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UBA PLC v. E. I. NATAMA INTL COMPLEX LTD (2020)

UBA PLC v. E. I. NATAMA INTL COMPLEX LTD

(2020)LCN/15613(CA)

In the Court of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/B/296/2013

 

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

 

Between

UNITED BANK FOR AFRICA PLC APPELANT(S)

And

E. I. NATAMA INTERNATIONAL COMPLEX LIMITED RESPONDENT(S)

 

RATIO:

THE PROVISION OF THE UNDEFENDED LIST PROCEDURE

In law, the undefended list procedure provision is usually aimed at dispensing with dispatch cases which are uncontested and also cases where there can be no reasonable doubt that a Claimant is entitled to judgment and it is inexpedient to allow a Defendant to defend for the mere purposes of delay. Thus, it is for the plain and straight forward and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247, where the erudite Tobi JSC., (God bless his soul) had lucidly explained the rationale for the undefended list procedure thus:
“For an action to be transferred from the undefended list to the general cause list there must be a defense on the merit and detail and particulars of defense must be set out. It must not be a half – hearted defense. It must not be defense which is merely fishing for skirmishes all over the place. It must be real defense on the merit and not a counterfeit of it… The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum. BIOBELE ABRAHAM GEORGEWILL, J.C.A

THE AIM OF NOTICE OF INTENTION TO DEFEND IS TO CREATE DOUBT ON THE CASE OF THE PLAINTIFF. “…The affidavit of Notice of Intention to defend must disclose facts which will, at least throw some doubt on the case of the Plaintiff. A mere denial of the Plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defense which will, at least, throw some doubt on the Plaintiff’s claim….In this present suit, the Defendant’s Notice of Intention to defend the suit supported by an affidavit, instead of disclosing a defense to the suit on the merit as claimed by the Defendant, only further confirmed the Plaintiff’s claim against the Defendant…I have considered the claims of the Plaintiff … After due consideration, I am of the firm view and satisfied that the Plaintiff is entitled to Judgment, and consequently judgment is entered in favor of the Plaintiff … as per the Writ of Summons.” See pages 44 – 47 of the Record of Appeal. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE ESSENCE OF THE UNDEFENDED LIST PROCEDURE.
The undefended list procedure is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant against him and there is nothing worth being further investigated by the Court on the affidavit evidence of the parties. It is to be noted here, and very pertinently too, that in granting leave to the Respondent as Claimant to place the suit under the undefended list, the Court below had considered the case of the Respondent as shown in the verifying affidavit in support and had found it to have disclosed at least a prima facie case necessitating the placing of the Respondent’s suit under the undefended list. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

CONFLICTS ON THE AFFIDAVITS EVIDENCE OF THE PARTIES.

But, where there are substantial conflicts as to the facts of the case on the affidavits evidence of the parties, it would be sufficient for the Court to hold that the Defendant has made out a triable issue as would require further enquiry and thus, a transfer of the matter to the General Cause list would be made so that the rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial, as anything otherwise in such circumstances would clearly amount to a breach of the right of the Defendant to fair hearing. See Dala Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt. 238) 697.BIOBELE ABRAHIM GEORGEWILL, J.C.A.

FAILURE TO RESPOND TO SPECIFIC FACTS IS DEEMED TO BE ADMITTED

I therefore, have no difficulty whatsoever holding, as aptly contended by the counsel for the Respondent, that by the failure to respond with details and where necessary documentary exhibits, to the specific facts as contained in the Respondent’s affidavit and copious documentary exhibits, the Appellant is in law deemed to have admitted the facts as deposed to by the Respondent, which are left unchallenged. A Court of law has the plenitude of power to receive and act on unchallenged evidence, whether it is oral, affidavit and or documentary. See Section 123 of the Evidence Act, 2011. See also Obumseli & Anor. V. Uwakwe (2019) LPELR – 46937 (SC); APC V. INEC & Ors (2014) LPELR – 24036 (SC); Tukur V. Uba & Ors (2012) LPELR – 9337 (SC); Akiti V. Oyekunle (2018) LPELR – 43721 (SC); Owuru & Anor V. Adigwu & Anor (2017) LPELR – 42763 (SC); Mato V. Hember & Ors (2017) LPELR – 42765 (SC).BIOBELE ABRAHIM GEORGEWILL, J.C.A.

THE RIGHT TO FAIR HEARING IS NOT BREACHED FOLLOWING THE UNDEFENDED LIST PROCEDURE.

It is never the law and may that day never come when a party who loses a case would by that fact alone without more allege and sustain an allegation of denial of fair hearing just because he had lost a case in Court. This seems to me to be the only hue and cry of the Appellant in this appeal against the judgment of the Court below merely because it went against it. The only business of the day left after hearing the matter under the undefended list is to proceed to give judgment if there is no defense. If there is however a defense, the case should be transferred to the general cause list for hearing and determination. This procedure does not, without more, amount to a breach of the right to fair hearing. See Aso Motel Kaduna Ltd V. Deyemo (supra) @ pp. 121 122. also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659. BIOBELE ABRAHIM GEORGEWILL,J.C.A.

THE TRUE TEST OF FAIR HEARING AND THE REASONABLE MAN TEST
My Lords, in law the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system, once there has been a denial of fair hearing as guaranteed under Section36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensue from the conduct of the Court in the hearing of a case. See Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt.746) 771. See also Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V.AG. of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd(1972) All NLR 413.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: J. O. Okeaya – Inneh J., in Suit No. B/75/2012: E. I. Natama International Complex Ltd. V. United Bank For Africa Plc., delivered on 10/7/2012, wherein the Claims of the Respondent as Claimant were granted against the Appellant as Defendant under the Undefended List procedure.

