Background
Between 1999 and 2002 the first fifteen respondents served as councillors and political appointees under Epe Local Government. They claimed unpaid salaries, allowances and terminal benefits totalling ₦75,503,426.25. After repeated demands were ignored, they sued under the undefended list procedure prescribed by Order 60 of the High Court of Lagos State (Civil Procedure) Rules, 1994. By ex parte motion, the trial court granted leave to place the suit on the undefended list and fixed 3 November 2003 for hearing.
The appellant, Epe Local Government, filed a notice of intention to defend accompanied by a 19-paragraph affidavit alleging various irregularities, raising set-off claims and disputing locus standi of two respondents. The trial judge held that this affidavit did not disclose any defence on the merits and entered judgment in favour of the respondents for the full sum claimed, plus 7.5% interest and costs. The appellant appealed to the Court of Appeal, Lagos Division, on five grounds.
Issues
- Whether the appellant’s affidavit in support of its notice to defend disclosed a defence on the merits sufficient to transfer the suit from the undefended list to the general cause list.
- Whether conflicts between the respondents’ supporting affidavit and the appellant’s affidavit disclosing a defence required resolution by oral evidence rather than by affidavit alone.
Ratio Decidendi
- An appellate court dissatisfied with the parties’ formulated issues may devise its own issues to secure the ends of justice.
- A ground of appeal without an issue formulated therefrom is deemed abandoned.
- The procedure under Order 60 is designed for straightforward liquidated demands and aims to prevent delay where no real defence exists.
- Defence in undefended list proceedings must be confined to answering the plaintiff’s claim; a new cause of action is ignored.
- Conflicts on material facts in opposing affidavits require oral evidence, but uncontradicted affidavits are to be taken as true.
Court Findings
- The court formulated its own issues because the parties’ issues were inappropriate.
- Grounds 1, 3 and 5 of the notice of appeal were struck out for abandonment.
- The appellant’s brief filed by the 16th respondent (Attorney-General) was incompetent: a respondent wishing to attack the decision must file a cross-appeal or respondent’s notice.
- The respondents’ claim for a specific sum constituted a liquidated demand and was correctly brought under the undefended list.
- The appellant’s affidavit contained general denials, admissions inconsistent with later denials, allegations of set-off and challenged exhibits without proper particulars or exhibits to support them.
- Paragraphs alleging set-off raised a new cause of action, which is impermissible in undefended list proceedings.
- The appellant failed to show a fair and reasonable probability of success; its defence was not credible.
- No material conflict existed on crucial facts: the respondents’ affidavits stood unchallenged.
- Oral evidence was unnecessary where there was no real factual dispute.
Conclusion
The appeal was dismissed. The Court of Appeal held that the appellant’s affidavit did not disclose any defence on the merits to warrant transfer of the suit to the general cause list. The respondents’ claims were properly adjudicated under the undefended list procedure. An order for costs of ₦30,000 in favour of the respondents was affirmed.
Significance
This decision clarifies several procedural and substantive points in Nigerian civil practice: the flexibility of appellate issue formulation; the abandonment of unformulated grounds; the strict application of Order 60 for liquidated demands; the prohibition on raising new causes of action in undefended list proceedings; and the rules for resolving or treating unchallenged and conflicting affidavits. It underscores the importance of detailed, credible affidavits when seeking defence under the undefended list and limits the use of cross appeals and respondent’s notices in appellate practice.