ROSEHILL LIMITED V. AREWA METAL CONTAINERS (2010)

ROSEHILL LIMITED V. AREWA METAL CONTAINERS

(2010)LCN/3645(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of March, 2010

CA/K/280/2003

RATIO

PROCEDURE: LEGAL CONSEQUENCE OF FAILURE TO MOVE THE PRELIMINARY OBJECTION NOTICE BY THE RESPONDENT

EVIDENCE: MEANING OF AN ADMISSION

Section 19 of the Evidence Act, Cap 1 2, Law of the Federation of Nigeria, 1990, defines admission as follows-

“19. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereunder mentioned.”

In case of N.A S LTD V. U.B.A PLC (2005) 7 SC (11) 139 @ 144, the Supreme Court defined admission in the following terms-

“An admission, as defined in “Black’s Law Dictionary, 6th Edition, 1990, page 47, “is a statement made by one of the parties to an action which amounts to a prior, acknowledgement by him that out of the material facts relevant to the issues is not as he now claim.”.

Admission was also defined by the Supreme Court in the earlier case of OGUNNAIKE .V. OJAYEMI (supra) at page 770 of the report as –

“A statement, oral or written (expressed in implied) which is made by a party to a civil Proceeding and which statement is address to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement”

See also SELSMOGRAPH SERVICES V EYUAFE (1976) 9 AND 10 SC 135, TITILOYE V OLUPO (1991) 7 NWLR (205) 519, GABARI V. ILORI (2002) 14 NWLR (786) 78, NIGERCHININD LTD V. OLADAHIN (2006) ALL FWLR (327) 557. PER MOHAMMED LAWAL, J.C.A.

EVIDENCE: REQUIREMENT FOR ADMISSION IN PLEADINGS TO BE EFFECTIVE

However the law is that for admission in pleadings to be effective, it must be clear, unequivocal and unambiguous otherwise it would not taken as true admission NNAEMEKA, JCA (Later JSC) in the case of N.B.N LTD .V. GUTHEKICE LTD.(1987) 2 NWLR (56) 253 @ 263 had stated the requirement thus –

“I should here recall the dicta of LORD GREENE IN ASHE & ANOR. V. HEMHINSON & CO. PUBLISHERS LTD & ORS. (1936), 1 Ch.D 489 at 502. A plaintiff who relies for the proof of a substantial part of his case upon admission in the defence must in my judgment, should that the matters in question are clearly pleaded and clearly admitted, he is not entitled to ask the court to read meaning into his pleading which upon a fair construction do not clearly appear in order to fix the defendant with an admission. I adopt this opinion…….”

See in addition BELLO V. IWEKA (1951) 1 SC 101 and MOTUNWASE V. SORUNGBE (1988) 5 NWLR (92) 90 @ 102. PER MOHAMMED LAWAL, J.C.A.

EVIDENCE: WHETHER FACTS ADMITTED REQUIRE PROOF

Another established principle of law on admission which is now elementary is that by the provisions of section 75 of the Evidence Act, facts admitted by parties in their pleadings require no further proof in evidence save as may be required by the Court OLAGUNJU V. OYINRAN (1996) 6 NWLR 453) 127 @ 143, OWOSHO V. DADA (1984) 7 SC 149, AKIBU V. ODUNTAN (1992) 2 NWLR (222) 210 @ 226-7. PER MOHAMMED LAWAL, J.C.A.

Justice

HON JUSTICE M L GARBA Justice of The Court of Appeal of Nigeria

HON JUSTICE JOHN I OKORO Justice of The Court of Appeal of Nigeria

HON JUSTICE T.N ORJI-ABADU Justice of The Court of Appeal of Nigeria

Between

ROSEHILL LIMITEDAppellant(s)

AND

AREWA METAL CONTAINERSRespondent(s)

