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NOTICE OF INTENTION TO DEFEND – IS THERE A PRIMA FACIE DEFENCE

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Dictum

Okambah Ltd. v. Sule (1990) 7 NWLR (Pt. 160), (1990) 11 SCNJ 1 Kawu JSC while adverting to the contents of an affidavit in support of the notice of intention to defend pointed out thus:- “In determining whether a defendant has good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend it is not necessary for the trial Judge to decide at that state whether the defence have been established. What is required is simply to look at the facts deposed to in the counter affidavit or indeed the facts averred in the of defence where applicable and see if they can prima facie defence to the action.”

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SIGNIFICANCE OF NOTICE OF INTENTION TO DEFEND

What is the significance of the Notice of Intention to Defend filed by the defendant? I will remind myself once again that the case was originally put on the undefended list. The significance of the Notice to defend is borne out by the affidavit accompanying the Notice that the grounds for asking to be heard in defence are not frivolous, vague or designed to delay the trial of the action and must show that there is a dispute between the parties: Olubusola stores v. Standard Bank Nigeria Ltd. (1975) NSCC. 137, (1975) 4 S.C. 51; John Holt and Co (Liverpool) Ltd. v. Fajemirokun (1961) All NLR. 513. When the Judge is satisfied that there is a prima facie defence then leave is granted to defend and then pleadings may be ordered.

— Olatawura JSC. African Continental Bank Ltd. v. Alhaji Umaru Gwagwada (SC.26/1990, 29 APR 1994)

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NOTICE OF INTENTION TO DEFEND MUST SET OUT SPECIFICALLY GROUNDS OF DEFENSE

Under the Undefended List procedure, a defendant that intends to defend the action has a duty to file a Notice of Intention to Defend, supported by an affidavit, which must disclose a defence on the merit. It is settled law that the defendant’s affidavit in support of the Notice of Intention to Defend, must set out clearly the grounds of defence. It is not sufficient for the affidavit to allege generally that the defendant has a good defence to the action, if such a general averment is unsupported by particulars, which if proved would constitute such a defence. Similarly, a mere general denial that the defendant is indebted will not suffice unless the ground on which the defendant relies as showing that he is not indebted is stated. The defendant’s affidavit is expected to and must condescend upon particulars. It should as far as possible, deal specifically with the plaintiff’s claim and affidavit stating clearly and concisely what the defence is and what facts are relied on to support it. If the defence goes to the whole or part of the claim, the affidavit should so specify. When the defence is in respect of part of the claim, the defendant’s affidavit should specify the part; Ataguba v. Gura (Nig.) Ltd (2005) 6 MJSC 156; Peter Tiwell (Nig.) v. Inland Bank (1997) CLR 4 (l).

— O.A. Otisi, JCA. Onoeyo v UBN (2014) – CA/C/66/2007

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CONDITIONS AN INTENTION TO DEFEND MUST SATISFY

For a Notice of Intention to raise a defence on the merit under the undefended list, such a Notice of Intention must satisfy the conditions outlined in the case of Lewis v. UBA (2006) 1 NWLR (Pt. 962) page 546 as follows: a) Condescend upon particulars as far as possible, deal specifically with the Plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it. b) Where the defence is that the defendant is not indebted to the Plaintiff, state the grounds on which the defendant relies as showing that he is not indebted and a mere general denial that the defendant is not indebted will not suffice. c) Where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and so state the real nature of the defence relied on. d) Where the defence relied on is of fraud, state clearly the particulars of the fraud and a mere general allegation of fraud is useless. e) If a legal objection is raised state clearly the facts and the point of law arising thereon. f) In all cases, give sufficient facts and particulars that there is bona fide defence. g) Matters of hearsay are admissible provided that the sources and grounds of information and belief are disclosed. h) A case of hardship that creates no enforceable right e.g. past promise by Plaintiff unsupported by valuable consideration, or a mere inability to pay or an allegation that the Plaintiff has given time for payment which of course constitute no defence unless there be consideration, will not constitute defence on the merit. See also Sanusi Books Nig. Ltd v. Cotia C.E.I.S.A. (2000) 11 NWLR (Pt. 679) 556, Macaulay v. Nal Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) page 83, Nishizawa v. Jethwani (1984) 12 SC 234.

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DEFENDANT SHOULD DISCLOSE WHY HE SHOULD BE LET TO DEFEND THE SUIT

Be that as it may, the crucial issue to consider is whether the appellant’s affidavit in support of notice of intention to defend did disclose a defence on the merit. This has to be determined from the background of the facts in the affidavit in relation to the respondent’s affidavit. I must however say that in the determination whether a defendant has a good defence to the action the state was not reached for the trial court to find whether the defence had proved its case. All that is required of the defendant is to disclose in the affidavit a prima facie case why he should be let in to defend the suit.

– Mangaji, JCA. Faro v. Osuji (2001)

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