Bico Nigeria Limited & Anor V. Electronic Connections Limite (2016)
LawGlobal-Hub Lead Judgment Report
ISAIAH OLUFEMI AKEJU, J.C.A.
This appeal is against the judgment of Kano State High Court delivered on 25/6/14 in suit No. K/372/2013 which the Respondent herein instituted against the Appellants through the writ of Summons dated 13th November, 2013 for the claim endorsed thereon as follows:
”1. The sum of N5,500,000.00 (Five Million Five Hundred Thousand Naira Only) being the balance of the compensation agreed upon and due to the plaintiff as per the Settlement Agreement dated 20th March, 2013 which the defendants failed or refused to pay.
2. The plaintiff claims interest on the said N5,500,000,00 at 10% per annum Court rate from the date of judgment until final liquidation of the judgment debt by the defendants.”
?The writ was placed for hearing under the Undefended list and upon service on the defendants, they filed a Notice of intention to defend the action together with a supporting affidavit of 14 paragraphs. The learned trial judge found no defence on merit raised in the Notice of intention to defend and the affidavit and the action was heard under the Undefended list. In the judgment delivered on 25/6/14
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aforesaid, the trial Court granted the claim of the Respondent and entered judgment in his favour for the sum of N5,500,000.00 being the balance of the compensation agreed upon and due to the plaintiff under the settlement agreement dated 20th March, 2013, and 10% interest on the judgment sum till final liquidation of the judgment debt.
?The facts relied upon by the Respondent as set out in the depositions in the affidavit of Sunday Anwo, Litigation Secretary in the firm of O.E.B. Offiong & Co. Legal Practitioners & Notaries Public are that in September, 2012, the plaintiff and the 1st defendant signed a Memorandum of Understanding dated 11th September, 2012 to partner for the bidding and execution of a contract for the installation of Computer workstation, services, Laptops and other Internet Technology Materials with the Nigerian Ports Authority, wherein it was agreed that the plaintiff shall provide the technical skill/knowhow for the successful execution of the contract; the plaintiff duly performed his own part of the agreement and the contract was awarded by the Nigerian Ports Authority to the parties but the Defendants excluded the plaintiff
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and started to work with another technical partner. When the plaintiff confronted the defendants on this development, the parties entered into a settlement agreement dated 20th March, 2013 by which the 1st defendant agreed to pay N7,500,000.00 to the plaintiff within a period of three months from 20th march, 2013 by N2,000,000.00 and N5,500,000.00 respectively but the 1st defendant paid only N2,000,000.00 and refused to pay the remaining amount of N5,500,000.00 while the breach of the settlement Agreement by the 1st defendant was instigated by the 2nd defendant as its Managing Director. The deponent believed that the defendants had no defence to the action of the plaintiff. Four documents were attached to the affidavit as Exhibits 1, 2, 3 and 4.
?The defendants on the other hand stated in the affidavit in support of their notice of intention to defend deposed to by Abubakar Bichi, the 2nd defendant in the action that although there was a Memorandum of Understanding between the parties in September, 2012, the plaintiff later worked against the interest of the 1st defendant by bidding for the same contract for which he was to be a technical partner and
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attempted to snatch the contract. It was further deposed that the claim of the plaintiff was fraudulent, gold digging and exploitative and not backed by any consideration as no technical services had been rendered worth the two million naira Paid.
Aggrieved by the judgment of the High Court of Kano State aforesaid, the defendants commenced the instant appeal through the Notice of Appeal dated 6th August, 2014 with three grounds of appeal. The Appellant with the leave of this Court amended the Notice of Appeal and by the Amended Notice of Appeal filed on 27/1/16, the grounds were increased to four, and in prosecution of the appeal, the Appellant’s Brief filed was subsequently amended by the order of this Court and the Amended Appellants’ Brief of Argument prepared by Murtala Musa Esq. was filed on 27/1/16 but deemed properly filed on 1/1/16, while the Amended Respondent’s Brief of Argument settled by Gideon Uzu Esq. was filed on 15/2/16. At the hearing of the appeal on 12/4/16, the parties were represented by their learned Counsel. While M.H. Modibbo Esq. for the Appellants adopted the Appellants’ Brief and urged the Court to allow the appeal, G.O.
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Uzu Esq. for the Respondent also adopted the Respondent’s Brief and urged that the appeal be dismissed based on the argument in the Respondent’s Brief.
