BELLO v. HARUNA (2022)

BELLO v. HARUNA

(2022)LCN/16014(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 01, 2022

CA/K/286/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

ALHAJI MOHAMMED BELLO APPELANT(S)

And

ISA MOHAMMED HARUNA RESPONDENT(S)

RATIO:

THE PRINCIPLE GOVERNING AN APPLICATION FOR SUMMARY JUDGMENT

In the case of Obitude v. Onyesom Comm. Bank Ltd. (2014) 9 NWLR (Pt. 1412) 352 at 381 the Supreme Court held thus:
“What is really at play here is a call for summary judgment in this undefended list procedure. The case of Sunil Vaswani & Anor Vs. C.A. Candide-Johnson (CA) (2000) 11 NWLR (Pt.679) 582 at 586 – 587 Paras H – B is instructive and it was therein held:-
The principles governing an application for summary judgment is that a defendant who has no real defence to a suit should not be allowed to frustrate or cheat the plaintiff out of judgment. In this regard, the Court has a duty to assess facts presented before it in order to ensure that there is no abuse of its processes so that there is no delay of justice to a deserving plaintiff. Nishizawa Vs. Jethwani (1984) 12 SC 234, Macaulay Vs. Nal Merchant Bank (1990) 4 NWLR (Pt.144) 283. MOJEED ADEKUNLE OWOADE, J.C.A.

A DEFEDANT TO AN APPLICATION FOR SUMMARY JUDGMENT MUST ESTABLISH THAT HE HAS A GOOD DEFENCE AND THE CERTAIN STANDARD REQUIRED

A defendant to an application for summary judgment under Order 24 Rule 9(2) and (3) of the High Court of Anambra State, 1988 (Civil Procedure) Rules, 1972 must establish that he has a good defence by showing or disclosing in his statement of defence and counter-affidavit such triable issue to entitle him to be granted leave to defend the action. See Sunil Vaswani & Anor Vs. C.A. Candide-Johnson (Supra) at 587.
For an intention to defend to be regarded as meritorious warranting the matter being transferred from the undefended list to the general cause list for full hearing with the taking of evidence, oral and documentary, certain standard is required of such a defendant and the supporting affidavit of that intention to defend must contain a defence on the merit.
It is not enough for the defendant merely to deny the claim or aver that some payments he made were not taken into account.”
(Underlining supplied for emphasis). MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court presided over by Honourable Justice M. T. M. Aliyu delivered on 18-4-2016.

By a writ of summons and statement of claim filed on 10-3-2016, the Respondent as Plaintiff brought this action against the Appellant Defendant claiming:
”(a) The sum of N8,200,000.00 (Eight Million Two hundred Thousand Naira only) being the balance of the purchase price for the Mercedes Benz GLK 350 sold to the Defendant by the Plaintiff.
(b) 10% interest on the sum of N8.2 Million from the 10/11/2015 until total liquidation of the judgment debt.
(c) Cost of this action.”

The Respondent Plaintiff also filed a motion on notice and accompanying processes under the summary judgment procedure.

The Appellant Defendant in response also filed Notice of Intention to defend, Statement of Defence and witness deposition on oath.
N
In a considered ruling delivered on 18-04-2016, the learned trial judge reviewed the affidavit evidence of the parties and concluded that the Appellant Defendant has no good defence to the Respondent’s Plaintiff’s action and thereby entered judgment for the Respondent Plaintiff pursuant to Order 11 Rule 5(2) of the High Court (Civil Procedure) Rules, Kaduna State.

First at page 74 – 75 of the records, the learned trial judge observed that:
“The defendant in his counter-affidavit did not deny the documents of the plaintiff. Indeed he admitted the transaction and that he gave the plaintiff a cheque in the sum of N9 Million and the cheque bounced. He also stated that he paid N800,000.00 cash to the plaintiff and insisted that he gave the plaintiff a Peugeot 406 car valued at N1.2 Million a few days after the 9/10/15 undertaking. Further that the plaintiff accepted his 3000sqm land at Kabana valued at N7,650,000.00 and collected original copies of the title documents. That it is the plaintiff who owes him (defendant) the sum of N650,000.00.
The defendant did not deny giving the undertaking dated 12/12/13 and most importantly the one dated 9th October 2015. The last undertaking which is explicit reads:-
“9/10/15
Mohammed Bello Saidu
NASFAT Village
Kaduna.
I, Alh. Mohammed Bello collected a Car from Alh. Isa Zutu M/Benz GLK 350 at the rate of N9,000,000.00 (Nine Million Naira only) remaining the sum of N8, 200,000.00 (Eight Million, Two Hundred Thousand Naira only) which I will pay from now to 10/11/15 by God Grace.
Signed.”

