GRAND SYSTEMS PETROLEUM LIMITED & ANOR v. ACCESS BANK PLC (2013)

GRAND SYSTEMS PETROLEUM LIMITED & ANOR v. ACCESS BANK PLC

(2013)LCN/6232(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of May, 2013

CA/K/241/2011

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

1. GRAND SYSTEMS PETROLEUM LTD.
2. MR. UGOCHUKWU OKORO Appellant(s)

AND

ACCESS BANK PLC Respondent(s)

RATIO

DEFINITION OF A FINAL JUDGEMENT

TEST TO DETERMINE WHETHER AN ORDER OF THE COURT IS INTERLOCUTORY OR FINAL

The first question to be resolved therefore is whether the orders appeal against are final or interlocutory. The test to be followed in this respect is as laid down by Lord Alverstone, C. J., in Bozan vs. Alterincham U. D. C. (1903) 1 K. B. 547 at 548 which is: “Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order. (See Akinsanya vs. UBA (1986) 4 NWLR (Pt. 35) 273 where this test was followed.”PER ORJI-ABADUA, J.C.A.

FUNDAMENTALS IN WRITING A GOOD JUDGEMENT

I have already in this judgment at pages 3 and 4, reproduced the entire judgment of the lower Court in the proceedings before it. In Ishola vs. Folorunso (2010) 13 NWLR Part 1210 page 159 the Supreme Court expressed that the fundamentals in writing a good judgment which a trial Court is enjoined to adhere to, comprise of,
(a) Making a brief statement of the type of action/offence being adjudicated upon,
(b) Setting out the claim/offence in full or in part,
(c) A review of the evidence led,
(d) Appraisal/evaluation of such evidence,
(e) Making findings of fact therefrom,
(f) Consideration of the legal submissions made and/or arising, and findings of law on them and;
(h) Conclusion, that is verdict/final decision/order(s).
It further stated that whichever style a Judge adopts, what is important is clarity in the language in which the judgment is written and delivered and, that justice will be seen to have been done. See, also, Ogbu vs. Onwuzo (2005) 14 NWLR Part 945 page 331 at 345, where Akintan, J.S.C., observed that judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well-known constituent parts which he enumerated therein. PER ORJI-ABADUA, J.C.A.

WHETHER OR NOT THE COURT MUST PRONOUNCE ON ALL ISSUES PLACED BEFORE THEM FOR DETERMINATION

Further in Brawal Shipping Ltd vs. F. I. Onwadike Co. Ltd. (2000) 11 NWLR Part 678 page 387 at page 403 – 404, Uwaifo, J.S.C. expressed thus:
“It is no longer in doubt that this court demands of, and admonishes, the lower courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases including Oyediran v. Amoo (1970) 1 All NLR 313 at 317; Ojogbue v. Nnubia (1972) 8 SC 227; Atanda vs. Alani (1989) 3 NWLR Part 111 page 511 at 539; Okonji vs. Njokanma (1991) 7 NWLR Part 202 page 131 at 150, 151 & 152; Titiloye vs. Olupo (1991) 7 NWLR Part 205 page 519 at 529; Katto vs. Central Bank of Nigeria (1991) 9 NWLR Part 214 page 126 at 149.
Failure to do so may lead to a miscarriage of Justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently there could be avoidable delay since it may become necessary to send the case back to the lower court for those issues to be resolved. The obvious exceptions are when an order for a retrial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the retrial or in a fresh action, as the case may be. The point was made in regard to a case for a retrial by Nnaemeka-Agu J.S.C in Sanusi vs. Ameyogun (1992) 4 NWLR Part 237 page 527 at 550 – 551. The rationale behind the duty to make a pronouncement on issues raised is similar to that where in cases in which damages are to be assessed, the trial court should always do so even if it considers the action fails, or even if its decision in the action was against the party claiming damages. This will save the need to send the case back for assessment of damages in the event of the action succeeding on appeal: see Yakassai vs. Messrs Incar Motors Ltd. (1975) 5 SC 107 at 115 – 116; International ile Industries (Nig,) Ltd. vs. Aderemi (1999) 8 NWLR Part 614 page 268 at 301. If, of course, the action fails also on appeal the failure of the lower court to make an assessment of damages though amounting to a breach of the laid down principle will not attract a serious complaint of an error of a reversible nature.” (underlining mine).

