CIVIL PROCEDURE ā Undefended List ā Triable Issues ā When Defendant Raises Bona Fide Defence
Principle Statement
If a defendant's affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff's claim, such brings the parties within the concept of 'joining issues'... In such a situation, a triable issue comes into existence. Whenever a bona fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list.
Ratio Decidendi (Source)
Per Fabiyi, JSC, in G.M.O. Nworah & Sons Co. Ltd v. Akputa (2010) NLC-123-153-2006(SC) at pp. 5ā6; Paras DāA.
"If a defendant's affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff's claim, such brings the parties within the concept of 'joining issues'... In such a situation, a triable issue comes into existence. Whenever a bona fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list."
Explanation / Scope
This principle establishes that a triable issue arises where the defendant’s affidavit raises issues requiring the plaintiff to explain matters or casts doubt on the claim. Where a bona fide issue arises, the case should be transferred to the general cause list. The principle applies where a defendant raises a defence. It ensures that cases with triable issues are properly heard. The principle reflects the need for full hearing on disputed facts. It prevents summary judgment where there is a genuine issue. The court must determine if a triable issue exists. The principle provides guidance on when a case is unsuitable for the undefended list.
