FAVOUR ELECTRONICS NIGERIA LIMITED v. ABDULWASIU DAN ZARIA (2014)

FAVOUR ELECTRONICS NIGERIA LIMITED v. ABDULWASIU DAN ZARIA

(2014)LCN/7485(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of October, 2014

CA/IL/59/2013

RATIO

PRACTICE AND PROCEDURE: A WRIT OF SUMMONS; THE CONDITIONS THAT MUST CO-EXIST BEFORE A WRIT OF SUMMONS IN RESPECT OF CLAIM CAN BE ISSUES ON THE UNDEFENDED LIST AND MARKED ACCORDINGLY

As a starting point, it is necessary to enumerate the elements/conditions that must co-exist before a writ of summons in respect of a claim can be issued on the undefended list and marked accordingly. They are as follows:

(a) A claim to recover a debt or liquidated money demand;

(b) An Affidavit setting forth the grounds upon which the claim is based; and

(c) An averment stating that in the deponent’s belief, the defendant has no defence to the action. See, HIMMA MERCHANTS LTD. VS. ALIYU (1994) 5 NWLR (PT.346) 667 at 676, A.I.B. VS. PACKOPLAST (2001) 30 WRN 141 at 162 and GARBA VS. SHEBA INT. (NIG) LTD. (2002) 1 NWLR (PT 748) 372 at 403. per. CHIDI NWAOMA UWA, J.C.A.

PRACTICE AND PROCEDURE: TRIABLE ISSUE; WHAT IS TO BE EXAMINED IN ORDER TO DETERMINE WHETHER THERE IS A TRIABLE ISSUE

The defendant’s affidavit has to be examined alongside the plaintiff’s affidavit in support of the claim in order to determine whether there is a triable issue, not necessarily that the defendant would succeed, see, G,S. and F.C. LTD VS OBIEKEZIE (1997) 10 N.W.L.R. (PT 526) 577 AT 587. per. CHIDI NWAOMA UWA, J.C.A.

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST PROCEDURE; WHEN WOULD THE UNDEFENDED LIST PROCEDURE BE APPROPRIATE

PRACTICE AND PROCEDURE: DEFENCE ON THE MERIT; WHAT IS TO BE EXAMINED IN ORDER TO DETERMINE WHETHER OR NOT A DEFENCE ON THE MERIT HAS BEEN DISCLOSED

It is settled law and desirable that the affidavit of the defendant be examined in a liberal manner in order to determine whether or not a defence on the merit has been disclosed. See; MACAULAY VS. N.A.L. MERCHANT BANK LTD. (1990) 4 N.W.L.R. (PT.144) 283; JIPNEZE VS. OKONKWO (1987) 3 NWLR (PT.62) 737 and SANTORY CO. LTD. VS. ELABED (1998) 12 NWLR (PT 572) 538. per. CHIDI NWAOMA UWA, J.C.A.

CLAIM: DOUBTS AS TO CLAIM; WHETHER EXPLANATION WOULD BE REQUIRED WHERE THERE IS DOUBT AS TO THE CLAIM

There is doubt as to the claim, explanation would be required to clear these doubts. See, NWORAH VS. AKPUTA (2010) (SUPRA). per. CHIDI NWAOMA UWA, J.C.A.

PRACTICE AND PROCEDURE: HOW THE COURT CONSIDER THE CASE UNDER THE UNDEFENDED LIST AND HOW THE COURT DETERMINE WHETHER OR NOT THE DEFENCE HAS BEEN PROVED

The position of the law is that the trial court while considering the case under the undefended list procedure ought not to determine at the stage of considering the defendant’s defence in his affidavit whether the defence will ultimately succeed. On the other hand, in determining whether the defendant has a good defence on the merit or whether he has disclosed such facts as may be deemed sufficient to allow him to defend the suit, it is not necessary for the trial court to consider whether or not the defence has been proved or whether any reasonable defence has been disclosed by the defendant as was done in this case. All that is required at that stage is simply to look at the facts deposed to in the affidavit and see if they can prima facie afford a defence to the action. A complete defence need not be shown at that stage. It is enough if the defence set up shows that there is a triable issue or that for other reasons, there ought to be a trial. See, NISHIZAWA LTD. VS. JETHWANI (1984) 1 S.C. 234 and F.M.G. VS. SANI (1990) 4 NWLR (PT.147) 688, ATAGUBA VS. GURA (2000) 7 W.R.N. 115 at 124, U.T.C. (NIG.) LTD. VS. PAMOTU (1989) 2 N.W.L.R. (PT.103) 244 and JONES VS. STONE (1894) AC. 122. per. CHIDI NWAOMA UWA, J.C.A.