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court delivered on the 4th August, 2011, in suit No. KDH/KAD/645/2011 commenced by the defunct Intercontinental Bank Plc, now substituted with the present Respondent, Access Bank Plc. It was commenced by way of Writ of Summons dated the 14th June, 2011. In the Statement of Claim filed by it which was dated the 13th June, 2011, the Respondent claimed against the Appellants as follows:
“1. The sum of N24, 012,395.47 (Twenty Four Million and Twenty one Thousand, Three Hundred and Ninety Five Naira and Forty Seven Kobo) being the amount outstanding and unpaid indebtedness of the defendants on the 1st defendant’s account No. 0230001000000807 with the Plaintiffs NNPC/PPMC, Kaduna Branch as at 19/11/2010 in respect of the overdraft and/or loan facilities made available to the 1st defendant at his request and guaranteed by the 2nd defendant personally.
2. Interest in the same at 21% from 19/11/2010 till date of judgment and 10% thereafter until the entire judgment sum shall be fully liquidated.
3. The cost of this action.”
The 1st Defendant, in turn, filed a 66 paragraph Statement of Defence dated the 27th June, 2011. However, by a Motion dated the 5th July, 2011, the plaintiff sought for leave to amend its statement of claim, Witness Deposition on Oath of Stephen Ojile, etc, and too, for an order deeming the attached Proposed Amended Statement of Claim, etc, as properly filed and served.
However, on 4/8/2011, the trial Court presided over by Hon. Justice J. S. Abiriyi at pages 430-431 of the record, delivered the judgment of the Court thus:
“Judgment Court – I have considered the amended statement of claim and exhibits to be used by the Plaintiff and the amended statements of defence and the exhibits to be used in the defence as well as the written addresses and oral submissions of learned Counsel for all the parties and it appears to me that the defendants do not have any good defence to the claim.
I am of the view that the Plaintiff is entitled to judgment in his favour.
Judgment is hereby entered in favour of the Plaintiff against the defendants in the sum of N24, 021,395.47 being the outstanding amount and unpaid indebtedness of the defendants on the 1st Defendant’s account No. 0230001 000000807 with the plaintiffs NNPC/PPMC, Kaduna branch as at 19/11/2010 in respect of the overdraft and/or loan facilities made available to the 1st defendant at its request and guaranteed by the 2nd Defendant personally.
2. Defendants shall pay interest at the rate of 21% from 19/11/2020 to date of judgment and thereafter at the rate of 10% until the entire judgment sum is liquidated.
Plaintiff is awarded N62, 200 costs being costs of filing this suit.”
sgd.
Hon. Justice J. S. Abiriyi.
4/8/2011.”
The Defendants immediately filed a Notice of Appeal dated 8/8/2011 which they predicated on five grounds. The grounds without their Particulars of Error read thus:
“Ground One:
The learned trial Judge erred in law by failing to perform the imperative duty of dispassionately considering all the issues raised and canvassed by the parties before the lower Court but rather holding as follows:
“I have considered the amended statement of claim and exhibits to be used by the plaintiff and the amended statement of defence and the exhibit to be used in the defence as well as the written addresses and oral submissions of learned counsel for all the parties and it appears to me that the Defendants do not have any good defence to the claim”
Without demonstrating the grounds on which it appeared that the defendants had no good defence to the claim and making specific findings to uphold the claim and this occasioned a miscarriage of justice.
Ground Two
The learned trial Judge erred in law by holding as follows
“I am of the view that the Plaintiff is entitled to judgment in his (sic) favour”
Without demonstrating in the judgment the grounds for holding that view, thereby occasioning a miscarriage of justice.
Ground Three
The learned trial Judge erred in law by declining to grant leave to the Appellants to defend the action and entering judgment for the Respondent in respect of its claim, when, in their respective Amended Statements of Defence, the Appellants had raised contentious issues that required further inquiry and this occasioned miscarriage of justice.
Ground Four
The learned trial Judge erred in law by entering judgment for the Respondent when its application for summary judgment lacked evidence to support it and this occasioned miscarriage of justice.
Ground Five
The learned trial Judge erred in law by entering judgment under the Summary Judgment Procedure when, upon the receipt of the Statements of Defence and other processes filed by the Appellants, the Respondent sought and obtained leave to amend all its processes, save the writ of summons, to meet the issues by the Appellants in their respective processes, which also necessitated the amendment of the Appellants’ processes, thereby demonstrating that triable issues existed and defeating the essence of the summary judgment procedure and this occasioned a miscarriage of justice.”
The parties filed and exchanged their Briefs of Argument with the Appellants filing a Reply Brief in answer to the Notice of Preliminary Objection filed by the Respondent attacking grounds 1, 2, 3, 4 and 5 of the Appellants’ Notice of Appeal for failure to obtain leave since they are of mixed law and facts, for being repetitive, narrative, argumentative and highly conclusive, and for ground 5 challenging an interlocutory decision of the lower Court delivered on 21/7/11 which has not been appealed over and therefore cannot be smuggled into this final appeal.
In the Amended Appellants’ Brief of Argument, two issues were propounded for consideration in this appeal. They are:-
“1. Whether the failure of the Court below to properly and specifically consider and resolve the issues raised in this case, as well as its failure to give any reason for reaching the decision that the Appellants had no good defence to the Respondent’s claim and that the Respondent was entitled to judgment has not occasioned a miscarriage of justice (Grounds 1 and 2).
2. Whether, having regard to the entire facts and circumstances of this case and the proceedings before the Court below, the Appellants ought to have been granted leave by the Court below to defend the action rather than entering judgment for the Respondent (Grounds 3, 4 and 5).”
The Respondent framed just one issue for determination by this Court thus:
“Whether the learned trial Judge gave proper consideration to all the legal processes placed before it by the respective parties before arriving at his conclusion/judgment, in view of the Appellants unequivocal documentary admission of indebtedness to the Respondent.”
Arguing the appeal on behalf of the Appellants, their learned Counsel, Wole Agunbiade, Esq., stated that it is settled that a trial Court is duty bound to examine all the facts and issues placed before it by the parties to a case, and resolve the issues while applying the applicable laws to the facts in arriving at its ultimate verdict. He cited the cases of Adeyemo vs. Arokopo (1988) 1 NSCC 991 at 1004, lines 23-36; Polycarp Ojogbue & anor vs. Ajie Nnubia & ors. (1972) 1 All N.L.R. (part 2) 226; Ojogbue & anor vs. Nnubia & ors. (1972) 7 NSCC 478 at 482 lines 2 – 16, per Coker, J.S.C; Romaine vs. Romaine (1992) 23 NSCC part II page 20; Adeyemi & ors vs. Umechukwu (2003) 2 NWLR Part 805 page 537 at 557 paragraph F – 558 paragraph C; per Onnoghen, J.C.A (as he then was); Brawal Shipping Nig. Ltd. vs. F. I. Onwadike Co. Ltd. (2000) 11 NWLR Part 678 page 387, (2000) 6 SC 133 at 140, per Uwaifo, J.S.C; Oyediran vs. Anise (1970) 1 All NLR 317; Ojogbue v. Nnwubia (1972) 8 SC. 27; Atanda vs. Ajani (1989) 3 NWLR Part 111 page 511 at 539; Okonji vs. Njokanma (1991) 7 NWLR Part 202 page 131 at 150, 151 – 152; Titiloye vs. Olupo (1991) 7 NWLR Part 205 page 519; Katto vs. CBN (1991) 9 NWLR Part 214 page 126 at 142; and Crown Flour Mills Ltd & anor vs. Olokun (2008) 4 NWLR Part 1077 page 254 at 289 paragraph C-F, per, Abdullahi J.C.A; in support.
He further submitted that the judgment of the lower Court as it is, does not amount to justice according to law because, the Court departed from established judicial procedure which led to a miscarriage of justice. He also relied on University of Calabar vs. Ugochukwu & ors. (No. 2) (2007) 17 NWLR Part 1063 page 248 at 269 paragraph H- page 270 paragraph & per Ngwuta J.C.A; and Ushae & ors vs. Commissioner of Police, Cross River State Command (2005) 2 NWLR Part 937 page 499 at 526 paragraphs F-H, per Adamu, J.C.A. He then stressed that the failure of the Court below to properly and specially consider and resolve the issues raised in this action and its failure to adduce any reason for its decision that the Appellants had no defence to the Respondent’s claim also led to a miscarriage of justice.
He urged that this issue be resolved in favour of the Appellants.
It was contended under issue No. 2 that the trial Court ought to have granted leave to the Appellants to defend the claim of the Respondent in a full trial because the Respondent’s claim do not qualify for adjudication under Order 10 of the Kaduna State High Court (Civil Procedure) Rules, 2007. He emphasized that the numerous unjustifiable charges and fees the Respondent made against the 1st Appellant and the sum of N500,000.00 paid by the 1st Appellant to the Respondent in February, 2011 were not taken into consideration by the lower Court because, whereas the action was commenced in June 2011, the statement of claim, the Respondent relied upon as showing the balance of the 1st Appellant’s indebtedness was that of 19th November, 2010.