As formulated by the Appellant, the issues for determination in this appeal are;
”1. Whether from the averments in support of the Notice of intention to defend the learned trial judge was right to hear this matter under the undefended Cause list instead of the General Cause list
2. Whether the non-exhibiting of documents referred to by the defendants in the Affidavit in support of the Notice of intention to defend would amount to the defence(s) of the defendant/Appellant not being on the merit and so fatal to the notice of intention to defend.
3. Whether the Reply on points of Law can take the place of a Counter affidavit in an action brought under the List Procedure.”
On the part of the Respondent, the issues for determination in the appeal are;
”1. Whether from the facts and circumstances of this case the Lower Court was right in its conclusion that the Appellants did not disclose a defence on the merit to warrant the transfer of the suit to the general cause list and was therefore
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right in entering judgment in favour of the Respondent.
2. Whether the case of OLATUNBOSUN V. OKAFOR (2012) LPELR decided the principle of law will inevitably lead to the transfer of a case from the Undefended List to the General Cause List as urged by the Appellant, the failure of which the Lower Court erred in law.”
When closely considered the three issues by the Appellants are merely condensed by the Respondent, and the parties have virtually raised the same issues and I will adopt the issues raised by the Appellants for the consideration and determination of the Appeal.
Before going into the arguments and consideration of these issues it is pertinent to state that Respondent filed a Notice of preliminary Objection on 14/10/15 regarding the third issue raised by the Appellant, the preliminary objection was neither argued in the Amended Respondent’s Brief nor moved at the hearing of the appeal. In the circumstances the preliminary objection must be deemed abandoned and it is struck out. The law is that a notice of preliminary objection not moved at the hearing of the appeal must be deemed as having been abandoned. See TIZA V. BEGHA (2005)
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5 SCNJ 168; AJIBADE V. PEDRO (1992) 5 NWLR (Pt. 241) 237; ONYEKWALIJE V. ANIMASAUN (1996) 3 SCNJ 24.
On issue No. 1, which I will also consider with issue 2, the learned Counsel for the Appellants referred to Order 23 Rules 1 and 3 of the Kano State High Court (Civil Procedure) Rules, 1988 and contended that a defendant who seeks to defend an action under the Undefended List is required to file a Notice in writing that he intends to defend the suit together with affidavit disclosing a defence on the merit and where a defence on the merit is disclosed, the Court should consider same and hear the case on the merit.
?The learned Counsel contended that the defendants in the instant case had by their affidavit in support of Notice of intention to defend raised issues of absence of consideration from the plaintiff and fraud. It was contended that the Respondent did not work together with the Appellants as required by paragraph 1(a) of the agreement made on 11/9/12, but was creating obstacles for the Appellants. It was contended also that the Respondent did not render any service to the Appellants for N7.5million. The learned Counsel submitted that the
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contentious issues raised by the Appellants were not denied by the Respondent, and those uncontroverted averments must be accepted and acted upon by the Court as representing the correct and true position of the facts deposed; NIPCO PLC V. HENSMOR (NIG.) LTD. (2011) ALL FWLR (Pt. 587) 783. He contended that in the light of the contradictions or conflict in the affidavit of the parties the trial Court ought to have called for oral evidence by transferring the suit to the General Cause List but the learned judge wrongly held that the defendants should have exhibited the document they referred to in their own affidavit.
It was submitted that what was required at that stage was not proof but to show a defence on the merit; OKPARA V. GUSAU (2009) ALL FWLR (Pt. 460) 801; TIPREZE v. OKONKWO (1987) 3 NWLR (Pt.62) 737; SANTORY CO. LTD. V. ELABED (1988) 12 NWLR (Pt. 579) 538. Learned Counsel submitted that the two latter cases support the position that Courts should be liberal in their approach to matters under the undefended List procedure by granting leave to the defendant to file their defence.
?On the second issue, the Appellants’ Counsel submitted that it
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is sufficient where triable issues or conflict or dispute as to facts has been disclosed in the affidavit to warrant the transfer of the claim to the General Cause List. The defence or defences put forward will not need to be established at that stage; ED OF NIGERIA LTD, V. SNIG NIG. LTD. (2013) 3 SCNJ 64; M.C. INVESTMENTS V. CORE INVESTMENT (2012) 6 SCNJ (Pt.1) 111. On the duty of a defendant in an action under the Undefended List, the case of AJAGUBA & CO. V. GURA (NIG.) LTD. (2005) 8 NWLR (Pt. 927) 429 was cited. It was submitted that the decision as to whether the defendant has disclosed a defence on the merit is to be based on the affidavit in support of the Notice of intention to defend only; VICTOR AMEDE V. UBA (2008) 8 NWLR (Pt. 1090) 623.
