Maurice Ebong V. Francis S. Ikpe (2001)

LawGlobal-Hub Lead Judgment Report

EKPE, J.C.A. 

The respondent in this appeal was the plaintiff in the Uyo High Court of Akwa Ibom State in suit No. HU/UND.306/98, the subject-matter of the appeal. He had sued the defendant now appellant claiming in the writ of summons as follows:

“The plaintiff claims against the defendant the sum of N400,000.00 (Four hundred thousand naira) being sums (sic) owed the plaintiff by the defendant as at June 2, 1996 with interest thereon at 21% per annum from 25th June, 1996 till judgment, thereafter at 10% until final liquidation thereof.”

The respondent swore to an affidavit in support of the claim and the suit was on the application of the respondent placed under the undefended list for hearing. Upon service of the writ of summons on the appellant together with the accompanying affidavit of the respondent, the appellant filed notice of intention to defend the suit together with an affidavit disclosing his defence on the merit with exhibits 1 to 4.

In the ruling that was delivered on the 14th of December, 1998 as to whether the suit should be heard on the undefended list or not, U. E. Essang, J., the learned trial Judge at page 26 of the record of appeal stated as follows:

“The result is that this case still remains on the undefended list. The notice of intention to defend together with the accompanying affidavit are hereby struck out in the hope that this will deter debtors from employing different guiles in postponing the meeting of their lawful obligations to their creditors and in the process exploit the rules of court and erode public confidence in the judicial system.

I hereby enter judgment in favour of the plaintiff in the sum of N400,000.00 being sums (sic) owed the plaintiff by the defendant.

Plaintiff not being a registered money lender is not entitled to interest on the sum of N400,000.00.”

(Italics mine for emphasis).

The defendant/appellant being dissatisfied with the ruling of the learned trial Judge has filed an appeal in this court on four grounds of appeal with their particulars to wit:

“Grounds of appeal”

Ground 1

The learned trial Judge erred in law in striking out the notice of intention to defend the suit filed by the defendant and the affidavit in support of the notice without any legal justification.

Particular

(a) The requirements of Order 23 rule 3(1) enjoins the defendant to file notice of intention to defend the suit, if he intends to defend, together with an affidavit disclosing a defence and the court’s duty to consider the affidavit, and where it raises a defence, to grant the defendant leave to defend the suit and transfer the suit to the general cause list. Where the affidavit, in the considered opinion of the Judge, does not disclose a defence to the suit he ought to enter judgment for the plaintiff, not strike out the notice of intention to defend the suit with the accompanying affidavit thereby deleting it from the court’s record.

(b) An order for striking out a process filed in court from the record must be predicted on a legal principle laid out in the rules of court.

Ground 2

The learned trial Judge erred in law in holding that the onus of proof rested on the defendant to show by exhibiting receipts that the sum claimed was not paid to him as a loan but for the conversion of paper.

Particulars

It was the defendant’s case persistently stated in the affidavit he filed in defence of the suit that he took no loan from the plaintiff and that the N400,000.00 paid was to Autopak Nigeria Limited for the conversion of some quantity of paper for which receipts were issued to the plaintiff and invoices raised in his favour. These averments were not denied in any further affidavit to create the obligation for the document and to predicate the finding of the learned trial Judge.

Ground 3

The learned trial Judge erred in law in holding that there was no conflict in the affidavits of the parties which required resolution by trial on the merit and that facts in the affidavit of the defendant disclosed no defence to the plaintiff’s suit requiring a determination of the case on its merit completely against the principles of trial under the undefended list.

Particulars

The claim of the plaintiff was that he granted a friendly loan to the defendant and the defendant denied the loan and stated that the plaintiff gave his company, Autopak Nigeria Limited an order to manufacture some paper products for him, which the plaintiff had neglected to collect and which are still in his company’s warehouse. This fact the plaintiff never denied which necessarily raised the need to hear evidence to determine whether indeed the money claimed was a loan or payment for a job which the defendant had executed in favour of the plaintiff but which the plaintiff has refused to take delivery of.