Learned Counsel also commented on the document described as ‘Guarantee’ by which the 2nd Appellant was held liable as a Guarantor that, it is a blank form which did not show the principal debtor, the extent of the liability covered by the document, the name of the 2nd Appellant in the column provided for the name of the Guarantor, and the failure of the Respondent to make a demand for the payment of the debt before commencement of enforcement of payment proceedings against the 2nd Appellant. He argued that the ascertainment and verification of the correctness of the Respondent’s claim, and the propriety of the Bank Form, can only be done in a full trial.
He further contended that the amendment of the Statement of claim and other processes filed by the Respondent at the Court below and the consequential amendments of the Appellants’ pleading and other processes filed by them disclosed that there are triable issues between the parties which required full trial. He cited the cases of Federal Military Government & ors vs. Sani (1990) 21 NSCC Part 3 page 155 at 172 lines 24 – 42, per Uwais J.S.C.; (as he then was) UTC Nig. Ltd v. Wema Bank Plc & anor (2002) 12 NWLR Part 781 page 211 at 266 paragraphs D-E, per Galadima, J.C.A (as he then was); Yahaya vs. Waje Community Bank Ltd. (2001) FWLR Part 46 page 804 at 814 paragraphs G-H, per Muhammad, J.C.A; (as he then was) in support.
Learned Counsel pointedly argued that the Respondent by the pleading it filed, and various amendments it made, removed its case from the umbrella or parameters of Summary Judgment Procedure, therefore, the Appellants ought to have been granted leave. He pointed out that the affidavit in support of the Motion on Notice for Summary Judgment did not contain the assertion that the Respondent believed that the Appellants have no defence to its claim, and the grounds for its belief as required by Order 11 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules. Learned Counsel further argued that the Respondent ought to have attached to the said affidavit, all the documents the Court ought to examine at its determination of the application. He contended that the averment at paragraph 23 of the said affidavit that the Respondent adopted all the documents/exhibits attached to its Writ of Summons and Statement of Claim is not enough. He stressed that the Proposed Amended Statement of Claim which was deemed as properly filed and served on 21/7/11 superseded the Writ of Summons and Statement of Claim. It was accompanied by documents which the Respondent intended to rely upon at the trial, therefore, the said Proposed Amended Statement of Claim together with the documents attached thereto were the documents that defined the issues between the parties and to be tried. Thus the documents/exhibits that accompanied the Writ of Summons and Statement of Claim ceased to be functional in the action. He relied on Oseyemon & Anor vs. Ojo (1997) 7 SCNJ 265 at 381 lines 7 – 43, per Iguh, J.S.C. in support.
Learned Counsel further made reference to the decisions in Osho vs. Attorney-General & Commissioner for Justice, Ekiti State & ors (2002) 2 NWLR Part 752 page 628 at 652 paragraphs E & F, per Onnoghen, J.C.A; (as he then was); S.E.S. Newspaper Corporation & anor vs. Anwara (1975) NSCC 388 at 392, lines 35 – 50, per Fatayi-Williams, J.S.C; (as he then was); Wema Bank Plc vs. Osilaru (2008) 10 NWLR Part 1094 page 150 at 179 paragraph G- page 180 paragraph B, per Okoro, J.C.A; First Bank of Nigeria Plc vs. A. Mamman (Nigeria) Ltd. & anor. (2001) 3 W.R.N 58 at 73, lines 32 – 35, page 75 lines 24 – 39, page 78 lines 22-43 & page 80 line 11 – page 81 line 2, per Oduyemi, J.C.A.; Yusuf vs. A.C.B. Ltd (1976) 10 NSCC 202 at 206-207, per Fatayi-Williams, J.S.C. (as he then was); and Bamaiyi vs. The State & ors. (2001)1 8 NWLR Part 715 page 270 at 287 paragraph F, per, Uwaifo, J.S.C. and argued that the documents that were filed along with the Writ of Summons and Statement of Claim were not exhibits, they would have become so if they had been attached to the affidavit in support of the application for Summary Judgment as Exhibits or if they had been tendered during full trial. He submitted that failure to attach those documents as Exhibits to the said affidavit was fatal at the lower Court, and the lower Court ought not to have considered them. He argued that there was no evidence on how the Respondent arrived at the figure it claimed, the interests it charged at various times or prove the 21% prevailing Bank rate. Counsel stressed that the Statement of Account did not reflect the said sum of N500,000.00 the 1st Appellant paid in February, 2011 so as to reduce the sum claimed. He further, relying on Yusuf vs. A.C.B. Ltd (1976) 10 NSCC 202 at 206 – 207, per Fatayi-Williams, J.S.C. (as he then was); and Bamaiyi vs. The State & ors. (2001) 8 NWLR Part 715 page 270 at 287 paragraph F, per, Uwaifo, J.S.C., argued that there were no facts showing that the deponent of the affidavit copied the Statement of Account and that the book in which the entries copied were made, was at the time of making, one of the ordinary books of the Respondent. He said that the deponent failed to show he was the one who examined the Statement of Account with the original entry and found it to be correct. He further emphasized that these omissions were fatal. Counsel submitted that the statement of account did not pass the test of admissibility under the Evidence Act, therefore, its contents ought not to have been used by the trial Court.
He persuaded that this issue be resolved in favour of the Appellants and for the appeal to be allowed.
As I mentioned earlier, the Respondent raised a Preliminary Objection which he argued in the Respondent’s Brief of Argument. In respect of ground one of the Preliminary Objection, it was submitted by the Respondent’s learned Counsel, J. Opawale, Esq., that grounds 1, 2, 3, 4 and 5 of the Appellants’ grounds of appeal are of mixed law and facts which require the leave of court before an appeal is filed in their respect as mandated by section 242 of the 1999 constitution (as Amended), notwithstanding that the Appellant’s described them as those of law. He stressed that where a ground of appeal challenge the exercise of discretion of the rower court, the court is bound to look at the surrounding circumstances to determine whether the lower court exercised its discretion judicially and/or arbitrarily, it raised issues of mixed law and fact which requires leave of the lower court or this court being sought and obtained before the appeal could be filed. He relied on NEPA vs. Anthony Ikechukwu Eze (2001) 3 NWLR Part 701 page 506 at 671 paragraphs D – E in support. He explained that grounds 1 – 5 of the Appellant’s Notice of Appeal questioned the rationale behind the trial Judge’s exercise of his discretion in granting leave to the Respondent to amend the processes at the lower court.
He cited the cases of Ugboaja vs. Sowemimo (2008) 17 NWLR Part 1113, Page 278; Nwadike vs. Ibekwe (1987) 4 NWLR Part 67 Page 718; First Bank Limited vs. Abraham (2008) 18 NWLR Part 1118 Page 172 and submitted that without the leave of the court having been sought and obtained before filing the appeal, it will be incompetent and liable to be struck out pursuant to section 233 (3) of the 1999 constitution.
With regard to ground 2 of the Preliminary Objection, he referred to order 6 Rule 3 of the court of Appear Rules 2011 and contended that grounds 1, 2, 3, 4 and 5 of the Appellants’ grounds of appeal are vague and lacked precision and clarity and they did not disclose any reasonable ground, therefore, they ought to be struck out. He argued that ground No. 5 did not challenge the ratio decidendi of the decision being appealed against as it is not rooted in the judgment or record of the lower Court. The learned Counsel then relied on the cases of Nuhu vs. Ogele (2004) All FWLR Part 193, Page 362; Afribank Nigeria Plc vs. Osisanya (2001) 1 NWLR Part 642 Page 589; Ezekwusim vs. Okporo (1993) 5 NWLR Part 294; Jimoh vs. Star Company (Nig) Ltd (1987) 7 NWLR part 558 page 523; Sterling Civil Engineering Nigeria Limited vs. Yahaya (2002) 2 NWLR Part 742 Page 431; Honika sawmill Nigeria Limited vs. Mary Okoiie Hoff (1994) 2 NWLR Part 326 Page 252; Jikamshi vs. Matazu (2004) All FWLR part 230 page 1077, and Suberu vs. Cooperative Bank Limited (2004) All FWLR Part 236, and urged that those grounds be struck out.
On ground three, learned counsel repeated his argument on the issue of the Appellants not having sought for and obtained the leave of the court before filing the interlocutory appeal. He made reference to Oluwole vs. L.S.D.P.C. (1983) 5 SC Page 1; Ayantoye vs. Balogun (1990) 5 NWLR Part 151 Page 392 to further buttress the point.
