JOHNBULL ADAMS NIGERIA LIMITED & ORS. V. ISOKO COMMUNITY BANK LIMITED (2013)

JOHNBULL ADAMS NIGERIA LIMITED & ORS. V. ISOKO COMMUNITY BANK LIMITED

(2013)LCN/6209(CA)

In The Court of Appeal of Nigeria

On Friday, the 17th day of May, 2013

CA/B/236/2008

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKUKO-SODIPE Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. JOHNBULL ADAMS (NIG) LTD
2. JOHNBULL ADAMS
3. URIEH JAMES Appellant(s)

AND

ISOKO COMMUNITY BANK LTD Respondent(s)

RATIO

WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY A TRIAL COURT

Undoubtedly, the discretion of the judge is the power or right conferred by the law, on a court in acting in certain circumstances according to the dictates of his own judgment and conscience, uncontrolled by the judgment or conscience of others, so it is unfettered. See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Hence, it is the court exercising its discretion which depends upon the peculiar circumstances of the case before it, who can limit itself in the exercise of that discretion. See ICAN V. Attor. Gen. Federation (2004) 3 NWLR (pt. 859) 186; Odusote v. Odusote (1971) 1 All NLR 219; Udeze V. Ononuju (2001) 3 NWLR (pt. 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt.690) 414; NICON Hotel Inter. SA v. NICON Hilton Hotels & Anor. (2007) 7 NWLR (Pt.1032) 86 at 113 – 114.An appellate court does not usually interfere with the exercise of discretion by a trial court, except where the exercise of such discretion was under a mistake of law, whether substantive or procedural or a misapprehension of the facts before that court or that the court considered irrelevant things or the exercise of the discretion worked an injustice to any or both of the parties before it. See: Ojiako V. Attor. Gen. Anambra State (2000) 1 NWLR (pt. 641) 375; Solanke V. Ajibola (1969) 1 NMLR 253; NICON Hotels Inter. S. A V. NICON Hilton Hotels Ltd & Ors. (supra). PER YAKUBU, J.C.A.

