Asuquo v. Udoaka (2021)

Asuquov.Udoaka

PRINCE ENEMBE ASUQUO

V.

ETIM UDOAKA

SUPREME COURT OF NIGERIA

SC.250/2008

OLUKAYODE ARIWOOLA, J.S.C. (Presided)

MUSA DATTIJO MUHAMMAD, J.S.C.

JOHN INYANG OKORO, J.S.C. (Read the Leading Judgment)

AMINA ADAMU AUGIE, J.S.C.

EJEMBI EKO, J.S.C.

FRIDAY, 22ND JANUARY 2021

ACTION – Commencement of action – Undefended list procedure -Aim of – When can be resorted to.

COURT – Rules of court – Aim of – Need to obey

PRACTICE AND PROCEDURE – Commencement of action -Undefended list procedure – Aim of – When can be resorted to.

PRACTICE AND PROCEDURE – Rules of court – Aim of – Needto obey.

PRACTICE AND PROCEDURE – Undefended list procedure- Options available to court in action commenced underundefended list – Whether can dismiss suit in limine.

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PRACTICE AND PROCEDURE – Undefended list procedure -Procedure for hearing suit under undefended suit.

PRACTICE AND PROCEDURE – Undefended list procedure -When defendant entitled to leave to defend action placed onundefended list.

Issue:

Whether the Court of Appeal was right in allowingthe appeal of the respondent on the ground that thetrial High Court ought to have transferred the suit ofthe respondent to the ordinary cause list instead ofdismissing same against the appellant.

Facts:

The respondent instituted an action against the appellant at theHigh Court of Cross River State claiming the sum of N420,000.00(Four hundred and twenty thousand Naira) being money paid forthe supply of 60 metric tonnes of palm kernel fruits which theappellant failed to deliver and also failed to refund despite repeateddemands. He also claimed 10% interest on the said sum from thedate of judgment till payment.

With the leave of court granted to the respondent, the suit wasplaced under the undefended list, and marked accordingly.

Upon being served with the processes, the appellant filed anotice of intention to defend together with a counter-affidaviton 13th September 2005. In the counter-affidavit, the appellantdeposed he supplied the respondent a total of 50 metric tonnes offresh fruit bunches contrary to the respondent’s claim that nothingwas supplied to him. In its judgment, the trial court found that themoney claimed by the respondent could not be extracted from theappellant as the appellant was acting for a principal, Ayip-Eku OilPalm Ltd. As a result of that finding, the trial court dismissed theclaim of the respondent in the following terms:-

“Having held as above no use shall be served intransferring this matter to the general cause list as thepresent claims cannot be extracted from the defendanton record. The plaintiff’s claims herein are accordinglydismissed against the defendant on record.”

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Dissatisfied with the judgment, the respondent appealed to theCourt of Appeal which held that since the affidavit of the appellantraised triable issues, the trial court ought to have transferred thesuit from the undefended list to the ordinary cause list as providedin Order 23 rule 3(2) of the High Court of Cross-River State (CivilProcedure) Rules instead of dismissing the respondent’s case. Ittherefore allowed the appeal and remitted the suit to the High Courtto be heard by another Judge.

Dissatisfied, the appellant appealed to the Supreme Court.

Order 23 rules 3(1), 3(2), 3(4) and 3(5) of the High Court ofCross-River State (Civil Procedure) Rules, state asfollows:

“(3)(1) If the party served with the writ of summons andaffidavit delivers to the Registrar, a notice in writing,that he intends to defend the suit, together with anaffidavit disclosing a defence on the merit, the courtmay give him leave to defend upon such terms as thecourt may think just.

Where leave to defend is given under this rule, theaction shall be removed from the undefended list andplaced on the ordinary cause list and the court mayorder pleadings, or proceed to hearing without further(2)pleadings.

Where any defendant neglects to deliver the noticeof defence and affidavit prescribed by rule 3(1) or isnot given leave to defend by the court, the suit shallbe heard as an undefended suit, and judgment giventhereon, without calling upon the plaintiff to summon(4)witnesses before the court to prove his case formally.