JUSTICES

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria

Between

FAVOUR ELECTRONICS NIGERIA LIMITED – Appellant(s)

AND

ABDULWASIU DAN ZARIA – Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kwara State, sitting in Ilorin, delivered by T. S. Umar, J on the 8th day of February, 2013.

The Respondent herein was the plaintiff in the lower court and in his writ of summons against the Appellant claimed as follows:

1. “The claimant claims the sum of Four Hundred and Twenty Six Thousand Naira (N426,000) against the defendant being the amount due to claimant out of Five Hundred Thousand agreed upon with defendants as claimant’s commission for bringing the supply contract to defendant and which defendants have failed, refused and or neglected to pay.

2. Interest of 10% per annum from the date of judgment until the judgment debt is fully and finally liquidated.

3. Cost of this suit.”

The background facts are that the respondent herein i approached one Mr. Steve Ojukwu (the 1st defendant at the lower court) one of the directors of the appellant, informing him of a pending supply of 250 pieces of Jiling brand of generators to INEC. The contract of supply was said to have been awarded to one Salik Nig. Ltd. and same was to be facilitated by one Amedus Integrated Service Ltd. It was contended by the appellant that the respondent was neither a Director, staff nor an agent of either Amedus Integrated Service or Salik Nig. Ltd. The said Amedus Integrated Service Ltd, later paid the initial sum of N9,187,500.00 into the Appellant’s account for the award supply of the said Jiling brand of generators to INEC.

The crux of the respondent’s claim before the trial court was that a written document was executed on his behalf by one Mr. Steve Ojukwu for the commission of N2,000.00 on each supply of 250 pieces of Jiling generators. By the agreement, Exhibit 4, at page 13 of the printed records, the respondent approached the High Court by way of the undefended list procedure claiming the Sum of N426,000.00 (as against N500,000.00 indicated in Exhibit 4) as commission on “213 generators.”

The appellant upon service filed a Notice of intention to defend and attached therewith, a 34 paragraph affidavit with Exhibits B1 and B2. Mr. Steve Ojukwu, also filed his Notice of intention to defend with a 33 paragraph affidavit, with annexures.

As contained in her affidavit the Appellant made out that the respondent is not entitled to any sum claimed by him. It was the contention of the Appellant that the condition precedent for the success of the respondent’s claim has not been fulfilled since 250 Jiling generators have not been supplied and that the contract was frustrated by unforeseen circumstances.

The learned trial judge was said to have discountenanced, the Appellant’s Notice of intention to defend, the issues raised by the Appellant in her supporting affidavit with attached documents. Summary judgment was subsequently entered in favour of the respondent.

The Appellant dissatisfied with the said judgment appealed to this Court, four issues were raised for the determination of this appeal.

They are as follows:

“Whether the learned trial High Court Judge was right to have entered summary judgment in favour of the respondent when the Appellant have filed her Notice of intention to defend with affidavit and exhibits which contains triable issues that could ground a defence (Ground 1).

2. Whether the trial judge was right to have held that there is no condition attached to the contract agreement in exhibit 4 and whether the learned trial judge was right to have unilaterally removed the word “jiling” from wordings of exhibit 4 and consequently held that there is no dispute as to the commission of N2,000.00 on each generator. (Grounds 2 and 3).

3. Whether the learned trial judge was right to have considered the merit of the appellant’s defence at the stage that the appellant showed her intention to defend. (Ground 4),

4. Whether the learned trial Judge was right to have awarded the judgment sum to the respondent who was not privy/a party to the contract of supply between Amadus Integrated Services Ltd, the appellant and INEC and whether the respondent’s claim before the lower court has a legal premise (Ground 5).”

The respondent on his part raised three issues for determination. They are:

1. “Whether the appellant’s notice of intention to defend together with affidavits in support disclose any defence on the merit as to warrant a transfer of the suit to the general cause list. (Grounds 1 and 4).

2. Whether the Respondent was not entitled to the sum of N426,000.00 granted to him by the trial High Court within the meaning and interpretation of Exhibit 4 readily and willingly written and signed in his favour by the Appellant (Grounds 2 and 3).

3. Whether the learned trial judge did not consider all Exhibits attached to processes before the Court in this suit, including Exhibit 3. (Ground 5).”

When the appeal was argued, the learned counsel to the Appellant Lawrence Opoola Esq. adopted and relied on his brief of argument dated 8/11/13, filed on 15/11/13, deemed properly filed and served on 17/2/14. Also, relied upon was his reply brief dated and filed on 19/5/14, as his argument in this appeal.