MOHAMMED LAWAL, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the High Court of Kaduna State, contained in a ruling delivered of the 20/9/2001 in Suit No DH/KAD/316/2001 filed under the undefended list, by which judgment was entered in favour of the Respondent based on an admission by the Appellant said to be contained in the affidavit in support of the notice of intention to defend the action.
A lone ground of appeal was filed in the Notice of Appeal dated the 2/12/2001 but with the leave of the court two (2) additional grounds of appeal were filed against the decision.
A notice of intention by the Respondent to rely upon filed upon a preliminary objection was filed on the 16/5/2001 on the ground that the appeal was filed outside the statutory period allowed by law and therefore incompetent.
In the Appellants’ brief dated the 28/2/2006 but filed with the leave of Court, two (2) issues were distilled and of out at page 5 as follows –
3 1 Whether the notice of intention to defend and affidavit in support thereof filed on behalf of the Appellant in defence of the specific claims made by the plaintiff disclosed a defence on the merits such that the learned trial judge upon due consideration ought to have transferred the matter to the general cause list?
3 2 Whether the quality of the plaintiffs case herein warranted judgment being entered piecemeal for her?
For, the Respondent, three (3) issues were said to have arisen from the grounds of appeal at page 3 – 4 of the Respondent’s brief filed on the 23/6/2009 with the leave of the court They are as follows-
1.7 ISSUE 1
Whether there is in the affidavit in support of the Notice of intention to Defend filed by the defendant appellant a categorical and unequivocal admission of indebtedness to the plaintiff in the sum of #3,101, 434.00 for which judgment ought to be entered and whether the judgment in the said sum entered by the learned trial judge was wrongful.
1.8. ISSUE 2
Whether from the depositions contained in the defendants’ affidavit in support of the Notice of Intention to defend Paragraphs 4b, 4h, and particularly Exhibit RG1 thereto there is express admission of the suit of #3,101,434.00 by the appellants to justify the judgment the Court thereto in the said sum.
1.8 ISSUES 3
Whether the entering of the judgment in part in the Undefended List and the transferring of the residue of the claim to the general cause list for hearing is wrongful in law, where there is admission of part of the claim and whether the judgment so entered has occasioned a miscarriage of Justice in this case.
At the hearing of the appeal on the 2/2/2010; brief were adopted by learned counsel for the parties to the appeal as their submissions in support of their respective positions.

I would like to observe that the learned counsel who adopted the Respondents’ Brief, did not before or at the hearing the appeal, move the preliminary objection notice of which was filed as stated earlier. The legal consequence of that omission or failure is that the preliminary objection is deemed abandoned by the Respondent NSCRLM .V. NSIRIM (1990) 5 SC (11) 94. S. SCNJ, 174, TIZA .V. BEGHA (2005) 5 SC (11) 1, 5 SCNJ, 168 @ 178, MOHD V. ABDULKADIR (2008) 4 NWLR (1076) 111 @ 1142 -3.
I have also observed that the preliminary objection was not argued in the Respondent’s brief, a fact which supports and clearly shows that the objection was abandoned by the Respondent.
Now, a calm reading of the three grounds of appear contained in the Appellant’s brief amended notice of appeal would reveal that the primary complaint common to all of them is that the High court was wrong in law to have entered judgment in the sum said to have been admitted when there was no such admission in the affidavit in support of the notice of intention to defend and on the state of affidavit evidence before it. The crucial issues that acts from this ground are therefore thus –
(a) was there an admission in law by the appellant in the affidavit in support the notice of intention by defend the action
(b) If the answer to the question (a) is in the affirmative, was the High Court right in law to have entered Judgment in the admitted sum on the state of the affidavit evidence placed before it by the parties?
These two issues would fully and completely determine and answer the ones raised by both learned counsel for the parties and eventually dispose of the appeal. Indeed the substance of the issues formulated by the learned counsel for the Respondent is fully represented in these issues. Because Learned Counsel have addressed these issues in their respective submissions, I intend to review therein line with the issues and then determine the appeal thereon.