The Appellant was pissed with the judgment of the Court below and had appealed against it vide its Notice of Appeal filed on 13/7/2012 on two grounds of appeal at pages 48 – 49 of the Record of Appeal. The Record of Appeal was deemed as duly transmitted to this Court on 8/2/2017. The Appellant’s brief was filed on 4/11/2015 but deemed as properly filed on 8/2/2017. The Respondent’s brief was filed on 8/9/2019 but deemed as properly filed on 25/9/2019.

​At the hearing of this appeal on 17/11/2020, C. Obaro – Umeh Esq., learned counsel for the Appellant appearing with I. Omoruyi Esq., adopted the Appellant’s brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the Judgment of the Court below. On his part, Dele Uche Igbinedion Esq., learned counsel for the Respondent adopted the Respondent’s brief as his argument in opposition to the appeal and urged the Court to dismiss the Appeal for lacking in merit.

By a Writ of Summon filed on 5/4/2012, the Respondent as Claimant claimed against the Appellant as Defendant the following reliefs, namely:
1. Special Damages in the sum of N2,561,019.17 being refund of the Plaintiff’s money.
2. Interest on the said sum from the date of judgment until the amount is fully paid, and
3. The Costs of this action. See pages 1 – 2 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent as Claimant before the Court below as can be gleaned from the record of appeal was that sometime in 2009, the Respondent, a customer of the Appellant, obtained a loan facility of N3,000.000.00 with interest from the Appellant and later repaid the loan with the agreed interest. The facility was repeated twice and on each occasion the Respondent faithfully repaid the loan with interest. Thereafter, the Respondent obtained another facility of N1, 800,000.00 on 15/1/2010 from the Appellant, which the Respondent also repaid with interest. However, without the Respondent’s consent and/or with several misrepresentations, the Appellant deducted and/or collected the sum of N2,561,019.17 from the Respondent’s or its Bank account with the Appellant. When the Respondent’s suspicion was aroused and it raised queries, the Appellant froze its account, contrary to the agreement between the parties and thereby, caused damages to the Respondent’s business by the Appellant’s failure to refund to the Respondent the several monies deducted from its account. See pages 5 – 38 of the Record of Appeal.

On the other hand, the gist of the case of the Appellant as Defendant before the Court below as can be gleaned from the Record of Appeal is that on 5/3/2010, contrary to the allegation of fraud, the Respondent’s Managing Director issued Cheque number 26808488 for the sum of N450,000 and requested the Bank to issue Four Manager’s Cheque in favor of Edo State Government for payment of the sum of N100,000.00 as Registration as Timber Contractor; the sum of N100,000 as Registration of Hammer; the sum of N100,000 as Registration of Motor Saw and the sum of N150,000 as Registration of 3Vehicles at N50,000.00 each. It was also the case of the Appellant that on 13/5/2010, the Respondent’s account was debited to the tune of N400,000 via personal Cheque issued in favor of Doctor E. Igiebora, the Sole Signatory to the account and which was cashed across the counter. On 25/5/2010 there was another debit to the tune of N200,000 in the Respondent’s account representing its Cheque No. 26808501 being request for Managers’ Cheque in favor of Edo State Government and that the Appellant in all these transactions did not fraudulently withdraw any sums of money from the Respondent’s account as alleged by the Respondent. However, the debit to the tune of N,99,457.53 was made as repayment of a N1,8000,000 cash collatarized loan (CC039500010193) requested and granted to the Respondent on 15/1/2010 and therefore, the Appellant has a good defense to the bogus claims of the Respondent. See pages 41 – 43 of the Record of Appeal.

The Court below heard the matter as placed under its Undefended List and after considering the affidavits of the parties and the documentary exhibits of the Respondent, in the absence of any documentary exhibits from the Appellant, came to the conclusion that the Appellant’s affidavit rather than affording any defense supported the case of the Respondent. It then proceeded to enter judgment on 10/7/2012 in favor of the Respondent as per its claims against the Appellant, hence this appeal. See pages 44 – 47; 48 – 49 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the two grounds of appeal, namely:
“Whether the Court below was right in coming to the conclusion that the Appellant’s Affidavit disclosing its Defense actually supported the case of the Respondent and consequently entering judgment for the Respondent?”(Distilled from Grounds 1 and 2)

In the Respondent’s brief, a sole issue was also distilled as arising for determination in this appeal, namely:
“Considering that the ‘Affidavit Disclosing Defense’ of the Appellant specifically confirmed the deduction of the total sum of N2,561, 019.17 from the Respondent’s Account by the Appellant without any annexed documents to justify the basis of the deductions, whether the trial Court was not right when it held that the said Affidavit supports the claim of the Respondent and accordingly granted the reliefs of the Respondent?”(Distilled from Grounds 1 and 2)

I have given due considerations to the facts and circumstances of this appeal as in the printed record. I have also calmly reviewed the submissions of counsel in their respective briefs in the light of the findings in the Judgment of the Court below appealed against. It does appear to me that the sole issue as distilled in the Appellant’s brief is the only proper issue arising for determination in this appeal, a consideration of which, in my view, would invariably involve a due consideration of the sole issue as distilled in the Respondent’s brief.