In arguing his first issue, it was submitted that paragraphs 14 – 17 of the Appellant’s affidavit in the lower court were to the effect that the condition precedent to the success of the respondent’s claim to the sum alleged has not been complied with, pages 32 – 38 of the printed records. Similarly, Mr. Steve Ojukwu, sued as 1st defendant in the lower court filed his notice of intention to defend and his paragraphs 14 -18 of his supporting affidavit made it clear that the respondent’s claim was not sustainable. Exhibit 4 upon which the respondent’s case was premised was faulted.

It was the contention of the learned counsel that having faulted the claim of the respondent in the lower court as not having fulfilled the condition precedent to the payment of the commission, therefore, that a triable issue had arisen, see, NWORAH VS. AKPUTA (2010) SCNJ (PT. 1) at PAGE 13. It was argued that the subject matter upon which the claim is predicated is disputed, issues have therefore been joined on it, evidence would be required to clear the air. See, JIPREZE VS. OKONKWO (1987) 2 NWLR (PT.62) 737; ATILADE VS. ATILADE (1968) 1 ALL NLR 27 and ED. OF (NIG.) Ltd. VS. SNIG. LTD. (2013) 9 NWLR (PT.1359) 276 @ P.299 PARAGRAPHS D – E.

It was further submitted that, there is a conflict between paragraph 30 of the affidavit and paragraph 15 of the further and better affidavit in support of the writ of summons. It was argued that in such situation, the trial court ought to have dismissed the respondent’s claim on discountenancing the conflicting affidavits.

It was submitted that the lower court entering judgment in favour of the respondent without considering the appellant’s triable issues amount to a denial of fair hearing. See, ADDAX PETROLEUM DEVELOPMENT NIG.LTD. VS. DUKE (2010) ALL FWLR (PT.542) 1636 at 1657. OBARO VS. HASSAN (2013) VOL. 2-3 MJSC (PT. 111) 38 AT PG. 62 – 64 and CHIEF HAROLD SODIPO VS. LEMNIKAINEN NO. 2 (1986) 1 NWLR (PT.15) 220. It was argued that the appellant was denied the right to fair hearing. We were urged to set aside the decision.

The learned Counsel argued his second issue in two segments. First, whether, the trial judge was right to have held that there is no condition attached to the contract agreement in Exhibit 4.

It was submitted by the learned counsel that the trial court did not give a literal interpretation of the contents of Exhibit 4, the contract agreement between the parties, which revealed a condition precedent. Exhibit 4 was emphasized to be the contract agreement that formed the basis of the respondent’s claim. It was argued that the commission from the contents of Exhibit 4 was to be paid on the supply of 250 pieces of Jiling generators, to be paid in lump sum and not piecemeal. It was argued that the learned trial judge was wrong to have held that there was no condition attached to the contract. See, UBN VS SAX NIG. LTD. (1994) 6 SCNJ; DALEK NIG. VS. OMPADEC (2007) ALL NWLR (PT.364) 204 at 226; ARMIE VS. DATA PROCESSING NIG. LTD. MAINTENANCE AND SERVICE (2005) 18 NWLR (PT.958) 438 AT 476 – 477.

We were urged to interfere with the alleged wrong interpretation of Exhibit 4, which is documentary evidence, see, IWUOHA VS. NIPOST (2003) 4 SC (PT.11) at PAGE 53; JIMOH VS. AKANDE (2009) 1-2 SC (PT.1) 116 at 151 SC; CHIEF D. S. YARO VS. AREWA CONSULTATIVE FORUM (2007) 10 MJSC at PAGE 212 and OKINO VS. OBANEBIRA (1994) 5 NWLR (PT.340) 348 at 349.

Secondly, whether the trial judge was right to have unilaterally removed the word “jiling” from the wordings of Exhibit 4 and consequently held that there was no dispute as to the commission of N2,000.000 on each generator.

