F.O. Ogbaegbe V. First Bank of Nigeria Plc. (2005)
LawGlobal-Hub Lead Judgment Report
DONGBAN-MENSEM, J.C.A.
The respondent had judgment entered in its favour on the 20th April, 2000, in the Abia State High Court, sitting in Aba Coram Akomas, J. It was a writ marked the “undefended suit”. Although, the appellant filed a notice of intention to defend, the learned trial Judge entered judgment for the respondent/plaintiff on the return date.
The appellant feels aggrieved and contends inter alia, that he was not given a fair hearing by the trial court. The appellant urges us to allow his appeal and strike out the suit on issues one and two on the grounds that:
“a. the suit was incompetent;
b. the learned trial Judge had no jurisdiction to entertain same; and
c. the entire proceedings and the judgment were a nullity.”
Alternatively, the appellant wants the appeal allowed and the suit transferred to the general cause list on the ground that the appellant disclosed a defence on the merit in his affidavit evidence, but the trial court failed to evaluate his evidence.
Upon its five amended grounds of appeal, the appellant formulated three issues for determination, the 3rd being an alternative.
The respondent also formulated three issues which are very similar in contents to those of the appellant. At the hearing of the appeal, each party adopted and relied on their respective brief of argument. This appeal shall be determined on the issues made out by the appellant. Issues two and three are two sides of one coin and shall be considered together.
Issue one:
“In the absence of a formal application for the suit to be placed under the undefended list, has the trial court the jurisdiction to treat the suit under undefended list.”
The learned Counsel for the appellant contends that the suit was incompetent before the trial court for the reason of non-fulfillment of the condition precedent before the institution of the suit. It is the opinion of the learned counsel that Order 23 of the High Court (Civil Procedure) Rules, 1988, Imo State applicable to Abia State makes provisions for the institution of a suit under the “undefended list,” while Order 8 makes provision for the application referred to in Order 23. Non-compliance with these two provisions, submits counsel, renders a matter placed under the “undefended list” and any judgment obtained there from null and void. Counsel cites in support, the following cases:-
- Maley v. Isah (2000) 5 NWLR (Pt.658) 651;
- Cash Affairs Finance Ltd. v. Inland Bank (2000) 5 NWLR (Pt. 658) 568;
- Baba v. Habib (Nig.) Bank Ltd. (2001) 7 NWLR (Pt. 712) 496 at 506 at 506 (H).
- Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387.
- Provincial Council, Ogun State University v. Makinde (1991) 2 NWLR (Pt. 175) 613 at 618.
- Sincerity and Trust Multi purpose Cooperative Society Ltd. v. Emmanuel Emenue (2002) 10 NWLR (Pt.776) p. 509 at 520 R 23.
It is to be understood from the submission of the learned Counsel that the requisite application to have the suit placed under the “undefended list” was not made before the suit was heard as an “undefended suit”. Counsel urges us to strike out the suit.
In response, the learned Counsel to the respondent submits that being an originating process, the intended “application” referred to in Order 23 ought to be by means of Form One as stipulated under Order 5 rule 1 of the High Court rules. Counsel opines that the decisions in Maley v. Isah and Cash Affairs V. Inland Bank (supra) were arrived at per incuriam, the attention of the learned Justices not having been drawn to the relevant order 5 rule 1, which deals with originating application as opposed to Order 8 which deals with interlocutory applications. I do not know that it lies in the mouth of a learned Counsel to declare a decision of this court as made per incuriam that should be the province of the Supreme Court and of this court in special circumstances. We shall however, address the merit of the case in terms of the law and the precedent put forward in support of the respective arguments of the parties.
A quick resolution of this issue is a determination of the import, the purpose and intendment of the word “application” as used in Order 23. Order 23 does not define the word application nor does it state the mode of application to be made. For the ease of reference, Order 23 is hereby reproduced:
rule 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 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.”
rule 2:
“There shall be delivered by the plaintiff to the registrar, upon the issue of the writ of summons as aforesaid, as many copies of the above-mentioned affidavit as there -are parties against whom relief is sought and the registrar shall annex one such copy to each copy, of the writ of summons for service.”
rule 3(1)
“If the party served with the writ of summons and affidavit delivers to the registrar a notice in writing that he intends to defend the suit, together with a affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”.
