NWAGWU v. ECOBANK (2021)

NWAGWU v. ECOBANK

(2021)LCN/15192(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/B/99/2012

Before Our Lordships

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

CHARLES NWAGWU APPELANT(S)

And

ECOBANK NIGERIA PLC RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE UNDEFENDED LIST PROCEDURE

The aim of the Undefended List Procedure is to enable a plaintiff obtain speedy judgment in clear cases where the defendant has no defence to a claim of a debt or a claim for a liquidated sum by the plaintiff. The procedure in essence is for a type of summary judgment. The law is however trite that, a plaintiff who wants his suit placed on the Undefended List must file an affidavit at the time he is making an application for the issuance of a Writ in that regard. The affidavit must depose facts from with which the Court is satisfied that there are good grounds for believing that the defendant actually has no defence to the plaintiff’s claim. It is only when the Court comes to that conclusion from the facts placed before it through the affidavit, that an order to place the suit on the Undefended List will be made. The Writ of Summons will then be marked accordingly and a return date entered thereon for the hearing of the claim. See the cases of: (1) S.B.N. Plc v. Kyentu (1998) 2 NWLR (Pt.536) p.41; (2) Nkwo Market Community Bank (Nig) Ltd. v. Obi (2010) 4-7 SC (Pt. II) p.30; (3) Bona Textile Ltd. & Anor v. Asaba Textile Mill PLC (2012) LPELR- 9828 (SC) and (4) Obitude v. Onyesom Community Bank Ltd. (2014) LPELR- 22693 (SC). Sequel to the above, the entire processes must then be served on the defendant, who, if he desires to defend the action, must deliver to the Registrar of the Court a Notice of his intention to defend the claim, in writing. The Notice must have attached to it, a verifiable affidavit disclosing a defence on the merits. However, after considering the affidavit in support of the defendant’s notice of intention to defend the action, the Court may on the basis of the facts disclosed in the affidavit of the defendant, grant leave to the defendant to defend the action upon such terms as the Court may deem just. Where leave to defend is granted by the Court, the action is automatically removed from the Undefended List to the General Cause List of the Court for the full trial of the suit on the pleadings of the parties, thereby bringing an end to the Undefended List procedure for summary judgment. See also the cases of: (1) Bona Textile Ltd. & Anor. v. Asaba Textile Mill Plc (Supra); (2) Dange Shuni Local Govt. Council v. Stephen Okonkwo (2008) All FWLR (Pt.415) p.1757 at p.1775 and (3) Ekulo Farms Ltd. & Anor. v. Union Bank of Nigeria PLC (2006) 6 SCM p.78 at p. 100. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

CIRCUMSTANCE WHERE THE PLAINTIFF WILL AUTOMATICALLY BE ENTITLED TO JUDGMENT UNDER THE UNDEFENDED LIST PROCEDURE

By the provisions of Order 23 of the Rules of the trial Court, the defendant in an action under the undefended list, as in the instant case, is required to deliver a notice of intention to defend, supported by an affidavit and backed up with pre-verifying particulars. Where therefore the defendant fails to deliver the notice of intention to defend with the necessary particulars or if the defendant’s supporting affidavit does not reveal that he has a defence to the action and the Court consequentially refused the defendant’s plea to defend the suit, the plaintiff is automatically entitled to judgment in terms as judicially and judiciously deemed just by the Court. See the cases of: (1) Okoli v. Morecab Finance (Nig.) Ltd. (2007) 4 – 5 SC p.116; (2) Cross River-State Property Development & Investment Company Ltd. V. Obongha (2000) 8 NWLR (Pt. 670) p. 751 at p. 762 and (3) Ben Thomas Hotels Ltd. v. Sebi Furniture Company Ltd. (1989) LPELR-769 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