THE POSITION OF THE LAW WITH RESPECT TO SUITS ON THE UNDEFENDED LIST

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The respondent as plaintiff initiated proceedings under the undefended list at the Registry of the High Court of Justice, Oleh, on the 24th day of April, 2007.
Leave was granted to the respondent to issue and serve writ of summons and other processes on the defendants in Lagos and to place the suit on the undefended list on 24/5/07. The claim of the respondent as endorsed on the writ of summons is as follows:-
1. The sum of N1,710,000.00 (One million, seven hundred and ten thousand naira) being the amount outstanding inclusive of the interest on the investment facility granted the 1st defendant by the plaintiff.
2. The appellants filed several notices of intention to defend the suit at the lower court. The first filed on 12/7/09 was on behalf of the 1st and 2nd appellants, the second filed on 17/7/09 was on behalf of all the appellants and the third filed on 19/10/09 was on behalf of the 1st and 2nd appellants only.
The proceedings commenced on 24/5/09 when the suit was placed on the undefended list and the writ of summons ordered to be marked undefended by the lower court. (See pages 71-72 of the record). On 3/7 /07 judgment was entered against the 3rd appellant, 3rd appellant having failed to file a notice of intention to defend and an affidavit disclosing a defence on the merit inspite of service of the processes of the respondent on the 3rd appellant on 5/6/07. Counsel for the appellant admitted that the 3rd appellant had no defence (See page 72 of the record). Hearing of the suit against 1st and 2nd appellants was adjourned to 18/7/07. (Page 72 of the record). The suit was adjourned on many occasions principally at the instance of the appellants from 18/7 /07 to 8/8/07, from 8/8/09 to 24/10/09, from 24/10/07 to 21/11/07, from 21/11/09 to 18/12/2007. On 21/2/08 appellants’ counsel addressed the court after his application to further adjourn the proceedings was refused by the lower court upon the opposition of the respondent. (See pages 77 – 78 of the record). The trial court adjourned for judgment to 8/4/08 after arguments have been taken from both counsel. On the 8/4/08 the lower court delivered a considered judgment which was entered in favour of the respondent. (See pages 79 – 83 of the record).
The appellant being dissatisfied with the judgment of the lower court filed a Notice and Grounds of Appeal dated 14/4/08 (See pages 84 – 86 of the record).
The appellants’ notice of appeal contain five grounds to wit:
“GROUND (1) THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE DEFENDANTS/APPELLANTS WERE INDEBTED TO THE PLAINTIFF WHEN THERE IS NO EVIDENCE TO THE EFFECT.
PARTICULARS:
1. The Plaintiff tendered Exhibit “D” the statement of account No.INV084 opened by the plaintiff Bank on the 21st day of June, 2001 but was operated between the 29th of January 2001, to March 2004.
2. There is no evidence that the Defendants operated the said Account No.INV084 with the Plaintiff Bank.
3. The statement of account of the 1st Defendant which was opened and operated by the Defendants and through which the Defendants applied for the loan facility was not before the court. Yet judgment was given in favour of the Plaintiff.
GROUND (2) THE TRIAL JUDGE ERRED ON THE FACTS WHEN HE DID NOT PROPERLY EVALUATE THE EVIDENCE BEFORE TRANSFERRING THE MATTER TO THE UNDEFENDED LIST.
PARTICULARS:
1. The Plaintiff’s Exhibit “D”, statement of account No.INV084, from 1st January, 2001, to December 2004 was exhibited while the said account was opened by the plaintiff on the 21st day of June, 2001.
2. The said account was opened with a debit entry of N400,000.00 without evidence of the source of the money and before the account was opened on the 29th day of January, 2001.
3. The Statement of Account of the 1st Defendant, Account No.2833 through which the loan facility was granted was not exhibited even when allusion was made to it in the affidavit, yet the learned trial judge went ahead to place the matter in the undefended list.
4. The entries in exhibit “D” did not reflect the transaction between the parties.
GROUND (3) THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE REFUSED TO ENTERTAIN THE COUNTER AFFIDAVIT OF THE DEFENDANTS AND THE NOTICE OF INTENTION TO DEFEND.
PARTICULARS:
1. The 1st and 2nd defendants filed a notice to defend out of time and an affidavit disclosing a defence.
2. The reason for filing out of time was explained in the affidavit in support of motion for enlargement of time within which to file but the court went ahead to give judgment for the plaintiff without hearing evidence.
GROUND (4) THE TRIAL JUDGE ERRED IN LAW WHEN HE REJECTED THE APPLICATION FOR ENLARGMENT OF TIME WITHIN WHICH TO FILE THE AFFIDAVIT DISCLOSING DEFENCE, ONLY TO TURN ROUND AND PRONOUNCE ON THE DEFENCE.
PARTICULARS:
1. The trial Judge held that the affidavit disclosing defence was filed out of time and therefore rejected it.
2. The same trial Judge held that there is no defence disclosed in the affidavit.
GROUND (5) THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE.”
The appellants, in order to prosecute the appeal, through his counsel – M. K. Agienoji, Esq., who settled the appellants’ brief of argument dated 19th October, 2009; filed the same on 19th October, 2009.
In the said brief of argument, two issues were distilled from the grounds of appeal and formulated thus:
“ISSUE 1 (GROUNDS 1 & 2)
1. Whether it did not amount to a denial of fair hearing for the learned trial judge to refuse the Appellants’ application for enlargement of time to file the notice of intention to defend.
2. ISSUE 2 (GROUNDS 3, 4 AND 5)
