasarawa State via a Notice of Award of Contract dated 10th August, 2009 in the total sum of Eight million seven hundred and forty-eight thousand, five hundred naira (N8,748,500.00).
c. The Plaintiff accepted the Notice of the award of the contract via its Letter of Acceptance dated 12th August, 2009 which was signed by the Plaintiff’s Managing Director.
d. That based on the award of the contract, parties further entered into an Agreement dated 15th

August, 2009 which was signed by all.
e. That the Defendant paid the Plaintiff the sum of Four million naira (N4,000,000.00) only from the total contract sum leaving the balance of Four million, seven hundred and forty-eight thousand, five hundred naira (N4,748,500.00).
f. That the Plaintiff executed the contract by erecting the Police outpost at Akpanaja to specification as contained in the contract agreement and a Certificate of Valuation dated 15th February, 2010 was issued to him and that it was stated therein that the balance of the contract sum of Four million, seven hundred and forty-eight thousand, five hundred naira (N4,748,500.00) shall be paid to the Plaintiff.
g. That since the completion of the contract, the Plaintiff has demanded for the payment of the balance sum but the Defendant has failed to liquidate the amount and have continued to complain of lack of fund.
h. That the Defendant sequel to the balance sum, wrote a letter dated 13th August, 2013 which was addressed to the Commissioner, Ministry for Local Government and Chieftaincy Affairs, Lafia instructing the Commissioner to pay the sum of Four million, seven hundred

and forty-eight thousand, five hundred naira (N4,748,500.00) only being the outstanding amount but all effort to get the balance have been futile.

The above stated depositions of the parties clearly reveal that there were triable issues arising therefrom which the trial Court failed to properly look at. This is particularly so because, the Defendant’s Affidavit in support of the Notice of Intention to Defend raises an issue or issues to the extent that the Plaintiff would be required to explain certain matters with regards to his claim and in such a situation, triable issues come into existence. This was the reasoning of the Apex Court per FABIYI, J.S.C. at pages 10-11, paragraphs E-B in the case of G.M.O NWORAH & SONS COMPANY LTD V. AFAM AKPUTA (2010) LPELR-1296 (SC).
The law is settled that, where a bona fide issue or triable issues come into existence or, where the Affidavit casts doubt on the Plaintiff’s claim, the suit shall be transferred and subsequently entered in the General Cause List for hearing. It is on this jurisprudential background, with due respect to the learned Trial Judge, that I vehemently hold my considered view

that the Lower Court was wrong to have placed the suit under the Undefended List.

JOHN HOLT LIVERPOOL LTD V. FAJEMIROKUN (1961) ANLR (Reprint) 492 which approved the decision in WALLINGFORD V. MUTUAL SOCIETY (1880) AC 685 at 704 where LORD BLACKBURN said: “If you swear that there was fraud, that will not do. It is difficult to define it but, you must give such an extent of definite facts pointing to fraud as to satisfy the Judge that those are facts which made it reasonable that you should be allowed to raise that defence.”
Again, the Apex Court per NGWUTA, J.S.C. (of blessed memory) at page 18, paragraphs D-E in the case of ACTION CONGRESS OF NIGERIA & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2013) LPELR-20300 (SC); succinctly defines fraud to mean:
“…the term fraud, from which the word “fraudulent” is derived, is a willful act on the part of any one whereby another person is sought to be deprived of by illegal or inequitable means, what he is entitled to. See ADIMORA V. AJUFO (1988) 3 NWLR (PT. 553) 201.”

The 9th Edition of the Black’s Law Dictionary, page 731 defines fraud as follows:
“A known misrepresentation of the truth or concealment of a

material fact to induce another to act to his or her detriment”.

As can be seen from the Records, there is no doubt that the alleged fraud and misrepresentation contended by the Appellant with regards to paragraph 3(b) of his Notice of Intention to Defend was materially relevant to the claim set out by the Plaintiff. The said paragraph reveals that, the Defendant did not issue any Certificate of Valuation for the completion of the contract or for the payment of the sum of four million, seven hundred and forty-eight thousand, five hundred naira (N4,748, 500.00).