Ground 4

The judgment is against the weight of evidence.

Briefs of argument were accordingly filed by the parties for the determination of the appeal. The appellant in his brief of argument formulated two issues for the determination of the appeal and identified the two issues with their respective grounds of appeal.

They read:

“Issues No. (a): Whether the learned trial Judge had any legal justification for striking out the defendant’s notice of intention to defend the suit and the affidavit in support of the notice disclosing a defence on the merits (Ground 1).

“Issue No. (b): Whether the trial court was right in holding that on the facts averred to in the affidavit of the defendant/appellant, they had not made out a case to warrant the suit to be transferred to the general cause list (Grounds 2, 3 and 4).”

The respondent in his brief of argument identified four issues for the determination of the appeal. They also read:

“1. Whether the learned trial Judge was right in striking out the notice of intention to defend and (the) supporting affidavit and what is the effect of the striking out order on the entire judgment.

2. Whether the learned trial Judge was right in holding that the defendant/appellant ought to have proved as asserted by him, that the sum of N400,000.00 was paid to Autopak Nig. Ltd. for conversion of paper and not a friendly loan as asserted by the plaintiff/respondent.
3. Whether there was any conflict in the affidavits of both parties which required resolution by oral evidence.
4. Whether from the entire gamut of evidence before the court, the judgment is against the weight of evidence.

Arguing issue No. (a) in the appellant’s brief, the appellant referred to the unguarded vituperations and hard comments in the ruling of the learned trial Judge against the appellant and described them as absolutely preposterous. He submitted that the procedure for obtaining judgment under the undefended list is regulated by rules of court and in this case by Order 23 of Akwa Ibom State High Court (Civil Procedure) Rules, 1989. Reference was made particularly to rules 3 and 4 thereof. It was also submitted that the rules do not provide for the striking out of the notice of intention to defend and the affidavit disclosing a defence, no matter the feeling of the learned trial Judge. It was argued by the appellant that where a trial Judge was satisfied that the affidavit of the defendant did not disclose a valid defence on the merit he could only enter judgment for the plaintiff and no more, and that striking out the process of defence filed by the defendant was akin to the proverbial act of throwing away the baby with the dirty bath water. The appellant conceded that the learned trial Judge had a discretion under the rules to either grant the appellant leave to defend or to enter judgment for the respondent but that discretion must be informed by the circumstances and facts of the case. The discretion, it was submitted must be guided by the recognised principles and not according to the feelings of the Judge as the discretion must be judiciously and judicially exercised. Reference was made to the cases of Franchal (Nig.) Ltd. v. Nigeria Arab Bank Ltd. (1995) 8 NWLR (Pt. 412) 176; Bulet Int. (Nig.) Ltd. v. Adamu (1997) 3 NWLR (Pt. 493) 348. The appellant therefore contended that the learned trial Judge had no discretion to exercise when he struck out the processes filed by the appellant to anchor his defence. He further contended that the learned trial Judge acted wrongly and denied him the opportunity of being heard on the merit.

In the respondent’s brief of argument on this issue, it was conceded by the respondent that the learned trial Judge ought not to have struck out the notice of the appellant of intention to defend and the affidavit disclosing his defence on the merit. The respondent however pointed out that the striking out order was an oversight which can be corrected by this court without affecting the judgment of the learned trial Judge which did not occasion a miscarriage of justice to the appellant. It was contended by the respondent that the striking out order was only a procedural irregularity as the learned trial Judge considered the affidavit of defence in his judgment and so the striking out order was not fatal to the appellant’s case. It was also submitted that unless there is a miscarriage of justice arising from error in procedure or misconception or misapplication of the law, the Court of Appeal will not interfere with the decision of the lower court. The case of Nnajifor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 at page 506 was referred to. The respondent further contended that the learned trial Judge exercised his discretion judicially and judiciously after having carefully considered the affidavit of both parties.