Secondly, the learned trial judge held and concluded at pages 75 – 76 of the records that:
“I have looked at the evidence the defendant intends to produce in the event the matter is transferred to the General Case List. It is only the testimony of the defendant that is sought to prove his claim. Having regard to the documents produced by the plaintiff which have been admitted by the defendant I find no evidence to support the defendant’s claim I believe the evidence of the plaintiff supported by the Undertaking of the defendant dated 12/12/13 and 9/10/15. I find that the defendant has no good defence to the plaintiff’s action and pursuant to Order 11 Rule 5(2) of the Rules of this Court, I hereby enter judgment in favour of the plaintiff against the defendant in sum of N8,200,000.00 (Eight Million and Two Hundred Thousand Naira) only. I have seen no evidence to warrant a grant of pre-Judgment interest to the plaintiff. I grant him post-judgment interest at the rate of 10% per annum till the Judgment sum is paid in full.”

Dissatisfied with the judgment the Appellant filed a Notice of Appeal containing two (2) grounds of appeal in this Court on 20/4/2016.

The relevant briefs of argument are:
1. Appellant’s Brief of Argument which was filed on 9/2/2022 but was deemed filed on 10/2/2022. It is settled by Wakimbo Agyo Esq.
2. Respondent’s Brief of Argument which was filed on 10/2/2022. It is settled by K. Mustapha Esq.

Learned counsel for the Appellant nominated a sole issue for the determination of the appeal. It is:
“Whether the trial Court was right in entering judgment in the sum of N8,200,000.00 as well as 10% post-judgment interest on the ground that the appellant did not call any other witness in his defence without giving the defendant the opportunity vide a full blown trial vide general cause procedure to clarify the issue thereby inhibiting the defendant’s right to fair hearing and/or fair trial available to him vide a transfer to the general cause list.”

Learned counsel for the Respondent also formulated a sole issue for the appeal, thus:
“WHETHER having regard to the processes filed before the trial Court, the trial judge was justified in entering summary judgment against the Appellant, granting post-judgment interest at the rate of 10% per annum and the cost of the action.”

On the said sole issue, learned counsel for the Appellant reiterated the case of the Appellant Defendant as stated in the pleadings. That the Appellant paid the sum of N800,000.00 to the Respondent and also gave him a Peugeot 406 car few weeks after the undertaking he made on 9-10-2015 which was valued at the sum of N1,200,000.00 and that Respondent also accepted a plot of land for petroleum station at Kabama measuring about 3000 sqm by collecting the original copies of the relevant documents with a promise to have his lawyer prepare a formal deed of sale of land. He submitted that by entering a summary judgment against the Appellant the trial Court shut out the Appellant from leading evidence in proof of his pleading and as breached his right of fair trial.

He submitted that once a defendant raises a triable defence in his counter affidavit as done by the Appellant in the instant case, it is mandatory under the summary judgment procedure or undefended list procedure to transfer the case to the general cause list.

He referred to the cases of Vincent Standard Steel (Nig) Ltd v. Government of Anambra State (2001) 8 NWLR (Pt. 715) pg. 454 at 465, ACB Ltd v. Gwagwada (1994) 5 NWLR (Pt. 342) pg. 25 for the view that a triable defence is one that is capable of casting some doubts in the mind of the judge on the Plaintiff’s claim and believing to some extent the defence presented in response to the Plaintiff’s claim which would require the calling of witness or witnesses to prove the claim.

Learned counsel for the Appellant insisted that in determining whether a defendant has a good defence, it is not necessary at that stage for the judge to consider whether the defence has been established what is required is simply to look at the facts deposed to in the counter-affidavit and see if they can afford a prima facie defence.

He referred to the cases of Federal Military Government v. Sanni (1990) 7 SCNJ P. 159, Adebisi Macgregor Assurance Ltd v. N.N.B. Ltd (1996) 7 NWLR (Pt. 431) 378.