It was submitted that Exhibit 4 should be given a literal interpretation which is the supply of 250 pieces of jiling brand of generators and no other type. It was submitted further that the commission would only be payable if at all on the 63 pieces of Jiling generators supplied and not on the elepaq supplied by the Appellant (150 pieces) on the direct instructions by Amedus Integrated Services Ltd which was of a higher quality and price than the Jiling brand: Further, that no commission was payable on the elepaq generators which cost N12,000.00 more than the unit price of Jiling generators to which commission was payable. The learned counsel faulted the general interpretation given to the wordings of Exhibit 4, to mean that the commission of N2,000.00 was payable for the supply of each generator, omitting the brand, see, AFRI LEE LTD. VS. LEE (2013) 6 NWLR (PT.1349) (SUPRA); NIMANTEX ASSO. VS. MACRO CONSTRUCTION CO. LTD. (1991) 2 NWLR (PT.174) AT 411 and OYENEYIN VS. AKINKUGBE (2001) 1 NWLR (PT.683) at 40. We were urged to set aside the decision of the trial judge once again.

On the Appellant’s third issue, it was the argument of the learned counsel that the appellant upon receipt of the respondent’s writ marked undefended, filed her notice of intention to defend with a supporting affidavit. It was argued that the appellant had a good defence to the effect that the amount claimed is unliquidated, the subject matter of the claim was disputed, the condition precedent was not fulfilled by the respondent to be entitled to his claim and that the affidavit in support of the claim was self contradictory.

It was argued that by the learned trial judge holding that no reasonable defence was disclosed by the defendant means that the lower court examined and evaluated the entire defence of the Appellant which was said to be improper, see, ED – OF NIG. LTD. VS. SNIG NIG. LTD. (SUPRA) and ADDAX PETROLEUM DEVELOPMENT NIG. LTD VS. DUKE (SUPRA) at P.1656 – 1657 PARAS A – C.

It was further submitted that the appellant by her affidavit raised a defence which if heard on merit could ground a defence to dispel the respondent’s claims. It was the contention of the learned counsel that the appellant was shut out from his defence and that none of the parties would have been at a disadvantage if the matter had been transferred to the general cause list. See, AUDU VS. F.R.N. (2013) 5 NWLR (PT. 1348) 397 at 410.

On the appellant’s fourth and last issue, it was submitted that Exhibit 4 (the contract agreement) is the foundation of the respondent’s claim which has its roots in Exhibit 3. Further that, the contract of supply in which the respondent hoped to collect a commission was between the appellant and the Amedus Ltd as shown in Exhibit 3. The respondent was said not to be privy to the contract. It was argued that the respondent not being part of the contract cannot enforce same, therefore he cannot sue on it even where he is the beneficiary.

It was submitted that a contract only binds the parties, see, MAKWE VS NWUKOR (2001) 7 S.C. (PT. 1) 1 AT PAGE 7 and MERCANTILE BANK VS. ABUSONWAM (1986) 2 NWLR (PT.22) 270. It was argued that since a contract only affects the parties, the respondent, not being a party to the contract in this case lack the requisite locus standi to institute any action in that respect. The respondent was said not to have any link with the contract of supply of 250 Jiling generators to INEC, see, NYAME VS. FRN (2010) 3 S.C (PT. 1) 78 AT 87. We were urged to hold that the lower court had no jurisdiction to adjudicate upon the matter.

Further, that Exhibit 4 purportedly made on behalf of the respondent was not signed by him. We were urged to invoke Section 15 of the Court of Appeal Act to set aside the trial courts Judgment and dismiss the respondent’s claims.

In response, the learned counsel to the respondent T.N. Olaitan Esq. with M.O. Ibrahim in arguing his first issue, submitted that it is not in every situation where a defendant files a notice of intention to defend an undefended list suit that the case is automatically transferred to the general cause list, facts deposed to in the supporting affidavit must disclose triable issues that disclose a defence on the merit, see Order 23 Rule 3(1) of the Kwara State High Court (Civil Procedure) Rules, 2005, OKOLI VS. MORECARB FINANCE NIG. LTD. (2007) ALL FWLR (PT.369) PG.1164 at 1185, 1159 PARAGRAPHS D – F.

It was argued that the Appellant failed to disclose by its affidavit, dry defence on the merit to necessitate a transfer oi the suit to the general cause list. Further, that the argument that Steve Ojukwu’s name was not in Exhibit 4 is a new issue that needed the leave of this court sought and granted before it could be argued, see, OPOBIYI VS. MUNIRU (2011) M.J.S.C. VOL. 12 (PT 11) 14 -15, PARAGRAPHS G – B.

It was the submission of the learned counsel that the fact that a different brand or model of generators were supplied did not frustrate the agreement in Exhibit 4 and would not prevent it from being operative between the parties, no doubt was created as to require the Respondent herein to make any explanation, NWORAH’S CASE (supra) was said not to be relevant.

It was argued that the Appellant was accorded fair hearing by the lower court since her affidavit evidence was considered.