Consequently, even though the particulars of fraud were not categorically stated by the Appellant, the Apex Court in the case of EZEKIEL OKOLI V. MORECAB FINANCE NIGERIA LIMITED (supra); set out unassailable parameter that for an allegation of fraud to avail a Defendant in a suit placed under the Undefended List, it must be on a matter relevant to the case set out by the Plaintiff. Accordingly, it is my considered view that the trial Court was wrong to have placed the suit under the Undefended List. This issue is resolved in favour of the Appellant against the Respondent.

RESOLUTION OF ISSUE NUMBER TWO:
“WHETHER IT IS PROPER FOR THE LEARNED TRIAL COURT TO HAVE SOLELY BASED ITS JUDGMENT ON EXHIBIT “D” A PUBLIC DOCUMENT NOT DULY CERTIFIED?”

or
3. Public Officers, Legislative, judicial or Executive, whether of Nigeria or elsewhere and
4. Public records kept in Nigeria of private document.
Indeed, by the above stated provision, it is abundantly clear that every document that forms official acts or records of official acts of Sovereign bodies, like Governments, whether Federal, State or Local level or of Official Bodies and Tribunals or Public Officers in the Legislature, Judiciary or Executive whether of Nigeria or elsewhere, is a public document and they must be distinguished from private documents or letters.

Again, I have carefully and repeatedly perused through the said Exhibit “D” and upon each perusal, what I see is nothing other than photocopy of a document that was not certified. Put differently, the requirement of certification was not satisfied. On the face of the document, there was no evidence indicating that legal fee was paid, there was no certification at the foot of the document stating that, the document was the certified copy of the original or part thereof, no subscription indicating that it was the Officer who issued the document, no name, no title, no seal but only date with signature and therefore inadmissible in evidence. This was the reasoning of the Apex Court per NWEZE, J.S.C.; in the case of SENATOR IYIOLA OMISORE & ANOR V. OGBENI RAUF ADESOJI AREGBESOLA & ORS (2015) LPELR-24803 (SC); where it was held that:
“Pursuant to Section 104 of the Evidence Act, 2011, the said document which merely had CTC stamps bearing engraved signatures on them without the subscription of the name and the official title of the officer who certified them, were not properly certified in

conformity with the mandatory requirements of Section 104…”
Flowing from the above, it suffices therefore to say that the date and signature appearing on the face of the Certificate of Valuation failed to conform with the mandatory requirement as prescribed in the Act. In effect, any document that falls below the required mandatory standard of certification just like Exhibit “D”, is said to be inadmissible as a Certified Copy of a public document. See TABIK INVESTMENT LTD. V. GUARANTY TRUST BANK PLC (2011) LPELR-3131 (SC).

document vis-a-vis the original. See G & T. I LTD & ANOR V. WITT & BUSH LTD (supra). This explains why, in the absence of the original document, only such properly certified copies are admissible as secondary copies of the Public Document but no other kind of secondary evidence.

From the foregoing, it is my considered view that the Trial Court was not right to have attached probative value to Exhibit “D” being a public document that was not certified. Accordingly, I entirely agree with the submission of the learned Counsel for the Appellant that the above Exhibit “D” is a public document within the meaning of Section 102 of the Evidence Act, 2011. As a public document, they ought to have been certified within the meaning of Section 111 of the Evidence Act (supra) before they could be produced in proof of their original content, as required by Section 112 of the Act. This issue is also resolved in favour of the Appellant.

RESOLUTION OF ISSUE NUMBER THREE:
“WHETHER THE TRIAL COURT WAS RIGHT TO HAVE DISCOUNTENANCED SOME PARAGRAPHS OF THE APPELLANT’S AFFIDAVIT IN SUPPORT OF HIS NOTICE OF

INTENTION TO DEFEND AS AN ADMISSION OF THE AMOUNT IN DISPUTE?”

The purpose of filing Affidavit in Undefended Suit is to apprise the other party of the possible issue(s) to be argued on and to give the Court the latitude of scrupulously perusing through it, in order to determine where the weight of evidence or the pendulum of justice would swing to. In the instant case, the contention of the Appellant is that the Trial Court discountenanced some of the paragraphs of his Affidavit in support of the Notice of Intention to Defend.