The Black’s Law Dictionary 6th edition page 98 defines “application” “as a putting to, placing before, preferring a request or petition to or before a person.”
In every day parlance, “application” means a formal request for something usually in writing (refer Oxford Advanced Learners Dictionary by A.S. Hornby 5th edition, Oxford University Press, 1995, page 48).
By the meaning of application, (supra), it appears the intendment of the provisions of Order 23 and particularly, the use of the word “application” is that a special request must be made first before a writ of summons is placed on the undefended list.
The substratum of that provision is the “application”. Once there is an “application”, however made either by a motion ex parte under Order 8 or by the filling of Form One under Order 5, the legal requirement is fulfilled once an application is made. In the case of Okonofua Vincent Omoijahe v. Uwesu Umoru & 2 Ors. (1999) 5 SCNJ p. 280 at 287, (1999) 8 NWLR (Pt. 614) 178, the Supreme Court held that statutes are construed to promote the general purpose of the legislature. Judges ought not to go by the letter of the statute only, but also by the spirit of the enactment.
Of course one could argue, as does the learned Counsel for the respondent that being an originating process, Order 5 is the appropriate procedure to adopt (refer Kwara Hotels v. Ishola (2002) 9 NWLR (Pt. 773) 604). Indeed, and he could be right. Order 8 deals with interlocutory applications. “Interlocutory” is defined on page 815 of the Black’s Law Dictionary (supra) as “provisional,” “interim”, “temporary”, “not final.” “Something intervening between the commencement and the end of a suit, which decides some points or matter, but is not a final decision of the whole controversy”.
The clear provision of Order 23 refer to the issuance of a writ of summons and what readily comes to mind is an originating process. The filing of an application with an accompanying affidavit is merely a continuation of the processing of the originating process for the purposes of the special procedure under Order 23.
Thus, Order 23 makes provisions for the commencement of a special kind of suit; to be marked the “undefended suit”. To do this, an application has to be made specifically to have the suit placed and marked the “undefended suit”. Such an application must be accompanied by an affidavit “setting forth the grounds upon which the claim is based.”
Herein lies the import of the procedure; the affidavit. It is upon the facts stated in the accompanying affidavit that the Judge, if “satisfied” may enter the suit for hearing in what shall be called the “undefended list”, and the writ of summons shall be accordingly marked. The prerequisite step, the condition precedent under Order 23 is an application accompanied by an affidavit.
Once this step is taken, it is recognized that the plaintiff seeks a hearing under the “undefended list”, because this procedure is peculiar to Order 23 of the High Court (Civil Procedure) Rules (refer per Coker, JSC in Olubusola Stores v. Standard Bank (Nig.) Ltd. (1975) 4 SC 51 at 54. Also, to Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt. 524) p. 290 at 297; First Bank Plc v. Khaladu (1993) 9 NWLR (Pt. 315) p. 44 at 57; Nwakama v. Iko Local Government (1996) 3 NWLR Pt. 439 at 732 and Edem v. Cannon Ball Ltd. (1998) 6 NWLR (Pt. 553) p. 298 at 308. Thus, an application, as an application is an application! Whether the application be made under Order 5 or Order 8, provided no party is misled and thereby placed at a disadvantage. The appellant was not misled in this suit. He filled a notice of intention to defend in response to the special procedure under Order 23.
In a court of law and equity, where no specific provision is made for the doing of a thing, any legal procedure which is adopted and produces the same legal effect is acceptable. Order 23 does not state the nature of the application, it merely requires that an application be made supported by an affidavit. Order 23 is a special procedure. By the provisions of Order 8(2)(1) of the High Court application “may” be made by motion. The use of the word “may” implies a leverage, an option, another way. To that effect, the provisions of Order 8(2) (1) are not mandatory.
Indeed, can a step taken to bring a suit within the provisions of Order 23 be described as interlocutory? We had seen earlier in this judgment, that “interlocutory” means an intervening event to a process already in existence. Having a writ marked the “undefended” is infact an originating process, initiating the suit. There is nothing interlocutory about the procedure under Order 23 of the rules.
Barring undue reliance on technicality, I am of the humble opinion that the respondent adequately placed the appellant on notice of the nature of his suit before the High Court. The Supreme Court has in recent times made repeated pronouncements urging judicial officials to look more to substance and the interest of justice rather than legalease.
