ADEOYE v. FOLORUNSHO
(2020)LCN/14110(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, March 24, 2020
CA/IB/309/2015
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Nonyerem Okoronkwo Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
SOLA ADEOYE APPELANT(S)
And
KAREEM MOHAMMED FOLORUNSO RESPONDENT(S)
RATIO
PROCESSES FOR COMMENCING AN ACTION UNDER SUMMARY JUDGEMENT PROCEDURE
In this appeal under consideration, the processes required to commence action under the summary Judgment Procedure are stated in Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules 2010. The processes are:
(a) Originating process.
(b) The Statement of Claim
(c) The Exhibits or list of documents to be relied upon.
(d) The deposition of witnesses.
(e) An application for summary judgment with a supporting affidavit stating the grounds and,
(f) A written brief in respect thereof.
In this case, the Respondent failed to file all the processes simultaneously as required by the Rules i. e Order 11 Rule 1 (supra).
On 6/6/2011 the Respondent filed the following processes:-
(a) Originating process.
(b) Statement of Claim
(c) List of Witnesses.
(d) Witness Deposition.
On 27/7/2011 the Respondent filed the following processes:-
(a) Application for summary judgment with affidavit in support.
(b) Written address.
I am of the view that the processes are not supposed to be filed piecemeal. But even if it is filed piecemeal, the processes must be duly served on the other party.
It is not every failure to comply with the provisions of the Rules of Court that will nullify or render the proceeding void. See – Order 5 Rule (1) sub rule (2) of the Oyo State High Court Civil Procedure Rules 2010. PER BADA, J.C.A.
DETERMINATION OF THE JURISDICTION OF A COURT
Jurisdiction of a Court can only be determined by the Constitution or the enabling statute but not by invoking the rules of Court. See the following cases:– MTN NIG LTD VS ALUKO (Supra)- OKEKE VS CHIDOKA (Supra)- ODOM VS PDP (Supra). PER BADA, J.C.A.
WHETHER OR NOT THE FINDING OF A LOWER COURT NOT APPEALED AGAINST IS DEEMED ADMITTED BYTHE PARTY AGAINST WHOM IT IS MADE
It is trite law that finding of a lower Court that has not been appealed against is deemed to have been admitted by the party against whom it is made. See the following cases:- ODIFE VS ANIEMAKA (Supra) – AWOTE VS OWODUNNI (Supra). PER BADA, J.C.A.
STANDARD OF PROOF OF ALLEGATION OF CRIME OR CRIMINAL OFFENCES RAISED IN CIVIL PROCEEDINGS
The settled position of the law is that where allegation of crime or criminal offences are raised in civil proceeding, such allegation are required to be proved beyond reasonable doubt.See: SECTION 135 (1) OF THE EVIDENCE ACT 2011- EMMANUEL VS UMANA & OTHERS (2016) 2 S.C. PART 1 PAGE 1- AREGBESOLA VS OYINLOLA (2011) 9 NWLR PART 1253 PAGE 458.- AUDU VS INEC (NO. 2) 2010 13 NWLR PART 1212 PAGE 456 AT 507 PARAGRAPHS E-F. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the judgment of Oyo State High Court of Justice, Ibadan Judicial Division in Suit No- I/525/2011: BETWEEN: KAREEM MOHAMMED FOLORUNSO VS MR. SOLA ADEOYE delivered on 13th day of June, 2012, wherein the lower Court gave Judgment in favour of the Respondent and against the Appellant.
Briefly the facts of the case are that the Respondent took out a Writ of Summons at the lower Court dated the 6th day of June, 2011 and served along with the Writ of Summons on the Appellant were the Claimant’s statement of claim, List of Witnesses and Witness Statement on Oath.
The Appellant through his Counsel filed Memorandum of Appearance and Appellant’s Statement of Defence both dated 14th day of July, 2011 along with the list of the Appellant’s witness and the statement on Oath of the Appellant and same were served on the Respondent.
After the case has suffered several adjournments the Respondent’s Counsel subsequently filed an application before the lower Court praying the Court to give Summary Judgment in favour of the Respondent.
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The Respondent application was brought pursuant to Order 11 Rule 1 of the Oyo State High Court. (Civil Procedure) Rules 2010.