I have given careful consideration to the submissions above on this issue. The rules of the High Court of Akwa Ibom State regulating proceedings under the undefended list are governed by Order 23 of Akwa Ibom State High Court (Civil Procedure) Rules, 1989. I shall set out the rules in full for better appreciation of this case 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 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 circumstance of the particular case.

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.

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 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.

3(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.
5. Nothing herein shall preclude the court from hearing or requiring oral evidence, should it so think fit, at any stage of the proceedings under rule 4.”

It is clear from the rules of court reproduced above that there is no provision for striking out by the learned trial Judge the notice of intention to defend together with the accompanying affidavit of the appellant disclosing his defence on the merit at any stage of the proceedings under the undefended list procedure. The appellant having filed his notice of intention to defend and the affidavit disclosing his defence on the merit, it was then incumbent upon the learned trial Judge to consider the same along with the claim and affidavit of the respondent and decide whether from the appellant’s affidavit a defence on the merit had been made out. In the instant case, the learned trial Judge after considering the affidavits of both parties took the unusual step of striking out the appellant’s notice of intention to defend the suit together with the accompanying affidavit disclosing the defence on the merit before entering judgment for the respondent. The respondent’s counsel has argued that the striking out was an oversight by the learned trial Judge. With due respect, I do not agree with him. The implication of the striking out is very ominous to the proceedings in the suit. It is a principle of law that it is not every mistake or error or irregularity committed by a trial court that automatically results in an appeal being allowed. It is only when the error or irregularity is so substantial as to occasion a miscarriage of justice that an appellate court is bound to interfere. See Nkoko v. Akpaka (2000) 7 NWLR (Pt. 664) 225.

In Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505, miscarriage of justice was defined to mean “such a departure from the rules which permeate judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all.” By striking out the processes filed by the appellant upon which he anchored his defence on the merit and entering judgment for the respondent, I am of the view that the procedure adopted by the trial Judge was substantially irregular and occasioned a miscarriage of justice. Indeed, the striking out of the notice of intention to defend and the accompanying affidavit of the appellant ultimately left a vacuum in the appellant’s case which was created by the learned trial Judge himself. In the circumstances and in the overall interest of justice, this court is bound to interfere with the irregular proceedings and declare it null and void, as the striking out is not legally justified.

Issue No. (b) in the appellant’s brief of argument encompasses issues Nos. 2, 3 and 4 in the respondent’s brief of argument. I shall therefore consider them and the appellant’s issue No. (b) together.

In the appellant’s brief of argument, the question posed is whether on the facts and the documents filed by the appellant, the trial court was light in holding that the appellant did not make out a case for transferring the suit to be heard under the general cause list. The appellant referred to the case of the parties as disclosed in the affidavits and noted that the respondents did not file a further affidavit to deny or challenge the averments of the appellant in the affidavit disclosing the defence on the merit. The appellant criticised the learned trial Judge for holding in his ruling that the onus of proof rested on the appellant to prove by exhibiting receipts which go to show that the said sum claimed by the respondent was not a loan, but was paid for paper conversion. It was submitted by the appellant that the law is that he who asserts must prove and so it was the respondent who needed to exhibit the receipt for the sum of N400,000.00 to show that the transaction was in respect of a friendly loan and that it was not for the appellant to do so. He contended that the receipts which the learned trial Judge wanted the appellant to produce were in the custody of the respondent and therefore submitted that the learned trial Judge did not direct him self properly on the onus of proof as being on the appellant. He argued that if the learned trial Judge had directed himself properly, he would have subjected the averments in the affidavits of the parties to oral evidence, as a dispute has been clearly established. He referred to Knightsbridge v. Atamako (2000) 2 NWLR (Pt. 645) 385. Referring to the conflict in the affidavits of the parties, it was submitted that the learned trial Judge did not resolve the conflict in the affidavits of the parties and against all known legal principles the trial Judge proceeded to believe the respondent and to disbelieve the appellant. It was further submitted by the appellant that in a suit placed under the undefended list, it is the law that a complete defence need not be shown as it suffices if the defence set up shows that there is a triable issue or that for some other reasons, there ought to be a trial.

