Guardian

In the Court of Appeal of Nigeria,

Yola Judicial Division,

Holden at Jalingo,           On Wednesday May 23, 2012,

Before their Lordships:

Monica B. Dongban-Mensem,          Justice, Court of Appeal;

Chima Centus Nweze,                      Justice, Court of Appeal;

Abubakar Alkali Abba,                   Justice, Court of Appeal;

CA/J/121/2006

Between

Ibrahim J. Usman         (appellant)

and

Mamman Kefas Munga           (respondent).

ON the question of allegation of crime as shown above, he drew attention to the said relief wherein the respondent claimed.

He observed that appellant’s only complaint against the above relief is the phrase “dishonestly induced”, which, according to him, raises the issue of crime.

He submitted that the entire complaint and submission of the appellant on crime and criminality in this case is a complete red herring meant to distract the attention from the real issue which is simply whether or not the appellant is indebted to the respondent to the tune N800,000, being the consideration that had failed.

In effect, the respondent did not need to prove “dishonestly inducement” before he could recover judgment for money he paid to the appellant for a consideration that has failed; as such, Section 138 (1) (supra) does not apply.

With regard to the question of contradictions in the respondent’s case, counsel noted that the issue is whether the appellant is indebted to the respondent. He drew attention to paragraph 3 where the respondent averred that “the pieces of land are joined together.” He urged the court to hold that there is no material contradiction in the respondent’s affidavit.

On the question of the comparison of signatures, counsel submitted that the lower court was right. He explained that it was not being disputed that the appellant signed the writ of summons personally.

In his view, since the appellant, merely, denied signing exhibit ‘A’, the lower court was entitled under Section 108 (1) of the Evidence Act to compare his signature already before it in writ of summons, and the one in exhibit ‘A’ to enable him arrive at a decision on the issue properly raised before him by the parties.

Before dealing with the issues set out above, we intend to dispose of the preliminary objection first. Notwithstanding the elaborate arguments, which the respondent offered in support of his preliminary objection in his brief, he abandoned the said objection during the hearing of the appeal.

By Order 10 Rule 1 of this court, any respondent who intends to challenge an appeal shall do so by filing a notice of preliminary objection. The said order provides that: “A respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the appellant three clear days’ notice thereof before the hearing, setting the grounds of the objection”, Kaydee Ventures Ltd v Hon. Minster, FCT (2010) All FWLR (pt 519) 1079, 1094.

However, the respondent, in practice, is often permitted the indulgence of incorporating the said objection in the brief of argument. However, at the hearing of the appeal, he must seek and obtain leave to move the preliminary objection before the adoption of briefs of argument, if not the objection would be deemed to have been abandoned, Umar v White Gold Ginnery Nigeria Ltd (2007) All FWLR (pt. 358) 1096.

In this appeal, although the respondent incorporated the notice in the respondent’s brief, Etim Akpan, counsel for the respondent, did not seek leave to deal with the said objection before he urged the court to deem the appellant’s brief “as having been properly treated”. In effect, no leave was sought with regard to the objection before the hearing of the appeal. The said objection must, therefore, be discountenanced.

As shown earlier, counsel for the appellant cited Kabiru v Ibrahim (2004) 5 WRN 151, 174 as his authority for the proposition that the proper step in a suit under the Undefended List is for the trial court to begin by considering whether or not the plaintiff’s case is a proper one to be heard or placed under that procedure.

What emerges from an exploration of all the provisions dealing with this special procedure is that the rule is designed to enable a plaintiff to obtain summary judgment without trial in those cases where his case is unassailable and the defendant cannot show a defence which will lead to a trial of the case on its merits, Okoli v Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt 1053) 37.

Where, therefore, the claim is steeped in controversy, the procedure is not applicable.

To do otherwise would be to employ a procedure designed to obviate injustice to a deserving plaintiff as a vehicle for perpetrating injustice against a defendant, Nishizawa v Jethwani (1984) 12 SC 234, 292. This would be a travesty of the whole purpose of the procedure.

Against this background, therefore, in a suit under the Undefended List, the trial court is under obligation, first and foremost, to consider whether the claim is suitable for placement under that special list.

This done, the trial court is, then, required to consider the affidavits and whether the affidavit of the defendant discloses any defence to the action.

Thus, if the defendant’s affidavit “discloses even the slightest defence on the merits, the judge is duty-bound to have the suit transferred from the undefended list to the ordinary cause list for a full trial to take place”, Intercity Bank Plc v FTA Ltd (supra); Mbachi v Fixity Ent Co Ltd (supra).

So, where from the generality of the depositions of the defendant in his affidavit in support of the notice of intention to defend, there is obviously a reasonable contest, it is better for the court to err on the side of caution and to transfer the matter to the general cause list, Addax Pet Dev (Nig) v Duke (2010) 8 NWLR (pt. 1195) 278, 303.

Now, this is not to say that the defendant’s grounds for his entreaty to the court to be allowed to defend the action should be frivolous, vague, or craftily designed to filibuster the proceedings, ACB v Gwagwada (1994) 5 NWLR (pt. 342) 25.

Now, turning to the proceedings at the lower court, the question would be whether the plaintiff’s case was unassailable. Put differently, did the lower court discharge its first obligation in this suit in which an application was made for the matter to be dealt with under the undefended list procedure? As shown above, first and foremost, the trial court must be satisfied that the case is a proper one to be placed on the undefended list.

The word “dishonestly” is the adverbial form of the noun, “dishonesty” a word whose synonyms include: deceitfulness, falsehood; fraud, fraudulence, fraudulency, improbity, perfidy, treachery, corrupt, trickery, see, The complete English Language Companion (Scotland: Geddes and Grossets, 2007) 366.

In our view, there is considerable merit in that submission. An allegation that the conduct of a public officer (a staff of the Ministry of Lands and Survey) is one tainted with deceitfulness, falsehood; fraud, fraudulence, fraudulency, improbity, perfidy, treachery, corrupt, trickery, “ is not one that can be disposed of in the cavalier approach which the lower court adopted by dealing with the matter under the undefended list procedure. It was only fair that, against the background of this imputation on the conduct of the appellant, the matter should have been transferred to the general cause so as to afford him the opportunity to defend his character. As Eso JSC held in Laoye v FCSC (1989) 2 NWLR (pt. 106) 632: “ the right to fair hearing comprehends and includes the right to be heard in the open court in defence of one’s character and good name, when accused of misconduct”.

From the decisions examined above, we are of humble view that the court should have been cautious enough to transfer the matter to the general cause list. This is because, at the stage when the defendant had filed his notice of intention to defend, what the trial court was supposed to be looking for were facts which would “raise a triable issue (and) not proof of those facts or evidence on oath verifying those facts”, Nishizawa Ltd v Jethwani (supra) 290.

Emboldened by the above decisions, which represent what may be termed the settled jurisprudence on triable issues, we have no hesitation concluding that the lower court erred. That is not all. As shown above, Onnoghen JSC held in Imoniyame Holdings Ltd v Soneb Ent Ltd (supra) 631 that the procedure under the undefended list is not a forum for the “resolution of the conflicts or contending positions of the parties so as to arrive at a judgment as to which of the parties is right or entitled to judgment on the merit.

This is because at that stage, the court is not authorised “to go into the merit of the case by making findings of facts to arrive at any conclusion.

This was, clearly, wrong. In all, this appeal succeeds. We allow the appeal and set aside the judgment of the lower court.

We invoke Section 15 of the Court of Appeal Act and order a transfer of this matter to the general cause list where pleadings will be ordered and trial conducted by another Judge of the Taraba State High Court.