It is pertinent to note that on-
16/12/2011
6/12/2011
17/1/2012
7/3/2012 and
9/4/2012 neither the Appellant nor his Counsel were present in Court when the case came up despite the fact that the Appellant’s Counsel did not withdraw appearance for the Appellant despite the several hearing notices served on him.
The Respondent’s motion for Summary Judgment was served upon Appellant’s Counsel (see page 68 of the record of appeal). The Appellant’s Counsel did not file Counter Affidavit in this matter.
The Respondent’s application was later taken and judgment was delivered on 13/6/2012.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
The learned Counsel for the appellant formulated two issues for the determination of the appeal. The said issues are hereby set out as follows:
“(a) Whether the lower Court has jurisdiction to entertain the motion on notice dated and filed on the 27th July, 2011 supported by
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affidavit along with the written address seeking summary judgment against the Appellant on the ground that the Appellant had no defence to the Respondent’s action brought under Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules 2010 and based its Judgment thereon.
(b) Whether the Respondent’s claim is suitable for determination under the summary Judgment procedure of Order 11 Rule 1 of the High Court of Oyo State Civil Procedure Rules 2010.”
The learned Counsel for the Respondent in his own case also formulated a sole issue for the determination of the Appeal.The said issue is hereby set out as follows:-
“Whether the lower Court was right in entertaining the Respondent’s application dated the 27th July, 2011 upon which the Judgment of the lower Court of 13/6/2012 was based in granting the claims of the Respondent.”
At the hearing of the Appeal, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Oyo State High Court which was delivered on 13/6/2012.
The Notice of Appeal was filed on 20/11/2014 pursuant to Order of Court made on 12/11/2014.
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The record of appeal was transmitted on 27/11/2015 out of time and it was regularized on 27/11/2017.
The Appellant’s brief was filed on 1/2/2018 out of time and was regularized by an Order of Court made on 28/2/2018.
Pursuant to an Order of Court made on 20/2/2019, the Appellant filed an amended notice of appeal on 26/2/2019 and an amended Appellant’s brief of argument on 26/2/2019.
Furthermore, pursuant to an order of Court made on 20/2/2019 the Appellant’s reply brief filed on 4/2/2019 was regularized.
The learned Counsel for the appellant filed an amended Appellant’s brief of argument on 29/11/2019 and Appellant’s reply brief also filed on 29/11/2019.
He adopted and relied on the two briefs as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent referred to the Respondent’s brief of argument filed on 9/4/18.
The Respondent’s brief was deemed as properly filed and served on 24/9/18.
The Respondent’s consequential amended brief was filed on 26/4/2019.
Learned Counsel for the Respondent also compiled supplementary record of appeal
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and it was transmitted on 16/3/2018 and deemed properly transmitted on 16/3/18.
Learned Counsel for the Respondent adopted and relied on the said Respondent’s brief as his argument in urging that the appeal be dismissed.
I have carefully gone through the issues formulated for determination by Counsel for both parties in the determination of this appeal. The issues are basically more or less the same. But I am of the view that the issue formulated for determination of the appeal on behalf of the Respondent is apt in the determination of this appeal, I will therefore rely on the said issue.
ISSUE FOR THE DETERMINATION OF THE APPEAL
“Whether the lower Court was right in entertaining the Respondent’s application dated 27th July, 2011 upon which the Judgment of the lower Court of 13/6/2012 was based in granting the claims of the Respondent.”
The learned Counsel for the Appellant stated that the Judgment appealed against was delivered under the Provision of Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure), Rules 2010 on the 13/6/2012.
Order 11 Rules 1, 2, and 3 of the High Court of Oyo State (Civil Procedure), Rules 2010 was relied upon.
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It was submitted on behalf of the Appellant that it is when the Claimant fully comply with the provision of Order 11 Rule 1 by filing the named processes that the Claimant can be said to have initiated proceeding under Summary Judgment Procedure.
The learned Counsel for the Appellant submitted that the Respondent failed to comply with the provision of the rules.
He went further in his submission that the non-service of the Court processes is an incurable defect. He relied on the following cases:-
– HOUSEHOLD UTENSILS DEALERS LIMITED VS IFEANYI CHUKWU VENTURES NIGERIA LTD AND ANOTHER (2005) ALL FWLR PART 257 PAGE 1573 AT 1581.