He urged us to resolve the sole issue in favour of Appellant.

Learned counsel for the Respondent, on the other hand submitted that going by the processes filed by the parties in the trial Court, the Appellant did not raise any triable issues to be entitled to leave to defend the suit under the summary judgment procedure.

Learned counsel for the Respondent reiterated the facts of the case and through the case of Thomas Wyatt and Son (North Nigeria) Ltd v. Plumstead Investment Limited (2019) 12 NWLR (Pt. 1687) 540 at 551 brought out the purpose of the summary judgment procedure and its suitability in liquidated money demand.

Respondent’s counsel further referred to the case of Lewis v. U.B.A. Plc (2006) 1 NWLR (Pt. 962) 546 at 567 to demonstrate that in summary judgment procedure, where it is obvious that a defendant does not have a defence on the merit, a Court of law and justice must not allow such a defendant to dribble a Plaintiff whose case is unassailable out of the seat of justice.

He submitted that the Appellant as Defendant in the Court below in an attempt to delay the outcome of the summary judgment procedure alleged that he had repaid the N8.2 Million due to the Respondent vide subsequent transactions and that it is the Respondent that is owing him N650,000. He submitted that the above claim of the Respondent was not supported by any document.

Respondent’s counsel submitted that the issue of repaying the N8.2 Million due to the Respondent by the Appellant through subsequent transactions is a sham defence, which the trial Court rightly rejected.

Learned counsel for the Respondent submitted that the alleged subsequent transactions by the Appellant were not supported by any form of documentary evidence as they were bare assertions of facts by the Appellant. On this, counsel referred to the cases of F.A.T.B. Ltd v. Partnership Inv. Co. Ltd. (2003) 18 NWLR (Pt. 851) 35 at 75, Bank of the North Ltd v. Alhaji Abba Sale (1999) 9 NWLR (Pt. 618) 331 at 348.

That in the earlier case of F.A.T.B. Ltd v. Partnership Inv. Co. Ltd. (supra), the Supreme Court held thus:
“Documentary evidence, where this is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the Court.”

Respondent’s counsel regarded it as mind boggling that the Appellant who claimed to be a business man dealing in real estate as well as a traditional ruler would transact to sell his Peugeot 406 car a few weeks after making Exhibit C and also sell his plot of land at Kabama without any documentation to back his assertion. He added that the implication of the above is that the Appellant’s assertions, being mere allegations of fact not backed by any documentary evidence were an afterthought and aimed at raising a sham defence with a view to causing delay in the determination of the rights of the parties.

That the trial Court was right to have found that the Appellant had no defence to the Respondent’s liquidated claim.

Learned counsel for the Respondent referred to the cases of Macaulay v. NAL Merchant Bank Plc (1990) 4 NWLR (Pt. 144) 283 at 324, Nishizawa Ltd v. Jethwani (1984) N.S.C.C. 877 at 895, Alh. Kabiru v. Alh. Sani Ibrahim (2005) ALL FWLR (Pt. 240) 100, Obitude v. Onyesom Comm. Bank Ltd (2014) 9 NWLR (Pt. 1412) 352 at 381 all to the effect that a defendant who has no defence to the action should not be allowed to dribble and frustrate the plaintiff in order to deprive him of the summary judgment he would legitimately be entitled to by way of delay tactics instead of offering any real defence to plaintiff’s action.

On the allegation by the Appellant, that he was denied fair hearing/trial by the failure of the learned trial judge to transfer the suit to the general cause list, Respondent’s counsel submitted that the question of fair hearing/trial does not arise in this case at all.
Th at:
i) The trial Court considered the affidavit for and against the grant for Motion for Summary Judgment filed by the Respondent and Appellant.
ii) The conflict in the affidavit evidence between the Appellant and the Respondent was rightfully resolved by resort to the documentary evidence see NIG. BREWERIES PLC V. NUFBTE (SUPRA).
iii) On the state of the affidavit evidence, it was clear that the Appellant had no defence on the merit to challenge the claims of the Respondent duly backed by documentary evidence.

He urged us to resolve the sole issue in favour of the Respondent.

As a preliminary observation in deciding the sole issue in this appeal, the Appellant could not have been taken seriously as raising an issue of fair hearing or fair trial.