BURDEN PLACED ON THE PARTY WHO ASSERTS

… it is equally a trite principle of law that, a party who asserts must prove his case with credible and unchallenged evidence. See Sections 133 and 134 of the Evidence Act, 2011 and the cases of: (1) Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation (1942) AC p. 154 at p.174; (2) Imana v. Robinson (1979) 3-4 S.C p.1; (3) Omoregbe v. Lawani (1980) 3-4 S.C. p. 70; (4) Jack & Ors. v. Whyte & Ors (2001) 5 NSCQR p. 610 at p. 621; (5) Nacenn Nig. Ltd. v. BEWAC Automative Producers Ltd. (2011) LPELR-8125 (SC) and (6) Ugwuegede v. Asadu & Ors. (2018) LPELR-43717 (SC). PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Edo State Ekpoma Judicial Division per Akomolafe-Wilson, J. [as he then was, now JCA (Rtd.), hereinafter referred to as “the trial Court”] in Suit No. HEK/72/2010, delivered on the 23rd day of November, 2011.

The background facts of this matter are that, by a Writ of summons issued on the 18th of November, 2010, the Respondent as Plaintiff claimed against the Appellant as the Defendant a liquidated sum of Twelve million, thirty-six thousand, five hundred and seventy-six naira, twenty-seven kobo (N12,036,576.27) being the balance allegedly due from the Appellant to the Respondent in refund of a loan “Naira Credit Facility” of Five million naira granted by the Respondent to the Appellant in 2007, plus 6.5% interest per month from 1st of October, 2010 till the date of judgment in the case and 10% interest from the date of the judgment till the debt is finally liquidated. In tune with the provision of Order 23 Rule 1 of the Rules of the trial Court, along with the said Writ of Summons, the Respondent filed a motion

“ex-parte” accompanied with many documents as exhibits, a verifying affidavit of twenty-five paragraphs and sought the order of the trial Court to enter the Suit for hearing in the Undefended List and marking the Writ of Summons accordingly – See pages 1 to 25 of the Record of Appeal. The trial Court granted the Respondent’s “ex-parte” motion and gave a return date of the 25th of January, 2011 for the hearing of the Respondent’s suit under the Undefended List Procedure.

However, the Appellant on the 3rd of May, 2011 filed a Notice of his intention to defend the Respondent’s suit. The Notice was simply accompanied with a verifying affidavit of eighteen paragraphs – see pages 41 of 43 of the Record of Appeal.

Parties’ Counsel’s Written Addresses were ordered by the trial Court, these were duly filed, exchanged and adopted by the respective learned Counsel at the hearing of the matter. In its considered judgment, the trial Court “inter alia” held that:
“In an action under the undefended list, it is not enough for the defendant to merely state that he has a defence to an

action on the merit without stating clearly what his defence is and supporting same with clear undisputed details… the defendant has completely failed to substantiate his defence in any way which might raise any doubt to the plaintiff’s case.”
(See page 77 of the Record of Appeal).

The trial Court therefore entered judgment in favour of the Respondent for the balance of the facility granted by it to the Appellant, but found that the 6.5% interest claimed was not proved by the Respondent per the terms of contract between the parties. However, the post-judgment interest of 10% was duly granted – see page 60 of the Record of Appeal.

The Appellant is peeved with the judgment of the trial Court, hence he filed this appeal against it to this Court vide his Notice of Appeal dated and filed on the 24th of November, 2011. The sole ground of appeal contained in the said Notice of Appeal, with its particulars, are hereunder verbatim set down for good grasp and easy referencing as follows:

“The learned trial Judge erred in law when he gave judgment in favour of the respondent under the undefended list when the appellant disclosed enough defence to warrant transferring the suit to the general cause list.
PARTICULARS OR ERROR:
i. There is evidence that the respondent breached the terms of the agreement between it and the appellant by charging interest arbitrarily.
ii. There is evidence of protestation against the arbitrary charges.
iii. The appellant had paid a total sum of N2,402,500 back to the respondent.
iv. The respondent charged a total interest of N5,955,592.40 representing an average interest rate of 60% per annum between September 2007 and August 2008.
v. The defence of the appellant was not controverted by the respondent.”