Then, turning to the lone issue the Respondent propounded, his counsel, firstly, reproduced the provisions of order 3 Rule 2 (1) Order 11 Rules (1), (4) and (5) (2) and submitted that the trial Court rightly exercised its discretion. He stated that summary Judgment Procedure is a device meant for prompt and expeditious disposal of noncontroversial matters or where only issues of law is involved, or where the defendant has no defence whatsoever and where there is no triable issue. He submitted that the Court is not duty bound to transfer the suit to the general cause list once a defendant files a defence which does not disclose triable issues. I must observe that Learned Counsel for the Respondent seemed very repetitive on the purpose of Summary Judgment, and, the need for the defendant to raise a triable issue and not sham issues for it to be allowed to defend. He also stressed on the need to place all materials before the Court. He cited numerous cases, i.e., United Bank for Africa Plc vs. Alhaji Babangida Jargaba (2007) All FWLR part 380 page 1419 at 1429 paragraphs G-H; Fidelis Nwadialo vs. Civil procedure in Nigeria (1990) MIJ Professional Publishers Ltd, Lagos page 418; University of Benin vs. Kraus Thompson Organization Ltd (2007) All FWLR Part 362 page 1910 at page 1926-1927 paragraphs G-B, per Ogunbiyi, J.C.A; A. A. Macaulay vs. NAL Merchant Bank Ltd (1990) 4 NWLR Part 144 page 283 at pages 324 – 325 paragraphs H-F, per Karibi-Whyte J.S.C.; Jones vs. Stone (1394) AC; Nishizawa vs. S. M. Jethwani Ltd (supra, per Aniagolu J.S.C; Brigadier General Remawa v. NASB consultancy & Finance company Ltd & 1 or (2007) All FWLR Part 349 page 1111; Madam Aderin Adekambi & 4 ors vs. Adebisi Jagbon & 1 or (2007) All FWLR Part 383 Page 152; Abayomi vs. Attorney General Ondo State (2007) All FWLR part 391 Page 1683; Alhaji Sherifat Adunni Balogun & 1 or vs. Egba Onikolobo community vs. Bank of Nigeria Ltd (2007) All FWLR Part 382 Page 1952. He then argued that by the decisions in Shell Petroleum Development Company Nigeria Ltd v. Mr. F. O. Emehuru (2007) All FWLR Part 381 Page 1694; Divine Ideas Ltd vs. Hajia Mero Umoru (2007) All FWLR Part 380 Page 1468, and the provisions of sections 133(1) and (2) and 137 of the Evidence Act, the burden of first proving the existence or non existence of a fact in a civil case lies on the party against who the judgment of the court will be given if no sufficient evidence or any evidence at all is produced on either side. He submitted that the Appellants are estopped from raising the issue of amendment in this appeal. He also dwelt on the failure of the Appellant to appeal against the interlocutory decision of the lower court allowing amendment of the processes by the Respondent, and, by so doing they have waived their rights. He further relied on the cases of Caleb Jeje vs. United Bank For Africa Plc (2007) All FWLR Part 381 Page 1783; Bank of The North Ltd vs. Na’Bature (1994) 1 NWLR Part 319 Page 235; Diamond Bank Ltd vs. Ugochukwu (2007) All FWLR Part 384 Page 290; IMAN vs. Sheriff (2005) 4 NWLR Part 914 Page 80; Agbi vs. Ogbeh (2006) 11 NWLR Part 990 Page 65; Bank of Baroda vs. Iyalabani Co. Ltd (2002) 13 NWLR Part 785 Page 557, to buttress his argument on the issue of amendment of the processes. He explained that Exhibit “V” attached to the Respondent’s amended application for Summary Judgment contains the Appellants’ clear admission of their indebtedness to the Respondent and the same was not denied by the Appellants. Learned Counsel made reference to the cases of United Bank for Africa Plc vs. Alhaji Babangida Jargaba (supra); A. A. Macaulay vs. NAL Merchant Bank (supra); Shell Petroleum Development Company Nigeria Ltd vs. Mr. F.O. Emehuru (2007) All FWLR part 381 page 1694 at 1709 paragraphs E-F; Kaduna iles Ltd vs. Umar (1994) 1 NWLR Part 319 Page 143 at 158 paragraphs D-F; Adetoun Oladeji (Nig) Limited vs. Nigerian Breweries Plc (2007) All FWLR Part 357 page 837 at page 851 paragraphs B-F, per Tobi J.S.C; A.G. Ferrero & Co. Ltd vs. Henkel Chemical Nigeria Ltd (2011) 5-7 Part 1 MJSC page 69 paragraph G; Union Bank of Nigeria vs. Prof. Albert Ojo Ozigi (1994) 3 NWLR Part 333 Page 385; and Allied Trading company Ltd vs. GBN Line (1985) 2 NWLR Part 5 Page 74, and submitted that parties are bound by the terms and conditions of their contract and no oral or extraneous matters can contradict the same. He also contended that the claim of the Appellants that the sum of N500,000 was paid to the Respondent displayed their aim to continue postponing liquidation of their debts, that they did not produce a contrary Statement of account showing how they have fully liquidated their indebtness. He cited the cases of Chemiron International Limited v. Mr Ailbe Egbeujuonouna (2007) All FWLR Part 395 Page 444; First Bank of Nigeria vs. Alhaji Mohammed Mainassara (2005) 2 NWLR Part 909 and Ezekiel Okoli vs. Morecab Finance (Nig) Ltd (2007) All FWLR Part 369 Page 1164 in support. He then, stated that this appeal lacks merit as the Appellants have not disclosed any real defence to the claims of the Respondent.
He submitted there was clear evidence of guarantee given by the 2nd Appellant for repayment of the overdraft facility granted to the 1st Appellant by the Respondent. He stated there is a subsisting Contract of Guarantee between the 2nd Appellant and the Respondent which was executed by the, 2nd Appellant as the Managing Director of the 1st Appellant. Counsel stressed that once a party undertakes to liquidate the debt of another, he is bound to repay the debt of the principal debtor in the event of default. He cited the cases of First City Monument Bank Ltd vs. Standard Alliance Insurance Company Ltd (2007) All FWLR Part 363 Page 133; and Trade Bank Plc vs. Khaled Barakat Charmi (2004) All FWLR Part 235 Page 188, where it was held that the liability of the Guarantor becomes due and matures immediately the borrower becomes unable to pay his outstanding debt.
He said it is settled that a creditor does not need to demand payment from the principal debtor or surety before proceeding against both. He further relied on African Insurance Development Insurance Cooperation vs. Nigeria Liquified Natural Gas Limited (2000) NWLR Part 653 Page 494; Humpherey Ude vs. Harding Osuji (1998) 13 NWLR Part 580 Page 8-9; and Union Bank of Nigeria Plc vs. Ayodare (2007) All FWLR Part 383 Page 1 and submitted that the 2nd Appellant is estopped from denying the validity of the subsisting guarantee i.e. Exhibit “Y”, made in the Respondent’s favour. He further stressed that the statement of account attached to the application for Summary Judgment, i.e. Exhibit “U” is admissible, but issue of admissibility does not arise under a Summary Judgment procedure. He, then, urged this Court to dismiss this appeal.
In the Appellants’ Reply Brief, particularly with regard to the Preliminary Objection raised by the Respondent, it was submitted that the appeal is against the final decision of the Court below, and as such the Appellants do not require the leave of the Court below or of this Court to file an appeal against the issue, irrespective of whether the grounds of appeal are of facts alone, of mixed law and, facts, and, whether or not they challenged the exercise of discretion by the lower Court. He explained that the judgment of the lower Court appealed against was the one delivered on 4/8/11 and that the decision finally disposed of the rights of the parties, and, it did not leave any further reference to that suit on the matter in controversy between the parties.
He referred to sections 242 and 241 (1) (5), 233(3) of the Constitution of Federal Republic of Nigeria and the case of Elendu & ors. v. Ekwoaba & ors. (1995) 3 NWLR Part 385 page 704 at 732, paragraph E & F, per Onalaja, J.C.A, and then urged this Court to overrule ground one of the Respondent’s Preliminary Objection.
On ground two of the objection, he submitted that all the grounds of appeal in the Notice of Appeal are competent. He further submitted that a ground of appeal will be lacking in precision or clarity of it is allusive, ambiguous, broad, debatable, disputable, evasive and inexact. He cited Aderounmu & anor vs. Olowu (2000) 4 NWLR Part 652 page 253 at 265 paragraph E – page 266 paragraph D, per Ayoola, J.S.C; and Lagga vs. Sarhuna (2008) 16 NWLR Part 1114 page 427 at 471 paragraph H-page 472, paragraph B, per Tobi, J.S.C. in support. He submitted that all the five grounds of appeal consist of errors of law alleged by the Appellant and their Particulars are clear and precise. He submitted that grounds one, two, three, four and five of the Appellants’ grounds of appeal satisfied the requirements of order 6 Rules 2(2), (3) and 3 of the court of Appeal Rules, 2011. Counsel cited the cases of Ejikeme & ors v. Amaechi & ors (1998) 3 NWLR Part 542 page 456 at 469 paragraph A-B, per, Oguntade, J.C.A (as he then was – later J.S.C); Aduku vs. Federal Republic of Nigeria & ors. (2009) 9 NWLR Part 1146 page 370 at 384 paragraph E- page 385 paragraph F, per Bada, J.C.A; Udom vs. E. Micheletti and Sons Limited (1997) 8 NWLR Part 516 page 187 at 199 paragraph H- page 200 paragraph A, per Onu, J.S.C.; Imoniyame Holdings Ltd & ors vs. Soneb Enterprises Ltd & anor (2002) 4 NWLR Part 758 page 618 at 648 paragraphs A-E, per Ekpe, J.C.A; and Ojabo vs. Inland Bank Nigeria Plc (1998) 11 NWLR Part 574 page 433 at 438, paragraph F-H, per Ayoola, Plc (as he then was – later J.S.C.).
In considering the preliminary objection raised by the Respondent’s counsel, it may be necessary to reproduce the provisions of section 241 (1) (a) and (b) of the 1999 Constitution of Federal Republic of Nigeria (as amended) thus:
“241 (1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court sitting at first instance;
(b) Where the ground of Appeal involves questions of law alone, decisions in any civil or criminal Proceedings.”
It is clear in the section mentioned above that an appeal shall lie as of right in final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance. This was clearly demonstrated in the case of Fidelity Bank Plc vs. M. T. Tabora (2009) 8 NWLR Part 1142 page 83 decided by this court per Galinje, J.C.A. at 103 – 104 paragraphs G – A. Then, in Ethiopian Airline v. Onu per Garba, J.C.A., it was stated:
“Accordingly it is not in dispute that an appeal against such judgment is as of right under section 241 (1) of the Constitution of the Federal Republic of Nigeria, 1999. Several decisions of the courts, including the one cited by counsel have settled this principle of law.
See also U. B. A. Plc v. Samba Petroleum Co. (2002) 16 NWLR (Pt. 793) 361; Idakula v. Adamu (2001) 1 NWLR (Pt. 694) 322 and Kano ile Plc vs. G & H (Nigeria) Limited (2002) 2 NWLR (Pt. 751) 420.”