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

Held (Unanimously dismissing the appeal):

1.On Aim of undefended list procedure –

The various rules of courts provide for casesinvolving liquidated money demands to be placedon undefended list and heard expeditiously withoutthe court having to go the whole hog of a full blowntrial with attendant expenses, frustration and delay.

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The procedure is deliberately designed to allow forquick dispensation of justice. (P. 188, paras. E-F)

2.On Undefended list procedure and when can beresorted to –

By virtue of Order 23 rule 1 of the High Courtof Cross River State (Civil Procedure) Rules,whenever an application is made to a court for theissue of a writ of summons in respect of a claim torecover a debt or liquidated money demand andsuch application is supported by an affidavit settingforth the grounds upon which the claim is basedand stating that in the deponent’s belief, there isno defence thereto, the court shall, if satisfied thatthere are good grounds for believing that there is nodefence thereto, enter the suit for hearing in whatshall be called the “Undefended List” and mark thewrit of summons accordingly and enter thereon, adate for hearing suitable to the circumstance of theparticular case. By virtue of Order 23 rule 2 of theHigh Court (Civil Procedure) Rules of Cross RiverState, there shall be delivered by the plaintiff tothe Registrar upon the issue of the writ summonsas aforesaid, as many copies of verifying affidavitas there are parties against whom relief is sought,and the Registrar shall annex one such copy to eachcopy of the writ of summons for service. (Pp.188-189, paras. G-C)

3.On Procedure for hearing suit under undefended suit –

By virtue of Order 23 rule 3(4) of the High Courtof Cross River State (Civil Procedure) Rules,where any defendant neglects to deliver the noticeof defence and affidavit prescribed by rule 3(1) oris not given leave to defend by the court, the suitshall be heard as an undefended suit, and judgmentgiven thereon, without calling upon the plaintiff tosummon witnesses before the court to prove his caseformally. However, by virtue of rule 3(5), nothingprecludes the court from hearing or requiring oralevidence, should it so think fit, at any stage of theproceedings. (P. 189, paras. E-G)

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4.On When defendant entitled to leave to defend actionplaced on undefended list –

By virtue of Order 23 rule (3)(1) of the High Courtof Cross River State (Civil Procedure) Rules, if theparty served with the writ of summons and affidavitdelivers to the Registrar a notice in writing that heintends to defend the suit, together with an affidavitdisclosing a defence on the merit, the court may givehim leave to defend upon such terms as the courtmay think just. Where leave to defend is given, theaction shall be removed from the undefended listand placed on the ordinary cause list and the courtmay order pleadings, or proceed to hearing withoutfurther pleadings. (P.189, paras. C-E)

5.On When defendant entitled to leave to defend actionplaced on undefended list –

By virtue of Order 23 rule 3(1) and of the HighCourt of Cross River State (Civil Procedure) Rules,where a defendant’s affidavit in support of notice ofintention to defend discloses a defence on the merit,the court must give the defendant, leave to defendthe action, and remove the suit from the undefendedlist and place it on the ordinary cause list forhearing. [Intercontinental Bank Ltd. v. Brifina Limited(2012) 13 NWLR (Pt. 1316) 1; Alade v. Aborishade(1960) SCNCR 398; Owoade v. Omitola (1988) 2NWLR (Pt. 77) 413; Bona v. Asaba Textile Mill Plc(2013) 2 NWLR (Pt. 1338) 357; MC Investments Ltd.v. Core Investments & Capital Markets Limited (2012)12 NWLR (Pt. 1313) 1 referred to.] (Pp.189-190,paras. G-A)

6.On Options available to court in action commencedunder undefended list –

In an action instituted under the undefended list,there is only one of two options available to the trialcourt, viz:

the court hears the suit under the undefendedlist procedure; or

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the court transfers the suit to the generalcause list where the affidavit of thedefendant, prima facie, discloses triableissues, or discloses a defence.