It is pertinent to state at this juncture that the Record of Appeal in this matter was transmitted to this Court on the 30th of April, 2012. Briefs of argument were settled by the learned Counsel for the respective parties.

At the hearing of the appeal by this Court on the 11th day of February, 2021, the Appellant’s learned Counsel Mr. A.O. Ijiebor identified the

Appellant’s Brief of Argument dated 13th of December, 2012, filed on the 14th of December, 2012 and deemed properly filed on the 22nd of March, 2020. Counsel adopted the brief and urged upon this Court to allow the appeal, set aside the judgment of the trial Court and order the placement of the Respondent’s suit against the Appellant in the trial Court’s General Cause List for hearing on the merits.

On the other part, the Respondent’s learned Counsel, Mr. Ehinon Okoh adopted the Respondent’s Brief of Argument dated 14th of January, 2013, filed on 15th of January, 2013 and deemed properly filed on 11th of February, 2021. He relied on the brief, urged this Court to dismiss the appeal and affirm the decision of the trial Court.

The sole issue crafted by the Appellant’s Counsel in the Appellant’s brief for the determination of the appeal reads verbatim thus:
“Whether the defendant (now Appellant) did not disclose enough defence to warrant transferring the suit to the general course (sic) list?”

In the Respondent’s brief, the Respondent’s Counsel equally identified a single

issue for the determination of the appeal. The issue reads as follows:
“Whether the Appellant disclosed a defence on the merit?”

The above reproduced sets of issues are quite identical in their cognitive contents. I will however adopt the issue donated by the Respondent as same is concise and consider the submissions thereunder along with the submissions under the single issue in the Appellant’s brief.

SOLE ISSUE FOR DETERMINATION
“Whether the Appellant disclosed a defence on the merit?”

SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL:
The law is settled that once a defendant by his affidavit in support of his notice of intention to defend has shown clearly that he has issues arguable and triable therein, it is on the side of justice to let him defend the action by transferring such action to the General Cause List of the Court for hearing on pleadings. See the case of Nkwo Market Community Bank (Nig.) Ltd. V. Obi (2011) Vol. 192 LRCN p.32 at p.53, paras F-K.

The Appellant as defendant in his affidavit disclosed enough facts to show his defence. The Appellant

demonstrated that the Respondent as plaintiff was in breach of the tenor of the contract between him and the Respondent. For the Respondent engaged in charging interest arbitrarily on the facility it grants to the Appellant. Contrary to the agreed interest rate of eighteen percent (18%), by the Appellant’s calculation, the Respondent was charging an interest rate of sixty percent (60%). The Appellant had already paid two million, four hundred and two thousand, five hundred naira (N2,402,500.00) out of the total sum of five million naira (N5,000,000.00) facility advanced to him by the Respondent. When the Appellant discovered the arbitrary interest charged on his account, he confronted the Manager of the Respondent in person and also caused his Counsel to write a letter to the Respondent. However, all his efforts to make the Respondent correct the anomaly proved abortive. For all these facts, see the averments of the Appellant’s affidavit contained in pages 41 to 43 of the Record of Appeal.

None of the depositions contained in the affidavit of the Appellant reflecting his defence was contradicted by the Respondent, as the Respondent failed to

file a further and better affidavit to deny the said depositions as required by law. The implication of this is that the Appellant’s depositions are not bare but true and correct. Furthermore, in the absence of a further affidavit of the Respondent and in the face of the strong depositions of the Appellant, the Respondent is required to give some explanations as issues had been joined by the parties and it behoved the trial Court to make an order transferring the Respondent’s suit to the General Cause List of the trial Court for proof by pleadings. It is at that point the onus of proof will then shift to the Appellant to show further proof of his assertions. See the cases of: (1) Lawson-Jack v. S.P.D.C. (2002) 102 LRCN p. 2021 at P. 2034, para. P; (2) Buhari v. Obasanjo (2004) 114 LRCN p.2723 at p.2762, para. F and (3) G.M.O. Nworah & Sons Co. Ltd. V. Akputa (2011) Vol. 191 LRCN p.153 at p.172, paras. F-P.