?On whether from the facts and circumstances of this case the trial Court was right in concluding that the Appellants did not disclose a defence on the merit to warrant the transfer of the suit to the general cause list and in entering judgment in favour of the Respondent which the Respondent’s Counsel argued as his first issue, the learned Counsel for Respondent contended that it was the Appellants that had
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the burden to disclose a defence clearly in their Notice of intention to defend and their supporting affidavit.
According to the learned Counsel the summary of the defence of the Appellants from their Notice of intention to defend and the supporting affidavit are, that the Respondent bided for the same contract in issue contrary to the memorandum of Understanding; that plaintiff and his solicitors lured the defendants into believing that they were liable, through persistent phone calls, threat, that the claim of the Respondent is fraudulent; and that non est fatum applies. For what constitutes a defence on the merit, the cases of UNITY BANK PLC V. KAYODE OLATUNJI (2013) 15 NWLR (Pt.1378) 503 and ATAGUBA & CO. V. GURA (NIG.) LTD. (2005) 8 NWLR (Pt.927) 429 were cited. It was contended that the Appellants failed to disclose a defence on the merit because the claim of the Respondent was founded upon documents which the 2nd Appellant admitted that he signed exhibits 1 and 2 and Appellants cannot resile from the agreements. The learned Counsel reviewed other exhibits i.e. 3 and 4 and contend that the Appellants have not answered any of them.
?It was
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submitted that the Appellants did not dispute the claim of the Respondent or show facts that raise doubt about the claim of the Respondent because a party cannot by oral evidence vary or alter the content of a written agreement; A. I. B. LTD. V. LEE & TEE IND. LTD. (2003) 7 NWLR (Pt. 819) 366. On the fact that the 2nd Appellant did not do what he signed when he signed the Settlement Agreement now Exhibit 2, it was submitted, citing OKOLI v. MORECAB FINANCE (NIG) LTD. (2007) 14 NWLR (Pt. 1053) 37 that where a person of full age has signed a document with full knowledge of its nature, such a person cannot be heard to complain that he did not know the contents of the same document.
On lack of consideration from Respondent raised by the Appellants as a defence in their affidavit, the learned Counsel contended that this issue was misconceived in that the Respondent’s claim was based on compromise which presupposes forbearance that has always been regarded as consideration; SPDC (NIG.) LTD. V. ALLAPUTA (2005) 9 NWLR (Pt.931) 475; R.E.A.N. LTD V. ASWANI ILE LTD (1991) 2 NWLR (Pt. 176) 639. It was the contention of the learned Counsel that the Appellants’
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allegation that the Respondent’s claim is not backed by consideration is erroneous in Law and does not amount to a defence on merit from the facts and circumstances of this case.
The learned Counsel submitted on the authority of SPDC LTD. V. ALLAOPUTA (Supra) that the act of the 2nd Appellant, who signed Exhibits 1 and 2 is binding on the Appellants who are consequently bound by the recital in Exhibit 2 which is an admission against interest. On the failure of the Respondent to file counter affidavit or further affidavit in response to the affidavit of Appellants in support of their Notice of intention to defend the action which learned Counsel for Appellant said was enough for Court to believe the said affidavit, the learned Counsel for Respondent contended that the Appellants’ affidavit evidence lacked credibility and reliability in the face of the agreement(s) entered into by the parties.
?On the effect of failure of Appellants to exhibit or attach documents to their affidavit in support of their Notice of intention to defend, the learned Counsel contended that the argument of Appellants’ Counsel on his issue 2 is erroneous and misconceived as what
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the Law requires of a defendant in an action under the undefended list is not just to file a Notice of intention to defend with the supporting affidavit but the affidavit will constitute a defence on the merit; THOR LTD. V. FCMB LTD. (2005) 14 NWLR (Pt. 946) 714. It was contended that by the failure to support his defence with necessary documents, all the Appellants have raised in their affidavit are bare facts which remained unsubstantiated and show that the Appellants have no good defence to the claim. A party who seeks to enjoy the favourable discretion of Court must place all relevant materials before the Court that will bring the Court out from the regime of speculation as to the existence of facts.