Perhaps I should state that the court has the competence to reformulate issues in an appeal in order to determine the real grievance against a decision of lower court See SHA V. KWAM (2000) FWLR (11) 1798 @ 1815, NWANA V. FCDA (2004) 13 NWLR (889) 128, F.M.H V. C.S.A LTD. (2009) 9 NWLR (1145) 193 @ 222 -3.
Bearing in mind that the Appellant by this appeal is complaining about decision of the High Court entering judgment in respect of part of the claim said to have been admitted by the Appellant and not against the decision transferring the other part to general cause list for determination, I would confine my review of the submissions of Learned counsel as they relate to the above issues. Other submissions on whether or not a defence on the merit was disclosed in the appellant’s affidavit filed in support of the notice of intention to defend the whole claims or action is of no moment and irrelevant in this appeal.
The appellant’s submission on the first issue is that the Appellant had adverted to and the High court had observe the style of the respondent of muddling up every single transaction that took place between the parties, including the ones in which no cause of action had arisen. That their were those tanks that had been delivered and paid for and others in respect of which no supply had been made and that the High Court did not advert to this before entering judgment for the Respondent. After setting out the observation of the High court at page 51 of the record of appeal, it was submitted that the natural thing to do after such far reaching findings was to transfer the matter to the general cause list. That it was no longer permissible for the High court to hear the matter on the undefended list or even enter partial judgment for the Respondent.
The Learned Senior Counsel who settled the Appellants’ brief mindful of the Appellants’ complaint in the appeal, had set out the claim made by the Respondent which is at page 4 of the record of appeal and them said that it is not in dispute that the Respondent had constructed and supplied some of the water tanks ordered and that the Appellant made payments Exhibit “J”, relevant extracts of which was set out, as contained at pages 8, 23 – 24 of the record of appeal, were referred to and relied on. Other correspondences between the parties which were attached as Exhibits I, C, D, and E to the Appellant’s affidavit in support of the notice of intention to defend were referred to by the Learned Senior Counsel. Also cited and set out were paragraph 3 S -V and 4 (a) (b) (c) (i) and (k) of the Respondent’s affidavit in support of the writ and it argued that notwithstanding the fact that the balance due to the Respondent was N3,101,434.00 per Exhibit RH1, they were not entitled to the money because the tanks in issue had not been supplied due to delays caused by the Respondent. It was further contended that Exhibit RH could not be construed as disclosing admission of indebtedness regardless of the fact that the document stated that the total amount due to date is N3,101,434 00 because the Appellant clearly qualified the said disclosure by suit paragraph “c” such that the amount was inchoate or premature. According to the learned SAN “the tanks in Exhibit RH1 had not been supplied to the defendant and were therefore not due for payment even if the sum of N101,434 00 was outstanding”. He then cited Exhibit RH3 and maintained that all the excerpts and evidence available to the High Court showed that there was a simmering dispute between the parties and did not qualify the respondent for any form of judgment before a full trial on the general cause list. Lastly, that the partial judgment was undeserved and the High Court ought to have transferred the entire matter to the general cause list. We were urged to allow the appeal, set aside the decision by the High court and order the transfer of the Respondent’s claim to the general cause list.
For the Respondent it was submitted that paragraph 4 and 4h of the affidavit in support of the writ and Exhibit RH1 contained admission categorical and unequivocal to the effect that the Appellant is a wing the sum of N3,101,434 00. That Exhibit RH1 prepared by the Appellant is the statement of account from its own perspective and it agrees with paragraph 4f of the affidavit in support of the writ relating to the total amount paid by the Appellant to the Respondent. It was submitted that the High Court was right and correctly entered judgment of the admitted sum as per Exhibit RH1 and reliance was placed on the case of OGUNAIKE .V. OJAYEMI (1987) 3 SCNJ 69 @ 76, for what amounts to an admission.
It was also the submission of learned counsel for the Respondent that entering judgment in part in the undefended list procedure and transferring the remaining part of a claim to the general cause list is not wrong in law since there is an admission. He said the law is trite that what is admitted requires no further proof and that since the Appellant had admitted indebtedness in the sum stated in Exhibit RH1, judgment had to be entered m the sum. That the approach and procedure did not occasion a miscarriage of Justice to the Appellant and the case of MOSHESHI V NIGERIA STEEL (1987) 4 SCNJ 11 @ 17 – 18 AND SABRH MOTORS LTD. V. RAJAB LTD (2002) 4 SCNJ 370 @ 385 were relied on for the, submission.
In conclusion we were urged by learned counsel to resolve the issues in favour of the Respondent.