This Court was therefore urged to allow this appeal and order the trial of the Respondent’s suit under the General Cause List of the trial Court.

SUMMARY OF SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It is not in dispute that the Respondent’s claim is for a liquidated sum of money arising from a loan facility granted to the Appellant by the Respondent. The loan facility had terms and conditions mutually agreed upon by the parties and the said terms and conditions were flagrantly breached by the Appellant. The depositions and documents attached to the Respondent’s affidavit clearly show the spelt out terms and conditions of the said facility. Exhibits A, C, D, E, F and G annexed to the Respondent’s affidavit respectively are: the Appellant’s application for the facility, Respondent’s letters of demand served on the Appellant to liquidate the outstanding sum, the Appellant’s response to the demands wherein he requested for a restructuring of the facility and the terms of the restructured loan facility duly executed by the two parties.

The law is settled that a liquidated claim or liquidated demand is for an amount previously agreed on by the parties and this can be precisely determined by operation of law or by the terms of the parties’ agreement. See the cases of: (1) Maja v. Samouris (2002) 7 NWLR (Pt. 765) p.78 and

(2) G.M.O. Nworah & Sons Co. Ltd. V. Akputa (Supra). A liquidated demand therefore is for a debt or for a specific sum of money usually due and payable. The amount must be already ascertained or capable of being ascertained as a matter of arithmetic and without any further investigation. In other words, the factors to determine what a liquidated sum is, are as follows:
(a) The sum must be arithmetically ascertainable without further investigation.
(b) If it is in reference to a contract, the parties to the contract must have mutually and unequivocally agreed on fixed amount payable on breach.
(c) The agreed and fixed amount must be known prior to the breach.

From the facts and documents of the Respondent, there is no dispute by the Appellant that the Respondent’s claim is for a liquidated sum of money, that is, a loan facility agreed upon by the parties, the terms of which were flagrantly breached by the Appellant.

Order 23 Rule 3(1) of the Rules of trial Court provides that, in a liquidated demand, if the party served the Writ of Summons and affidavit delivers to the Registrar not less than five days before the date 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. Hence, where a defendant gives a notice of his intention to defend but his affidavit does not disclose any defence on the merits, the case will still be heard under the undefended list. See the cases of: (1) Ofomata v. Onwuzuligbo (2002) 8 NWLR (Pt.769) p.298; (2) UTC Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) p.244 and (3) Public Finance Securities Ltd. v. Jefia (1998) 3 NWLR (Pt.543) p.602. In this case, the only defence offered by the Appellant that the Respondent charged an arbitrary interest rate of 60% per annum is bare as the assertion was not supported by any document. The Appellant’s alleged letter of protest written on his behalf by his Counsel was also not exhibited to the affidavit in support of his notice of intention to defend. The Appellant had therefore completely failed to substantiate his defence in any way which might raise any doubt to the Respondent’s case.
It has long been established in law that, the main object

in the Undefended List Procedure is to prevent unnecessary delay in proper cases, that is, where the claim of the plaintiff from his affidavit evidence is ascertainable. The Court will therefore enter judgment in favour of a party where, as in the instant case, a defence is raised merely in order to gain time or for elongation of litigation where the facts raised in the defendant’s affidavit do not amount to a defence in law. See the cases of: (1) Agwunedo v. Eze (1990) 3 NWLR (Pt.137) p.242; (2) Okambah Ltd. v. Alhaji Sule (1990) 7 NWLR (Pt.160) p.13; (3) Olubusola Stores v. Standard Bank of Nig. Ltd. (1975) 4 SC p.51 at p.65 and (4) G.M.O. Nworah & Sons Co. Ltd. v. Akputa (supra).