SOLE ISSUE
“Whether the Court below was right in coming to the conclusion that the Appellant’s Affidavit disclosing its Defense actually supported the case of the Respondent and consequently entering judgment for the Respondent?”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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APPELLANT’S COUNSEL SUBMISSIONS
On his sole issue, learned Counsel for the Appellant had submitted that the Affidavit of the Appellant disclosed a defense to the Respondent’s Claim, particularly the depositions of facts in paragraphs 4(a) – (g) and contended that the Court below was in grave error when it held that these averments supported the claims of the Respondent and urged the Court to hold that they do not in any way amount to an admission and or support of the claims of the Appellant, being very direct and categorical denial of and positively challenge the veracity of the Respondent’s allegations and claims amounting to a good defense and to allow the appeal and set aside the perverse findings of the Court below and to transfer the Respondent’s Suit to the General Cause list for hearing and determination on the merit as required by law.

It was also submitted that the Appellant in its defense clearly set out its disagreement with the Respondent and consequently joined triable issues with the Respondent as required of it by law and contended that in law where issues are joined in a matter under the undefended list, trial becomes inevitable since under the undefended list procedure the Affidavit disclosing a defense need not show that the Defendant has a defense that is full proof or iron cast and it suffices, if the Defendant puts up a prima facie defense as was done by the Appellant and urged the Court to hold that the Court below was in grave error when it held that the Affidavit of the Appellant supported the case of the Respondent and thereby proceeding to entering judgment for the Respondent against the Appellant. Counsel relied on Agro Miller Ltd. V. CMB (1997) 10 NWLR (Pt.525) 469; Nya V. Edem (2001) 8 NWLR (Pt. 669)1

It was further submitted that by its affidavit the Appellant disclosed a prima facie defense to the Respondent’s Suit and contended that in denial of the Appellant’s right to fair hearing the Court below wrongly shut out the Appellant from presenting its full case and urged the Court to allow the appeal and set aside the offending and perverse judgment of the Court below in the interest of the Appellant’s constitutionally guaranteed right to fair hearing that was brazenly breached by the Court below.

RESPONDENT’S COUNSEL SUBMISSIONS
On his sole issue, learned Counsel for the Respondent had submitted that in law the Undefended List procedure is an adjudicatory procedure system wherein the Court determines the claims of the Claimant without necessary going into trial of the case whenever a Claimant believes that the Defendant has no defense to his claims and the Defendant fails to disclose any triable issue or defense to the claims of the Claimant. Counsel relied on NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR -44464 (SC); Akahall & Sons Ltd V. NDIC (2017) LPELR – 41984 (SC); Bona V. Textile Ltd & Anor. V. Asaba Textile Mill Plc., (2012) LPELR – 9828 (SC); Union Bank of Nigeria V. Awmar Properties Ltd (2018) LPELR – 44376 (SC).

It was also submitted that whilst the Respondent filed a detailed and particularized Affidavit of the unjustifiable deductions in its Account by the Appellant to the tune of N2,561,019.17 and how the Appellant admitted to have wrongly deducted the said monies, the Appellant failed to respond to the facts, particulars and details contained in the Affidavit of the Respondent as required of it by law in an action placed under the Undefended list and contended that by that failure the Appellant is deemed to have admitted the facts as deposed to by the Respondent and urged the Court to hold that the Court below was right to have relied on the unchallenged affidavit and documentary exhibits of the Respondent in entering judgment against the Appellant in favor of the Respondent and to dismiss the appeal for lacking in merit. Counsel referred to Section 123 of the Evidence Act, 2011 and relied on Obumseli & Anor. V. Uwakwe (2019) LPELR – 46937 (SC) ; APC V. INEC & Ors (2014) LPELR- 24036 (SC); Tukur V. Uba & Ors (2012) LPELR – 9337 (SC); Akiti V. Oyekunle (2018) LPELR-43721 (SC); Owuru & Anor V. Adigwu & Anor (2017) LPELR – 42763 (SC); Mato V. Hember & Ors (2017) LPELR-42765 (SC).

It was further submitted that the Appellant having admitted the said deductions in the account of the Respondent failed to justify the deductions and contended that the entirety of the depositions in the Appellant’s affidavit were unhelpful to the case of the Appellant and failed to disclose any defense to the claims of the Respondent in that the bare, unsupported and hearsay filled paragraphs 4 (a) – (i) of the Appellant’s Affidavit clearly offend the Evidence Act and urged the Court to strike out these offending paragraphs and to hold that the Appellant failed to make out any defense to the Claims of the Respondent and the Court below was therefore, right to have entered judgment in favor of the Respondent against the Appellant and to dismiss the appeal for lacking in merit. Counsel referred to Section 115(1), (3) and (4) of the Evidence Act 2011 and relied on AGIP (Nig.) Ltd. V. AGIP Petroleum International & Ors (2010) Vol. 181 LRCN 119 @ p. 131; Jimoh V. Hon. Minister Federal Capital Territory & Ors (2018) LPELR – 46329 (SC).