Because the issue of admission is one of evidence I would start a consideration of this 1st issue, i.e issue (a) above, by a look at the Evidence Act for the definition of the term or issue for the purpose of proof in civil proceedings Section 19 of the Evidence Act, Cap 1 2, Law of the Federation of Nigeria, 1990, defines admission as follows-
“19. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereunder mentioned.”
In case of N.A S LTD V. U.B.A PLC (2005) 7 SC (11) 139 @ 144, the Supreme Court defined admission in the following terms-
“An admission, as defined in “Black’s Law Dictionary, 6th Edition, 1990, page 47, “is a statement made by one of the parties to an action which amounts to a prior, acknowledgement by him that out of the material facts relevant to the issues is not as he now claim.”.
Admission was also defined by the Supreme Court in the earlier case of OGUNNAIKE .V. OJAYEMI (supra) at page 770 of the report as –
“A statement, oral or written (expressed in implied) which is made by a party to a civil Proceeding and which statement is address to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement”
See also SELSMOGRAPH SERVICES V EYUAFE (1976) 9 AND 10 SC 135, TITILOYE V OLUPO (1991) 7 NWLR (205) 519, GABARI V. ILORI (2002) 14 NWLR (786) 78, NIGERCHININD LTD V. OLADAHIN (2006) ALL FWLR (327) 557.
The above definitions are quite straight forward and plain such that it is unnecessary to attempt further explanation of what an admission is in evidence.
However the law is that for admission in pleadings to be effective, it must be clear, unequivocal and unambiguous otherwise it would not taken as true admission NNAEMEKA, JCA (Later JSC) in the case of N.B.N LTD .V. GUTHEKICE LTD.(1987) 2 NWLR (56) 253 @ 263 had stated the requirement thus –
“I should here recall the dicta of LORD GREENE IN ASHE & ANOR. V. HEMHINSON & CO. PUBLISHERS LTD & ORS. (1936), 1 Ch.D 489 at 502. A plaintiff who relies for the proof of a substantial part of his case upon admission in the defence must in my judgment, should that the matters in question are clearly pleaded and clearly admitted, he is not entitled to ask the court to read meaning into his pleading which upon a fair construction do not clearly appear in order to fix the defendant with an admission. I adopt this opinion…….”
See in addition BELLO V. IWEKA (1951) 1 SC 101 and MOTUNWASE V. SORUNGBE (1988) 5 NWLR (92) 90 @ 102.