Furthermore, the law is trite that in an application, the adverse party needs not file a reply or counter-affidavit to an affidavit which contains nothing in support of the application. See the case of: Orunlola v. Adeoye (1995) 6 NWLR (Pt.401) p.338 at p. 353, paras. A-B. Hence, the issue raised in the Appellant’s brief that the Respondent failed to file a further and better affidavit to deny certain averments in the Appellant’s affidavit is misconceived.

This is because the depositions that interests were arbitrarily charged were not facts but mere speculations, conjectures and not supported by any document.

The Respondent having disclosed sufficient facts was entitled to judgment under the Undefended List Procedure as rightly held by the trial Court. This appeal is therefore without merit and this Court should dismiss it and affirm the decision of the trial Court.

RESOLUTION OF SOLE ISSUE
I have already set out the background facts of this matter hereinbefore at the debut of this judgment.

has no defence to the plaintiff’s claim. It is only when the Court comes to that conclusion from the facts placed before it through the affidavit, that an order to place the suit on the Undefended List will be made. The Writ of Summons will then be marked accordingly and a return date entered thereon for the hearing of the claim. See the cases of: (1) S.B.N. Plc v. Kyentu (1998) 2 NWLR (Pt.536) p.41; (2) Nkwo Market Community Bank (Nig) Ltd. v. Obi (2010) 4-7 SC (Pt. II) p.30; (3) Bona Textile Ltd. & Anor v. Asaba Textile Mill PLC (2012) LPELR- 9828 (SC) and (4) Obitude v. Onyesom Community Bank Ltd. (2014) LPELR- 22693 (SC). Sequel to the above, the entire processes must then be served on the defendant, who, if he desires to defend the action, must deliver to the Registrar of the Court a Notice of his intention to defend the claim, in writing. The Notice must have attached to it, a verifiable affidavit disclosing a defence on the merits. However, after considering the affidavit in support of the defendant’s notice of intention to defend the action, the Court may on the basis of the facts disclosed in the affidavit of the defendant, grant

leave to the defendant to defend the action upon such terms as the Court may deem just. Where leave to defend is granted by the Court, the action is automatically removed from the Undefended List to the General Cause List of the Court for the full trial of the suit on the pleadings of the parties, thereby bringing an end to the Undefended List procedure for summary judgment. See also the cases of: (1) Bona Textile Ltd. & Anor. v. Asaba Textile Mill Plc (Supra); (2) Dange Shuni Local Govt. Council v. Stephen Okonkwo (2008) All FWLR (Pt.415) p.1757 at p.1775 and (3) Ekulo Farms Ltd. & Anor. v. Union Bank of Nigeria PLC (2006) 6 SCM p.78 at p. 100.

As earlier adverted to, the Respondent as plaintiff commenced the action, the subject of this appeal under the Undefended List Procedure pursuant to Order 23 of the Bendel State High Court (Civil Procedure) Rules, 1988 as applicable in Edo State. The Respondent filed a Writ of Summons to which an affidavit of twenty-five paragraphs was attached with various documents annexed as exhibits.

After the Appellant was served with the specially endorsed Writ of Summons of the Respondent along with the

supporting affidavit and the exhibits annexed thereto, indicating that the claim against him was to be heard as Undefended, the Appellant filed a notice of intention to defend the suit with an affidavit of eighteen paragraphs but without any exhibits to verify same. The Respondent did not file any further affidavit in reply.

