Stemco Limited V. Mr Anthony Offiong (2009)
LawGlobal-Hub Lead Judgment Report
JAFARU MIKA’ILU, J.C.A.
This is an appeal against the judgment of the High Court of Akwa Ibom State delivered on 8th April 2008. The judgment was entered under the undefended list for the Plaintiff/Respondent. The Plaintiff/Respondent claimed against the defendant/appellant the sum of N1,500,000.00 (one million, five hundred thousand naira) by writ of summons placed under the undefended list.
Before this Court briefs of argument have been filed and exchanged.
In the appellant’s brief of argument a lone issue has been formulated for determination. It reads as follows:-
Whether the defendant/appellant needed to attach documents to its affidavit before such an affidavit could constitute a defence on the merit.
On the other hand in the respondent’s brief of argument a lone issue has also been formulated for determination. The lone issue is whether the facts contained in the affidavit of the appellant in support of the Notice of Intention to defend disclose a defence on the merit to have justified the transfer of the suit to the general cause list by the Learned trial Judge.
Thus it is clear that the issue as formulated in appellant’s brief of argument is the same issue with the one formulated in the respondents brief of argument and it is sufficient to determine this appeal.
In the appellant’s brief of argument, it has been contended that where there is apparent conflict in the sworn affidavit of parties to a suit evidence must be called to resolve the conflict before any decision on the matter, relying on FOLOLA V. UNION BANK (2005) 2 SCNJ 209, 211.
It has also been argued by the appellant/defendant that the defendant/appellant’s affidavit under paragraph 6 that the defendant denied paragraphs 5, 6, 7 and 8 of the affidavit of the plaintiff/Respondent and stated once again that the total contract sum was N1,400,000.00 (one million, four hundred thousand naira) based on N2,000.00 per metre. The defendant/appellant contended that the plaintiff/respondent had been paid the total contract sum and that at the trial the defendant/appellant will lead evidence to establish that the plaintiff/respondent had been fully paid for the job.
The appellant has maintained that based on the affidavit of the parties especially paragraphs 5 and 6 of the affidavit of the defendant filed with the Notice of Intention to defend, there are triable issues which could have made the trial Judge to transfer the suit to the general cause list for those issues to be tried. He has relied on MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR (PT. 144) 283, when the court held as follows:-
“That it is not intention of the undefended list procedure to send out the defence of the defendant or drive him away from the judgment seat before hearing him”
The appellant has submitted that it is also the law that in deciding whether the defendant has a good defence to the plaintiff’s action in the undefended list it is not necessary for the Judge to consider at that stage whether the defence has been proved ….. it will surfice if the defence set up shows that for some reason, there ought to be a trial. That is to say, at the stage whether or not a suit should be transferred from the undefended list to the general cause list, the defence does not have to prove anything. That all the defendant is required to do is to disclose a defence which if substantiated during leaving, will answer the plaintiff’s claim. He has relied upon FEDERAL MILITARY GOVERNMENT V. SANI (1990) 4 NWLR (Pt 147) 688; 699. The Learned appellant counsel has concluded that there are triable issues namely:-
(a) What was the unit and total cost of the contract?
(b) Was the plaintiff/respondent fully paid the contract sum
The appellant’s counsel has opined that any of the above issues could warrant the transfer of the case to the general cause list. That to have insisted on attachments in prove of the defendant’s case is not the law as stated above.
Considering the above, I am of the view that the affidavit filed with the notice of intention to defend has disclosed triable issues and that to have granted the claim of the plaintiff/respondent under the undefended list despite the apparent conflict in the affidavit evidence on the ground that the defendant/appellant did not attach documents in proof of his cause was wrong in law. The defendant is not expected to plead evidence but facts warranting the transfer of the suit to the general cause list.
Consequently, the entire proceeding, and the judgment of the court below are hereby set aside. The matter is therefore transferred into the general cause list and remitted to the High Court for trial by another Judge of the Akwa Ibom State High Court.
The appeal has merit and it is hereby allowed.
Other Citations: (2009)LCN/3388(CA)