– UNEGBU VS UNEGBU (2004) 11 NWLR PART 884 PAGE 332 AT 354 CA.
The learned Counsel for the Appellant also referred to the endorsement on the Writ of Summons where the Respondent claimed for the payment of N4,550,000.00 (Four Million, five Hundred and Fifty Thousand Naira) being sum fraudulently collected from the Claimant by the defendant.
It was contended that from the Respondent’s claim and his pleading before the lower Court, fraud and misrepresentation
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was made the foundation of the case and the law required that it must be proved beyond reasonable doubt.
He relied on the case of:-
– OLOGE VS UKUYE (1998) 12 NWLR PART 576 PAGE 23 AT 37.
The Appellant also referred to the Statement of Defence filed on 14/7/2011 where allegation of fraud and misrepresentation was denied.
It was submitted on behalf of the Appellant that issues having been joined on the allegation of fraud and misrepresentation, the Respondent ought to enter witness box and give evidence in support of the allegations of fraud and misrepresentation. The learned Counsel for the Appellant submitted that summary Judgment procedure is not appropriate in this situation.
The learned Counsel for the Appellant urged that the Judgment of the lower Court be set aside and remit the case back to lower Court for retrial.
The learned Counsel for the Respondent in his response on Appellant’s Counsel’s complaint that the failure of the Respondent to file the application for summary Judgment along with the originating process affected the Jurisdiction of the Court, he submitted that it is not every failure to comply with
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the provision of the Rules of Court that will nullify or render a proceeding void.
He relied on the Provision of Order 5 Rule 1 sub rule (2) of the Oyo State High Court (Civil Procedure) Rules 2010.
It was submitted on behalf of the Respondent that non-compliance with the Provision of Order 11 Rule 1 of the Oyo State High Court (Civil Procedure) Rules 2010 in the Respondent’s application for Summary Judgment was an irregularity and he urged this Court to so hold.
He relied on the following cases:- MTN (NIG) LTD VS. ALUKO (2014) ALL FWLR PART 732 PAGE 1701.
– OKEKE VS. CHIDOKO (2012) ALL FWLR PART 625 PAGE 343
_ ODOM VS. PDP (2015) ALL FWLR PART 773 PAGE 1962.
On the issue of non-service of Respondent’s motion for Judgment filed on 27/7/2011 on Appellant. Learned Counsel referred to the finding of the lower Court on page 68 of the Record of Appeal that the application was duly served.
He went further in his submission that the finding of the lower Court was not appealed against and in such situation, the Appellant is deemed to have admitted the finding made against him.
He relied on the following cases:-
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ODIFE VS. ANIEMAKA (1992) 7 NWLR PART 251 PAGE 25.
– AWOTE VS. OWODUNNI (1986) 5 NWLR PART 46 PAGE 941.
– HARUNA VS.ISAH (2016) ALL FWLR PART 818 PAGE 918 AT 955.
– MTN (NIG) LTD VS. ALUKO (SUPRA) PAGE 1728 PARAGRAPHS G TO H.
– OGBIRI VS.N.A.O.G LTD (2011) ALL FWLR PART 577 PAGE 810 AT 822.
– DARIYE VS. FRN (2015) ALL FWLR PART 774 PAGE 97 AT 116 G TO H.
– AWODI VS. AJAGBE (2015) ALL FWLR PART 769 PAGE 1129 AT 1142 PARAGRAPHS G TO H.
On issue of service, it was submitted that service of process on Counsel is a good service.
He relied on the following cases:-
-YEAST & ALCOHOL MANUFACTURING CO. LTD VS. ALL MOTORS NIG PLC (2010) ALL FWLR PART 600 PAGE 1226 AT 1250 – 1251.
– EZECHUKWU VS ONWUKA (2005) ALL FWLR PART 280 PAGE 1514 AT 1535.
The issue that the Appellant challenged the Judgment of the lower Court on the ground that Respondents claim at the lower Court contained allegation of fraud which the Respondent failed to prove beyond reasonable doubt. It was submitted on behalf of the Respondent that since the Appellant failed to make unequivocal denial of the allegation of fraud pleaded in paragraph 18
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of the Respondent’s Statement of Claim then the Appellant is deemed to have admitted the facts and the law will not put any burden on the Respondent to prove what is deemed to have been admitted.