It was also further submitted that the Appellant failed woefully to annex any of the documentary exhibits required to prove the depositions in its affidavit and contended that in law when a deponent in an affidavit makes reference to a situation which can only be proved by documents, it becomes imperative to attach the said documents and urged the Court to hold that the failure of the Appellant to attach the relevant documents which could have given life to its depositions rendered those paragraphs unproved and thus liable to be discountenanced. Counsel relied on Titanlaye V. David (2013) LPELR – 20160 (CA) @ p. 11;Hussani Isa Zakirai V. Salisu Dan Azumi Muhammad & Ors (2017) LPELR – 42349 (SC); Kimdey V. Mil. Gov.Gongola (1988) 2 NWLR (Pt. 77) 445; Fashanu V. Adekoya (1974) 4 SC 83; Fawehinmi V. IGP & Ors (2002) LPELR-1258 (SC).

It was also submitted that the failure of the Appellant to exhibit the relevant documents which were clearly in its custody in support of its depositions would in law clearly invoke the presumption against withholding evidence and contended that the Appellant refused and or failed to place before the Court below by way of exhibits all the documents referred to in its affidavit because it knew that if produced these documents would have been unfavorable to it and urged the Court to so hold and to discountenance all the depositions in the Appellant’s affidavit from which the essential documentary exhibits were withheld by the Appellant. Counsel referred to Section 167 (d) of the Evidence Act 2011 and relied on Okereke V. Umahi & Ors (2016) LPELR – 40035 (SC); Haruna V. Modibbo (2004) 16 NWLR (Pt. 900) 487; Audu V. INEC (No.2) (2010) 13 NWLR (Pt. 1212) 456S S. GMBH V. T. D. Industries Ltd (2010) 11 NWLR (Pt. 1206) 589; Buhari &Anor. V. Obasanjo and Ors (2005) 12 NWLR (Pt. 941) 1; Aremu V. Adetoro (2007) 49 WRN 1,Onuwaje V. Ogbeide (1991) 3 NWLR (Pt. 178) 147; UBA Ltd V.Ibhafidion (1994) 1 NWLR (Pt 318) 90; Tsokwa Motors Nig Ltd V. Awoniyi (1999) 1 NWLR (Pt 586) 199; Agbi V. Ogbe &Ors (2007)10 WRN 144.

RESOLUTION OF THE SOLE ISSUE
My Lords, the fulcrum of this appeal, which is aptly encapsulated in the Appellant’s sole issue for determination, is the vexed issue of when proceedings under the undefended list procedure can properly be invoked by a party, how is it defended by the other party, when should such a claim be transferred to the general cause list and whether a judgment under it amounts to breach of the Defendant’s right to fair hearing?

In law, the undefended list procedure provision is usually aimed at dispensing with dispatch cases which are uncontested and also cases where there can be no reasonable doubt that a Claimant is entitled to judgment and it is inexpedient to allow a Defendant to defend for the mere purposes of delay. Thus, it is for the plain and straight forward and not for the devious and crafty. See Uba & Anor V. Jargaba (2007)11 NWLR (Pt. 1045) 247, where the erudite Tobi JSC., (God bless his soul) had lucidly explained the rationale for the undefended list procedure thus:
“For an action to be transferred from the undefended list to the general cause list there must be a defense on the merit and detail and particulars of defense must be set out. It must not be a half – hearted defense. It must not be defense which is merely fishing for skirmishes all over the place. It must be real defense on the merit and not a counterfeit of it… The Undefended list procedure is designed to secure quick justice and avoid the injustice likely to occur when there is no genuine defense on the merits to the plaintiff’s case. The procedure is to shorten the hearing of a suit where the claim is for liquidated sum.”
See also Agro Millers Limited V. Confidential Merchant Bank(Nig) Plc (1997) 10 NWLR (Pt. 525) 469.

My Lords, on the one hand, it was the case of the Respondent as can be seen from paragraphs 1 – 30 of the Respondent’s affidavit that sometime in 2009, the Respondent, a customer of the Appellant, obtained a loan facility of N3,000.000.00 with interest from the Appellant and later repaid the loan with the agreed interest. The facility was repeated twice and on each occasion the Respondent faithfully repaid the loan with interest. Thereafter, the Respondent obtained another facility of N1, 800,000.00 on 15/1/2010 from the Appellant, which the Respondent also repaid with interest.

However, without the Respondent’s consent and/or with several misrepresentations, the Appellant deducted and/or collected the sum of N2, 561, 019.17 from the Respondent’s or its Bank account with the Appellant. When the Respondent’s suspicion was aroused and it raised queries, the Appellant froze its account, contrary to the agreement between the parties and thereby, caused damages to the Respondent’s business by the Appellant’s failure to refund to the Respondent the several monies deducted from its account.

​The Respondent firmly believed that the Appellant had no defense to its claim for the immediate refund of its money amounting to the sum of N2, 561, 019. 17 which were withdrawn from its account with the Appellant without any authorization coupled with the failure of the Appellant not only to respond to the Respondent’s Solicitor’s letter of demand for the immediate refund of the said amount but also its failure to honor the Respondent’s Cheque for the sum of N40, 000 issued in favor of its Managing Director as in Exhibit D.

​However, on 11/10/2011 the meeting fixed for the resolution of any outstanding issues on the Respondent’s Statement of Account with the Appellant was botched by the Appellant’s Manager who evaded telephone calls from the Respondent’s Managing Director to agree on suitable time for the said meeting. Subsequently, the Appellant admitted through its Manager upon discussion with an Accountant retained by the Respondent that they were wrong in the unauthorized deductions made from the Respondent’s Account but a meeting fixed for 15/10/2011 to agree on modalities for the refund of the Respondent’s monies could not hold also due to the failure of the Appellant’s Manager to attend the said scheduled meeting. Consequently, the failure of the Appellant to refund the Respondent’s monies had negatively affected the business of the Respondent as cash flow became very low in the face of increased expenses.