Further, that the Respondent’s claim was not disputed by the Appellant also that the issue of whether the contract was frustrated or not is an issue of law that could be resolved on affidavit evidence of the parties without calling evidence. The learned counsel reviewed the contents of the Appellant’s written address to support her notice of intention to defend and the affidavit in support, in paragraph 4.25, pages 13 -15 of his brief of argument, responded to same.

It was argued that the amount owed was not disputed and no conflict between the Respondent’s claim and his supporting affidavits, further, that the case of OBARO VS. HASSAN (SUPRA) relied upon by Appellant does not apply to this case.

On the respondent’s second issue, it was submitted that the respondent is entitled to the N426,000.00 granted to him as per his claim before the lower court. It was argued that by virtue of Exhibit 4, the appellant made a promise to the respondent the sum of N500,000.00 commission for the supply of 250 generators at N2,000.00 per generator. It was argued that by virtue of Section 169 of the Evidence Act, 2011, the appellant is stopped from denying his obligations to the Respondent under the above Exhibit. See, OYEROGBA VS. OLOPA (1998) 13 NWLR (PT.583). It was the submission of the learned counsel that the respondent having supplied 213 generators out of the 250 agreed upon, is under obligation to pay the Respondent N426,000.00 being the amount due to him on the doctrine of “quantum meruit” basis i.e. the value of the contract executed. We were urged to hold that the respondent is entitled to the sum granted him by the trial court. It was also agreed that 63 jiling generators were supplied and others which made up the 213 supplied but that the 37 generators not supplied were later supplied through another supplier.

It was argued that Exhibits 1 and 2, at pages 8 and 9 of the records, are letters of award specifying the brands of generators needed, shown to the 1st defendant before the agreement to pay the commission, knocks off the argument that the Respondent is not entitled to any commission on the 150 Elepaq generators supplied.

On the respondent’s third issue, it was the submission of the learned counsel that the learned trial judge considered all the relevant documents before arriving at its decision. It was argued that the appellant’s director who signed Exhibit 3 also signed Exhibit 4 which are binding on the Appellant. Further, that Exhibits 7 and 8 attached to the Respondent’s further and better affidavit nullified the credibility of the Appellant’s Exhibits B1 and B2 which were said to have been procured after the goods which they were to transport had been procured. It was submitted that the affidavit evidence of the Appellant failed to show why the suit should be transferred to the general cause list; it was argued that no triable issue had been raised. Further, that the commission agreement was between the Appellant and Respondent as contained in Exhibit 4. It was concluded that no law prevents the respondent from collecting his commission as agreed upon in Exhibit 4. The challenge of locus standi of the respondent was said to be misconceived. We were urged to dismiss the appeal.

In reply to the submissions of the learned counsel to the respondent, Mr. Opoola submitted that the sum of N500,000.00 in Exhibit 4 is disputed as well as the sum of N426,000.00 claimed by the respondent. It was argued that it is by calling oral evidence that all the issues that arose in this case could be properly determined. The issues were enumerated in paragraphs (a) – (h), in the reply brief, paragraph 2.3.

It was submitted that the variation of the contract by the supply of Elepaq generators instead of Jiling brand, and the difference of N2,000.00 per unit price are triable issues that require oral evidence. It was also argued that the validity or otherwise of Exhibits B1 and B2 is a new issue being raised on appeal which needs the leave of this court sought and granted. We were urged to discountenance the argument concerning these Exhibits. It was stressed that Jiling generators are not the same brand as Elepaq and cannot be generalized to be the same. The issue as to who signed Exhibit 4 and who did not, it was argued, cannot be properly resolved through affidavit evidence.

Further, that the elements constituting frustration are factual issues that cannot also be resolved by affidavit evidence. The learned counsel distinguished OBARO’S case from LEMNIKANIEN’S case, in arguing that the latter is not applicable to this case while the former is . We were urged to critically examine Exhibit 4 and evaluate same in its strict and common meaning in respect of a condition precedent for the fulfillment of the payment of N2,000.00.

The third issue was argued not to arise from ground five of the grounds of appeal. We were urged to strike out the third issue as not having arisen from any ground of appeal. In the alternative, concerning this issue, we were urged to discountenance same in which the respondent relied on his further and better affidavit and Exhibits 3 and 4, which were discountenanced by the trial court. See paragraph 4.14 of the respondent’s brief of argument.

I have examined all the issues formulated by the parties and would utilize those of the Appellant to determine the appeal. These issues encompass those of the respondent’s. I would consider the appellant’s issues in the following order, issue, 1, 3, 2 and 4.