In the words of the Apex court.
“The days of sticking to technicalities as opposed to substantial justice have gone by. The courts have shifted from undue reliance on technicalities to doing substantial justice between the parties before it” (ref. Yakeen Alabi Odonigi v. Aileru Oyeleke (2001) 6 NWLR (Pt.708) P.12 at 24; Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144 & Oloshe v Ogunobe (2002) 1 NWLR Pt. 749 p. 611).
By the rules of the court, only a writ taken out under the provisions of Order 23 is accompanied by an affidavit.
Further, the said writ was marked the “undefended suit.” The provisions of Order 23 was thereby complied with and the appellant suffered no disadvantage of any legal value. He promptly filed a notice of intention to defend, again, a procedure peculiar to Order 23.
The learned Counsel for the appellant has harped so much on the issue of jurisdiction. It should be stated clearly that non-compliance with the provisions of the rules is an irregularity which can be waived expressly or by conduct. See Ariori v. Elemo (1983) 1 SCNLR 1.
The affected party must take steps to set aside the irregularity before taking further steps in the proceedings.
Unconditional appearance in the proceedings is taking steps which amounts to a waiver of the irregularity. The appellant not only entered an unconditional appearance, but took a further step of filling a notice of intention to defend.
It is instructive to state here that the notice of intention to defend is supported by an affidavit headed “counter affidavit of Mr. Felix O. Ogbaegbe in defence of suit under “undefended list”. He cannot suddenly wake up at the Court of Appeal and expect the proceedings and judgment in which he fully participated to be set aside for reasons of procedural irregularity. (Refer Kebbe v. Garba A. Maitumbu & 1 Ors. (1999) 5 NWLR (Pt. 601) p. 127 at 131 and Oniah v. Onyia (1989) 1 NWLR (Pt. 99) 514.
The error if any in this suit is not one that has been shown to occasion a miscarriage of justice to the appellant. Having a judgment entered against a party does not per se occasion a miscarriage of justice. Had the appellant been in any way misled in the prosecution of this case, then a miscarriage of justice would have been occasioned. As earlier observed, the appellant was not at all misled. He fully understood the implication of the processes served on him and he responded accordingly without raising any objection. Refer Adeyemo Onifade v. Muslim R. Oyedemi & Ors. (1999) 5 NWLR (Pt.601) p. 54 at 68. He has therefore suffered no injustice.
In the prevailing circumstance, the non-compliance, if any, with Order 8 does not take away the jurisdiction of the court. This issue is resolved in favour of the respondent.
Issue two and three:
“Was the learned trial Judge right, in the procedure adopted by him, when in a ruling on an application for adjournment, he entered judgment against the appellant without giving him opportunity to be heard and did he appraise the affidavit of the defendant?”
The learned Counsel for the appellant submits that the procedure adopted by the learned trial Judge violated the right of the appellant to be heard as guaranteed by section 33(1) 1979 and 36(i) 1999 Constitution of the Federal Republic of Nigeria. What procedure did the learned trial Judge adopt? The learned Counsel refers us to pages 24-27 of the records of this appeal whereat, the learned Counsel; applied for an adjournment which was opposed by the plaintiffs counsel.
The learned trial Judge gave a ruling refusing the application for an adjournment and proceeded to enter judgment for the plaintiff in the terms of its claim before the court.
The learned Counsel asserts that the correct procedure should have been to rule on the adjournment and then call on the parties to present their respective cases. Counsel cites in support, the following cases:-
- Ilona v. Dei (1971) 1 All NLR 8;
- Harrods v. Anifalaje (1986) 5 NWLR (Pt. 43) 603;
- Umarco v. Panalpina (1986) 2 NWLR (Pt.20) 65;
- Ceekay Traders Ltd. v. General Motors Coy. Ltd. (1992) 2 NWLR (Pt.222) 132 at 156-157;
- Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 644-645 (H-A);
- Gukas v. Jos International Breweries Ltd. (1991) 6 NWLR (Pt. 199), 614 at 623;
- Alhaji Mohammed & Anor. v. Lasisi Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485;
- Union Bank of Nigeria Plc v. Ekulo Farms Ltd. & Anor. (2001) 7 NWLR (Pt. 711) 21.