The above is the crux of the depositions in paragraphs 5 – 26 of the Respondent’s Affidavit deposed to by one, Chief Emmanuel Igiebor, the Managing Director/Chief Executive Officer of the Respondent. Annexed to this affidavit are Exhibit A, The Respondent’s Statement of Account; Exhibit B, Copy of the Respondent’s Solicitor’s letter of demand to the Appellant for the immediate refund of Respondent’s monies; Exhibit C, the Edo Couriers Ltd Way-Bill for the delivery of the Respondent’s Solicitor’s letter to the Appellant, and Exhibit D, Copy of the Cheque written against the Respondent’s Account in favor of its Managing Director. See pages 5 – 10; 11 -38 of the Record of Appeal.

​On the face of the above allegations by the Respondent, what was the response or case or defense of the Appellant in the affidavit in support of its Notice of Intention to defend? It was the Appellant’s case as can be seen from paragraphs 1 -5 of the Appellant’s affidavit that on 5/3/2010, contrary to the allegation of fraud, the Respondent’s Managing Director issued Cheque number 26808488 for the sum of N450,000 and requested the Bank to issue Four Manager’s Cheque in favor of Edo State Government for payment of the sum of N100,000.00 as Registration as Timber Contractor; the sum of N100,000 as Registration of Hammer; the sum of N100,000 as Registration of Motor Saw and the sum of N150,000 as Registration of 3Vehicles atN50,000.00 each.

​It was also the case of the Appellant that on 13/5/2010, the Respondent’s account was debited to the tune of N 400,000 via personal Cheque issued in favor of Doctor E. Igiebora, the Sole Signatory to the account and which was cashed across the counter. On 25/5/2010 there was another debit to the tune of N200,000 in the Respondent’s account representing its Cheque No. 26808501 being request for Managers’ Cheque in favor of Edo State Government and that the Appellant in all these transactions did not fraudulently withdraw any sums of money from the Respondent’s account as alleged by the Respondent. However, the debit to the tune of N1, 997, 457.53 was made as repayment of a N1, 800, 000 cash collatarized loan (CC039500010193) requested and granted to the Respondent on 15/1/2010 and therefore, the Appellant has a good defense to the bogus claims of the Respondent.

The above is the crux of the depositions in paragraphs 4 (a); (b); (c ); (d); (e ); (f); (g); (h) and ( i) of the Appellant’s Affidavit deposed to by one Loveth Afekokhian Imafidon on the information supplied to her by one Mrs. Esohe Ogbeide, the Branch Manager of the Appellant. See pages 41 – 43 of the Record of Appeal.

It was on the strength of the above affidavit evidence of the parties and the copious documentary exhibits of only the Respondent that the Court below had after a due consideration thereof entered judgment on 10/7/2012 in favor of the Respondent as per its claims against the Appellant, and stating inter alia as follows:
“…The affidavit of Notice of Intention to defend must disclose facts which will, at least throw some doubt on the case of the Plaintiff. A mere denial of the Plaintiff’s claim and affidavit is devoid of any evidential value and as such would not have disclosed any defense which will, at least, throw some doubt on the Plaintiff’s claim….In this present suit, the Defendant’s Notice of Intention to defend the suit supported by an affidavit, instead of disclosing a defense to the suit on the merit as claimed by the Defendant, only further confirmed the Plaintiff’s claim against the Defendant…I have considered the claims of the Plaintiff … After due consideration, I am of the firm view and satisfied that the Plaintiff is entitled to Judgment, and consequently judgment is entered in favor of the Plaintiff … as per the Writ of Summons.” See pages 44 – 47 of the Record of Appeal

​Now, whilst on the one hand the Appellant contends vehemently that the facts relied upon by it when taken together with the facts relied upon by the Respondent raised triable issues for which the Respondent’s Suit ought to have been transferred to the General Cause list for full trial, on the other hand the Respondent also contends vehemently but to the contrary that the facts as relied upon by the Appellant raised no triable issue and were at best in support of the claims of the Respondent as rightly found by the Court below and leaving the Court below with no other option than to enter judgment as it did in favor of the Respondent as per its claims against the Appellant, there being nothing to be  transferred to the General Cause list for full trial.

Having taken a calm look at the affidavit of the parties and the documentary exhibits of the Respondent as in the printed record, I am of the view that the Court below clearly understood its role in a matter placed under the Undefended list and did properly evaluated and considered the entirety of the facts and evidence, both affidavit and documentary as can readily be seen in the excerpts of the said judgment earlier reproduced in this judgment.