It was submitted that the affidavit of the appellant clearly cast doubt on the respondent’s case and the appellant ought to have been let in to defend. Finally, this court was urged to hold that the trial court was wrong to refuse to grant the appellant leave to defend the action.

The cases of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234; Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283; Santory Co. Ltd. v. Elabed (1998) 12 NWLR (Pt. 579) 538 at 544; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737 were cited in support. In the respondent’s brief of argument on issue No.2, it was argued that the burden of proof was on the appellant who asserted in his affidavit facts which he alleged to have existed and he cannot shift the burden of proof which he had put on himself. Reference was made to sections 135(1) and 139 of the Evidence Act, 1990. It was submitted that where facts deposed in the affidavit of intention to defend does not contain enough facts and particulars to satisfy any reasonable tribunal that a defence on the merit has been disclosed warranting the transfer of the case to the ordinary cause list for hearing, the Judge will be right in refusing the defendant’s application and entering judgment for the plaintiff. The case of Agro Millers Ltd. v. C.M.B. (1997) 10 NWLR (Pt. 525) 469 at page 480 was alluded to. Referring to Nortex (Nig.) Ltd. v. Franc Tools Co. Ltd. (1997) 4 NWLR (Pt. 501) 603, the respondent submitted that a defence on the merits for the purposes of undefended list or summary judgment procedure may encompass a defence in law and on fact and that the defendant must put forward some facts which cast doubt in the claim of the plaintiff. The case of Franchal (Nig.) Ltd. v. N.A.B. Ltd. (1995) 8 NWLR (Pt. 412) 176 at 189 was also cited. It was therefore submitted that the appellant’s defence as contained in the affidavit in support of his notice of intention to defend did not contain enough facts and particulars and the learned trial Judge was right in exercising his discretion by refusing to transfer the suit to the general cause list and for entering judgment on the undefended list for the respondent. He also referred to Knightsbridge v. Atamako (2000) 2 NWLR (Pt. 645) 385 (supra) and Jipreze v. Okonkwo (Supra).

On issue No.3 in the respondent’s brief of argument on conflict in the affidavits of both parties which would have necessitated calling for oral evidence, it was submitted that there was no such identifiable substantial disagreement or conflict in the affidavits of the parties and whatever disagreement or conflict appellant thought that existed was not grounded on facts. It was also submitted that the appellant set up a new case different from that of the respondent, but the appellant failed to exhibit necessary documents which would have cast doubt on the respondent’s claim. Furthermore, it was stoutly and forcefully submitted that the proper judicial position is that the procedure under the undefended list does not provide for resolution of conflict in affidavits by healing oral evidence as a means of allowing a defendant leave to defend. In other words, it was contended that the case of either party is determined solely from the respective affidavit evidence of the parties and that the learned trial Judge was therefore right in not attempting to examine any alleged conflict in the affidavits of the parties warranting resolution by oral evidence with a view to deciding whether the case should be transferred to the general cause list for hearing.

Issue No.4 in the respondent’s brief of argument is whether from the entire gamut of evidence, the judgment is against the weight of evidence. It was submitted by the respondent that the position of the law is that where an appellant complains that the judgment is against the weight of evidence, all that it means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court. Oyebadejo v. Olaniyi (2000) 5 NWLR (Pt. 657) 468, (2000) FWLR (Pt. 5) 829 at 846 was cited. The respondent therefore submitted that the judgment in his favour is fully supported by his affidavit evidence when balanced against the affidavit evidence of the appellant.

Simply put, the crucial question here is whether the learned trial Judge was right in holding that the appellant did not make out a case in his affidavit to warrant transferring the suit to the general cause list for hearing. To answer this all important question, it is necessary to set out in full the affidavits of the parties as hereunder.

The affidavit of the respondent upon which his claim is founded reads as follows:

“1. That I am the plaintiff in this suit.