It is the view of the learned Counsel for the respondent, that the trial Judge followed the right procedure. Counsel submits that the hearing envisaged under Order 23 rule 4 involves the evaluation or appraisal of the affidavit evidence filed by the parties, whereupon the court exercises its discretion either to let the defendant to defend the suit or to enter judgment in terms of the claim of the plaintiff. Counsel relies on the dictum of Olataruwa JSC in ACB Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) p. 25 at 36, followed and applied by Mohammed, JCA, in Maley v. Isah (2000) 5 NWLR (Pt. 658) p. 651, which goes thus:-
“Once the learned Judge forms the opinion that the affidavit does not disclose a defence on the merit to the action, he is to proceed with the hearing of the suit as an undefended/suit and enter judgment accordingly without affording the defendant or his counsel, even if present in the court any opportunity of being heard.”
Counsel further cites the case of UTC (Nig.) Ltd. v. Pamotei (1989) 2 NWLR (Pt. 103) p.244 as well as C.R.P.D.I. Co. Ltd. v. Obongha (2000) 8 NWLR (Pt. 670) 751 at 762-763, in which the Calabar division of this court, Coram Ekpe, JCA held that:-
“In my considered view, the consideration by the court as to whether or not, there is a reasonable defence or defence on the merit disclosed in the defendant’s affidavit amounts to a hearing …”
See also, per Onu, JCA (as he then was), in Agueze v. Pan African Bank Ltd. (1992) 4 NWLR (Pt.233) p.76 at 88.
The learned Counsel maintains that given the apparent unanimity of case law on the meaning of hearing as envisaged under Order 23 rule 4 of the High Court, rules, the question to ask is:-
Whether the trial court appraised the affidavit of the parties particularly the defence affidavit prior to the implicit refusal of leave to defend and the consequent entry of the judgment. The learned Counsel refers to pages 3-7, 11-15 for the affidavit of the parties, and to pages 24-27 of the records for the judgment of the court. Counsel submits that it is evident from the judgment of the court, that there was an appraisal of the affidavit evidence of the defendant prior to the finding of the trial court that no triable issues were disclosed to warrant a transfer to the general cause list.
It is finally the contention of counsel that the power to grant leave to defend or enter judgment is purely discretional and dependent on the Judge’s objective perception of the defence by the defendant vis-a-vis the claims. Such discretion must of course be exercised judicially and judiciously upon the Judge’s appraisal of the affidavit evidence which cannot be improved upon by the address of counsel. (Refers to Maley v. Isah & C.R.P.D.I. Co. Ltd. v. Obongha (supra).
The simple question in these issues is what constitutes hearing under Order 23 rule 4 of the High Court Rules? To answer this question satisfactorily, we must look at the intendment of the provisions of Order 23 generally. Only judicial precedent will provide the guide.
The learned Counsel for the respondent has competently, in the respondent’s brief, addressed some of the cases in which pronouncements were made as to what constitutes hearing under Order 23. I adopt those cases fully in considering this issue. I shall however, add a few cases in support of my pronouncement.
By the terms of Order 23, matters to be heard are such that no reasonable defence exist to such; the provision is specific:- it must be a “debt” or a “liquidated money demand”.
In the case of Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt.144) p. 283 the Supreme Court gave a comprehensive judicial elucidation to the provisions of Order 23. In the case of Bernard Agwuneme v. Felix Eze (1990) 3 NWLR 1 (Pt.137) P. 243 at 252-4. the “undefended list” procedure was described as
“… A truncated form of the ordinary civil hearing peculiar to our adversary system where the ordinary hearing is rendered unnecessary due in the main to the absence of an issue to be tried or the quantum of the plaintiff’s claim disputed, to necessitate such a hearing.”
The procedure is designed to expedite the hearing of a suit for a debt or liquidated money demand. Order 23 is designed to ensure a quick dispensation of justice, to prevent sham defences (refer Macaulay v. Nal Merchant Bank Ltd. (supra).
Thus, a mere general denial of the plaintiff’s claim is not sufficient to warrant a defendant being given leave to defend.