Whether the learned trial Judge was right when he failed to entertain the Appellants’ Counter Affidavit and Further and Better Affidavit disclosing the defence and yet proceeded to pronounce on the defence in the judgment.”
The respondent’s brief of argument which was settled by Dr. O. K. Edu, of learned counsel, was dated 25th May, 2012 and filed on 30th May, 2012, pursuant to the order of this court made on 23rd May, 2012. In the said respondent’s brief of argument, the sole issue formulated, for determination is:
“WHETHER THE JUDGMENT OF THE LOWER COURT AS BETWEEN 1ST AND 2ND APPELLANTS AND THE RESPONDENT WAS CORRECT HAVING REGARD TO THE FACTS BEFORE THE COURT.”
I am satisfied with the sole issue formulated by the respondent for the determination of this appeal, because to my mind, it is precise and straight forward, in considering and determining this appeal, hence it is adopted by me accordingly.
Arguing his issue 1, appellants’ counsel contended that the refusal by the learned trial judge of the appellants’ application for extension of time to file their notice of intention to defend the respondent’s suit on the undefended list was tantamount to a denial of fair hearing. He anchored his submission on Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and the authorities of University of Ilorin v. Oyalana (2001) 52 W.R.N. 75; Olatuboson V. NISER Council (1988) 3 NWLR (pt.80) 25.
Learned counsel submitted that the reason advanced by the appellants for the delay in filing their notice of intention to defend the suit, from their affidavit evidence was principally due to appellants’ change of counsel on three occasions, which the learned trial judge found to be true. Therefore, the latter ought to have exercised his discretion judicially and judiciously in favour of the appellants’ application for extension of title, to file their notice to defend the suit on the undefended list. He referred to paragraphs 3, 4, 5, 6 and 7 of the appellants’ affidavit in support of the motion on notice for extension of time dated 22/1/2008.
Furthermore, learned appellants’ counsel submitted that the essence of the rules governing the undefended list is to guarantee justice for the defendant who may default in filing his intention to defend the suit, but must not be shut out, if he later applies for extension of time to so defend the suit. He relied on Order 22 Rule 3(1) of the Defunct Bendel State High Court (Civil Procedure) Rules, 1988 which was applicable to Delta State and the authorities of this court in Aubergine v. HNB Ltd (2002) 28 WRN 114 at 123 – 124; Santory Co. Ltd V. Elabad (1998) 12 NWLR (pt. 579) 538.
Appellants’ learned counsel therefore contended that in the circumstances and facts of this case, the failure of the learned trial judge to exercise his discretion in favour of the appellants was tantamount to a denial of justice. He relied on Adigun V. A.G. Oyo State (1987) 1 NWLR (pt. 53) 678.
With respect to his issue 2, learned appellants’ counsel submitted that the learned trial judge having refused granting the application for extension of time to file the appellants’ notice of intention to defend the suit on the undefended list, still went ahead and evaluated the defence of the 1st and 2nd appellants’ and ultimately came to the conclusion that the said appellants had no defence to the claim of the respondent on the undefended list. Learned counsel submitted that there was enough particulars supplied by the 1st and 2nd appellants in their affidavit evidence and that triable issues had arisen between the said appellants and the respondent, which would have necessitated the transfer of the suit on the undefended list to the general cause list, for trial and determination. He relied on Okanume v. UAC Plc (2002) 24 WRN 114; Ataguba & Co. v. Guara (Nig) Ltd (2005) 6 NJSC 155 at 173 – 174; Paragraphs 15, 16, 18, 19, 23, 25, 26 and 30 of the 1st and 2nd appellants’ affidavit in support of the application of their intention to defend the suit.
Furthermore, the appellants’ counsel contended that the respondent’s claim that the investment facility advanced to appellants was operated on an investment account was denied by the 1st and 2nd appellants who insisted that the said investment facility was operated on the 1st appellant’s account No.2833. Therefore, according to appellant’s learned counsel, the affidavit evidence tendered by the 1st and 2nd appellants, evince triable issues between them and the respondent which necessitated the filing of pleadings and offering evidence by the parties, to meet the justice of the case.
Learned appellants’ counsel also submitted that the learned trial judge did not properly evaluate the affidavit evidence placed by the appellants before him, hence he erroneously refused to grant them leave to defend the suit on the undefended list, and that this court can revisit the evaluation, in order to meet the justice of this case. He referred to Gaji V. Paye (2003) 12 MJSC 76; Ndidi V. Akinsumade (2000) 8 NWLR (Pt. 668) 293; Ebba V. Ogodo (1984) 4 SC 8; Adewuyi V. Ndukwe (2000) 9 WRN 127.
He urged us to allow the appeal, set aside the decision of the court below and hold that the appellants’ notice of intention to defend the suit, discloses a defence on the merit and order a retrial of the suit by another judge.