Furthermore, the Supreme Court in the case of Falola v. U.B.N. Plc. (2005) 7 NWLR Part 924 page 405 at 419, per Kalgo, J.S.C., expressed thus:
“In Sodipo vs. Lemminkainen (1985) 2 NWLR Part 8 page 547, it was held by this Court that a final judgment is a judgment obtained in an action which a previous existing liability of the defendant to the plaintiff is ascertained and established or where the question whether there was a pre-existing right of the plaintiff against the defendant is finally determined in favour of either the plaintiff or the defendant. In this case, as I stated earlier in this judgment, the trial court found a pre-existing right of the plaintiff/appellant against the defendant/respondent vide the admission in exhibit ‘A’ and this was finally determined in favour of the appellant in the judgment. Also in the case of Ebokam vs. Ekwenibe & Sons Trading Co. Ltd. (1999) 10 NWLR (Pt.622) 242 in considering a similar situation such as in the instant appeal and after reviewing decisions on final or interlocutory judgments or decisions, I came to the inevitable conclusion that:
“In order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the court making the order.”
In this case, the issue in dispute is the deposit of N4, 500.560.00 allegedly made by the appellant with the respondent and the interest charged thereon. The judgment of the trial court fully dealt with the issue leaving nothing undone and so the appellant’s rights on that claim was fully and completely disposed of. This does not affect the function or powers of the court to make the order as it did. The judgment of the trial court on that issue is therefore final.
I therefore agree entirely with the Court of Appeal that the judgment of the trail court on item (1) above was a final and not interlocutory judgment.”
Also in the same case, at page 429, Akintan, J.S.C. opined that:
“The question whether the said order made by the Longe, J. on 19/4/96 is final or interlocutory would depend on whether it passes the test prescribed by law. In Anoghalu v. Oraelosi (1994) 2 NWLR (Pt. 324) 68 at 78, I had cause to state the position of the law as follows: There is no doubt that if the orders appealed against are interlocutory and the grounds of appeal are of facts and/or mixed law and facts, the appellants would require the leave of the court below or this court to bring the appeal on those grounds (See sections 220(1)(b) and 221(1) of the 1979 Constitution).
The first question to be resolved therefore is whether the orders appeal against are final or interlocutory. The test to be followed in this respect is as laid down by Lord Alverstone, C. J., in Bozan vs. Alterincham U. D. C. (1903) 1 K. B. 547 at 548 which is: “Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order, but if it does not, it is then, in my opinion, an interlocutory order. (See Akinsanya vs. UBA (1986) 4 NWLR (Pt. 35) 273 where this test was followed.”
The learned trial Judge entered judgment for the plaintiff for the said sum claimed together with the interest claimed thereon. I have no doubt that there was nothing left to be determined by that court in respect of that leg of the claim after the learned trial Judge had entered his said judgment in the case. He has by his act, determined the dispute between the parties as far as that leg of the claim was concerned. His said judgment is therefore a final judgment.
It ought to be pointed out that the provisions of the 1999 Constitution (as amended) governing appeals from the court of Appeal respectively to the Supreme Court, and, from the High court to the court of Appeal have some variations. For instance, in section 241(1)(a) of the said constitution, specific mention was made by the constitution on final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance, but, in section 233(2)(a) of the same constitution dealing with appeals from the Court of Appeal to the Supreme Court, no mention whatever was made about the finality of the judgment of the Court of Appeal being appealed against. Section 233 (2)(a) strictly stated that an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right inter alia (a) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.
In the interpretation of Statutes or Law or the Constitution, it is a basic principle that specific mention of a thing excludes the general mention of others i.e. when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed. At section 242 (1) (a) there is a specific mention of final decision which is not the case in the provisions governing appeals to the Supreme Court from Court of Appeal.