The case in the High court was decided under the undefended list procedure in which judgment was given in favour of the defendant. The Appellant under his first issue has challenged this procedure and contended that the above procedure ought not to have been followed, since the appellant filed her Notice of intention to defend with supporting affidavits and Exhibits. The Appellant made out that the depositions in the affidavits and the contents of the Exhibits raised triable issues that could ground a defence to the action.

(a) A claim to recover a debt or liquidated money demand;

(b) An Affidavit setting forth the grounds upon which the claim is based; and

See, HIMMA MERCHANTS LTD. VS. ALIYU (1994) 5 NWLR (PT.346) 667 at 676, A.I.B. VS. PACKOPLAST (2001) 30 WRN 141 at 162 and GARBA VS. SHEBA INT. (NIG) LTD. (2002) 1 NWLR (PT 748) 372 at 403.

Where a respondent has filed a Notice of intention to defend the action and filed affidavits with Exhibits, these must be closely examined to determine whether triable issues have been raised, not necessarily that the respondent would succeed in the contest. The question that now arises is: How would the court be satisfied that there is a triable issue? The Rule of Court cited and relied upon by the learned counsel to the respondent herein is Order 23(3)(1) of the Kwara State High Court (Civil Procedure) Rules (2005) which provides thus: ,

23(3)(1):

“If the party served with the writ of summons and affidavit delivers to the Registrar, not less than 5 days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”

From the above Rule, the court would be satisfied that there is a triable issue. First, there has to be a notice that he intends to defend, secondly, there has to be an affidavit setting out the grounds of his defence. The defendant’s affidavit has to be examined alongside the plaintiff’s affidavit in support of the claim in order to determine whether there is a triable issue, not necessarily that the defendant would succeed, see, G,S. and F.C. LTD VS OBIEKEZIE (1997) 10 N.W.L.R. (PT 526) 577 AT 587.

On the other hand, the undefended list procedure would, be appropriate where the court is satisfied that there are good grounds for believing that there is no defence to the claim or where there is no dispute as to the debt or liquidated sum of money which can be ascertained from the affidavits filed by the parties. As highlighted by Mr. Opoola the appellant sued in the lower court as 2nd defendant in his 33 paragraph affidavit deposed on his behalf attached to the Notice of intention to defend the suit, see pages 31-38 of the printed records, ‘paragraphs 14, 15, 16 and 17 have challenged the respondent’s power to take out the action in the first place, not having fulfilled the condition precedent to the eventual success of the respondent’s claim to the alleged sum thus, challenging the jurisdiction of the lower court to entertain the matter in the first place. The respondent was said not to have supplied the jiling generators requested for to be entitled to commission.

Further, the depositions in paragraphs 22, 23, 24, 25, 28, 30 and 31 disputed the amount the appellant is indebted to the respondent if at all, The appellant denied any liability to the respondent in paragraphs 24, 30 and 31. The appellant also challenged the cause of action, as non existent in paragraph 25. For ease of reference, I will reproduce hereunder the depositions in paragraphs 22, 23, 24, 25, 26, 27, 28, 30 and 31 of the affidavit deposed on behalf of the appellant as 2nd defendant in the lower court.

22. “That I know the 2nd defendant. Defendant is not indebted to the claimant in the sum of N426,000.00, 10% interest and cost of the suit.

23. That I know as a fact that based on the claimant (sic) action and the basis of same, I know that the cause of action is not ripe as only 63 Jiling generators were supplied.

24. That I also know as a fact and from the totality of claimant’s affidavit nothing was alleged against the 2nd Defendant. In fact, it was claimant’s evidence that it was 1st Defendant that owes him the amount being claimed.

25. That I know as a cat (sic) that claimant’s (sic) in his suit did not disclose any reasonable cause of action against the 2nd Defendant.

26. That aside the above, the totality of the claimant’s evidence as contained in his affidavit did not support his claim on the writ.

27. That I know it will serve the interest of Justice to dismiss this suit as touching the 2nd Defendant whose inclusion appears to be fanciful.

28. That alternatively, I know it will serve the interest of Justice to allow the 2nd Defendant to defend this suit on the merit.

29. That I know that there is no agreement written or oral between the claimant, 2nd Defendant and myself to pay the claimant for bringing the contract of supply to us or to pay him upon supply of Elepaq brand of generators.

30. That I know that there is no agreement written or oral between the claimant, 2nd Defendant and myself to pay the claimant for bringing the contract of supply to us or to pay him upon supply of Elepaq brand of generators.