He relied on the following cases:- UNION BANK PLC VS. CHIMAEZE (2014) ALL FWLR PART 734 PAGE 48 AT 75.
– ALAHASSAN VS ISHAKU (2017) ALL FWLR PART 866 PAGE 215.
– OSHINOWO VS OSHINOWO (2005) ALL FWLR PART 281 PAGE 1704.
– OSOKOYA VS ONIGEMO (2018) ALL FWLR PART 94 PAGE 424.
– ZACCALA VS EDOSA (2018) ALL FWLR PART 926 PAGE 10.
– ACHILIHU VS ANYATONWU (2013) ALL FWLR PART 696 PAGE 483.
Learned Counsel for the Respondent finally urged that the issue be resolved in favour of the Respondent and against the Appellant.
The learned Counsel for the Appellant in his Appellant’s reply brief reargued all the issues he argued earlier in his Appellant’s brief of argument, and he urged that the appeal be allowed.
RESOLUTION
The lower Court delivered Judgment against the Appellant in this case under Order 11 Rules 1, 2 and 3 of the High Court of Oyo State (Civil Procedure) Rules 2010 which provides as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“(1) Where a Claimant believes that there is no defence to his claim, he shall file its originating process, the statement of claim, the exhibits, the depositions of his witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.
(2) A claimant shall deliver to the Registrar as many copies of all the processes and documents refer to in Rule 1 of this Order as there are defendants.
(3) Service of all the processes and the documents referred to in Rule 1 of this Order shall be effected in manner provided under Order 7.”
Also Order 7 Rule 1 (1) provides as follows:
“The provision of Order 7 of the High Court of Oyo State (Civil Procedure) Rules 2010 relating to service refer to under Order 11 Rule 3 of the Oyo State High Court (Civil Procedure) Rules 2010 provides as follows:
Order 7 Rule 1(1): Service of originating process shall be made by Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officers of the Court. The Chief Judge may also appoint and register any Law Chambers, Courier Company or
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any other person approved by the Chief Judge to serve Court processes and such person shall be called process server.”
Order 7 Rule 5 (1) (2) provides as follows:
“5(1) Order 7 Rule 5(1) (2): Where personal service of an originating process is required by these Rules or otherwise and a Judge is satisfied that prompt personal service cannot be effected, the Judge may upon application by the Claimant make such Order for substituted service as may be seem just.
(2) Every application to the Judge for substituted or other service, or for the substitution of notice for service shall be supported by an affidavit setting forth the grounds upon which the application is made.”
Also Order 7 Rule 7 provides thus:-
“Order 7 Rule 7: Where a detainee or prisoner is a defendant, service on the head or other officer in charge of the station, facility or prison where the defendant is, or an officer of the agency in charge of the station, facility or prison shall be deemed good and sufficient personal service on the defendant.”
In this appeal under consideration, the processes required to commence action under the summary
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Judgment Procedure are stated in Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules 2010. The processes are:
(a) Originating process.
(b) The Statement of Claim
(c) The Exhibits or list of documents to be relied upon.
(d) The deposition of witnesses.
(e) An application for summary judgment with a supporting affidavit stating the grounds and,
(f) A written brief in respect thereof.
In this case, the Respondent failed to file all the processes simultaneously as required by the Rules i. e Order 11 Rule 1 (supra).
On 6/6/2011 the Respondent filed the following processes:-
(a) Originating process.
(b) Statement of Claim
(c) List of Witnesses.
(d) Witness Deposition.
On 27/7/2011 the Respondent filed the following processes:-
(a) Application for summary judgment with affidavit in support.
(b) Written address.
I am of the view that the processes are not supposed to be filed piecemeal. But even if it is filed piecemeal, the processes must be duly served on the other party.
It is not every failure to comply with the provisions of the Rules of Court that will nullify or
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render the proceeding void.
See – Order 5 Rule (1) sub rule (2) of the Oyo State High Court Civil Procedure Rules 2010.
The non-filing of all the processes referred to above simultaneously is an irregularity which will be cured by service of all the processes on the opposing party. Jurisdiction of a Court can only be determined by the Constitution or the enabling statute but not by invoking the rules of Court.