?On the matter of fraud raise or agued by the Appellants’ Counsel, the Respondent’s Counsel contended that the Appellants’ Counsel had by the argument attempted to introduce evidence with his brief as no such allegation is contained in the affidavit in support of the notice of intention to defend. It was submitted that where the issue of fraud is raised, it must be particularized for it to constitute a defence in an action on the undefended list;
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MORECAB FINANCE (NIG) LTD. (Supra); OTUKPO V. JOHN (2012) 7 NWLR (Pt. 1299) 357. It was also submitted that the Court cannot of its own volition infer fraud where such is not particularised. REMAWA V. NACB CFC LTD. (2007) 2 NWLR (Pt. 1017) 155.
?I had earlier in this Judgment set out the facts of this case as derived from the affidavit evidence before the trial Court. In support of his claim for the sum of N5, 500,000,00 against the Appellants, the Respondent relied on four documents that were marked as exhibit 1,2,3 and 4 that were filed with the originating processes. Exhibit 1 is a memorandum of understanding made between Messrs Bico Nigeria Limited and Electronic Connections Limited who are now the 1st Appellant and the Respondent respectively in this appeal. The memorandum made on 11th September, 2012 stated in recitals that Messrs Bico Nig. Ltd. Was bidding for the supply and installation of servers, computer Workstations, Laptops UPS and printers at the Nigerian ports Authority while Electronic Connections Limited was an ICT solutions Company providing high level networking, communication and network security related technologies. It was stated that
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pursuant to a meeting jointly held by the Board of Directors of the two Companies held on 11th September, 2012, the two parties agreed to be jointly responsible for the bidding of the contract at Nigeria Ports Authority, which contract the 1st Appellant, Bico Nigeria Limited would finance while the Respondent would provide the technical Skill/knowhow for its successful execution. The Memorandum was affixed with the common seal of both parties in the presence of directors.
In Exhibit 2 made on 20th March, 2003, also between the same parties as in the Memorandum, it was agreed that Bico Nigeria Limited, the 1st Appellant shall compensate the respondent, Electronic Connections Limited with the sum of N7,500,000.00 only which sum shall be liquidated within three months with down payment of N2,000,000.00 paid vide Guaranty Trust Bank Plc Manager’s Cheque of 4/3/13 while final payment of N5,500,000.00 was to be made within 90 days from the date of execution of the agreement.
?Exhibit 3 dated 16th March, 2013 is a letter by Messrs Meshach Ikepe & co; Barristers & Solicitors on behalf of the 1st Appellant forwarding to Gideon Uzu Esq., the part
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payment of compensation to his (Gideon Uzu Esq.) Client “of account of a contract with Nigerian Port Authority Lagos”. The letter conveyed the Manager’s Cheque of 2 Million to the Respondent and stated that “The balance of N5.5 million Will be paid in due course as contained in the terms if (sic) settlement.?
Exhibit 4 is the letter of 28th June, 2013 from the same firm of Solicitors, Meshach Ikpe & Co. to O.E.B. Offiong & Co. Legal Practitioners, Attention Gideon Uzu Esq. expressing regret about the development with regards to the settlement agreement.
Now the Undefended List procedure is provided for in Order 23 Rules 1,2,3 and 4 of the High Court (Civil Procedure) Rules of Kano State as follows;
“1. Whenever application is made to a Court for the issue of a writ of Summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the
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suit for hearing in what shall be called the “Undefended List” and mark the writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
3(1)If the party served with this writ of summons and affidavit delivers to the Registrar 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.
(2)Where leave to defend is given under this Rule, the action shall be removed from the Undefended List and placed on the Ordinary Cause List; and the Court may order pleadings, or proceed to hearing without further pleadings.
4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3(1) or is not given leave to defend by the Court, the suit shall be heard as an Undefended Suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his case formally.”
Explaining the nature of Undefended List procedure in CHIEF OBARO V. ALHAJI SALE HASSAN (2013) VOL.2-3 MJSC
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(Pt. 111) 38 at 59 ? 60, ARIWOOLA JSC stated as follows:-
?By this procedure generally, the action is commenced by an application by the plaintiff for issuance of a writ of Summons by the Registrar of the High Court concerned. The application is usually made exparte; though it could be by ordinary application, whereby the other party is not to be involved at that stage of the proceedings, The application is to be supported by an affidavit to which the proposed claim against the defendant must be attached with any other documents considered relevant and available to the applicant as exhibits. The judge shall order that a writ of Summons be issued by the Registrar and to be marked as “Undefended List? after having taken the application and the Court, upon consideration of all the bundle of documents filed, is satisfied that the case is one fit to be brought under the Undefended List. In other words, the writ of Summons as an originating process under Order 23 of the High Court (Civil Procedure) Rules is a specially and peculiarly endorsed writ of Summons?.