Learned counsel to the respondent, arguing his sole issue for determination, submitted that the essence of the rules governing suits on the undefended list are deliberately designed for the quick dispensation of justice and to avoid unnecessary delay in trial of such suits. He referred to Mat Holdings Ltd V. UBA Plc. (2003) 2 NWLR (pt. 803) 71 at 90. And that the grant of leave for extension of time to file notice of intention to defend a suit on the undefended list, is at the discretion of the court which can only be exercised on legal evidence or materials placed before it by the defendants. He relied on Menakaya V. Menakaya (2001) FWLR (pt.76) 742. He contended that the 1st and 2nd appellants did not place any material facts before the court below to have warranted it to exercise its discretion in their favour.
Learned counsel submitted that an affidavit in support of the notice of intention to defend the suit on the undefended list on the merit could not be solely intended to delay and frustrate justice. He placed reliance on Macaulay V. NAL Merchant Bank Ltd (1990) 4 NWLR (pt.144) 283; Agro Millers Ltd. V. Continental (Nig) Plc (1997) 10 NWLR (Pt.525) 469; Nishizawa V. Jethwani (1984) 12 SC 234.
Learned counsel to the respondent, furthermore submitted that the 1st appellant operated two accounts: No.2833 as a current account and an Investment account No. INV084 with the respondent and that the investment facility of two million naira (N2,000,000.00) granted to the appellants by the respondent, was operated on the investment account and not the current account. He also submitted that the affidavit evidence tendered by the 1st and 2nd appellants, did not show that they have liquidated the investment facility granted to them by the respondent.
Referring to paragraph 13 of the Further and Better Affidavit of the 1st and 2nd appellants in support of the notice of intention to defend the suit on the undefended list, learned respondent’s counsel submitted that Exhibit “C” annexed to the respondent’s motion, indicated that the 2nd appellant having collected/received the facility of N2m on 29/06/2001, also “gave a personal guarantee as part of security of the facility granted the 1st appellant.” Therefore, according to learned counsel, the 2nd appellant cannot now deny that fact.
It is also the further submission of respondent’s counsel that the appellants’ contention that “there had been numerous withdrawals from the 1st Appellant’s Account No. A/C 2833 which were not authorised by the 2nd Appellant”, was tantamount to an allegation of fraud which had no particulars to support it, hence the said allegation go to no issue. He relied on Udemba V. Moreeb Fin Ltd (2003) 1 NWLR (pt. 800) 90 at 107 – 108; Aso Motel Kaduna Ltd V. Deyamo (2007) All FWLR (pt.390) 1444 at 1475 – 1476.
Learned respondent’s counsel therefore urged that this appeal be dismissed.
RESOLUTION OF ISSUES
The 1st and 2nd appellants’ application dated 22nd January, 2008 and filed on 23rd January, 2008 prayed for two reliefs, to wit:
“1. Leave to file the Defendants/Applicants notice of Intention to defend out of time.
2. An order deeming the notice of intention to defend dated 18th day of October, 2007, as having been properly filed and served the appropriate filing fees having been paid.”
Paragraphs 3, 4, 5 and 6 of the affidavit in support of the said application indicate that three separate law firms/counsel had been engaged by the appellants to conduct their case for them at the court below. The said counsel were named as Messrs: Emebuho, Oyati and Onyia. D.O. Emebuno Esq., had first filed a notice of intention to defend the suit within time. He thereafter withdrew his appearance for the appellants from the action. Thereafter, E. A. Oyati, Esq., filed a Further and Better Counter-affidavit in support of the notice of intention to defend. He later filed another notice of intention to defend dated 18th October, 2007. He again, thereafter withdrew his appearance for the appellants, from the proceedings at the court below.
The appellants then engaged the services of another counsel – the third one, that is M. A. Onyia, Esq., who having perused the processes earlier filed with respect to the notice of intention to defend the suit, discovered that the time for filing the said notice of intention to defend the suit had lapsed before it was even filed by the former counsel – E. A. Oyati, Esq., Hence prayer 1 of the appellants’ application aforesaid became inevitable.
The learned trial judge in his judgment particularly at pages 80 – 81 of the record of appeal rightly opined that:
“The grant of leave for extension of time to file a notice of intention to defend lies within the discretionary jurisdiction of the court. For this court to grant the leave, it is the burden of the defendants to present material facts necessary for the exercise of the discretion.”
That is the correct statement of the law. However, the learned trial judge, having considered the application, came to the conclusion that:
“Hence no such reasons have been advanced. Leave is refused. Leave is not granted for the 1st and 2nd defendants to file a notice of intention for defend out of time.”
In effect, the learned trial judge refused to exercise his discretion in favour of the 1st and 2nd appellants. Undoubtedly, the discretion of the judge is the power or right conferred by the law, on a court in acting in certain circumstances according to the dictates of his own judgment and conscience, uncontrolled by the judgment or conscience of others, so it is unfettered. See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Hence, it is the court exercising its discretion which depends upon the peculiar circumstances of the case before it, who can limit itself in the exercise of that discretion. See ICAN V. Attor. Gen. Federation (2004) 3 NWLR (pt. 859) 186; Odusote v. Odusote (1971) 1 All NLR 219; Udeze V. Ononuju (2001) 3 NWLR (pt. 700) 216; Oyekanmi v. NEPA (2000) 15 NWLR (pt.690) 414; NICON Hotel Inter. SA v. NICON Hilton Hotels & Anor. (2007) 7 NWLR (Pt.1032) 86 at 113 – 114.

