LEGAL PRINCIPLE: CIVIL PROCEDURE — Undefended List Procedure — Requirement for Affidavit Disclosing Defence on the Merit — Discretion of Trial Court
PRINCIPLE STATEMENT
What constitutes a defence on the merit depends on the facts of the case. This is within the discretion of the court of trial, which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend.
RATIO DECIDENDI (SOURCE)
Per Tobi, JSC, in Ataguba & Co. v. Gura Nig. Ltd (2005) NLC-2952000(SC) at p. 20; Paras A–B.
"What will constitute a defence on the merit depends on the facts of the case. This is within the discretion of the court of trial which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice to defend."
EXPLANATION / SCOPE
Whether an affidavit discloses a defence on the merit is determined case by case. The trial court has discretion to decide, exercised judicially after full consideration. The principle applies to undefended list procedure. The rule defers to the trial court’s assessment of the affidavit’s sufficiency. The trial court must examine the affidavit exhaustively. An appellate court will not lightly interfere with this discretionary decision.