See the following cases:-
– MTN NIG LTD VS ALUKO (Supra)
– OKEKE VS CHIDOKA (Supra)
– ODOM VS PDP (Supra).
The Appellant’s Counsel complained that there was nothing to show from the record of appeal that there was service of the Respondent’s motion for summary Judgment filed on 27/7/2011 on the Appellant.
But on page 68 of the record of appeal the learned trial Judge made finding as follows:-
“The application was duly served on the defendant despite service, the Defendant did not respond to the process.”
It is noteworthy that the Appellant did not appeal against that finding of the lower Court.
It is trite law that finding of a lower Court that has not been appealed
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against is deemed to have been admitted by the party against whom it is made.
See the following cases:
– ODIFE VS ANIEMAKA (Supra)
– AWOTE VS OWODUNNI (Supra)
I am therefore of the view that the Appellant cannot be heard on appeal on a finding of the lower Court which he has not appealed against.
The Appellant is therefore deemed to have admitted that the application filed on 27/7/2011 was served on him.
See the following cases:-
– HARUNA VS ISAH (Supra)
– MTN (NIG) LTD VS ALUKO (Supra)
– DARIYE VS FRN (Supra)
– APGA VS ANYANWU (2014) ALL FWLR PART 735 PAGE 243 AT 264 F-G.
In AWODI VS AJAGBE (Supra) it was held at page 1142 paragraphs G-H as follows:-
“Again the above findings has not been appealed against, at least there is no ground of appeal to that effect or any issue against it. Where a party has not appealed against finding of the trial Court or the Court of Appeal, he is deemed to have admitted same and as such, he cannot be heard to question that finding on appeal.”
Another area to consider in this Judgment is whether the Respondent’s claim is suitable for determination under
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Order 11 Rule 1 of the High Court of Oyo State (Civil Procedure) Rules 2010.
The endorsement on the Writ of Summons filed by the Respondent at the lower Court is as follows:-
“(1) The Claimant’s claim against the Defendant is for payment of the sum of N4,550,000.00 (Four Million, Five Hundred and Fifty Thousand Naira) only being the sum fraudulently collected from the Claimant by the defendant to prepare document for and to procure the registration of the Claimant’s Company “Olorunsola Investment Company Limited” as a contractor with Ogun Osun River Basin Development Authority and to use part of the said money as bidding fee and refundable deposit for the contract to be awarded by Ogun Osun River Basin Development Authority to the Claimant and his Company for the supply of 33 trucks as the consideration for which the money was collected has failed.
(2) Interest on the said sum of N4,550,000.00 at the rate of 10% per annum from the date of judgment till the entire sum is fully paid.
The Claimant will contend and lead evidence at the trial that the defendant fraudulently collected the said sum of N4,550.000.00
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from him and used the same to erect a house at Airport Road, Alakia, Ibadan which house is still under construction.”
By paragraph 18 of the statement of claim the Respondent averred as follows:
(i) The defendant fraudulently misrepresented to the claimant that he was a member of the Board of Ogun Osun River Basin Development Authority thereby collecting the money from the claimant under that guise when in fact he has no business whatsoever with Ogun Osun River Basin development Authority.
(ii) The defendant claimed to the claimant that he was the Special Assistant to President Goodluck Jonathan on petroleum matters thereby making the claimant to part with his money.
(iii) The defendant fraudulently claimed to be a legal practitioner and that he was going to prepare document for registration and to procure the registration of the claimant’s company as a contractor with Ogun Osun River basin Development Authority.
(iv) The defendant fraudulently collected the sum of N4,550,000.00 from the claimant under the guise that he was going to use part as bidding fee and refundable deposit for the contract for the supply of 33 trucks to
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be awarded by Ogun Osun River Basin Development Authority.”
The Respondent’s claim against the Appellant before the lower Court showed that fraud and misrepresentation was made the basis of the case.
The settled position of the law is that where allegation of crime or criminal offences are raised in civil proceeding, such allegation are required to be proved beyond reasonable doubt.
See: SECTION 135 (1) OF THE EVIDENCE ACT 2011
– EMMANUEL VS UMANA & OTHERS (2016) 2 S.C. PART 1 PAGE 1
– AREGBESOLA VS OYINLOLA (2011) 9 NWLR PART 1253 PAGE 458.