There is no provision in the rules that allows thecourt to dismiss the suit where the affidavit insupport of the notice of intention to defend disclosestriable issues. (Pp.190, paras. A-D; 192, para. D)

7.On Options available to court in action commencedunder undefended list –

Where the affidavit of the defendant in anundefended list suit prima facie discloses triableissues, the only discretion afforded the court underthe rule is to grant leave to the defendant to defendthe suit. The use of the word “may” in Order 23 rules3 and of the High Court of Cross River State(Civil Procedure) Rules points to the mandatoryrealm. It is used in a directory sense and not in apermissive sense of that word. In the instant case,the trial court ought only to have transferred thesuit to the ordinary cause list as prescribed by therules of court. He was wrong to have dismissed thesuit without hearing same. [Amadi v. NNPC (2000)10 NWLR (Pt. 674) 76 referred to and applied.](Pp.190, para. F, H; 191, paras. B-D)

8.On Options available to court in action commencedunder undefended list –

There is no provision under Order 23 rule 3 of theHigh Court of Cross River State (Civil Procedure)Rules that empowers the trial court to dismiss anundefended list suit in limine upon the notice ofintention to defend verified by an affidavit. Oncethe supporting affidavit verifying the facts onwhich the defendant proposes to defend the suitdiscloses a triable issue, or discloses a defence, thetrial court is only obliged to transfer the suit to thegeneral cause list. Thereafter, the defendant mayfile whatever preliminary objection he may have, tothe competence of the suit. (P.192, paras. E-F)

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9.On Purpose of rules of court and need to obey –

The rules of court are meant to guide the court inthe proper adjudication of cases. They are meant tobe obeyed. [Stowe v. Benstowe (2012) 9 NWLR (Pt.1306) 450; Afolabi v. Adekunle (1983) 2 SCNLR 141;University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; Fidelity Bank Plc v. Monye (2012) 10 NWLR(Pt. 1307) 1; Nigerian Agricultural and Co-operativeBank Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517)376 referred to.] (P. 190, paras. D-F)

Nigerian Cases Referred to in the Judgment:

Afolabi v. Adekunle (1983) 2 SCNLR 141

Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369

Alade v. Aborishade (1960) SCNLR 398

Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76

Amede v. U.B.A. (2008) 8 NWLR (Pt. 1090) 623

Ataguba & Co. v. Gura Nigeria Ltd. (2005) 8 NWLR (Pt. 927)429

Bawa v. Phenias (2007) 4 NWLR (Pt. 1024) 251

Bona v. Asaba Textile Mill Plc (2013) 2 NWLR (Pt. 1338) 357

Dala Air Services v. Sudan Airways Ltd. (2005) 3 NWLR (Pt.912) 394

Fidelity Bank Plc v. Monye (2012) 10 NWLR (Pt. 1307) 1

FMG v. Sani (1990) 4 NWLR (Pt. 147) 688

Intercontinental Bank Ltd. v. Brifina Limited (2012) 13 NWLR(Pt. 1316) 1

MC Investments Ltd. v. Core Investments & Capital MarketsLimited (2012) 12 NWLR (Pt. 1313) 1

Nigerian Agricultural and Co-operative Bank Ltd. v.Ozoemelam (2016) 9 NWLR (Pt. 1517) 376

Nishizawa Ltd. v. Jethwani (1984) 12 SC 234

Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413

Stowe v. Benstowe (2012) 9 NWLR (Pt. 1306) 450

U.B.A. Plc v. Jargaba (2007) 11 NWLR (Pt. 1045) 247

University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143

Nigerian Rules of Court Referred to in the Judgment:

High Court of Rivers State (Civil Procedure) Rules, O.23,r.3(1)(2)(3)(4)(5); 4

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Books Referred to in the Judgment:

Black’s Law Dictionary

Appeal:

This was an appeal against the judgment of the Court of Appealsetting aside the decision of the High Court which had dismissedthe respondent’s suit placed on the undefended list. The SupremeCourt, in a unanimous decision, dismissed the appeal.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: OlukayodeAriwoola, J.S.C. (Presided); Musa Dattijo Muhammad,J.S.C.; John Inyang Okoro, J.S.C. (Read the LeadingJudgment); Amina Adamu Augie, J.S.C.; Ejembi Eko,J.S.C.