31. That I know that the 2nd Defendant has a good defence to this suit and I also know that the 2nd Defendant is not indebted to the claimant as per his claims in this suit”.

From the above depositions, it is clear that the appellant did not accept or concede the alleged debt and has obviously raised defences that could only be determined through full trial and oral evidence. It is settled law and desirable that the affidavit of the defendant be examined in a liberal manner in order to determine whether or not a defence on the merit has been disclosed. See; MACAULAY VS. N.A.L. MERCHANT BANK LTD. (1990) 4 N.W.L.R. (PT.144) 283; JIPNEZE VS. OKONKWO (1987) 3 NWLR (PT.62) 737 and SANTORY CO. LTD. VS. ELABED (1998) 12 NWLR (PT 572) 538. Further, Exhibit 4, upon which the respondent’s claim was centred in the lower court was also challenged by the appellant in that Mr. Steve Ojukwu (to defendant in the lower court) who purportedly signed Exhibit 4, his name was said not to be contained in the said Exhibit. Also, as I stated earlier in this judgment, the appellant made out that the condition precedent, for the payment of commission to the respondent if at all was on the supply of 250 Jiling generators which the respondent admitted in his supporting affidavit to the originating summons that he could not fulfill but supplied less due to scarcity of same, thus, frustrating the contract. These are triable issues that cannot be resolved through affidavit evidence but full blown trial and as rightly argued by Mr. Opoola, the safest thing to do would have been for the lower court to have transferred the suit to the general cause list. There is doubt as to the claim, explanation would be required to clear these doubts. See, NWORAH VS. AKPUTA (2010) (SUPRA).

There is certainly a dispute as to the claim of the respondent’s in the lower court and his capacity to take action in the first place. Issues have been joined, which can only be determined by evidence. Further, the amount claimed is also in dispute. The learned counsel to the respondent has not argued anywhere that it is not

In my humble but firm view, I am of the opinion that the learned trial judge ought to have considered the triable issues considering the circumstances of this case. Every case must be examined with its surrounding circumstances and not to be determined based on general principles of law, as was done in this case. This amounts to a denial of the right to fair hearing, more so, where the appellant filed a Notice to defend and defences to the action. Whether, the defences would succeed or not is a different thing altogether see, OBARO VS. HASSAN (2013) (SUPRA) and CHIEF HAROLD SODIPO VS. LEMNIKAINEN (SUPRA).

At page 86 of the printed records the learned trial judge was correct when he held that the object of the undefended list procedure is to enable a claimant whose claim is unarguable in law and the facts are undisputed to obtain judgment expeditiously also, when he held that the aim of the procedure is not to shut out a defendant who wants to contest a suit brought under this procedure, merely to obtain a speedy trial at the expense of justice but did a turn around when he held thus:

“I cannot see any reasonable defence disclosed by the defendants other than that the contract was executed by the 1st defendant on behalf of the 2nd defendant. The 2nd defendant is therefore, liable for the sum of N426.00.”

In my respectful view, the above view is erroneous. A defence has been raised and ought to have been tested by the matter being transferred to the general cause list, pleadings to be ordered and the parties given a chance to lead evidence whether the contract was executed by the 1st defendant on behalf of the 2nd defendant, the terms, the breach or fulfillment, whatever the case may be, before a final determination of the case. I hold that the appellant’s affidavit in the lower court contained triable issues that could ground a defence. I resolve the first issue in favour of the Appellant.

The third issue is as to whether the learned trial judge was right to have considered the merit of the appellant’s defence at the stage that the appellant showed her intention to defend.

The learned trial court had held at page 86 of the printed records that there is no “reasonable defence disclosed by the defendants.” By this, the trial court examined the contents of the affidavit of the defendant (now appellant) as well as the Exhibits attached in deciding that no reasonable defence had been disclosed by the defendants. All that the defendant sought at this stage is to be let in to defend the action not to prove their case or,defence at that stage. It was erroneous for the learned trial judge to have held that no reasonable defence had been disclosed. The issue at this stage is not whether the defence put forward by the defendant had been proved or established in the affidavit and Exhibits in support but, whether there are facts on record, disclosed in the affidavit, which if proved, could ground the proposed defence on merit. It is merely a proposed or line of defence the defendant wants to put forward.