– AUDU VS INEC (NO. 2) 2010 13 NWLR PART 1212 PAGE 456 AT 507 PARAGRAPHS E-F.
In this appeal under consideration, the Appellant filed his statement of defence on 14/7/2011 where he denied allegation of fraud and misrepresentation. He also denied collecting any sum of money from the Respondent.
Issues having been joined with the Respondent by the Appellant on allegation of fraud and misrepresentation, the Respondent in my view ought to enter the witness box and give evidence in support of his claim and not to have proceeded under Summary Judgment procedure.
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See:- WEST AFRICAN EXAMINATION COUNCIL VS OSHIONEBO (2006) 12 NWLR PART 994 PAGE 258.
– REPTICO S. A. GENEVA VS AFRIBANK NIG PLC (2013) 14 NWLR PART 1373 PAGE 172.
In the interest of Justice to both parties in this appeal, I am therefore of the view that the Respondent’s claim is not suitable for determination under the Summary Judgment Procedure.
Consequent upon the foregoing, this issue is hereby resolved in favour of the Appellant and against the Respondent. I am of the view that there is merit in this appeal and it is allowed.
In the result, the Judgment of the lower Court in Suit No -I/525/2011 BETWEEN – KAREEM MOHAMMED FOLORUNSHO VS MR. SOLA ADEOYE delivered on 13th day of June, 2012 is hereby set aside. In its place the case file is hereby sent to the office of the Chief Judge of Oyo State who shall assign the suit to another Judge who will hear the case on its merit and with dispatch.
There shall be no order as to costs. Each of the parties are to bear their own costs. Appeal allowed.
NONYEREM OKORONKWO, J.C.A.: Before a suit can be considered under the summary judgment procedures of undefended list or summary judgment, it must
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be for an ascertained sum of money or liquidated claim or sum of money certain. Where a claim is unliquidated or unascertained or unaggregated, the summary judgment procedure is not suitable. The same is true where the question of fraud is raised which has to be proved by trial.
I agree with the lead judgment of Jimi Olukayode Bada that the judgment the subject of this appeal, be set aside as the case was not suitable or appropriate for summary judgment procedure.
FOLASADE AYODEJI OJO, J.C.A.: I have read In advance the judgment just delivered by my learned brother, Jimi Olukayode Bada. JCA. I agree that the appeal has merit and should be allowed.
The principle must be reiterated that once pleadings have been settled and issues joined thereon the duty of the Court is to proceed to try the issues. Evidence must be led in prove of facts submitted as the basis for the controversy between parties. See YUSUF Vs. ADEGOKE (2007) 11 NWLR (PT. 1045) 332. WEST AFRICAN EXAMINATIONS COUNCIL Vs. OSHIONEBO (2006) 12 NWLR (PT. 994)258. EDJEKPO Vs. OSIA (2007) 8 NWLR (PT. 1037)635; LEWIS AND PEAT (N.I.R) LTD V. AKHIMIEN (1976) ALL NLR 460.
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In REPTICO S.A.GENEVA V AFRIBANK (NIG) PLC (2013) 14 NWLR (PT. 1373)172, the Supreme Court, per Ariwoola, JSC held that:
“There is no doubt and it a fundamental procedural requirement that when issues are joined by parties in the pleadings, evidence is required to prove them as averred. It is the person upon whom the burden of establishing that that issue lies that must adduce satisfactory evidence.”
In the instant appeal, pleadings were settled and issues joined as to whether or not the Appellant misrepresented facts to the Respondent and thereupon took money from him fraudulently. The lower Court had a duty to proceed to try the allegation of fraud and misrepresentation submitted to it. It did not. I agree with my learned brother that the Respondent had a burden to step Into the witness box and adduce satisfactory evidence in support of his claim. This is not a case for the summary Judgment procedure. The interest of justice demands that this case be tried on the merits.
For this reason, and the fuller reasons contained in the lead judgment, I too allow the appeal. I also set aside the judgment of the lower Court. I abide by the consequential orders in the lead
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Judgment.
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Appearances:
D. O. ADELEKE For Appellant(s)
ADEKUNLE FALETI For Respondent(s)