​The undefended list procedure is geared towards the attainment of speedy but substantial justice in cases in which a Defendant really has no defense to the claim of the Claimant against him and there is nothing worth being further investigated by the Court on the affidavit evidence of the parties. It is to be noted here, and very pertinently too, that in granting leave to the Respondent as Claimant to place the suit under the undefended list, the Court below had considered the case of the Respondent as shown in the verifying affidavit in support and had found it to have disclosed at least a prima facie case necessitating the placing of the Respondent’s suit under the undefended list.
The Court below having done so, the very straight forward, and if I dare say very simple and uncomplicated procedure on the date fixed for hearing of the suit placed under the undefended list, is that the Court would after hearing the parties or their counsel ascertain if on the facts as placed before it the Defendant had made out any triable issue or defense to the claims of the Claimant.
​However, in arriving at such a finding, the Court would critically securitize and examine the affidavits and documentary exhibits, if any, of the parties to determine at that stage if the Defendant has disclosed any defense or raised at least triable issue that would need to be further investigated by the Court by way of a full hearing. Where the Court finds that the Defendant has not disclosed any defense or raised any triable issue, it is under a duty to proceed to enter judgment in favor of the Claimant against the Defendant, no more and no less! See NPA V. Aminu Ibrahim & Co & Anor (2018) LPELR -44464 (SC)  Akahall & Sons Ltd V. NDIC (2017) LPELR – 41984 (SC); Bona V. Textile Ltd & Anor. V. Asaba Textile Mill Plc., (2012) LPELR – 9828 (SC); Union Bank of Nigeria V. Awmar properties Ltd (2018) LPELR – 44376 (SC)
But, where there are substantial conflicts as to the facts of the case on the affidavits evidence of the parties, it would be sufficient for the Court to hold that the Defendant has made out a triable issue as would require further enquiry and thus, a transfer of the matter to the General Cause list would be made so that the rights of the parties would be enquired into and settled on the merit on the evidence as would be put forward by them at the trial, as anything otherwise in such circumstances would clearly amount to a breach of the right of the Defendant to fair hearing. See Dala Air Services Ltd V. Sudan Airways Ltd (2004) All FWLR (Pt. 238) 697.

It was apparent to the Court below, and very clear to me too, that though the Appellant filed an Affidavit in support of its Notice of Intention to Defendant, unsupported by any single documentary exhibits if all the various facts deposed to therein provable by documentary evidence, it fell far short in answer to the detailed and particularized Affidavit of the Respondent showing the deductions in its Account by the Appellant to the tune of N2,561,019.17.
In the circumstances, and noting particularly the deposition in paragraph 21 of the Respondent’s affidavit to the effect that the Appellant admitted to have wrongly deducted monies from the Respondent’s account, it is obvious that the response by the Appellant in its affidavit fell far short of the kind of response capable of not mere denials but amounting to either defense or triable issue in relation to the particularized facts, details and copious documentary exhibits contained in the Affidavit of the Respondent as required of the Appellant by law in an action placed under the Undefended list.
​I therefore, have no difficulty whatsoever holding, as aptly contended by the counsel for the Respondent, that by the failure to respond with details and where necessary documentary exhibits, to the specific facts as contained in the Respondent’s affidavit and copious documentary exhibits, the Appellant is in law deemed to have admitted the facts as deposed to by the Respondent, which are left unchallenged. A Court of law has the plenitude of power to receive and act on unchallenged evidence, whether it is oral, affidavit and or documentary. See Section 123 of the Evidence Act, 2011. See also Obumseli & Anor. V. Uwakwe (2019) LPELR – 46937 (SC); APC V. INEC & Ors (2014) LPELR – 24036 (SC); Tukur V. Uba & Ors (2012) LPELR – 9337 (SC); Akiti V. Oyekunle (2018) LPELR – 43721 (SC); Owuru & Anor V. Adigwu & Anor (2017) LPELR – 42763 (SC); Mato V. Hember & Ors (2017) LPELR – 42765 (SC).
​In coming to the above finding, I have also looked at the bare depositions as contained in the Appellant’s affidavit and considered the circumstances and position of the deponent to the facts to which she deposed therein and it does appear to me that these were facts not within her personal knowledge and in the absence of the documents which would clearly evidence these depositions, the entire deposition in paragraphs 4 (a) – (i) of the Appellant’s affidavit, being at best mostly documentary hearsay offensive to several provisions of the law dealing with affidavit evidence and were thus not only unhelpful to the case of the Appellant but also failed woefully to disclose any defense to the claims of the Respondent. See Section 115(1), (3) & (4) of the Evidence Act 2011. See also AGIP (Nig.) Ltd. V. AGIP Petroleum International & Ors (2010) Vol. 181 LRCN 119 @ p. 131; Jimoh V. Hon. Minister Federal Capital Territory & Ors (2018) LPELR – 46329 (SC).
My lords, the failure or neglect to exhibit any of the documents, clearly in the custody of the Appellant, in support of the diverse depositions in the Appellant’s affidavit comes across to me as not only deliberate but also shocking and indefensible by the Appellant. How else can one explain the failure by the Respondent, a very reputable Bank in Nigeria, of which a Court can take judicial notice thereof, to place before the Court below loan documents, cheques, receipts of payment, payment authorization, statement of account in its business relationship with the Respondent. I cannot therefore, but draw the inference as vehemently urged upon us by the Respondent’s counsel that the Appellant deliberately failed to produce those relevant and vital documentary evidence because it knew very well that if produced the evidence in those documents would have been glaringly unfavorable to the Appellant. See Section 167 (d) of the Evidence Act 2011. See also Okereke V. Umahi & Ors (2016) LPELR – 400035 (SC); Haruna V. Modibbo (2004) 16 NWLR (Pt. 900) 487; Audu V. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456 S S. GMBH V. T. D. Industries Ltd (2010) 11 NWLR (Pt. 1206) 589; Buhari & Anor. V. Obasanjo and Ors (2005) 12 NWLR (Pt. 941) 1; Aremu V. Adetoro(2007) 49 WRN 1, Onuwaje V. Ogbeide (1991) 3 NWLR (Pt. 178) 147; UBA Ltd V. Ibhafidion (1994) 1 NWLR (Pt 318) 90; Tsokwa Motors Nig Ltd V. Awoniyi (1999) 1 NWLR (Pt 586) 199; Agbi V. Ogbe & Ors (2007) 10 WRN 144.
Consequently, I hold that the depositions in the Appellant’s affidavit not only remained bare and thus unproved but did not also raise any triable issue or amounted to any defense to the claims of the Respondent against the Appellant as was rightly held by the Court below. See Titanlaye V. David (2013) LPELR – 20160 (CA) @ p. 11. See also Hussani Isa Zakirai V. Salisu Dan Azumi Muhammad & Ors(2017) LPELR – 42349 (SC); Kimdey V. Mil. Gov. Gongola (1988) 2 NWLR (Pt.77) 445; Fashanu V. Adekoya (1974) 4 SC 83; Fawehinmi V. IGP & Ors (2002) LPELR – 1258 (SC).