The trial Court after considering the processes filed by both parties along with their respective Counsel’s Written Addresses, came to the following conclusions, “inter alia”:
“The only defence offered by the Defendant is as stated in his paragraphs 6 – 12 of his affidavit, this is his bare allegation that the plaintiff charged interest rate of 60% per annum between August and September, 2009. This assertion is not supported by any document whatsoever apart from these bare depositions in affidavit. Even the letter purportedly officially written by his counsel, Bola Adekanle Esq., the same counsel in this case, to formally protest the interest rate was not attached to his affidavit as proof of his assertion. Worse still, the alleged complainant of arbitrary interest was not even registered in his

handwritten letter, Exhibit “F” dated 2/9/1990 of the plaintiff’s affidavit where he requested for the restructure of the naira credit to enable him “pay up the outstanding in my card account up by a period of 24 months.”
It is therefore very clear that the defendant has no defence whatsoever to this empty sham, a weak cocoon merely to shield him from liquidating his liability promptly. It is a sheer means of delaying this action… In this case, the defendant has completely failed to substantiate his defence in any way which might raise any doubt to the plaintiff’s case.”

Sequel to the above findings, the trial Court, save for the claim of 6.5% interest per month from 1st October, 2010 till the date of judgment, entered judgment in favour of the Respondent as claimed by it.

affidavit and backed up with pre-verifying particulars. Where therefore the defendant fails to deliver the notice of intention to defend with the necessary particulars or if the defendant’s supporting affidavit does not reveal that he has a defence to the action and the Court consequentially refused the defendant’s plea to defend the suit, the plaintiff is automatically entitled to judgment in terms as judicially and judiciously deemed just by the Court. See the cases of: (1) Okoli v. Morecab Finance (Nig.) Ltd. (2007) 4 – 5 SC p.116; (2) Cross River-State Property Development & Investment Company Ltd. V. Obongha (2000) 8 NWLR (Pt. 670) p. 751 at p. 762 and (3) Ben Thomas Hotels Ltd. v. Sebi Furniture Company Ltd. (1989) LPELR-769 (SC).

It must equally be noted that, the mischief which is sought to be forestalled in the Undefended List Procedure is, the prevention of elongation of litigation usually associated with full-fledged trials, in proper cases, that is, where from the parties’ affidavit evidence, the claim of the plaintiff is clearly unassailable. See the cases of: (1) G.M.O. Nworah & Sons Ltd. v. Akputa (Supra) and (2) Nkwo Market Community Bank (Nig.) Ltd. v. Obi (Supra).

In the instant matter therefore, the crux of this appeal is whether the claim of the Respondent as plaintiff in the trial Court from its affidavit evidence affidavit is unassailable? The affidavit in support of the claim of the Respondent is located at pages 22 to 25 of the Record of Appeal. The relevant paragraphs of the said affidavit are paragraphs 5, 6, 7, 8, 9, 14, 15, 16, 17, 18, 19 and 20. For good grasp and easy referencing, the said relevant paragraphs of the supporting affidavit are hereunder reproduced verbatim as follows:
“5. That the Plaintiff’s claim is for a liquidated sum.
6. That from the documents executed by the Defendant, the claim is clear.
7. That by an application form dated 7th July, 2007, the Defendant applied for a “Naira Credit Facility” wherein the terms and conditions were fully contained from the Plaintiff.
This letter is attached hereto as Exhibit “A”.
8. That the request of the Defendant was granted by the Plaintiff.
9. That the “Naira Credit Facility” is by its nature, a revolving credit

issued to customers and repayable within 40days and it is not backed up by any security.
14. That the Defendant took a credit of N5,000,000.00 (Five million naira) at first instance but failed to repay same within the stipulated 40 days.
15. That the Defendant breached all the terms and conditions of the Credit Card Facility and has ever since refused to pay off the credit and the accrued interest and penalties.
16. That when the Defendant refused to liquidate the Credit Card Facility, he was issued Letters of Demand. These letters are attached hereto as Exhibits “C, D & E” respectively.
17. That by a letter dated 2nd September, 2009, the Defendant requested for a restructuring of the said Naira Credit Card Facility and signed the Data Form for the restructuring of the sum of N9,444,352.00. Copies are attached hereto and marked as Exhibits “F and G” respectively.
18. That after execution of the restructuring document, the Defendant disappeared and failed to honour the terms of the Naira Credit Facility which stands at N12,036,576.27 (Twelve million, thirty-six thousand, five hundred and seventy-six naira,

twenty-seven kobo) as at 26th September, 2010.
19. That the Defendant failed to repay the facility and this compelled the Plaintiff to send a Demand Notice to the Defendant.
20. That all relevant documents pertaining to the said facility were duly executed by the Defendant.”