Appeal No.: SC.250/2008

Date of Judgment: Friday, 22nd January 2021

Names of Counsel: Appellant absent (appellant’s brief,settled by Nta A. Nta Esq.)

Efa Oka, Esq. (with him, W. Okpara) – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Calabar

Names of Justices that sat on the appeal: VictorAimepomo; O. Omage, J.C.A.; Presided Nwali SylvesterNgwuta, J.C.A.; Mojeed Adekunle Owoade, J.C.A.

Date of Judgment: Friday, 22nd November 2007

High Court:

Name of the High Court: High Court of Cross RiverState, Calabar.

Date of Judgment: Friday,.23rd September 2005

Counsel:

Appellant absent (appellant’s brief settled by Nta H. Nta Esq.)

Efa Oka, Esq. (with him, W. Okpara Esq.) – for the Respondent

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OKORO, J.S.C. (Delivering the Leading Judgment): This isan appeal against the judgment of the Court of Appeal, CalabarDivision, Coram Victor Aimepomo O. Omage, JCA, NwaliSylverter Ngwuta, JCA (as he then was) and Majeed AdekunleOwoade, JCA, delivered on 22nd November, 2007 which set asidethe decision of the trial court delivered on 23rd September, 2005.Aggrieved by that decision, the appellant has now appealed to thiscourt.

The facts of the case leading to this appeal are that on 24thJune, 2005 the respondent as plaintiff, filed a writ of summons atthe High Court of Cross River State wherein he claimed against thisappellant as defendant, the sum of N420,000.00 being money paidfor supply of 60 metric tons of palm kernel fruits which he failed toperform and also failed to refund despite repeated demands. He alsoclaimed 10% interest on the said sum from the date of judgment tillpayment. With leave of court granted on 12th July, 2005 the suitwas placed under the undefended list and marked accordingly. Itwas adjourned to 26th July, 2005 for hearing.

Upon being served with the processes, the appellant filed anotice of intention to defend together with a counter affidavit on13th September, 2005. The counter affidavit filed by the appellantdisclosed triable issues. Indeed in paragraph 24 of the counteraffidavit the appellant stated as follows:-

“The defendant states that the plaintiff from exhibit Lhas been supplied with a total of 50 metric tons of freshfruit bunches between the 3rd of April, 2004 and 25thNovember, 2004 contrary to his false and fraudulentclaims that nothing has been supplied to him since hepaid N420,00.00 to Ayip Eku Oil Palm Estate.”

The learned trial judge in a considered judgment found thatthe money claimed by the respondent cannot be extracted from theappellant as he was acting for his principal, Ayip-Eku Oil PalmLtd. The learned trial Judge held as follows:-

“Having held as above no use shall be served intransferring this matter to the general cause list as thepresent claims cannot be extracted from the defendanton record. The plaintiff’s claims herein are accordinglydismissed against the defendant on record.

Dissatisfied with that judgment, this respondent appealedto the court below which in a unanimous judgment delivered on22/11/2007 allowed the appeal as follows:-

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“For these reasons, I am in agreement with the learnedcounsel for the appellant that the learned trial Judgeerred in this case for failing to transfer the suit from theundefended list to the ordinary cause list as providedfor in rule 3(2) of Order 23 of the High Court (CivilProcedure) Rules of Cross River State.

Consequently this appeal is meritorious and it isallowed. The judgment of Eyo E. Ita J, in suit No.HC/271/2005 dated 23rd September, 2005 is hereby setaside. It is hereby ordered that suit No. HC/271/2005be remitted for trial before another Judge of the HighCourt of Cross River State. There shall be no order asto costs.”

Equally dissatisfied with that judgment, the respondent in thatappeal who is now the appellant before this court filed a notice ofappeal on 21st January, 2008.

At the hearing of the appeal, counsel for the appellant adoptedand relied on their brief of argument filed on 12th September, 2008in urging the court to allow the appeal. On their part also, counselto the respondent adopted and relied on the respondent’s briefof argument filed on 23rd December, 2008 in urging the court todismiss the appeal.

The appellant nominated a sole issue for determination thus:-

“Whether there was any triable issue in the suitjustifying the learned trial Judge’s dismissal of it.”