I think all his issue entails is that the learned trial judge could have held on the consideration of the affidavit and counter-affidavit that the Appellant has shown a prima facie defence for the suit to be transferred to the general cause list.

The parties to the suit are not in dispute that the Appellant was/is indebted to the Respondent in the sum of N8.2 Million being balance of the N9 Million initial debt on the Mercedes Benz car sold to the Appellant by the Respondent. The most recent of the avalanche of documentary evidence in support of the transaction between the parties is Exhibit C, an undertaking from the Appellant dated 9/10/2015, stating that he will pay the balance of N8.2 Million to the Respondent from 9/10/2015 to 10/11/2015.

The Respondent’s suit against the Appellant was instituted on 10/3/2016, barely five (5) months after the Appellant executed the unchallenged and uncontroverted undertaking in Exhibit C. It is in the light of this unchallenged and uncontroverted documented facts in the pleadings of the Respondent, that the Appellant now wants the Court to accept and or believe the assertions in paragraph 5 [c – g] of his Counter-Affidavit to the claim; to wit:
“(c) That contrary to the averments of the plaintiff in paragraphs 8, 9, 10 and 11 of the statement of claim, I paid the sum of N800,000.00k to the plaintiff and also gave him a Peugeot 406 car few weeks after the undertaking I made on 9/10/2015 which was valued at the sum of N1,200,000.00k (One Million, Two Hundred Thousand Naira only).
(d) That the plaintiff approached me that if I have any land in Zaria for filling station construction, he will be interested and we can value same and offset it from the outstanding balance of N7,000,000.00 I am owing sometimes in December, 2015.
(e) That I offered the plaintiff my plot of land for petroleum station at Kabama measuring about 3000 sqm and the plaintiff accepted same after a satisfactory search and was handed all the relevant documents of the land in their original and it was agreed at a price of N7,650,000.00 (Seven Million, Six Hundred and Fifty Thousand Naira only). The plaintiff is put on notice to produce the original of the land documents handed over to him by me as I shall find upon same at trial.
(f) That I have been demanding for a formal deed of sale of the land from plaintiff who insisted his lawyer will prepare same for execution but has failed and/or neglected to do so but holding unto my land document and now turning round to claim money from me.
(g) That I am surprised at plaintiff’s claims in this suit when plaintiff is the person owing me the sum of N650,000.00k being the outstanding balance on the said land.”

The assertions or allegations in Appellant’s paragraphs 5 [c – g] of the Counter-Affidavit are not supported by any details of (i) dates of transactions, (ii) documents of transaction (iii) witnesses as to transactions.

In the circumstance and in legal parlance, the above depositions by the Appellant are mere allegations or mere assertions only from the ipse dixit of the Appellant without any element of proof to counter the depositions in the supporting affidavit of the Respondent backed up by documentary evidence of the relationship between the parties. In the circumstance, the learned trial judge was not wrong to have held at page 75 of the records that:
“… Having regard to the documents produced by the plaintiff which have been admitted by the defendant I find no evidence to support the defendant’s claim I believe the evidence of the plaintiff supported by the Undertaking of the defendant dated 12/12/13 and 9/10/15. I find that the defendant has no good defence to the plaintiff’s action…”

In the instant case, the learned trial judge was right in all the circumstances of the case to have held that the Appellant has no real or good defence to the action of the Respondent.

The sole issue in this appeal is resolved in favour of the Respondent.

This appeal is devoid of merit and it is accordingly dismissed.

N50,000.00 costs is awarded to the Respondent.

AMINA AUDI WAMBAI, J.C.A.: I had a preview of the lead judgment of my learned brother, MOJEED A. OWOADE, JCA. I fully agree with the reasoning that there is no merit in this appeal.

The Appellant has no real defence to the Respondent’s claims against him and the lower Court was right in holding so. I too dismiss the appeal for lacking in merit.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother, M. A. Owoade, PJCA. I agree with and adopt as mine the finding and conclusion reached by my learned brother in the lead judgment that this appeal lacks merit and ought to be dismissed. I also dismiss this appeal and affirm the judgment of the lower Court delivered on 18/4/2016. I abide by the order as to cost.

Appearances:

K. B. YAKUNAT, ESQ. For Appellant(s)

Y. AJIBOLA, ESQ. For Respondent(s)