An appellate court does not usually interfere with the exercise of discretion by a trial court, except where the exercise of such discretion was under a mistake of law, whether substantive or procedural or a misapprehension of the facts before that court or that the court considered irrelevant things or the exercise of the discretion worked an injustice to any or both of the parties before it. See: Ojiako V. Attor. Gen. Anambra State (2000) 1 NWLR (pt. 641) 375; Solanke V. Ajibola (1969) 1 NMLR 253; NICON Hotels Inter. S. A V. NICON Hilton Hotels Ltd & Ors. (supra).
Having perused paragraphs 3, 4, 5 and 6 of the affidavit of the appellants’ in support of their application for leave to file the notice of intention to defend the suit, out of time, it is crystal clear that the reason for the application of 23rd January, 2008, especially prayer 1 thereof, was as a result of changes in counsel who earlier handled the matter for them. And as the changes in counsel were taking place, time was not standing still for the 1st and 2nd appellants.
Therefore, the learned trial judge was not on a strong wicket when he opined that no reason was proferred by the 1st and 2nd appellants for the delay in filing the notice of intention to defend the suit.
I am of the considered opinion that, in the circumstances of this case, I must interfere with the exercise of the discretion by the learned trial judge, which to my mind, worked an injustice to the 1st and 2nd appellants. It cannot be said that the 1st and 2nd appellants were idle and lackadaisical in taking steps to file their notice of intention to defend the suit on the undefended list. They were not. They might have not been satisfied with the conduct of their matter by the earlier counsel whom they had engaged, to conduct the matter for them, but that cannot be said to tantamount to their experimenting with which counsel to do the case for them, as held erroneously by the learned trial judge.
Now to the second limb of the 1st and 2nd appellants’ application in question.
The essence of suits on the undefended list is for the quick and timeous dispensation of justice to the parties. Therefore, upon service of a writ of summons in respect of a suit on the undefended list on a defendant, the latter must deliver or file a notice of intention to defend the suit and together with the said notice, he must file an affidavit disclosing a defence on the merits and where the defendant fails to so do or act, then judgment may be entered against him as per the writ of summons without necessarily calling on the plaintiff to formally prove his claim by calling witnesses to testify. See Ben Thomas Hotel Ltd. V. Sevi Furniture Co. Ltd (1989) 12 SCN 171.