The respondent also formulated one issue for determination asfollows:-

“Whether the Court of Appeal was right when it heldthat the defence canvassed by the appellant in the trialcourt raised a triable issue which justified the transferof the matter to the general cause list for trial and nota dismissal of the respondent’s case as the trial Judgeordered.”

Now, a careful look at the issue formulated by the appellantvis-a-vis the respondent’s version, it would be clear that bothparties are canvassing the same issue, I shall proceed to determinethis appeal on the issue as formulated by the appellant, same beingrelevant and apt to wit:-

Whether there was any triable issue in the suit justifyingthe learned trial Judge’s dismissal of it.

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In his argument in support of this issue, learned counsel forthe appellant submitted that the learned Justices of the court belowerred when they held that the appellant’s affidavit in support of hisnotice of intention to defend clearly raised triable issues. Relyingon the case of Ataguba & Co. v. Gura Nigeria Ltd. (2005) 8 NWLR(Pt. 927) 429. Learned counsel for the appellant stated that lookingat the writ of summons and exhibit B attached to the affidavit insupport of Notice of Intention to defend, the 60 tons of oil palmfruits to be supplied to the respondent was to have come from AyipEku Estates Ltd. That the appellant was only acting as an agent forAyip Eku Oil Palm Estates Ltd.

He submitted further that the judgment of the learned trialJudge which dismissed the suit was correct, having found that therewas no cause of action against the appellant. He contended that theappellant could not have been the proper party to proceed against asthe cause of action would have been well founded if the respondenthad proceeded against Ayip Eku Oil Palm Estate Ltd. He referredto Afolayan v. Ogunrinde (1990) 1 NWLR (Pt. 127) 369; NishizawaLtd. v. Jethwani (1984) SC 234; FMG v. Sani (1990) 4 NWLR(Pt.147) 688.

Counsel submitted that the decision of the court below that thesuit be remitted back to the High Court and heard on the generalcause list was not in line with the decision in U.B.A. Plc v. Jargaba(2007) 11 NWLR (Pt. 1045) 247 at 273. That the transfer of the suitwas dependent on leave being granted to defend by the court and thepower to grant leave to defend is discretionary and not mandatory.

In response, learned counsel for the respondent referred to thecase of Dala Air Services v. Sudan Airways Ltd. (2004) All FWLR(Pt. 238) 684; (2005) 3 NWLR (Pt. 912) 394 to submit that thelearned trial Judge misconceived the nature of the proceedings andhis powers on matters brought under the undefended list which hecontends does not involve hearing of the matter to make findingsand final conclusions. Counsel contends that the learned trial Judgewrongly came to a conclusion after examining the affidavit of theparties when he dismissed the suit on the ground that some legaldefence had been raised by the defendant.

Learned counsel to the respondent submitted further that theCourt of Appeal was right when they held that the learned trialJudge was in error in dismissing the case of the plaintiff rather thantransfer same to the general cause list. Counsel lauded the position

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of the court below that the duty of the trial Judge was to determineat that stage if the facts disclosed by the defendants’ affidavit primafacie afforded a defence, not necessarily a complete defence butwhich shows a triable issue.

He observed that once the facts deposed to in the affidavit ofthe defence raise triable issues, the only course open to the learnedtrial Judge was to transfer the suit to the Ordinary Cause List underrule 3(2) of Order 23.He referred to the cases of Nishizawa Ltd.v. Fethwani (1984) 12 SC 234, FMG v. Sani (1990) 4 NWLR (Pt.147) 688; Alhaji Abdul Yahaya Bawa v. Sheleba Phenias (2007) 4NWLR (Pt. 1024) 251 at 266.

With respect to the argument by learned counsel to theappellant that the learned trial Judge has discretion to grant leaveto the defendant to defend, therefore since leave was not granted,the learned trial Judge was not obliged under the rule of court totransfer the matter to the general cause list, counsel to the respondentsubmitted that a trial Judge has no discretion here but to follow therule and the provisions strictly. He submits that by Order 23 rule 4,a trial court can only refuse to grant leave to defend where he findsno defence on the merit or triable issues disclosed in the affidavitof the defendant and must then enter judgment for the plaintiff. Hereferred to the case of Amede v. UBA (2008) 8 NWLR (Pt. 1090)623.