2. That my claim against the defendant is the sum of N400,000.00 (Four hundred thousand naira).

The facts upon which the claim is founded are as follows:

(i) The defendant is my close friend.

(ii) The defendant carries on business in Uyo under the name and style of Autopak Nigeria Limited.

(iii) On the 25th day of June, 1996, the defendant requested from me a friendly loan of N400,000.00 and promised to pay back the loan within two weeks from the date of the release of the loan to him.

(iv) I granted the defendant’s request by releasing to him the sum of N400,000.00. The sums were granted on two cheques both dated 25th June, 1996 and the cheques were cashed by the defendant.

(v) The two weeks expired but the defendant never paid back the N400,000.00 to me.

(vi) It is now more than two years since the loan was granted the defendant and based on that, several verbal requests have been made to the defendant to pay back the loan to me but the defendant has refused to do so.

(vii) Failure to pay back the loan by the defendant has caused me a great inconvenience and set back.

(viii) I caused Uyouko & Associates my Solicitors to write to the defendant and by letter dated 3rd July, 1998 a request for repayment of N400,000.00 was made to the defendant but there has been no reaction from the defendant.

(ix) I rely on the following exhibit (sic) in making this affidavit:

(i) Cheque No. “0031” 032017184 of 25th June, 1996 on Account No. 718122134 for the sum of N50,000.00. Exhibit A hereto.

(ii) Cheque No. “00302” 032017184 of 25th June, 1996 on Account No. 7181228134 for the sum of N350,000.00. Exhibit B hereto.

(x) The defendant explained that he wanted to invest the N400,000.00 into his business so as to make more profit.

(xi) The defendant further agreed that in event of repayment exceeding 2 weeks he would pay to me an interest of 21 % per annum.

4. The defendant has no defence to the claim in the writ of summons exhibited hereto as exhibit C.
5. That the defendant will in no way be prejudiced by the grant of the application.
6. That I make this oath bone fide and in accordance with the Oaths Act.”

Also the affidavit of the appellant accompanying his notice of intention to defend the suit reads as follows:

“1. I have been served with an order placing the suit under the undefended list, with the writ of summons and the accompanying affidavit and this affidavit is filed in answer to the averments contained in the said affidavit.

2. In reply to paragraph 3 of the affidavit which is in material respects vehemently denied, I admit only that the plaintiff is my friend.
3. I do not trade or do business under the name and style of Autopak Nigeria Limited. Autopak Nigeria Limited is a body corporate and I am only its Chairman/Chief Executive.
4. Sometime in June, 1996, the plaintiff came to me in the premises of Autopak Nigeria Limited and gave me an order for the conversion of some quantity of paper. He paid the sum of N350,000.00 for the purchase of paper and N50,000.00 as conversion cost.
5. The cheques were paid on my name because they were cash cheques paid to Autopak for which receipts were issued on invoices raised for the job.
6. The job comprised the manufacture and supply to the plaintiff of the following:

(a) 12,000 manila board file jackets at N240,000.00.

(b) 440 reams of 70 grams white bond duplicating paper (foolscap) at N 160,000.00.

7. On the 2nd of July, 1996, I notified the plaintiff in writing that his orders had been completed for collection.

The said letter is annexed as exhibit 1.