For the suit to be marked the “undefended suit,” the plaintiff must take out a writ of summons and swear to an affidavit as to the facts of the case annexing, if any, all relevant documents. The court looks at the depositions in the affidavit to determine prima facie, if the facts deposed to justify the grant of the application to have the suit marked the “undefended suit”.
Once so marked, the writ is served on the defendant who must in turn file a notice of an intention to defend along with an affidavit deposing to facts which must cast a doubt on the mind of the Judge as to why the suit should not be heard as an “undefended suit.”
This procedure affords the defendant an opportunity to state his case in an affidavit, in response to the facts deposed to in the plaintiff’s affidavit. The parties are therefore, placed on a level playing ground, because it is not the intention of the “undefended suit’ procedure to shut out the defendant from contesting the suit. (Refer Fesco Nigeria Ltd. v. Nasco Rice & Cereal Processing Company Ltd. (1998) 11 NWLR (Pt. 573) p. 227.)
However, to entitle a defendant to be granted leave to defend in the ordinary procedure, the affidavit in support of the intention to defend must contain particulars which, if proved, could constitute a defence on the merit. The affidavit must deal specifically with the plaintiff’s claim and must state clearly what the defence is and what facts and documents are relied upon in direct response to the facts and documents produced by the plaintiff.
Only upon the presentation of a defence on the merit is the defendant entitled to have the suit of the plaintiff transferred to the general cause list. A general denial or an averment that some payments were made, but not taken into account is not sufficient. The details and particulars of such payments must be set out. No half-hearted defence is allowed. (Refer: Zahkem International v. Ndu C. Ofoma (2000) 11 NWLR (Pt.679) p.609; Ahmed v. Trade Bank (Nig.) Plc. (1997) 10 NWLR (Pt.524) p. 290.
In the case of African Continental Bank Ltd. v. Alh. Gwagwada (1994) 4 SCNJ (Pt) p. 268 at 277, (1994) 5 NWLR (Pt. 342) 25, the Supreme Court held that the significance of the notice of intention to defend is borne out by the affidavit accompanying the notice.This must depose to grounds for asking to be heard in defence which must not be frivolous, vague or designed to delay the trial. A clear dispute must be disclosed between the parties to necessitate a full trial in the general cause list. When the Judge is satisfied that there is a prima facie defence then leave is granted to defend and pleadings may be ordered (Refer also to Pan Atlantic Shipping & Transport, Agencies Ltd. v. Rhein Mass UND SEE Schiffarsts Kontor GMBH (1997) 3 SCNJ p. 88 at 96, (1997) 3 NWLR (Pt.493) 248.
I have undertaken this litany of cases in an effort to demonstrate that once the affidavits have been exchanged, the requisite for “hearing” under Order 23 has been provided by the parties. What remains is the evaluation and appraisal of these affidavits and the documents annexed there to by the learned trial Judge before a pronouncement is made one way or the other.
The clear implication is that on the return date, there is no room for further filling of materials; affidavit or whatever. The notice of intention to defend is to be filed at least five days before the return date. Again, refer to Olubusola Stores v. Standard Bank Nig Ltd. (supra).
In this particular case, was there a hearing on the return date? The appellant said he was not given a hearing. The records before us however show that there was a hearing at which the learned Counsel for the appellant sought an adjournment (page 24-27 of the records).
The learned Counsel to the respondent opposed the application for an adjournment and asked that judgment, be entered for the respondent/plaintiff. His application was granted in accordance with the provisions of Order 23.
No where in the provisions of Order 23 is the Judge conferred with the powers to grant an adjournment once the notice of intention to defend has been filed.
The procedure is straight forward. Once the writ marked the ‘undefended’ is served on the defendant and he enters a defence, the next stage is judgment if no defence on the merit is depicted.
The hearing is not of witnesses but based on the affidavit filed before the court. It is a summary hearing, it is a special procedure aimed at saving time and cost.
On the return date, the Judge has only two legal functions to perform. First is to determine that the defendant has been served and has entered a defence five days before the return date. Next is to determine if upon the defence filed, the suit should be transferred to the general cause list and the counter part of this is that, if no defence is disclosed, judgment must be entered for the plaintiff. There is no room for an adjournment (refer Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 12 SCNJ p. 171 at 175; (1989) 5 NWLR (Pt.123) 523.