I am afraid the contention of the learned Counsel for the Respondent that the Appellant ought to have obtained the leave of the lower Court or this court to appeal against the final decision or judgment of the lower Court is unfounded in law and is unsupported by any provisions of the Constitution. The Supreme Court made it clear that it is in regard of appeals on interlocutory decisions of the High Court that is of mixed facts and law, that leave is required. See also section 22 of the Court of Appeal Act, 2004. On this footing, I hereby overrule the first leg of the Preliminary Objection of the Respondent.
With regard to the second limb of the objection, I must admit I find it difficult to agree with the contention of learned counsel for the Respondent. I have carefully perused the grounds and am of the opinion that they are not vague nor do they lack precision and clarity.
They sufficiently conveyed the issues being canvassed in the appeal to the Respondent. See Oloruntoba-Oju vs. Abdul-Raheem (2009) 13 NWLR Part 1157 page 83, where the Supreme Court said that a good ground of appeal must be concise, elegantly drafted and straight to the point so that as soon as it is read, the error and misdirection complained against can be immediately understood and digested. One should not forget what the main complaint is by the time one finishes reading the particulars. The particulars must relate to and flow from the grounds of appeal. The Supreme Court further stated that once that purpose is achieved, a ground of appeal cannot be seen as defective together with any issue formulated therefrom. Based on the foregoing I, therefore overrule the objection of the Respondent.
I have thoroughly examined the issues raised by the parties in this appeal and must observe, and, as rightly argued by the Appellants’ Counsel that the lone issue raised by the Respondent’s Counsel has no correlation whatsoever with any of the grounds of appeal of the Appellants. I would, therefore, determine the issues as were raised by the Appellants.
The first issue is; ‘whether the failure of the Court below to properly and specifically consider and resolve the issues raised in this case, as well as its failure to give any reason for reaching the decision that the Appellants had no good defence to the Respondent’s claim, and, that the Respondent was entitled to judgment, has not occasioned a miscarriage?
I have already in this judgment at pages 3 and 4, reproduced the entire judgment of the lower Court in the proceedings before it. In Ishola vs. Folorunso (2010) 13 NWLR Part 1210 page 159 the Supreme Court expressed that the fundamentals in writing a good judgment which a trial Court is enjoined to adhere to, comprise of,
(a) Making a brief statement of the type of action/offence being adjudicated upon,
(b) Setting out the claim/offence in full or in part,
(c) A review of the evidence led,
(d) Appraisal/evaluation of such evidence,
(e) Making findings of fact therefrom,
(f) Consideration of the legal submissions made and/or arising, and findings of law on them and;
(h) Conclusion, that is verdict/final decision/order(s).
It further stated that whichever style a Judge adopts, what is important is clarity in the language in which the judgment is written and delivered and, that justice will be seen to have been done. See, also, Ogbu vs. Onwuzo (2005) 14 NWLR Part 945 page 331 at 345, where Akintan, J.S.C., observed that judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some well-known constituent parts which he enumerated therein.
He further noted that a good Appellate Court judgment should set out claims, brief facts of the case, the decision of the trial court or lower Appellate Court; the appellant’s complaints against the decision; the submission of the Counsel for the parties in the appeal; and the decision of the Appellate Court in the appeal.
Then, in the case of Ojogbue & anor vs. Nnubia & ors (1972) ALL NLR page 664 at 669 where judgment of the trial Court was entered in favour of the Defendants, the Supreme Court held:
“It is true that at the end of the day the learned trial judge gave judgment in favour of the defendants but it is equally true that throughout the judgment he had made no clear findings in which he had unequivocally upheld, as against the claims of the plaintiffs, the contentions of the defendants on any of the major issues. The learned trial judge never expressly or impliedly disbelieved the plaintiffs and/or their witnesses and although he had expressed some qualms on the probative values of some pieces of oral evidence it is easy to see that some of his views on the lack of documentary evidence to support the issues they purported to prove (or disprove) are quite open to justifiable attack. The result is that we cannot see the basis on which the plaintiffs’ case was dismissed nor, what is worse, the grounds on which the learned trial judge had proceeded to “enter judgment for the defendants.” A judgment of the court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise. We are unable to say that the judgment in this case as it stands did this and we cannot allow it to stand. We have given some rather anxious consideration to the type of order to make in the circumstances of this case and eventually have decided that the best course is to send back the case for re-hearing, de novo; in the High Court, Onitsha.” (Underline for emphasis)