In Mat Holdings Ltd V. UBA Plc (2003) 2 NWLR (pt.803) 71 at 90, the law was succinctly stated with respect to suits on the undefended list, inter alia:
‘The rules of court providing the cases to be placed on the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceedings which could otherwise have been easily and quickly disposed of. Although the need for fair hearing should not be sacrificed on the altar of expediency, the procedure should not be frustrated or thwarted by fanciful or general defence directed at frustrating the plaintiff of judgment he well deserves, a case should therefore not be transferred to the general cause list merely on the whims and caprices of a defendant who merely finds the words “fair hearing” convenient as well as handy slogan.”
Therefore, the affidavit by a defendant in support of the notice to defend the suit must depose to facts showing that there are triable issues which necessitates a trial on the merits. See Ezekiel Okifo V. Morecab Finance Nig. Ltd. (2007) 5 SCNJ 25; Chief Peter Amadi Nwankwo & Anor. V. Ecumenical Development Co-operative Society EDCS U.A. (2007) 2 SCNJ 89; Imoniyame Holdings Ltd & Anor. V. Soneb Enterprises Ltd & Ors. (2010) 1 SCNJ 303.
Paragraphs 5 – 28 of the 1st and 2nd defendants’ affidavit in support of the application of the notice of intention to defend the suit, dated 18th October, 2007 at pages 52 – 56 of the record of appeal are germane, in order to determine whether or not any triable issue was disclosed therefrom between them and the respondent. The said paragraphs are reproduced for ease of reference and appreciation, to wit:
“5. That paragraph 12 of the said affidavit is true only to the extent that the plaintiff granted the 1st Defendant a loan of N2,000,000 (Two million naira). It is entirely false that the 1st defendant had an investment account No.INV084 with the plaintiff Bank. The said loan has been fully liquidated by the 1st Defendant.
6. That in further response to paragraph 12 of the plaintiff’s affidavit, I hereby state as follows:
i. That the only account opened and operated by the 1st Defendant in the plaintiff bank is account No A/C 2833. The statement of account of the said account from year 2000 when it was opened till date as given to me by the plaintiff is herewith attached and marked EXHIBIT JBA1.
ii. That the loan of N2,000,000 (Two million naira) which is the subject matter of this suit was applied for and obtained through the said 1st Defendant’s Account No A/C 2833 and the liquidation of the loan was done through the said account in accordance with normal banking practice.
iii. That the so called investment account under which the plaintiff now seeks this claim is fictitious and that even if it exists, it was opened and operated by the plaintiff without the knowledge or authorization of the 1st defendant or myself contrary to banking practice.
7. That paragraph 13 of the affidavit is false. Although I signed all relevant documents relating to the transaction in question, I only did as the Chief executive of the 1st defendant. Neither me nor the 3rd defendant gave any personal guarantee for the loan.
8. That paragraph 14 is false. A careful look at Exhibit D will show that apart from N200,000 (two hundred thousand naira) deducted on 5/3/2004, N700,000 (seven hundred thousand naira) was also deducted from the 1st Defendant’s account no A/C 2833 on same day. The statement of account on account No A/C 2833 also reflects these deduction on the relevant dates.
9. That the facility of N2,000,000 (Two million Naira) was applied for, obtained and used for the execution of Delta State Direct Labour Agency work order number OPS.01.06.01 OF 11th June, 2001.
10. That it was agreed with the bank that all payments for the contract shall be made into the 1st defendant’s account No.2833 with the bank and appropriate deductions shall be made by the bank as repayment of the facility in accordance with normal banking practice.
11. That after the completion of the contract, payments were made to me by Delta State Direct Labour Agency through Zenith bank cheques in three instalments of N1,250,000 (one million two hundred and fifty five thousand naira), N755,845.40 (seven hundred and fifty five thousand, eight hundred and forty five naira, forty kobo), and N850,229.94 (eight hundred and fifty thousand, two hundred and twenty nine naira, thirty four kobo).
12. That in accordance with the agreement the 1st defendant had with the plaintiff I paid the said cheques into the account No. A/C 2833 as shown in my statement of account. The cheques are shown to have been paid in on 17/02/2004. 28/02/2004 and 05/03/2004 respectively. Notice is hereby given to the plaintiff to produce cheques, tellers and all instruments used in running the said account from 2001 till 2007.
13. That the total proceeds generated from the contract which amounted to a total sum of N2,956,074.74 (two million, eight hundred and fifty six thousand and seventy four naira, seventy four kobo) was paid into the said account to liquidate the loan of N2,000,000 (two million naira).
14. That the plaintiff’s manager Mr. Tony Echewa should be called upon to explain how the lodgments made were utilized or withdrawn without the loan being liquidated.
15. That when paying in the last of those cheques on 05/03/2004, I was assured by the manager Mr. Tony Echewa that I had fully liquidated my obligations to the bank and he thanked me.
16. That ever since that time I have never bothered myself about the loan and the plaintiff has never mentioned the issued again since 2004. No demand notice or letter was sent to me by the plaintiff.
17. That since the 1st defendant became a customer of the bank I have never bothered myself about asking for statement of account from the bank and the plaintiff has never given me any until I received the summons in this case.
18. That upon looking at the statement of account referred to above, I am embarrassed to learn that two accounts were being run by the bank in the name of the 1st Defendant.