8. On the 8th of July, 1996, before the plaintiff could collect the order, the factory was closed on the orders of Lt. Col. Yakubu Bako, for a period of over six months. After extensive negotiations with government officials and on orders of the Federal High Court, Calabar, the factory was again opened sometime in January of 1997. I dutifully communicated the closure of the factory and its opening to all customers of the Autopak Nigeria Limited including the plaintiff. The plaintiff’s copies of the said letters are annexed as exhibits 2 and 3.
9. Sometime in April, 1997, I approached the plaintiff to find out why he was no more desirous of collecting his products and he confided in me that since the price of paper products had gone down, he was waiting an order from Mobil Producing Nigeria Unlimited to enable him make a reasonable margin of profit and further that he had no storage facilities in his residence for the quantity of products.
10. In July of 1997, we took delivery of some large consignment of paper and machineries and being in dire need of storage space, we again wrote to the plaintiff soliciting that he makes arrangements to collect his products. He neither responded nor explained his handicap. The said letter is annexed as exhibit 4.
11. I have never asked for, nor obtained a loan from plaintiff and I owe him nothing of his claim. I have never borrowed N400,000.00 from the plaintiff nor agreed to pay him interest on any amount.
12. This affidavit is sworn to in support of my intention to defend the plaintiff’s suit and further, I state that I have a good and valid defence to the action, which is frivolous and in bad taste.
13. I swear to this affidavit bona fide believing in the truth of all the averments and under Oaths Act.”

I will start with the argument on the onus of proof; on whom does it lie in this case. Generally speaking, the law is that he who asserts must prove the positive of his assertion. See sections 135 and 139 of the Evidence Act, 1990. But the onus of proof is not static, as it shifts from time to time on the parties. In a given civil case tried on the pleading of the parties, the court has to critically look at the pleadings to discover where the onus of proof lies. Where, for instance, in a land case, the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits the possession but adds that the land was given to the plaintiff on pledge, then the onus shifts on the defendant to prove that the plaintiff is not the owner of the land the possession of which he has admitted. See Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. Similarly in an action for false imprisonment where the defence was that the imprisonment was lawful, the burden of proof was on the defendant who admitted the imprisonment to justify that the imprisonment was lawful. See Joe Sandy v. Johannes Hotogua & Anor. (1952) 14 WACA 18. Even though the suit in hand was placed on the undefended list and pleadings were not required at this stage the position was not altogether different as regards the onus of proof. In this case, the respondent who was the plaintiff claimed in his writ of summons and affidavit that he gave a friendly loan of N400,000.00 to the appellant who was the defendant and the appellant had not refunded the money. In the affidavit disclosing his defence on the merit, the appellant admitted receiving the said sum of N400,000.00 but denied that it was a friendly loan and went further to say that the money was for paper conversion for the respondent which the respondent ordered for and that he had never borrowed money from the respondent. In my view therefore, the appellant having admitted the receipt of the money, the onus was on him to prove that the money was for paper conversion for the respondent. Therefore the learned trial Judge was right in placing the onus of proof on the appellant.

The onus on the appellant was to show that by his affidavit evidence he had disclosed a defence on the merit for the suit to be transferred to the general cause list. That is the import of Order 23 rule 3(1) of Akwa Ibom State High Court (Civil Procedure) Rules, 1989. In other words, the appellant must disclose a triable issue or a prima facie defence or a plausible defence in his affidavit and not a fanciful or sham defence. In Knightsbridge Ltd. v. Atamako (2000) 2 NWLR (Pt. 645) 385, it was held that all that a defendant seeking to defend a case placed on the undefended list needs to show in his affidavit is that what he regards as his defence is not a mere general statement that he has a good defence to the action. Rather, he must go as far as possible to deal specifically with the plaintiff’s claim and state clearly what his defence is and what facts and documents he relies on. Can it then be said that the appellant’s affidavit did not disclose a triable issue or a plausible defence. I think not. The appellant clearly stated what his defence was and the facts and documents:- Exhibits 1 to 4 in support thereof. In my view, therefore, the affidavit of the appellant disclosed a defence on the merit and the learned trial Judge was wrong to have refused him leave to defend the suit. Although the learned trial Judge had a discretion, as to whether or not to give the appellant leave to defend, but the discretion should be exercised judicially and judiciously and not arbitrarily according to his whims. It is not the aim of undefended list procedure to shut out a defendant who really wants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at the expense of justice. See Peter Tiwell (Nig.) Ltd. v. Inland Bank (Nig.) Ltd. (1997) 3 NWLR (Pt. 494) 408. I hold the view that the procedure of putting a suit on the undefended list is only resorted to in glaring cases and the instant case is clearly not one of such cases. It is not the duty of the court at the stage of considering whether a defendant has a defence under the undefended list procedure to consider whether the defence will ultimately succeed as all that is needed at that stage is to determine whether a good defence has been disclosed in the defendant’s affidavit in support of his notice of intention to defend the suit. See Knightsbridge Ltd. v. Atamako (supra). Again, the appellant’s affidavit disclosing his defence on the merit should not provide a cast-iron or an air-tight defence or disclose a defence beyond reasonable doubt before the suit could be transferred to the general cause list for hearing. See V.S. Steel (Nig.) Ltd. v. Govt. of Anambra State (2001) 8 NWLR (Pt. 715) 454. It is now a well established principle that when a court is proceeding under the undefended list procedure it is desirable that the court must call into play a measure of liberality when viewing the affidavit of the defendant in order to determine whether or not a defence on the merit is disclosed. See V. S. Steel (Nig.) Ltd. v. Govt. of Anambra State (supra); Jos North Local Govt. v. Daniyan (2000) 10 NWLR (Pt. 675) 281.On the issue of conflict in the affidavit of the parties, the learned trial Judge did not give this issue adequate treatment in his ruling.