Appellant by the Trial Judge was not transparent as it runs contrary to the principle of “audi alteram partem” meaning “hear the other side”.
The Erudite Law Lord of the Apex Court, RHODES-VIVOUR, J.S.C. at page 19, paragraphs D-E in the case of LEADERS OF COMPANY LIMITED & ANOR V. MAJOR GENERAL MUSA BAMAIYI (2010) LPELR-1771 (SC); has this to say on the meaning of audi alteram partem inter alia:
“Audi alteram partem, simply means hear the other side, it denotes basic fairness and a generally accepted standard of natural justice. In practice, it means that the Judge should allow parties to be heard and ensure he listens to the point of view or case of each side.”
Therefore, it is trite that the inability of the trial Court to transfer the suit to the general cause list for hearing is without more a denial of the Appellant’s right of fair hearing. See the authorities of OBI V. NKWO COMMUNITY BANK LTD (2001) NWLR (PT. 806) 113, ILORIN EAST LOCAL GOVERNMENT V. ALASINRIN & ANOR (2012) LPELR-8400.
I am therefore in consonance with the submission of the learned Counsel for the Appellant that

paragraph 3 (a)-(d) specifically states the amount in contention between the Plaintiff/Respondent and the Defendant/Appellant which ordinarily summarizes the facts of an existing triable issues.
Consequently, since the Affidavit of the Appellant sufficiently disclosed some triable issues, the trial Court ought to have transferred the suit to the General Cause List for trial, as failure to do so amounts to a breach of Section 36(1) of the Constitution of the Federal Republic Nigeria, 1999 (as amended). This is particularly so because, the right of fair hearing extends beyond affording parties the opportunity of being heard but also, a proper consideration and determination of the issues canvassed by parties before the Court.

Accordingly, this Appeal is meritorious and is hereby allowed. The judgment of the Trial Court delivered by Hon. Justice Aisha B. Aliyu on the 3rd day of November, 2015 is hereby set aside. I order that the suit be remitted to the Chief Judge of Nasarawa State for re-assignment to another Judge for hearing on the General Cause List. I make no order as to cost.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to

read before now the lead judgment meticulously prepared and delivered by my learned brother AGUBE, PJCA., and I agree with the reasoning and conclusions reached therein.

The appeal is imbued with merit and is accordingly allowed by me.
I abide by the consequential order made therein.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, J.C.A., and I am in agreement with the reasoning and conclusion arrived at in the lead judgment.

The appeal revolves around on whether there was a triable issue in the Affidavit filed, opposing the suit filed by the Respondent. The question of what a triable issue could be was discussed in the case of NNPC (RETAIL) LTD. V MURTALA & ANOR (2014) LPELR-22911 (CA) where MBABA, J.C.A. said:
“In the case of S.P.D. NIG. LTD. VS. ARHO-JOE NIG. LTD. (2006) 3 NWLR (Pt.966) 172, the Court of Appeal gives some guide as to what constitutes triable issue in a summary judgment application as follows: “A “triable issue” or a “defence on the merit” under the Undefended List

procedure is where a defendant’s Affidavit in support of the notice of intention to defend is such that requires the plaintiff to explain certain matters with regard to his claim, or throws some doubt on the plaintiff’s claim.”

The Court determines a triable issue from evaluation of facts deposed to in the Affidavit in support of Notice of Intention to defend, it is not decided on the discretion of a Judge but a judicial duty. See UBA PLC & ANOR. V. JARGABA (2007) LPELR-3399 (SC) where the Apex Court held:
“The decision as to whether or not a defence under the Undefended List Procedure raises a triable issue does not depend so much on the discretion of the Court. Rather, it involves the evaluation of the Affidavit evidence before the Court for it to determine whether or not a triable issue has been made out by the defence. See General Securities and Finance Company Limited v. Obiekezie (1997) 10 NWLR (Pt. 526) 577.” Per Tobi, J.S.C. (of blessed memory).

I agree with my Lord that the Court below failed to identify triable issue in the Affidavit of Notice of Intention to defend and thereby denied the Appellant a

hearing. The Appeal is meritorious and is allowed. I also abide by the other orders made in the lead judgment.

Appearances:

J. Abokee, Esq. (Principal State Counsel), Ministry of Justice, Nasarawa State with him, Sakinat Sanusi, Esq. (Senior State Counsel), Ministry of Justice, Nasarawa State For Appellant(s)

A. Sambo, Esq. For Respondent(s)