19. That upon looking at the entire account since 2000, I noticed that there has been numerous withdrawals from the 1st defendants account No A/C 2833 which were not authorized by me.
20. That as a result of these suspicious and unauthorized withdrawals and transfer of funds from the said statement of account, my former counsel Mr. Emebuno wrote to the plaintiff demanding amongst others, cheque leaflets 097 of 27/06/2006, 096 of 20/06/2001 and 302 of 05/07/2001. Although some cheques, were sent, the above request was not granted. The letter of demand is herewith attached and marked EXHIBIT JBA2.
21. That I hereby demand that these cheques be brought to this court for a thorough examination and I also request that all cheques or instruments used in paying in and withdrawing money from the account be brought to this court for examination.
22. That specifically, I demand that the following be produced:
(i) Tellers/cheques with which the sum of N638,977.50 was paid in to account A/C 2833 on 26/07/2004.
(ii) Cheques/Instrument with which the sum of N40,000 was withdrawn from the said account A/C 283 on 02/06/2004.
(iii) Cheques/Instrument with which 1st defendant account was debited between 7th February 2004 and 14th July 2004.
23. That paragraphs 16, 17 and 19 are false. The defendants have a good defence to this action.
24. That the 1st defendant account was seriously manipulated by the plaintiff in that the series of overdraft made on the account were not authorized by the 1st Defendant.
25. That this Honourable court should give the defendants an opportunity to defend themselves in this case as only a thorough investigation of the books of the bank including an examination of all transaction in respect of the two account can meet the demands of justice in this case. Notice is hereby given that the plaintiff should produce the ledger and all banking instruments relating to the said account No.A/C 2833 from the date of opening in 2000 till dates.
26. That I have been seriously scandalized and the reputation of my company tarnished by this rather unfair action of the bank.
27. That the statement of account covering the period after the liquidation of the loan show that as at 27th June, 2005, the account No.A/C 2833 was in credit and I made a withdrawal of the sum of N2,000 (Two Thousand Naira) from the said account.
28. That I ask that this honourable court grant the defendants leave to defend this case in the interest of justice. That this application is not intended to cause any delay in the resolution of the issues in this case but to enable the defendant to defend themselves on the merits.”
From the affidavit evidence of the 1st and 2nd appellants reproduced above, it is discernable and manifest that two main triable issues arise for determination between them and the respondent. Firstly, that the investment facility of N2m which the 1st appellant obtained from the respondent had been liquidated and paid off by the former. Secondly that the said investment facility was operated on the 1st appellant’s current account No. 2833 and not through any Investment Account No. INV084 as claimed by the respondent. In a situation such as the one herein, where the affidavit evidence tendered by the 1st and 2nd appellants in support of the notice of their intention to defend the suit, discloses triable issues, it means that there are disputes with regards to some facts which ought to be tried on the merits. This is more so as the 1st and 2nd appellants were insistant that the said investment facility was liquidated by the 1st appellant through cheque payments on 17/2/04, 28/2/04 and 5/3/04 into the account No.2833. Furthermore, the 1st and 2nd appellants attached the respondent’s bank statements on the account No.2833, to the effect that the investment facility of N2m had since been liquidated. To my mind, a trial of the suit on the merits, would lead to a demonstration and cross-checking of the said bank statements in order to determine whether or not the said investment facility had indeed been liquidated by the 1st and 2nd appellants.
I am fortified in my view by the decision of the apex court in Ataguba & Co. V. Guara (Nig) Ltd (2005) 6 MJSC 163 at 173 – 174 where it was held that:
“A defendant’s affidavit in support of notice of intention to defend is sufficient if the affidavit discloses a triable issue in that a difficult point of law is involved; that there is a dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine.”
In sum, I am of the firm and considered opinion that in view of the conflict in the affidavit evidence of the respondent and the 1st and 2nd appellants with respect to the liquidation of the investment facility of N2m by the latter, and there are triable issues disclosed in the affidavit evidence of the latter, the best and proper option is to transfer the suit on the undefended list to the general cause list, for trial on the merits. See Nkwo Market Community Bank (Nig) Ltd V. Paul Ejikeme Uwabuchi Obi (2010) 4 SCNJ 81; Imoniyame Holdings Ltd & Anor. V. Soneb Enterprises Ltd & Ors. (supra); Federal Airports Authority of Nigeria V. Wamal Express Services (Nig) Ltd (2011) 1 SCNJ 133.
Flowing from all I have been saying on this appeal, I resolve the issue for determination as formulated by the respondent, in favour of the 1st and 2nd appellants. The appeal has onions and it is therefore allowed.
Accordingly, the judgment of M. Umukoro, J., delivered on 8th April, 2008 on the suit No. HOO/33/2007 is hereby set aside.
The respondent’s suit on the undefended list is ordered as transferred to the general cause list for hearing and determination, on the merits.
The said suit is further ordered as remitted to the Chief Judge of Delta State High court of Justice, and to be re-assigned to another judge of the State High Court, for hearing and determination, on the merits.
Each side shall bear its own costs.