My Lords, in considering the facts of this case, with a view to determining whether the Court below was right or wrong in its assessment of the affidavit evidence of the parties and the conclusions and findings arrived at, I think we must go back to the very beginning, the genesis of the dispute between the parties. The duty to show defense or triable issue under the undefended list Procedure was squarely on the Appellant, the Defendant before the Court below, and which it must do by the clear positive and direct depositions in the affidavit in support of its Notice of Intention to Defend together with relevant documentary exhibits, where essential, showing that it did not carry out any unauthorized deductions from the Respondent’s account as alleged by the Respondent and thereby raising either triable issue or creating some doubts on the Respondent’s claim.
However, on the affidavit evidence and documentary exhibits of the Respondent, with the affidavit of the Appellant without even one single document exhibits furnished by the Appellant in a matter involving the operation of the Appellant’s account leading to alleged unauthorized withdrawals against the Appellant, and having taken time to calmly review them alongside the affidavit and documentary exhibits of the Respondent, as in the printed record, it is very clear to me and I so hold that the Court below was right when it held that rather than raising any triable issues the affidavit of the Appellant strongly supported the case of the Respondent.
It was very apparent to the Court below, and very clear to me too, that the entirety of the Appellant’s affidavit when taken and considered together with the affidavit and copious relevant documentary exhibits of the Respondent did not in any way raise any defense on the merit or indeed any triable issue as would have warranted the Court below to transfer the matter to the General Cause list for further inquiry by way of a full trial. The Court below found, and quite rightly too in my finding, that the Appellant did not make out any triable issue by its paragraphs 4 (a) – (i) going by the contents of exhibits A, B, and D.
The purported but very watery defense of the Appellant unsupported by any iota of documentary evidence by a Bank, which dealings with its Customers are almost without exception documented, is clearly after thought amounting to a caricature. The Court below, in my view, showed remarkable understanding and commendably saw through the wools being pulled over its eyes by the half – hearted cleverness of the Appellant and arrived correctly at the just and fair finding and I so hold that the defense if any as put up by the Appellant, which indeed was none existence, was at best a caricature unsupported by any documentary exhibits for banking transactions usually conducted in writing.
​ In my finding therefore, the Court below was right to hold that the Appellant failed to make out any triable issue of any of its depositions of facts whatever they may amount to against the Respondent and I hold that this finding by the Court below was sound, impeccable and based squarely on the totality of the affidavit evidence of the parties as placed before it, which the Court below painstakingly reviewed, evaluated and arrived at the correct findings in its judgment. I therefore, do not see any reason to disturb such correct findings.
My Lords, on the totality of the evidence as in the printed record, it is very clear and I so hold that all the facts as deposed to the affidavit of the Appellant as unsupported by any documentary exhibits were merely intended to inaugurate a false defense with a view to postponing the judgment day, particularly on the face of the clear impeccable and unchallenged affidavit and documentary evidence of the Respondent as in Exhibits A, the Respondent’s Statement of Account with the Appellant showing the unauthorized withdrawals and Exhibit D, the unpaid Cheque in the sum of N40,000 issued by the Respondent favor of its Managing Director..
​I cannot therefore, but agree completely with the apt and unassailable submission of Counsel for the Respondent that the Appellant did not make out even an iota of triable issue as required of it by law in an action placed under the Undefended List for same to be transferred to the General Cause list for full trial at plenary. In law, the transfer of a suit placed under the undefended list to the General Cause list for full trial is not and has never been and cannot be just as a matter of course for the asking by a Defendant! See G.M.O Nworah and Sons Co Ltd V. Akputa (2010) All FWLR (Pt. 524) @Pp. 101-102, where the Supreme Court stated emphatically thus:
“If a Defendant’s affidavit in support of the notice of intention to defend, where one is filed…raises an issues where the Plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the Plaintiff’s claim, such brings the parties within the concept of joining issues’. In such a situation, a triable issue comes into existence. Whenever a bona-fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The Court has a duty to ensure fair hearing even in cases under the undefended list procedure.”
​In the circumstances therefore, I have no difficulty holding firmly that the Court below was perfectly right in refusing the Appellant to come in to defend the Respondent’s Suit on the merit having not made out any defense or triable issue on the strength of its affidavit unsupported by any iota of documentary exhibits, which ordinarily ought to be in its custody. ​