The various rules of courts provide for cases involvingliquidated money demand to be placed on undefended list and heardexpeditiously without the court having to go the whole hog of afull blown trial with attendant expenses, frustration and delay. Theprocedure is deliberately designed to allow for quick dispensationof justice.

Order 23 of the High Court (Civil Procedure) Rules of CrossRiver State provides for this special procedure and it reads asfollows:-

Order 23

Whenever application is made to a court for the issueof a writ of summons in respect of a claim to recover adebt or liquidated money demand and such applicationis supported by an affidavit setting forth the groundsupon which the claim is based and stating that inthe deponent’s belief there is no defence thereto, the(1)court shall, if satisfied that there are good grounds for

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believing that there is no defence thereto, enter the suitfor hearing in what shall be called the “UndefendedList” and mark the writ of summons accordinglyand enter thereon a date for hearing suitable to thecircumstance of the particular case.

There shall be delivered by the plaintiff to the Registrarupon the issue of the writ summons as aforesaid, asmany copies of the above mentioned affidavit as thereare parties against whom relief is sought, and theregistrar shall annex one such copy to each copy of the(2)writ of summons for service.

If the party served with the writ of summons andaffidavit delivers to the Registrar a notice in writingthat he intends to defend the suit, together with anaffidavit disclosing a defence on the merit, the courtmay give him leave to defend upon such terms as thecourt may think just.

Where leave to defend is given under this rule, theaction shall be removed from the undefended list andplaced on the ordinary cause list and the court mayorder pleadings, or proceed to hearing without further(2)pleadings.

Where any defendant neglects to deliver the noticeof defence and affidavit prescribed by rule 3(1) or isnot given leave to defend by the court, the suit shallbe heard as an undefended suit, and judgment giventhereon, without calling upon the plaintiff to summon(4)witnesses before the court to prove his case formally.

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

Order 23 rule 3(1) and above, just like in every HighCourt rules makes explicit provision of what the court must dowhere a defendant’s affidavit in support of notice of intention todefend discloses a defence on the merit, and that is to give thedefendant leave to defend the action and remove the suit from theundefended list and place it on the ordinary cause list for hearing.See Intercontinental Bank Ltd. v. Brifina Limited (2012) 13 NWLR(Pt. 1316) 1; Alade v. Aborishade (1960) SCNLR 398; Owoade v.Omitola (1988) 2 NWLR (Pt. 77) 413, Bona v. Asaba Textile Mill

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Plc (2013) 2 NWLR (Pt.1338) 357; MC Investments Ltd. & anorv. Core Investments & Capital Markets Limited; (2012) 12 NWLR(Pt. 1313) 1.

There is no provision in the rules which allows the court todismiss the suit where the affidavit in support of notice of intentionto defend discloses triable issues. In the words of my learnedbrother, Galadima, J.S.C. in the case of Intercontinental Bank Ltd.v. Brifina (supra), he observed as follows:-

“In consideration of an action brought underundefended list by the plaintiff, the trial Judge is facedwith a decision whether to hear the case or transfer itto the general cause list.”

It follows therefore that in an action brought under theundefended list there are only two options available to the courtwhich are either that the suit be heard under the undefended listprocedure or transferred to the general cause list.

Permit me to reiterate the trite position of the law that the rulesof court are meant to guide the court in the proper adjudicationof cases. The rules of court are meant to be obeyed. See Stowe v.Benstowe (2012) 9 NWLR (Pt. 1306) 450; (1983) 2 SCNLR 141;Afolabi v. Adekunle (1983) 14 NSCC 398 at 405; University ofLagos v. Aigoro (1985) 1 NWLR (Pt. 1) 143; Fidelity Bank Plcv. Chief Andrew Monye & ors (2012) 10 NWLR (Pt. 1307) 1;Nigerian Agricultural and Co-operative Bank Ltd. v. Mr. LewechiOzoemelam (2016) 9 NWLR (Pt. 1517) 376.