As earlier adverted to, upon the service of the processes of the Respondent on the Appellant, the Appellant filed a notice of his intention to defend the claim against him on the merits. The notice was supported with an affidavit of eighteen paragraphs contained in pages 41 to 43 of the Record of Appeal. Paragraphs 4 to 12 and 15 to 17 of the affidavit are also relevant to this appeal and same are hereunder reproduced verbatim for good grasp as follows:
“4. That I took naira credit facility of N5,000,000 from the plaintiff which I have been paying back gradually since the facility was taken.
5. That the plaintiff has been charging interest arbitrarily on the facility contrary to the tenor of the contract.
6. That I discussed the issue of arbitrary charges of interest with the manager of the plaintiff severally. He promised to discuss the issue

with the head office as he claimed that the charge being paid has been computerized from the head office.
7. That nothing was done up till now to normalize the interest charged in line with the percentage agreed with the plaintiff rather I was lured by the manager to write a letter to restructure the Naira credit card facility while the plaintiff continued to charge interest contrary to what we agreed upon.
8. That sometime in 2009, when I discovered that the manager did not do anything concerning his promise, I officially wrote a letter through my counsel Bola Adekanle & Co., to the plaintiff to formally register my protest.
9. The defendant shall rely on the said letter written to manager in the course of this trial. The plaintiff is hereby given notice to produce the said letter.
10. That up till now, the plaintiff has refused to reply my said letter.
11. That as at the time the letter was written I had paid a total sum of N2,402,500 back to the plaintiff whereas the plaintiff claimed that my indebtedness stood at N8,878,192.40, which I denied.
12. That I also discovered to my dismay that a total interest of N5,955,592.40 was

charged into my account between September 2007 and August 2008 representing an average interest rate of 60% per annum, which was contrary to the interest rate charged by banks based on the Central Bank of Nigeria’s guidelines prevailing then and also contrary to the contract between me and the plaintiff.
15. That I have a good defence to this action based on the facts deposed to above since the plaintiff have breached the term of contract and has been charging interest arbitrarily.
16. That based on the facts deposed to above I am not owing the plaintiff the sum of money being claimed by the plaintiff.
17. That from the circumstance of this case, it would be in the interest of justice for this action to be put under the General Cause List so that the plaintiff can proof how it calculated the interest that now amounted to the sum of money being claimed.”

It must be emphasised that the averments of the affidavit of the Appellant are not supported by any document for purposes of validating the claims therein. Notwithstanding, facts stood out in his said affidavit that the Appellant had admitted that he took a five-million naira

facility from the Respondent, paid part of the facility and according to him later found that the Respondent engaged in arbitrary interest charges on the facility. Also, the Appellant claimed to have complained in writing about the arbitrary interest through his Counsel, the alleged letter ought to have been exhibited by him under the prevailing procedure, rather than put the Respondent on notice to produce same at trial. As rightly submitted by the Respondent’s Counsel, the depositions of the Appellant in his affidavit are bare or at best very weak and not strong enough to dislodge the position of the Respondent “vide” its own affidavit evidence.