As a follow up from this latter principle of law it is also settled that a Court has the power to enter judgment in respect of a party of a claim/s admitted by the party against whom it/were made and require proof of a disputed part. Specifically the High Court in this appeal by the provisions or “Order 29, Rule 3 of the High Court (Civil Procedure Rules, 1987, Cap 68, the Laws of Kaduna State, 1991 (which are relevant for the appeal) has the discretionary power to enter judgment on admission by a party either in pleadings or otherwise, upon application by a party in whose favour the admission was made See F.A B.S. LTD .V. IBIYEYE (2008) 14 NWLR (1107) 375 @ 408 -9.
After restatement of the law on the definition and requirements of an effective admission, the question that arises now is whether from the evidence contained in the Appellant’s affidavit filed in support of the notice of intention to defend, there was an effective admission of the sum entered by the High court in the decision appealed against in favour of the Respondent.
In the ruling entering judgment for the respondent based on the said admission, the High Court had relied on Exhibit RH1 attached to the affidavit in supporting the notice of intention.
This is what the High Court said –
“Exhibit RH1 of the affidavit in support of the defence shows more than that. It is also a document made by the defendant admitting the sum of N3,101,434.00 out of the total sum claimed by the plaintiff for the fabrication and supply of the water tanks in paragraph 4 of the affidavit in support of the writ of summons, while therefore judgment is hereby entered in favour of the plaintiff in this sum of N3,101,434.00 (three million, one hundred and one thousand, four hundred and thirty four naira) only being the sum admitted by the defendant in Exhibit RH1, the balance of plaintiff claim i.e the sum of N8,455,71L50 for all the reasons given earlier in this ruling is transferred to the General cause list for hearing.”
Exhibit RH1 in which the Appellant was said to have made the admission in question is at page 41 of the record of appeal and it is expedient in set it out as it appears. It is thus –
TANKS SUPPLIED BY ARMECO
S/N DESCRIPTION PROJECT AMOUNT (N)
1. 250,0001 (as on 30m lower NAF, Kaduna    7,000,000.00
2. 2 250,0001 trs on 20m Tower NAF, Lagos    7,000,000.00
3. 10,0001 trs on 9m Lekki, Lagos
transferred to Makurdi             1,011,084.00
4. 10,0001 trs on 12m Tower, Ogudu, Lagos    1,011,084.00
5. 20,0001 trs on 12m Tower, Ikeja, Lagos    1,262,185.00
6, 6,0001 trs 8m Lekki, Lagos             885,322.00
7 25,0001 trs on 10m Tower Abuja to Ufugo    1,000,460.00
8. 5,0001 trs on 6m Tower Inye Village          705,016.00    N19,876,151.00
(LESS) PAYMENT TO DATE
1. 1st payment 3/11/1999) = (Intercity Cheque No 412)    5,000,000.00
2. 2nd payment 13/1/2000 (GTB Cheque No 404)    2,640,000.00
3. 3rd Payment 8/2/2000 (Intercity cheque No 992)    2,627,484.40
4. 4th Payment 22/3/2000 (Intercity Cheque No 59180)    3,500 000 00
5. 5th Payment 21/6/2000 (GTC Cheque No. 665)    2,407,233.00    N16,774,717.00
N3,101,434.00
TOTAL AMOUNT DUE TO DATE
(THREE MILLION ONE HUNDRED AND ONE THOUSAND FOUR HUNDRED AND THIRTY-FOUR NAIRA ONLY).
On its face the Exhibit is a document from the Appellant setting out details of the performance of the contract between it and the Respondent, showing the number, prices and total costs of the tanks supplied by the Respondent, the total amount paid by the Appellant and the total amount due up to the date of the Exhibit Taken along and in isolation of the other averments in the affidavit in support of the notice of intention to defend, that on impression one gets or to be drawn from the content of the Exhibit is that the Appellant is saying and stating unequivocally that of the total costs of the tanks stated and supplied to it by the Respondent, the sum of N3,101,434 00 was due to the Respondent as at the date of the Exhibit. In effect the Appellant by that statement of account in respect of the contract between it and the Respondent for the supply of water tanks, it had not paid the above sum to the Respondent for all the tanks which were supplied as indicated on the Exhibit. The Appellant thereby agrees and accepts that the said amount is due from it to the Respondent for the supplied tanks. That cannot I seriously disputed in view of the submission by the learned counsel for the Appellant at the hearing of the matter by the High court on the return date of the writ, the 2/7/2001.
This is what learned counsel said to the High court on that day in the course of arguing the notice of intention to defend.
“SHEHU.- We have filed our notice of intention to defend. Thereto were annexed 4 annexure RH1 to RH4. .. . We also submit that the defendant in Exhibit RH1 is entitled to the sum therein stated and no any other amount.
We admitted only N3,101,434.00 which we have received payment from our client.”
By the above state of Exhibit RH1 and submission by the learned counsel for the appellant, there was no doubt whatsoever that the Appellant not only accepted an admitted that the sum of N3,101,434 00 was due to the Respondent for the tanks supplied, but had infact made payment to learned counsel for onward transmission to the respondent. However, when Exhibit RH1 is considered along with the other averments in the appellant’s affidavit in support of the notice of intention to defend as the High Court had the duty to do in the peculiar procedure under the undefended list, it would become clear that there was the need for the Respondent to offer explanations as to whether or not it was entitled to the total amount it claimed in the writ. It should be borne in mind that though the High Court had the power to enter judgment based on admission in law by the provisions of section 26 of the Evidence Act, admissions are not conclusive proof of the matters admitted See also NIGERIAN PAPER MILL V PITHAWALLA ENG. LTD (1989) 1 NWLR (99) 662 @ 632, OBI-ODU V DUKE (2006) 1 NWLR (1996) 37.
In the present appeal, I can find no averment in the Appellant’s Affidavit which expressly and dully admitted liability for any sum of the total amount claimed by the Respondent in both the will and the affidavit in support of the writ. On the contrary, the Appellant’s affidavit is repelate with specific and terse denials of the claims by the respondent supported by particulars of the ground of what the defence was to the claims.
When the Appellant’s affidavit is read and considered as a whole along with the Respondent’s Affidavit which set out the averments containing the particulars of the claims becomes clear that the case is one which calls for additional explanations by way of evidence in order to be determined with any certainty.
The High Court itself recognized that need when in its ruling it pointedly stated thus:-
“As I have said earlier the contracts were not awarded to the plaintiff at one and the same time Payments for the tanks were also not made separately against each contract. It is therefore, difficult from the affidavit and documents to ascertain the actual amount paid without resorting to oral evidence. This difficulty in ascertaining the actual amount due to the plaintiff could be seen in Exhibit N and O of the affidavit in support of the writ and in Exhibit RH1 of the affidavit in support of the notice of intention to defend”. (Underline supplied for emphasis).
Because the case was filed under the under the undefended list on the averment by the Respondent that the Appellant had no defence to the claims against it and the High Court was of the above view that on the state of the affidavit evidence and the documents placed before it by the parties it was difficult to ascertain the amount due to the Respondent without resort to oral evidence, it clearly means that a defence on the merit has been disclosed in the affidavit of the Appellant to the claims by the Respondent which amply warranted the transfer of the matter to the general cause list for determination to enable the parties proffer the oral evidence which High Court said was necessary.
Exhibit RH1 said to contain an admission by the Appellant was on of the documents referred to by the High Court in concluding that the amount paid and the amount due to the plaintiff were difficult to ascertain without resort to oral evidence.
It is therefore clearly a judicial flip-flop on summersault for the High Court after that view to later hold that there was any certainty in the content of Exhibit RH1 as to what amount was paid and what was due to the Respondent as to qualify as an effective admission upon which judgment could be entered in favour of the Respondent without the oral evidence which was found to be necessary earlier on.