He recognised that there was a point of divergence in the affidavits of the parties as to the purpose for which the N400,000.00 was meant.

The point of divergence according to him is that plaintiff alleged that it was a friendly loan to the defendant at the latter’s request, while the defendant on the other hand asserted that the money was meant for paper conversion for the plaintiff. This alone is enough conflict arising from the affidavits of the parties that cannot be resolved without calling oral evidence. The law is firmly settled that when a court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case in order to resolve the conflict properly should first hear oral evidence from the deponent or such other witnesses as the parties may be advised to call. See Falobi v. Falobi (1976) 9-10 SC 1 at page 15 or (1976) 1 NMLR 169; Akinsete v. Akindutire (1966) 1 ALL NLR 147 at page 148; Olu-Ibukun v. Olu-Ibukun (1974) 2 SC 41; Eboh v. Oki (1974) 1 SC 179 at 189 to (1990); Uku v. Okumagba (1974) 3 SC 35. In Jipreze v. Okonkwo & Anor. (1987) 3 NWLR (Pt. 62) 737, the suit was brought under the undefended list and it was held that where there has been a conflict in the affidavits of the parties, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit on the general list. Olutawura, J.C.A. (as he then was) at page 744 of the report has this to say:

“Ordinarily, both affidavits can be resolved by calling for evidence. This is where both sides should file pleadings. It will amount to a denial of fair hearing to look at both affidavits and for the Judge to conclude as in this case that the conduct of the appellant was not only bogus but fraudulent.”

Again in Globe Fishing Ind. v. Coker (1990) 7 NWLR (Pt. 162) 265, the Supreme Court held that the fact that affidavits conflict supports rather than derogate from the facts that there are substantial issues to be tried. In the recent case of I. K. Martins (Nig.) Ltd. v. U. P. L. (1992) 1 NWLR (Pt. 217) 322, it was held that where the decision of a trial court is based on unresolved conflicting affidavit, an appellate court would not allow it to stand. Having said thus, it is therefore my candid view that there is irreconcilable conflict in the affidavits of the parties which should necessitate the transfer of the suit to the general cause list for hearing on pleadings so as to resolve the conflict by calling oral evidence.

From the foregoing therefore, I hold the view that the appellant ought to have been given leave to defend the suit. The learned trial Judge was in a serious error to have entered judgment on the undefended list in favour of the respondent.

The conclusion therefore, that I have reached in this appeal is that it has merit and should be allowed. I therefore hereby allow the appeal. The judgment of the trial court is hereby set aside. It is hereby ordered that the suit No. HU/UND.306/98 be remitted to the court below to be tried by another Judge upon pleadings. I award costs against the respondent assessed at N5,000.00.

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Other Citations: (2001)LCN/1049(CA)