The clear position of the law is that, cases heard pursuant to the Undefended List Procedure are decided entirely on affidavit evidence. It is my very humble but firm view that the opinion of the trial Court reproduced above is unassailable. The affidavit evidence of the Respondent confirmed that its main claim against the Appellant is for the undefended list and the said claim was thereby duly proved. The particulars supplied by the Respondent were in support of its claim, while the Appellant

failed to supply any details and particulars for him to be entitled to have the matter transferred to the general cause list of the trial Court. In particular, Paragraph 11 of the affidavit of the Appellant, reproduced above, damned his proposition that he has a good defence to the action against him. The facts deposed to by him definitely do not reveal particulars in support of the proposition. For, it is equally a trite principle of law that, a party who asserts must prove his case with credible and unchallenged evidence.
See Sections 133 and 134 of the Evidence Act, 2011 and the cases of: (1) Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation (1942) AC p. 154 at p.174; (2) Imana v. Robinson (1979) 3-4 S.C p.1; (3) Omoregbe v. Lawani (1980) 3-4 S.C. p. 70; (4) Jack & Ors. v. Whyte & Ors (2001) 5 NSCQR p. 610 at p. 621; (5) Nacenn Nig. Ltd. v. BEWAC Automative Producers Ltd. (2011) LPELR-8125 (SC) and (6) Ugwuegede v. Asadu & Ors. (2018) LPELR-43717 (SC).

I am equally at one with the position of the Respondent that, it was most unnecessary for the Respondent to file a further and better affidavit in response

to the Appellant’s depositions in his affidavit that the interest charged on the facility under discuss by the Respondent was arbitrary. In paragraph 12 of his affidavit, also reproduced above, the deposition of the Appellant that the interest charged by the Respondent was contrary to both the then prevailing guidelines of the Central Bank of Nigeria and the terms of the contract between the parties were not validated by any document. I am also of the firm opinion and hold that there was nothing in the affidavit of the Appellant worth countering by the Respondent in filing a further and better affidavit. The case of Orunlola v. Adeoye (Supra) relied upon by the Respondent is quite instructive on this point. See also the cases of: (1) Royal Exchange Assurance v. Aswani Textiles Industries Ltd. (1992) 2 SCNJ (Pt.2) p. 346 at p. 355; (2) Omowood Ind. Ltd. v. The Reg’d Trustees of Bible Believers Fellowship Church & Ors (2014) LPELR-23400 (CA) and (3) Israel v. Oruruo & Ors. (2017) LPELR-42484 (CA).

In sum, I hold that the claim against the Appellant as placed before the trial Court by the Respondent under the Undefended List Procedure

was ironclad and impregnable. The Respondent by its affidavit evidence presented credible proof of the liability of the Appellant to it. As rightly held by the trial Court, the Appellant’s notice of his intention to defend the Respondent’s claim against him, and I dare add, also this appeal, are nothing but a ploy by the Appellant to elongate this litigation and continue to deny the Respondent of what is rightly payable to it under the contract duly subscribed to by the parties.

Contrary to the proposition of the Appellant, the trial Court acted properly and within the confines of the law governing cases under the Undefended List Procedure and I have no justification whatsoever to disturb the decision of the trial Court in this regard. I therefore resolved the sole issue in this appeal against the Appellant and in favour of the Respondent.

This appeal is a failure and it is hereby dismissed accordingly. The decision of the trial Court in the Respondent’s Suit No. HEK/72/2010 against the Appellant, delivered on the 23rd day of November, 2011 is hereby wholly affirmed.
I make no order for costs.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: My Lord, Oyebisi Folayemi Omoleye PJCA had afforded me in advance a copy of the lead judgment just delivered. I am in complete agreement with the reasoning and conclusions reached therein. I adopt it as mine. I have nothing more useful to add. I too dismiss the appeal. I shall abide by the orders made in the lead judgment, including the order as to no cost.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned brother, OYEBISI F. OMOLEYE PJ and I am in agreement with the reasoning and conclusions reached in disallowing the Appeal as lacking in merit. I subscribe to all other consequential orders made thereto.

Appearances:

Mr. A. O. Ijiebor For Appellant(s)

Mr. Ehinon Okoh For Respondent(s)