My Lords, the issue of fair hearing was half – heartedly, though peripherally raised in the Appellant’s brief by way of its conclusion and it contended for the Appellant that at the stage of considering a suit placed under the undefended list it was not for the Court below to determine whether there was an established or iron cast or full proof defense in that its duty at that stage was only to look at the issues raised by the Appellant to determine whether there exists triable issue and not to without any basis arrive at the erroneous and perverse decision that the affidavit of the Appellant supported the case of the Respondent without even considering the case of the Appellant and thereby denying the Appellant its right to fair hearing before the Court below.
Now, the issue of fair hearing as fundamental and sacrosanct as it is, being a constitutional guaranteed right, must be raised genuinely and bona fide and never mischievously or lackadaisically or mala fide. Once a Court hearing matter placed under the undefended list comes to a conclusion that a Defendant, by his affidavit in support of his Notice of Intention to Defend, did not make out any triable issue against the Respondent’s claim, the only option open or left for such a Court is to proceed to enter judgment against the Defendant in favor of the Claimant. Thus, the right to fair hearing is not, by the mere fact of a suit being decided under the undefended list procedure without more, breached by a Court in entering judgment in line with the enabling rules of the Court below. In Aso Motel Kaduna Ltd V. Deyemo (2006) 7 NWLR (Pt. 978)80 @ Pp. 121 – 122, the Court explained the relationship between the undefended list procedure and the right to fair hearing thus:
“…..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 defenses directed at frustrating the Plaintiff out of judgment he well deserves. A case should not be transferred from undefended list to the general cause list merely on the whims and caprices of a Defendant who merely finds the words fair hearing’ a convenient as well as handy slogan. ”
See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ P. 518, where the Supreme Court threw further light on the issue of fair hearing under the Undefended List procedure inter alia thus:
“The principle of fair hearing is not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is a fundamental right of universal application. Thus, in the instant case, the submission of the learned counsel for the Respondent that the principle of fair hearing, particularly the rule of audi alteram partem, has no application to proceedings under the undefended list is strange… Rather it confers equal right to fair hearing to the parties… It is only when the Defendant/Respondent fails or neglects to avail himself of the opportunity offered him…that the Court is empowered…to enter judgment in the Suit…Thus failure or neglect of a Defendant/Respondent to avail himself of the opportunity to be heard is not a denial of the right to fair hearing.”
My Lords, in law the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system, once there has been a denial of fair hearing as guaranteed under Section36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated. A denial of fair hearing can ensue from the conduct of the Court in the hearing of a case. See Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt.746) 771. See also Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V.AG. of Bendel State (1985) 1 NWLR (Pt. 4) 572; A. U. Amadi V. Thomas Aplin & Co Ltd(1972) All NLR 413.
An allegation of denial of the right to fair hearing, a constitutionally guaranteed right of the citizen, is a very grave allegation whenever made and therefore, must not be made carelessly or lackadaisically or lightly against the Court merely to cause distraction from the real issues in contention between the parties before the Court. This is so because in law once an allegation of denial of fair hearing is made out against any proceedings and or judgment, it renders it a nullity, regardless of the merit or otherwise of the cases of the parties. See Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659.
Having averted my mind to the succinct provisions of Section 36 (1) of the Constitution 1999 as amended and the provision of Order 23 Rule 3(1) of the High Court Civil Procedure Rules 1988 of the Court below, dealing with undefended list procedure, in the light of the affidavit evidence of the parties and the correct finding that the Appellant did not disclose any defense or raised any triable issue, I hold that the Appellant was afforded all opportunity to file all necessary processes under the Undefended list, which it did as allowed by the Rules of the Court below and therefore, the Appellant was not in any way denied of its right to fair hearing by the Court below.
It is never the law and may that day never come when a party who loses a case would by that fact alone without more allege and sustain an allegation of denial of fair hearing just because he had lost a case in Court. This seems to me to be the only hue and cry of the Appellant in this appeal against the judgment of the Court below merely because it went against it. The only business of the day left after hearing the matter under the undefended list is to proceed to give judgment if there is no defense. If there is however a defense, the case should be transferred to the general cause list for hearing and determination. This procedure does not, without more, amount to a breach of the right to fair hearing. See Aso Motel Kaduna Ltd V. Deyemo (supra) @ pp. 121 122. also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659.

In the light of all I have said and found as facts above, I have no difficulty resolving the sole issue for determination in favor of the Respondent against the Appellant and hold firmly that this appeal lacks merit and is therefore, liable to be dismissed. I hereby so dismiss it without much ado!

In the result, the Judgment of the High Court of Edo State, Coram: J. O. Okeaya-Inneh J., in Suit No. B/75/2012: E. I. Natama International Complex Ltd. V. United Bank For Africa Plc., delivered on 10/7/2012, wherein the claims of the Respondent as Claimant granted against Appellant as Defendant under the Undefended List procedure, is hereby affirmed.
There shall be cost of N200,000.00 against the Appellant in favor of the Respondent.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Biobele Abraham Georgewill JCA., just delivered. I agree that the appeal lacks merit and also dismiss it.
I abide by the orders made in the leading judgment, including the order as to costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in its draft form, the lead judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA in which he finds the instant appeal unmeritorious and has dismissed it with cost.

I do not have anything useful to add to the said judgment which exhaustively dealt with the sole issue set down by the Appellant, and was resolved against the Appellant.

I agree with the decision reached in the lead judgment and I abide with the consequential orders made as to cost.
I too dismiss the appeal.

Appearances:

C. OBARO – UMEH, ESQ., with him, I. OMORUYI ESQ. For Appellant(s)

DELE UCHE IGBINEDION, ESQ. For Respondent(s)