From the provisions which I have quoted above, the rules of the
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Undefended List are designed to enable a plaintiff whose claim is founded upon liquidated money or debt to obtain quick judgment without delay or the rigours of filing pleadings and calling an array of witnesses especially where from the affidavit evidence before the Court, the defendant has no good defence to the action. In NWANKWO V. E.D.C.S. (2007) ALL FWLR (Pt.360) 1448, it was held at 1478 – 1479 that “The object of the rules under the undefended List is to ensure quick dispatch of certain types of cases such as involving debts or liquidated money claims, It is to enable a plaintiff whose claim is unarguable in law and where the facts are undisputed and it is inexpedient to allow a defendant to defend for mere purpose of delay to enter judgment in respect of the amount claimed”. Thus a defendant who has no real defence to an action under the undefended list should not be allowed to employ mere delay tactics to frustrate the plaintiff or cheat him out of the judgment he is entitled to. See OKOLI v. MORECAB FINANCE (NIG.) LTD. (2007) ALL FWLR (Pt.369) 1164; MACAULAY V. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 144) 283.
?Where an action has been
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placed for hearing under the undefended list, a defendant therein has a bounden duty to file a Notice of intention to defend with a supporting affidavit showing a defence on the merit which may be one based on facts or applicable law but must be sufficient to cast doubt on the case of the plaintiff. In ATAGUBA & CO. V. GURA (NIG.) LTD. (2005) 2 SC (Pt. 11) 101, (2005) ALL FWLR (Pt. 256) 1219. It was held at pages 130 – 131 per Edozie JSC that “The Respondent’s case was brought under the “Undefended List? a procedure governed by Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 Rules 1 to 4. Under the Rules, a defendant, who upon being served the plaintiff’s claim with supporting affidavit decides to contest the claim is enjoined to file a notice of intention to defend with an affidavit disclosing a defence on the merit, On the basis of that affidavit the Court may give him leave to defend, in which case the suit is removed from “Undefended List? and transferred to the “Ordinary Cause List? for trial upon pleadings.
On the other hand, the Court may, after studying the affidavit and being satisfied that it discloses
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no defence on the merit proceed to hear the case as an Undefended Suit and give judgment thereon without calling upon the plaintiff to summon witnesses before the Court to prove his case formerly?. See also BONA U. ILE LTD, & ANOR V. ASABA ILE MILL PLC (2012) LPELR SC 11/2007; OSIFO V. OKOGBO COMMUNITY BANK LTD. (2007) ALL FWLR (Pt. 372) 1803.
To constitute a defence on the merit that will warrant the transfer of the plaintiff’s claim from the Undefended List to the General Cause List, the Notice of intention to defend and the supporting affidavit must disclose facts or raise issues that are sufficient to create some doubt in the claim which may require explanation from the plaintiff. See UBA PLC V. JARGABA (2007) 5 SC 1.
?I had earlier stated the details of the Exhibits 1, 2, 3 and 4 relied upon by the Respondent for his claim of N5,500,000.00 with 10% post judgment interest. Exhibit 2 particularly is a Settlement Agreement entered into by the parties and by which the 1st Appellant agreed to compensate the Respondent with an amount of N7,500,000.00 out of which N2 million
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was paid as stated in Exhibit 3. The law is clear by virtue of Section 128(1) of Evidence Act 2011 that when any contract has been reduced to a form of document or series of documents no evidence may be given of the terms of the contract except the document itself nor may the contents of any such document be varied, altered, added to, or contradicted by oral evidence except in the circumstances stated therein. It is the agreement that is binding on the parties thereto and their privies. See EZEMBA V. IBENEME (2004) 14 NWLR (Pt. 894) 67.
The Appellants have contented as their defence to the Respondent’s claim that there was lack of consideration, in that the Respondent did not work with the Appellants as envisaged by Exhibit 1; that the memorandum filed as Exhibit 1 was not signed by the two Directors of the 1st Appellant; as well as fraud and exploitation of Appellants by the Respondent and his lawyers.