By asking for an adjournment, the learned Counsel for the appellant took a risk. At any rate, there was nothing further the learned Counsel could have added to the affidavit evidence already before the court; he could not have given evidence from the bar to improve on the affidavit evidence already filed. The judgment entered by the learned trial Judge states the reasons for the refusal of the application for an adjournment and the reason for the judgment entered.
Judgment was not entered because the learned Counsel asked for an adjournment. Judgment was entered in the words of the learned trial Judge because (page 26 of records);
“… I have gone through the affidavit accompanying the notice of intention to defend filed in this suit and do not see any triable defence, what the affidavit has tried to show is that there is a pending suit A/100/92 between the defendant (as plaintiff and that plaintiff as defendant the reliefs sought in the said suit are quite different from the relief sought in the instant suit. The subject matter of the instant suit is the recovery of the unsettled balance of credit facility awarded the defendant. In my humble view, the defendant has not disclosed triable defence in his affidavit…”
By the pronouncement in the judgment, it is obvious that the learned trial Judge appraised and evaluated the affidavit filed in support of the notice of intention to defend and found no triable issues deserving of a transfer of the suit to the general cause list.
Being an affidavit evidence, we are in as good a position as the trial court was in evaluating the affidavit evidence of both the plaintiff and the defendant (refer Gabriel Iwuoha & Anor. v. Nigerian Postal Services Ltd. & Anor. (2003) 4 SC (Pt. 11) p. 37 at 54, (2003) 8 NWLR (Pt.822) 308.
There in, Supreme Court held that:-
“where the finding of a trial Judge on a documentary, evidence is perverse, an appellate Judge will easily see the perversion and employ his appellate power to correct it.”
Our duty is to determine whether, upon the affidavit evidence available to it, the court adequately evaluated the facts and arrived at a judicious decision.
It is the case of the appellant that they made out a good case to warrant a transfer of the suit to the general cause list, but that the learned trial Judge failed to make the requisite order. It is the contention of the appellant that the trial Judge failed to properly evaluate the affidavit evidence filed in defence and thereby came to a wrong conclusion to wit: that the appellant had not disclosed any triable defence. Counsel cites the case of General Securities and Finance Co. Ltd. v. Obiekezie (1997) 10 NWLR (Pt. 526) p. 577 at 588 as authority to say that a decision of the Judge as to whether or not to transfer a matter to the general cause list does not depend on the discretion of the trial Judge but on the evaluation of evidence. Also cites the case of Nwokedi v Orakposim (1992) 4 NWLR (Pt.233) p. 120. The learned Counsel has also cited a host of other cases but did not state what point of law such cases propound.
The respondents states that its claim before the trial court was a simple recovery proceedings for the principal debt taken by the appellant and interest elements at agreed rate or in accordance with CBN guidelines. Rather than respond on this issue, the appellant filed an evasive defence citing a suit No. A/100/92, in which the subject matter and principal relief involves the mortgaged properties.
Respondent argues that by the decision in Thor Ltd. v. First City Merchant Bank Ltd. (2000) 4 NWLR (Pt.652) p. 274, a plaintiff has the right to sue for recovery of the loan in preference to an action for the collateral securities (see per Nzeako, JCA).
In his affidavit recorded at pages 11-15 of the records, the appellant, per para 2 and 3 does not entirely deny a relationship with the respondent. In paragraph 3, he deposed in these terms:-
“That it is not certain whether the plaintiff is owing me or I am owing it”.
In its affidavit in support of its claim, the respondent clearly stated its claim and supported same with documents: See annexures to the writ in records. An effective traverse from the appellant should have produced documents to contradict the claim of the respondent. In the case of Adeleke v. Aserifa pg 113-114, the Supreme Court held that a mere denial is not a proper answer to the averments. In the absence of such vital documents, the provisions of section 149(d) of the Evidence Act, Cap. 112, LPN 1990, enure to the respondent. In the circumstance, the learned trial Judge was right in rejecting the said defence of the appellant and there on entering judgment for the respondent. I find no good reason to upset the decision of the trial court.
This entire appeal is hereby dismissed. The judgment of the trial court is accordingly affirmed along with all the consequential orders made therein.
I award a cost of N3,000.00 to the respondent against the appellant.
Other Citations: (2005)LCN/1751(CA)