I have in extenso set out some of the decisions of our apex Court regarding consideration of the issues laid out by the parties for determination in any particular case. The record of this Court shows that pleadings and amended pleadings were filed and exchanged by the parties in this appeal at the lower Court showing that there were serious issues in contention between them. Various Exhibits were respectively attached to the processes filed by them. The record shows that the Proposed Amended Motion on Notice for Summary Judgment dated 5/7/11 was equally deemed as properly filed and served on 21/7/11.
In the said Motion, the Respondent prayed as follows:
“1. An order entering summary judgment in this suit against the 1st and 2nd Defendants jointly and severally in favour of the plaintiff in the sum of N24, 021,395.47 (Twenty Four Million and Twenty One Thousand Three Hundred and Ninety Five Naira and Forty Seven Kobo) being the amount outstanding and unpaid indebtedness of the defendants on the 1st defendant’s account No. 023001000000807 with the Plaintiffs NNPC/PPMC, Kaduna branch as at 19/11/2010 in respect of the overdraft and/or loan facilities made available to the 1st Defendant at its request and guaranteed by the 2nd defendant personally (more particularly stated in the reliefs contained in the Plaintiffs writ of summons and statements of claims).
2. An order directing that interest be paid on same at 21% from 19/11/2010 till judgment and 10% thereafter until the entire judgment sum shall be fully liquidated.
3. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances of this case.”
It was supported by an affidavit of 29 paragraphs deposed to by one Stephen Ojile. Also, accompanying the said Motion was a written address in support of the Motion for Summary Judgment. The Respondent filed a Further Affidavit on 18/7/11 in support of their Motion dated 5/7/11. The Plaintiff filed a Reply on points of law dated 18/7/11 to the 1st Defendant’s Written Address in respect of the Motion. It also filed a Reply dated 18/7/11 to the 2nd Defendant’s Written Address regarding the said Motion for Summary Judgment. The 1st Defendant filed a Motion dated 22/7/11 for amendment of its pleading, Witness Deposition or Statement on Oath and Written Address in respect of the Plaintiff’s Proposed Amended Motion on Notice for Summary Judgment dated 5/7/11. The Amended Statement of Defence of the 1st Defendant is dated 22/7/2011. There is, also, Amended Witness Statement on Oath of the 1st Defendant. In the Amended Written Address of the 1st Defendant/Respondent in respect of the Plaintiffs Proposed Amended Motion on Notice for Summary Judgment dated 22/7/11, only one issue was raised for the determination of the lower Court in its consideration of the Motion for Summary Judgment filed by the Plaintiff, that is to say; “whether having regard to the pleadings and circumstances of this action, the Court ought to allow the 1st Defendant/Respondent to defend the action.” About eleven legal authorities were cited including the Evidence Act and the Kaduna State High Court (Civil Procedure) Rules, 2007. Also, the 2nd Defendant filed his Amended Statement of Defence dated the 25th July, 2011. He, equally, filed his Amended Written Address in respect of the Motion for Summary Judgment, in which it, also, posed the question, “whether based on the facts and circumstance of this action, the 2nd Defendant/Respondent has shown that he should be allowed to defend the claim of the Plaintiff/Appellant in a full trial.”
It is on record that the orders granting the Respondents’ Motion on Notice for amendment of its Statement of Claim and other processes were made on 21/7/11 by the trial Court. The orders granting leave for amendment of the 1st and 2nd Defendants’ respective Statement of Defence were made on 4/8/11. On the same 4/8/11, the application for Summary Judgment was heard by the trial Court and judgment was there and then delivered.
I must observe that the lower Court, in its judgment, behaved as if entering summary judgment in favour of a Plaintiff is automatic or a matter of right the moment the Plaintiff files his Originating process with the Statement of Claim, the Exhibits, the depositions of the Plaintiff and, an application for Summary Judgment supported by an affidavit stating the grounds for the Plaintiffs belief and a written address in respect thereof.
Order 11 Rule 4 says:
“Where any defendant served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit, such defendant shall, not later than the time prescribed by these Rules for filing a defence, file:
(a) a statement of defence;
(b) depositions of witnesses;
(c) the exhibits to be used in the defence; and
(d) a written address in reply to the application for summary judgment.”
Further, Order 11 Rule 5, Sub-Rules (1), (2) and (3) provide as follows:
“(1) Where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, the Judge may grant the defendant leave to defend the claim.
(2) Where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the Plaintiff.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.”
It is clear in the above provisions, as opined by the Supreme Court in Thor Ltd vs. FCMB (2005) 14 NWLR Part 946 page 969, that the summary judgment procedure is similar to the undefended list procedure. It is designed to enable a party obtain judgment especially in liquidated cases without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action. The Supreme Court in the Thor Ltd’s case detailed what the defendant’s affidavit or defence under the Summary Judgment Procedure ought to contain. Edozie, J.S.C., at page 712 – 714 stated thus:
“The second issue has to do with the requirement of a defendant who wishes the court to let him to defend the plaintiff’s suit under the summary judgment procedure. In this connection, the second limb of Order 10 rule 1 of the High Court of Lagos State (Civil Procedure) Rules supra is pertinent. It deals with the discretion of the court to allow such a defendant to defend the action in these words:
“…The Judge thereupon unless the defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally, may make an order empowering the plaintiff to enter such judgment as may be just, having regard to the nature of the remedy claimed.”
Also pertinent is Order 10 Rule 3(a) and (b) of the said Rule which provides as follows:
“(a) The defendant may show cause against such application by affidavit, or the Judge may allow the defendant to be examined upon oath.
(b) The affidavit shall state whether the defence alleged goes to the whole or part only and (if so) to what part of the plaintiff’s claim.”
In construing the above provisions of Order 10 rules 1-3(a) and (b) of the said Rules, this court, in the case of Macaulay vs. NAL Merchant Bank Ltd. (1990) 4 N.W.L.R. Part 144 page 283 at 306 following its earlier decision in Nishizawa Ltd. vs. Jethwani supra had this to say:
“The defendant’s affidavit must “condescend upon particulars” and should, 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. It should also state whether the defence goes to the whole or part of the claim, and in the latter case it should specify the part. A mere general denial that the defendant is indebted will not suffice. (Wallingford v. Mutual Society (1880) 5 App Cas, per Lord Blackburn at p. 704; Re General Rail Syndicate, Whiteley’s Case, (1900) 1 Ch per Lindley, M. R., at p. 369 Anon, (1875) WN 249 per Quain, J. at p. 250) unless the grounds on which the defendant relies as showing that he is not indebted are stated (ibid). If the affidavit commences, as it may, with a statement that the defendant is not indebted to the plaintiff in the amount claimed, or any part thereof, it should proceed to state why the defendant is not so indebted and to state the real nature of the defence relied on (Re General Rail, Syndicate, supra).
Again, it is not enough for the defendant to show a case of hardship but creating no enforceable right e.g. past promise by plaintiff unsupported by valuable consideration (Woolston vs. Baines (1876) W.R. 74), nor a mere inability to pay (Besant vs. Townsend, 22 L.R. Ir 389) nor an allegation that the plaintiff has given time for payment which, of course, constitutes no defence, unless there be consideration (Hookham vs. Nayer (1905), 22 T.L.R. 241). If the defence relied on is fraud, the affidavit should state the particulars of the fraud (Wallingford vs. Mutual Society (1880) 5 App Cas. 685). A mere vague general allegation of fraud is useless (ibid). Similarly, if a legal objection is raised, the facts and the point of law arising thereon must be clearly stated. Indeed, in all cases, sufficient facts and particulars must be given to show that there is a bona fide defence (Wallingford vs. Mutual Society 1880) 5 App Cas. 685, see judgment of Lord Blackbum at page 704; Harrison vs. Bottenheim 26 W.R. 362.
Ray vs. Barker 4 EX.D D. 283; Shurmur vs. Young (1889) 5 T.L.R. 155). Matter of hearsay is admissible in the defendant’s affidavit (Harrison vs. Bottenheim 1878) 26 W.R. 362 C.A.), provided that the sources and grounds of information or belief are disclosed. See rule 4(2), supra and Re Young Manufacturing Co. (1900) 2 Ch 753, C.A.; and of 0.41. r. 5.
The defendant’s affidavit is not conclusive and will not preclude him from relying on defences not raised in it (Ray vs. Newton (1913) 1 K.B. per Hamiltoh, L. J. at P. 258).”
The nature of the defendant’s defence that will satisfy the court to let him to defend the suit is further exemplified by the decision of this court in the case of Sanusi Bros. (Nig.) Ltd. vs. Cotia C.E.I.S.A. (2000) 11 N.W.L.R. Part 679 page 566 at 580 thus:-
“A defendant must show a bona fide or good defence on the merits under the summary judgment procedure and not engage in manipulative and delaying tactics.
See Macaulay vs. NAL Merchant Bank Ltd. (1990) 4 N.W.L.R. Part 144 page 283. To show that he has a good defence to the claim on the merits, the defendant must disclose facts to satisfy the court, usually by affidavit. To achieve this, he is required to condescend upon particulars, – per Lord Blackburn in Wallingford vs. Mutual Society (1980) 5 App. Laws 685 at 704, and the defence must not be seen as frivolous and particularly “moonshine” to use the expression of Lord Lindley in Codd vs. Delap (1905) 92 L.T. 810. To “condescend upon particulars” implies a true and real disclosure of facts upon which the court can readily discern a good defence.”
The question now is; what nature of evidence did the 1st Respondent present? At paragraphs 9, 10, 11, 14, 16, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, – 71 of the 1st Defendant’s Amended Statement of Defence at pages 306-313 of the record, it averred thus:
“9. Further to paragraph 8 hereof, the 1st Defendant states that the Plaintiff ought to have charged N400,000.00 as Management Fee, which is 4.0 & flat of the “facility amount”, that is, N10,000,000.00.
10. The 1st Defendant states that, contrary to one of the terms and conditions of the Bankers Acceptance Facility, on 21-02-2007, the Plaintiff charged the sum of N600,000.00 as Management Fee and debited the 1st Defendant’s account with the sum of N600,000.00 on 21-02-2007.
11. Between 27th February 2007 and 23rd May 2007, the 1st Defendant paid the sum of N30, 471,625.00 into its account, and consequently the facility of N10,000,000.00 was fully liquidated by the 1st Defendant within 90 days.
14. The 1st Defendant states that, contrary to the term of the Overdraft facility in respect of the Management Fee, the Plaintiff charged the sum of N700,000.00 as Management Fee and debited the 1st Defendant’s account with the sum of N700,000.00 on 24-05-2007.