SIDI DAUDA BAGE, J.C.A.: I read in draft the leading Judgment of my learned brother T. S. Yakubu, JCA, I do agree with the reasoning and the conclusion reached. I venture however to add a few words of my own, on the technical nature of the application of the undefended list procedure before our courts.
The essence of suits on the undefended is for the quick and timeous dispensation of justice to the parties. In order to achieve the essence of this procedure, all the rules governing its application must be strictly adhered to. It is a two-way traffic both on the side of parties seeking its application and the court responsible for its implementation. The Supreme Court in the case of Otubosola Stores V. Standard Bank of Nigeria Ltd (1975) 4 SC 51 at Pp.56-57, stated as follows:-
‘The provisions dealing with actions on the undefended list are apparently technical and we think that they are purposely created in that way in order to ensure that by asking the Plaintiff to comply strictly with those Rules injustice is being avoided to a defendant freedom to defend the case has been rather restricted. The provisions of the Rules are designed as they are in order to ensure the safeguards which must necessarily be available to a defendant if the Rules are followed strictly; and if those Rules are complied with, the defendant need suffer no prejudice in his defence if he himself and on his part has complied with the Rules.
On the need to strictly followed the Rules, see also:- Metatimpex v. A.G. Leventis & Co (Nig) Ltd (1976) 2 SC 91 at Pp 108 – 109; Bank of the North Ltd V. Intra Bank S.A. (1969) 1 All NLR 91 at 98; Leventis Motors Ltd V. GCS Mbonu (1962) NNLR 19; Ainsworth V. Wilding (1896) 1 Ch. 673, and U.A.C. (Technical) Ltd V. Anglo Canadian Cement Ltd (1966) NMLR 349.
For the fuller reasons on the need to strictly comply with the Rules as contained in the leading Judgment, I too, hold the view that the appeal is of merit, and also allowed by me. I abide by all the consequential orders as contained in the leading Judgment.

AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, TOM SHAIBU YAKUBU, JCA. His lordship has dealt extensively with the issues raised for the determination of the appeal and I am in complete agreement with the exposition of the law, reasoning and conclusions in the lead Judgment. I have nothing to add.
Accordingly, I too, set aside the judgment delivered on 8/4/2008 by the lower court in Suit No. HOO/33/2007. I also abide by all the consequential orders made in the lead Judgment including the order relating to costs.

Appearances

M. K. Agienoji, Esq.For Appellant

AND

Dr. O. K. EduFor Respondent