Under the undefended list procedure, once an affidavit in support of a notice of intention to defend the action contains averments which cast doubt on the claims of a plaintiff and shows that there is fair case for defendant reasonable ground for setting up a defence or even a fair probability of a bona fide defence, the case should be transferred to the general cause list for determination. MACGREGOR V. N.M.B. (1996) 2 SCNJ 72 @ 42 EASTERN PLASTICS V SYNCO (W A) (99) 1 NWLR (587) 456, JIPREZE V OKONKNO (1987) 3 NWLR (62) 737.
With the finding by the High court that the amount paid and that due to the Respondent could not be ascertained without resort to oral evidence, diligence and prudence required that the claim made by the Respondent in the matter should be transferred to the general cause list for determination. The High court therefore cited in law when I entered judgment for the amount which it had acknowledged cannot be ascertained from the affidavit evidence and documents placed before it by the parties in the peculiar circumstances of the case.
In the result, I resolve the lone issue in the appeal in favour of the Appellant.
Consequently, the decision of the High court entering judgment for the sum of N3,101,434.00 in favour of the Respondent based on the purported admission in Exhibit RH1, is hereby set aside. That sum is also hereby ordered to be transferred to the general cause list of the Hugh Court along with the other sum claimed by the Respondent for determination on the merit.
In the final result, I find merit m the appeal and is allowed in the aforementioned terms-
Parties shall bear their respective costs in this Court.

JOHN INYANG OKORO, JCA: I was obliged a copy of the judgment of my learned brother, Garba, JCA just delivered and I agree with him that this appeal is meritorious and ought to be allowed.

The undefended list procedure is to enable a plaintiff to obtain summary judgment without going into a lengthy trial if he can prove his claim clearly and also if the defendant is not able to set up a bona fide defence or raise an issue against the claim which ought to lead to the case being tried on its merit. See Federal Military Government v. Sani (1990) 4 NWLR (pt 147) 688, UTC V. Pamotei (1989) 2 NWLR (pt 103) 244.
The intention of the procedure is not to shut out the defendant at all. Rather, it gives him the opportunity to show by his affidavit that he has a defence which ought to be considered by the trial court.