?Without much ado, I say that it is quite clear that none of the exhibits contains the defence of the Appellants or can any of the documents be interpreted as conveying any of these defences. It is true that a contracting party is permitted to
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proof fraud under the proviso to Section 128 Evidence Act, 2011, it must be remembered that the allegation of fraud even in civil proceedings being an allegation of commission of crime must be specifically pleaded and specifically established. See UNITED AFRICA COMPANY LTD. V. TAYLOR (1936) 2 WACA 70; USENFOWOKAN V. IDOWU (1969) NWLR 77; FABUNMI V. AGBE (1985) 1 NWLR (Pt. 2) 299.
In their affidavit in support of their Notice of intention to defend, the Appellants stated at paragraph 12 as follows:-
“That the plaintiff’s case is fraudulent, an attempt at gold digging and amounts to exploitation of the 1st defendant who never participated in any matters with the plaintiff after September, 2012?. The Appellants failed to supply any particulars of the alleged fraud that may warrant the Respondent being called upon to explain any doubt in his claim.
?It is pertinent to state that the decision of the trial Court to retain a claim for hearing under the Undefended List is, by virtue of Order 23 Rule 3(1) and (2) of the High Court (Civil Procedure) Rules of Kano State based on the strength of the affidavit in support of the defendant’s Notice of
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intention to defend the action only, and not on any counter or further affidavit filed by the plaintiff.
My rational conclusion on these issues is that I agree with the learned trial judge that the Appellants failed to disclose a defence on the merit to the claim of the Respondent from their Notice of intention to defend and the affidavit in support placed before the trial Court. I resolve the two issues against the Appellants.
On the Appellant’s third issue which is whether Reply on points of Law can take the place of a counter affidavit in an action brought under the undefended list procedure, the Appellants’ Counsel contended that an affidavit can only be countered by a Counter affidavit or a further affidavit. It was submitted that in an action on the undefended list procedure where a defendant files a Notice of intention to defend with an affidavit in support it is the affidavit that the Court will consider to see whether the action will be transferred to the general cause list and parties are not required to do anything further. INTER- MARKETS NIGERIA LTD. V. UNITY BANK PLC. (2011) ALL NWLR 187 at 195 – 196 (INCOMPLETE).
?The learned
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Counsel submitted that the filing of a further affidavit or Reply on points of Law in an undefended list procedure indicates the existence of triable issues and the Court ought to have transferred the case to the General Cause list for pleadings to be filed. OLATUNBOSUN V. MR. MICHAEL OKAFOR (2012) LPELR 20186 CA.
The learned Counsel for the Respondent argued that the case of OLATUNBOSUN V. OKAFOR (Supra) can only be an authority for what it decides and it is the ratio therein that is binding and not comments made by the Court or judge; AFRO CONT. (NIG) LTD. V. AYANTUYI (1995) NWLR (Pt. 420) 411 (INCOMPLETE). It was submitted that the refusal of the trial Court to transfer the suit to the general cause list was an exercise of discretion and once a discretion has been exercised by a trial Court, the Appellate Court will not interfere and substitute its own discretion for that of the trial Court; WAZIRI V. GUMEL (2012) 9 NWLR (Pt. 1304) 185; MIL. GOV. OF LAGOS STATE V. ADEYIGA (2012) 5 NWLR (Pt. 1293) 291.
?In the instant case the Respondent had at the trial Court filed a Reply on point of Law at pages 78 – 81 of the record of appeal which as its name suggests
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is expected to be a Reply to the legal issues raised afresh by the Appellants, the Respondent did not file a further affidavit or Counter affidavit. I had earlier in this Judgment held the view that the rules of Undefended list have no provision for a further or Counter affidavit as the only process that calls for consideration in the determination of whether to transfer the case to general cause list is the affidavit of the defendant in support of the Notice of intention to defend.
It is noted that apart from reviewing the Reply on points of law at pages 56 – 58 of the record of appeal, the learned trial judge did not rely on it as the basis for holding that the Appellants had no defence on merit and eventual refusal to transfer the case to the general cause list. The filing of Reply has not occasioned a miscarriage of justice.
I consequently resolve this issue against the Appellant.
On the whole and upon resolution of all issues against the Appellants, the appeal fails and it is dismissed for lacking in merit. I uphold the judgment of the trial Court and award N50,000.00 costs in favour of the Respondent.
Other Citations: (2016)LCN/8806(CA)