Order 23 rule 3 and of the High Court (Civil Procedure)Rules of Cross River State earlier reproduced in this judgmentemploys the use of the word “may” which in this context pointsto the mandatory realm. In construing the word, the authors of theBlack’s Law Dictionary are of the view that:-

“In dozens of cases, courts have held may to besynonymous with shall or must, usually in an effort toeffectuate legislative intent.”

It is used in the above provision in a directory sense and notin a permissive sense of that word. In the case of Amadi v. NNPC(2000) 10 NWLR (Pt. 674) 76 at 97 – 98, this court made the matterclearer where Uwais, JSC, (as he then was) observed as follows:-

“No universal rule can be laid down for the constructionof statutes as to whether mandatory enactments shallbe considered directory or obligatory with an implied

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nullification for disobedience. It is the duty of courtsof justice to try and get at the real intention of thelegislative by carefully attending to the whole scope ofthe statute to be construed.”

From the facts of this case, the issue is not whether theappellant was the proper party to the suit of the respondent at thetrial court but whether the learned trial Judge was right to dismissthe suit upon being satisfied that the defendant’s affidavit disclosedtriable issues. I agree with counsel to the respondent that where theaffidavit of the defendant prima facie discloses triable issues, theonly discretion afforded the court under the rule is to grant leave tothe defendant to defend the suit.

In the instant case, a scrutiny of the appellant’s counteraffidavit with attached documents in support of his notice ofintention to defend the suit at the trial court would reveal that hehad a prima facie defence to the action. In the circumstance, thetrial court ought only to have transferred the suit to the ordinarycause list as prescribed by the rules of court. He was wrong to havedismissed the suit without hearing the case. The sole issue in thisappeal therefore is resolved against the appellant.

Having resolved the sole issue against the appellant, I holdthat this appeal lacks merit and it is accordingly dismissed. Thejudgment of the court below is hereby affirmed. There shall be noorder as to costs.

Appeal dismissed.

ARIWOOLA, J.S.C.: I had the privilege of reading in draft thelead judgment of my learned brother, Okoro, J.S.C, just delivered. Iam in agreement with the reasoning therein and conclusion arrivedthereat, that the appeal lacks merit and should be dismissed. I toowill dismiss it.

M. D. MUHAMMAD, J.S.C.: I read in advance the lead judgmentof my learned brother, John Inyang Okoro, JSC just delivered, Iadopt same as mine in dismissing the unmeritorious appeal. I abideby the consequential orders made in the lead judgment includingthe order on costs.

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AUGIE, J.S.C.: I had a preview of the lead judgment just deliveredby my learned brother, Okoro, JSC, and I totally agree with hisreasoning and conclusion therein.

He addressed the sole issue in this appeal meticulously anddecisively, and there is nothing that I could add that would makeany difference or enhance the well-articulated points he made in thelead judgment; therefore, I will adopt his reasoning as mine, andit is on that premise that I also dismiss this appeal. I abide by theconsequential orders in the lead judgment.

Appeal dismissed.

EKO, J.S.C.: The issue in this appeal is whether the suit on theundefended list at the trial court disclosed any triable issue orprima facie defence that would warrant the court transferring tothe general cause list for hearing on evidence inter partes. As mylearned brother, John Inyang Okoro, JSC puts it in the judgmentjust delivered – there are only two options available to the courtwhich are either that the suit be heard under the undefended listprocedure or transferred to the general cause list?

I agree under Order 23 rule 3 of Cross River State High Court(Civil Procedure) Rules, under consideration; there is no provisionempowering the trial court to dismiss the suit in limine upon thenotice of intention to defend verified by an affidavit. Once thesupporting affidavit verifying the facts on which the defendantproposes to defend the suit discloses a triable issue, or disclosesa defence; the trial court is only obliged to transfer the suit to thegeneral cause list. Thereafter the defendant may file whateverpreliminary objection he may have to the competence of the suit.

I also agree that the appeal is lacking in substance, and it ishereby dismissed with no order as to costs.

Appeal dismissed.

NigerianWeeklyLawReports25October2021(Eko,J.S.C.)Asuquov.Udoaka

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