It is therefore the duty of the trial judge to examine the averments of the defendant in his affidavit in support of Notice of Intention to defend in order to ascertain whether the defence set up therein is meritorious or not as there is no room for frivolous defences. At this stage, it is not for the trial judge to consider whether the defence has been proved. He is simply to look at the facts deposed in the defendant’s affidavit and see if those facts can, prima facie afford a defence to the claim. A complete and comprehensive defence need not be shown at this stage. It is enough that the defendant is able to show that there is a triable issue or question raised in the affidavit. And before judgment can be entered for the plaintiff, the trial judge must satisfy himself that all the facts contained in the defendants affidavit do not amount to a defence in law See F.M.G. V. Sani (supra), Ebong V. Ikpe (2002) 17 NWLR (pt 797) 504.
In the instant appeal, having read the affidavit in support of Notice of Intention to defend and the views and decisions of the learned trial judge, I find it very compelling to agree with my learned brother that this appeal should be allowed. For instance the learned trial judge held inter alia that –
“It is therefore difficult from the affidavit and documents to ascertain the actual amount paid without resorting to oral evidence. This difficulty in ascertaining the actual amount due to the plaintiff could be seen in Exhibit N and O of the affidavit in support of the writ and in Exhibit RH1 of the affidavit in support of the notice in intention to defend”
Clearly, the above observation of the learned trial judge was enough beacon of light for his path to have been properly illuminated to see that this was not proper matter to be determined on the undefended list procedure. It must be noted that the undefended list procedure is for liquidated sum which is certain and not a sum which requires oral and/or further evidence to ascertain as observed by the lower court in this case. My view is that this matter ought to have been transferred to the general cause list. I so hold.
In sum, this appeal hereby succeeds I set aside the judgment of the lower court and order that the matter be transferred to the General cause list and heard accordingly. I abide by all consequential orders made in the lead judgment. I also abide by the order on costs.

THERESA NGOLIKA ORJI-ABADUA, J.C.A: It is settled that in an action commenced under the undefended list procedure, there is a duty on the Court to appraise itself of the Plaintiffs claims and be satisfied that, prima face, it is non-contentious in the sense that from the Plaintiffs affidavit stating the grounds upon which the claims are hinged, there is evidence of admission of the claims by the defendant as a justification for dispensing with a trial of the action on the merits.

It is a fundamental principle of Nigerian Law that the onus on the plaintiff in a civil case to establish a prima-facie case before the defendant can be called upon to defend the case. The Plaintiff must establish his entitlement to a judgment under the undefended list before the Court can proceed to make the award, for this is so, irrespective of whether the defendant led a Notice of Intention to defend with an affidavit or not.
Therefore, where the actual indebtedness of the defendant cannot be ascertained from the evidence available, without resort to other extrinsic accounting source that would operate as a defence which is good enough to justify the transfer of the action to the general cause list to enable it to be tried on the merits, the suit must invariably be transferred to the general cause list for trial. Reply, it is unfathomable that the trial Court after acknowledging in its ruling, the precarious nature of the amount owed to the Plaintiff by the Defendant still went head to enter judgment for the Respondent on the undefended list. It should be noted that discrepancy between the amount claimed and the figure that can be ascertained from the affidavit raises a contentious issue that can be resolved only by being tried. It is therefore, not mandatory that once a matter is originated under the undefended list, judgment must be entered in favour of the Plaintiff irrespective of whether the Plaintiff had made out his claim in his affidavit evidence in support of his writ, or not.
It is therefore, for this reason and the reasons given in the lead judgment that I completely agree with my Learned brother, M. L Garba, J C A, in his lead judgment that there was an error on the part of the lower Court in its application of the law relating to matters commenced on the undefended list.
Consequently, this appeal succeeds, and the judgment of the trial Court entered in favour of the Respondent is hereby set aside. I hereby abide by all the consequential orders made in the lead judgment.
There will be no order as to costs.
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Appearances

I.L.OGOR;
E.D. IsuramenFor Appellant

AND

SETH NIXON – for the Respondent holding brief to ROSEMARY ISHIEFor Respondent