I have earlier in this judgment highlighted areas in which the parties are not agreed upon but, disputed and therefore, need explanations as to whether any sum is owed at all and if in the affirmative, how much was owed, worse still whether there is a cause of action in the first place and if there is whether the claimant was part of the agreement in dispute or not. In my respectful view, this case qualifies for the matter to have been transferred from the undefended list to the general cause list to be determined on merit. Once the defendant’s affidavit discloses a triable issue which cannot be effectively resolved on the basis of affidavit of both parties, it is incumbent on the trial court to hold that the defendant has successfully put up a defence that requires further scrutiny and thereafter grant leave for the suit to be defended. The effect would be to transfer the list to its general cause list for full trial. See, ED OF NIG. LTD. VS. SNIG NIG. LTD. (2013) PT (1359) (SUPRA). All that is required at this stage is whether a triable issue has arisen not assessment of the defence proposed to be put up and determining the case on this ‘ basis. The lower court was wrong to have done so.

I am in agreement with the learned counsel to the Appellant that none of the parties would be disadvantaged if the trial court had transferred the suit to the general cause list. I am of the considered view that the trial court did not give the appellant the opportunity of being fully heard before judgment was entered in favour of the respondent without a defence on the part of the appellant. In the interest of justice, the appellant’s defence ought to have been considered, he ought not to have been shut out from raising his defence, see, SAO VS. HAKIM 5. T.L.A. 72.

In my firm view, the affidavit of the appellant with the attached Exhibits raised substantial issues that ought to be highlighted upon trial as well as the contents of the affidavit in support of the originating summons which ought not to have been scrutinized and decided upon thus, giving a final decision by the lower court. This method adopted by the trial court is wrong. Whether the defence raised is sufficient or reasonable in respect of the present action ought not to have been determined at this stage. All that was ought by the appellant was to be permitted to defend the action, see, JOCOB VS. BOOTHS DISTILLERY CO. (1901) 85 L.T. 262.

I am of the view that the appellant had a right to defend the action when she disclosed from her defence that she has a legitimate issue(s) to be tried in view of the nature of the claim against her. The failure of the lower court to oblige the appellant a defence, has occasioned a miscarriage of justice. I will on this basis interfere with the decision of the trial count. I hold that the trial court ought to have allowed the appellant defend the action in the lower court, I hereby allow same and hold that the learned trial judge was wrong to have considered the merit of the Appellant’s defence at the stage when all the appellant showed was her intention to defend the suit and the line of defence. The third issue is resolved in favour of the appellant.

Having decided the Appellant’s issues one and three in her favour, I would not go into resolving issues two and four which touch on the substantive issues before the court in which the appellant was not accorded the opportunity to defend on merit.

In conclusion, having faulted the procedure under which the trial court resolved the issues between the parties, the appeal succeeds and it is hereby allowed. The decision of the High court of Kwara State, delivered on 8th day of February, 2013, is hereby set aside. The case is remitted to the Chief Judge of Kwara State to be heard on the merits on its transfer to the general cause list to be heard by a Judge other than the trial Judge. Parties to bear their respective costs.

HUSSEIN MUKHTAR, J.C.A.: In an undefended suit, the court must first and foremost satisfy itself is that the nature of the claim is for recovery of debt or liquidated money demand otherwise it cannot be entertained under an undefended list procedure.

However, the courts must not simply rush to judgment as soon as they see a suit placed on the undefended list. It is apposite that a suit placed on the undefended list merely invites the defendant to signify his intention to defend the suit by filing o notice of intention to defend supported by an affidavit disclosing a defense on the merit. The trial court may only proceed to enter judgment on the undefended list if the defendant, after being served, fails to file a notice of intention to defend the action or where the affidavit supporting the notice of intention to defend does not disclose a prima facie defense on the merit.

The procedure adopted by the learned trial judge was tantamount to serious derailment in undefended action proceedings. I am therefore in complete agreement with my lord and brother Chidi Nwaoma Uwa, JCA and subscribe to the more detailed reasons in the lead judgment and the conclusion that the appeal is meritorious. I allow the appeal and adopt the consequential orders made in the lead judgment.

MUSA HASSAN ALKALI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Chidl Nwaoma Uwa JCA.

In my firm view, he has dealt adequately with issues one and three raised therein on lack of fear hearing which occasioned the miscarriage of justice contravening fundamental issue constitutionally. The remaining two issues are not so important to be analysed critically.

I hereby hold that the trial court ought to have allowed the appellant Favour Electronic Nigeria Limited defend her action in the lower court. I am in total agreement that the decision, of the High Court of Kwara State delivered on the 8th day of February, 2013 is hereby set aside. The case is remitted to the chief judge of Kwara State to be heard on its merit.

Appearances

Lawrence Opoola Esq.For Appellant

AND

T. N. Olaitan Esq. with M.O. Ibrahim Esq.For Respondent