15. Between 6th June 2007 and 21st August 2007, the 1st Defendant paid the sum of N32, 473,500.00 into its account, and consequently the facility of N10, 000,000.00 plus accrued interest was fully liquidated by the 1st Defendant.
17. One of the terms and conditions of the overdraft facility concerned Management Fee of “4.0% flat of the facility amount”, which is N400, 000.00.
18. The 1st Defendant states that contrary to the terms of the overdraft facility in respect of the Management Fee, the Plaintiff charged the sum of N750, 000.00 as Management Fee and debited the 1st Defendant’s account with the sum of N750,000.00 on 21-08-2007.
19. Between 28th August 2007 and 16th November 2007, the 1st Defendant paid the sum of N32, 501,500.00 into its account and consequently the facility of N10, 000,000.00 plus accrued interest was fully liquidated by the 1st Defendant.
20. The 1st Defendant states that, by the Plaintiff’s letter of November 15, 2007, the latter granted the former an overdraft facility of N10, 000,000.00 for a period of 90 days.
23. The 1st Defendant states that the Plaintiff charged the sum of N700, 000.00 as Management Fee and debited the 1st Defendant’s account with the sum of N700, 000.00 on 16-11-2007.
24. The 1st Defendant states that the sum of N700, 000.00 is not 6.75% of N10, 000,000.00, the overdraft facility and the 1st Defendant contends that there is no ground for charge.
25. Between 22nd November 2007 and 16th February 2008, the 1st Defendant paid the sum of N25, 429,750.00 into its account, and consequently the facility of N10, 000,000.00 plus accrued interest was fully liquidated by the 1st Defendant. 26. The 1st Defendant states that, by the Plaintiffs letter of February 13, 2008, the latter granted the former an overdraft facility of N10, 000,000.00 for a period of 90 days.
27. One of the terms and conditions of the Overdraft Facility concerned Management Fee of “6.25% flat payable upfront”.
28. In its letter of February 13, 2008, the Plaintiff did not state any amount to which the Management Fee of 6.25% could be related.
29. The 1st Defendant states that the Plaintiff charged the sum of N650,000.00 Management Fee and debited the Defendant’s account with the sum N650,000.00 on 18-02-2008.
30. The 1st Defendant states that the sum of N650,000.00 is not 6.25% of N10,000,000.00 the overdraft facility, and the 1st Defendant contends that there is no ground for the charge.
31. Between 18th February 2008 and 13th May 2008 when the 90 days period referred to in paragraph 26 hereof expired, the 1st Defendant paid the sum of N27,429,035.23 into its account, and consequently the facility of N10, 000,000.00 plus accrued interest was fully liquidated by the 1st Defendant.
32. The 1st Defendant states that it did not apply for any credit facility in April 2008 but on 30-04-2008, the Plaintiff debited the 1st Defendant’s account with the sum of N1,050,000.00 which is described as Management Fee.
33. On 30-04-2008, the overdraft facility of N10,000,000.00, which had been granted to the 1st Defendant by the Plaintiff for 90 days by the Latter’s letter of February 13, 2008, was still running when the Plaintiff debited the 1st Defendant’s account with N1,050,000.00 as Management Fee.
34. On 28th May 2009, the Plaintiff unjustifiably debited the 1st Defendant’s account with the sum of N20,000.00 described as Legal Fee.
35. The 1st Defendant states that, by the Plaintiff’s letter of July 29, 2008, the latter granted the former an overdraft facility of N15,000,000.00 for a period of 90 days.
36. One of the terms and conditions of the overdraft facility concerned Management Fee of “4.25% flat, payable upfront.”
37. In its letter of July 29, 2008, the Plaintiff did not state any amount to which the Management Fee of 4.25%ocould be related.
39. The 1st Defendant states that the sum of N675,000.00 is not 4.25% of N15,000,000.00, the overdraft facility and the 1st Defendant contends that there is no ground for the charge.
40. Between 5th August 2008 and 5th October 2008 when the overdraft facility expired, the 1st Defendant paid the sum of N16,851, into its account and consequently, the overdraft facility of N15,000,000.00 plus accrued interest was fully liquidated.
42. The 1st Defendant states that by the Plaintiffs letter of October 21, 2008, the latter granted the former an overdraft facility of N15, 000,000.00 for a period of 120 days.
46. The 1st Defendant states that the sum of N675,000.00 is not 4.25% of N15,000,000.00, the overdraft facility, and the 1st Defendant contends that there is no ground for the charge.
47. Between 12th November 2008 and 12th March 2009, when the overdraft facility expired, the 1st Defendant paid the sum of N11,345,770.00 into its account to partly settle the overdraft facility and accrued interest.
48. The 1st Defendant states that on 30-03-2009, the plaintiff debited the 1st Defendant’s account with the sum of N750, 000.00, described as Management Fee, when there was no transaction on any credit facility between the plaintiff and the 1st Defendant and consequently there was not justification for the charge.
49. On 14-01-2009, the Plaintiff unjustifiably debited the 1st Defendant’s account with the sum of N1, 800.00 described as “Service Charge 6 pgs off cycle stmt”.
50. On 18-02-2009 and 27-02-2009, the Plaintiff, without justification, debited the 1st Defendant’s account with the sum of N524,688.28 and N158,324.12 described as “DEFAULT FEE 2007-2008 000000000005” and “Feb 2009 default fees” respectively.
51. On 05-05-2009, 28-05-2009 and 30-05-2009, the plaintiff, without justification, debited the 1st Defendant’s account with the sum of N176, 089.99, N182, 020.74 and N188, 835.72 respectively and described the debits as “April 2009 Default Fees, May 2009 Default Fees Overdraft and June 2009 Default Fees.
52. On 16-09-2009, the Plaintiff unjustifiably debited the 1st Defendant’s account with the sum of N300,000.00 described as “PROF FEES IRO PERF OF LEGAL MORTGAGE.”
53. The 1st Defendant states that the Plaintiff did not in 2009 undertake the perfection of any legal mortgage in respect of its (1st Defendant’s) property; the record in respect of its property showed that up to 16th December 2010, there was no registered charge in any form in regard to the property. The 1st Defendant will, at the trial, rely upon the Search Report of Ngozi Chioke & Associates dated 16th December 2010, in respect of the record of Kaduna state Ministry of Lands, surveys and country Planning relating to the 1st Defendant’s property covered by Certificate of Occupancy No. KD 16190.
54. On 04-11-2009, the Plaintiff, without justification, debited the 1st Defendant’s account with the sum of N100,000.00 described as Debt Recovery Fee.
55. On 09-04-2010, the Plaintiff, without justification debited the 1st Defendant’s account with the sum of N8,450.00 described as “Recovery expenses from Feb to date”.
56. On 30-04-2010 and 22-06-2010 and 19-10-2010, the Plaintiff, without justification, debited the 1st Defendant’s account with the sums of N22,500.00 and N5,000.00 respectively described as recovery fees in favour of Debt Hunters Limited.
57. On 12-08-2010, 23-09-2010 and 19-10-2010, the plaintiff, without justification debited the 1st Defendant’s account with the sums of N35,250.00, N34,500.00 and N25,000.00, described as “recovery fees/grand system”, 5% recovery fees” and “RECOVERY FEES” respectively.
58. The 1st Defendant states that its solicitors, Messrs Hali Chambers, responded to the demand made on behalf of the Plaintiff by B. A. Ebenezer and Partners in the letter dated 25th November, 2009; in the 1st Defendant’s solicitors response, by its letter dated December 7, 2009, the issue relating to the inaccurate representation of the status of the 1st Defendant’s account was raised. The 1st Defendant shall, at the trial rely on its solicitors’ letter of December 7, 2009. The Plaintiff is hereby given notice to produce the original.
59. In answer to paragraphs 15, 16 and 17 of the proposed Amended Statement of Claim, the 1st Defendant states that its letter of 25th June 2010 relates to a loan, which was granted in February 2007 and not the overdraft facility which was granted to it in February 2007 and which it has fully repaid.
60. The 1st Defendant states that its letter of 25th June 2010 and the Plaintiffs letter of June 29, 2010 have no bearing with the Plaintiffs cause of action in this suit, which is based on an “overdraft” facility reflected in the document attached to the Plaintiffs Proposed Amended Statement of Claim and marked P. the two letters of 25th June 2010 and June 29, 2010 relate to proposal on “loan repayment”.
61. The 1st Defendant shall contend that all the documents, which emanated from the Plaintiff and which have been attached to its Proposed Amended statement of claim, are in respect of “overdraft” facilities.
62. In answer to paragraph 18 in the Proposed Amended Statement of Claim, the 1st Defendant state that it clearly stated that the total principle repaid by it as a September 2010 amounted to N5, 755,000.00 while it was entitled to refund of excess fees of N3,178,978.88.
63. The 1st Defendant states that the consequences of its letter of September 8, 2010 is that, having paid N5,755,000.00 and having been entitled to refund of excess fees of N3,178,978,88, the balance due to the Plaintiff from it in respect of the overdraft facility had to be computed having regard its request for waiver. The 1st Defendant shall contend that the letter, having been written and marked “without prejudice”, cannot be used in this action.
64. The 1st Defendant states that in September 2010, it drew the Plaintiffs attention to certain excess charges, which the 1st Defendant discovered in regard to its account and requested the Plaintiff to make appropriate refund, that is, reverse the entries in its account in regard to the charges. The 1st Defendant shall, at the trial of this suit, rely on its letter of September 7, 2010. The Plaintiff is hereby given notice to produce the original.
65. The 1st Defendant states that the Plaintiff did not respond to its letter referred to in paragraph 64 hereof and it did not reverse the entries in respect of the excess charges which were discovered at that time.
66. The 1st Defendant states that on 24th February 2011, it paid the sum of N500,000.00 into its account with the Plaintiffs. At the trial of this suit, the 1st Defendant shall rely upon the Plaintiffs deposit slip No.0412834.
67. The 1st Defendant states that the Plaintiff has bloated the 1st Defendant’s account with all sorts of entries, charges, commissions, interest and fees that are strange or unconnected to the transaction on the credit facilities.
68. The 1st Defendant states that the Plaintiff did not adhere to the terms and conditions relating to the credit facilities and at (Plaintiff) engaged in fraudulent manipulations in the calculations that it made in the 1st Defendant’s account, which has adversely altered the correct status of the account.
PARTICULARS
(i) The Plaintiff did not stipulate any rate of interest Per annum from time to time, which linked to the regulations of Central Bank of Nigeria.
(ii) The Plaintiff, after charging upfront interest, subsequently debited the 1st Defendant’s account with monthly interest.
(iii) Fees that were not earned by anybody and in respect of things that were not done by anyone were included as debit entries in the 1st Defendant’s account.
(iv) The denominators that were applied in computation of monthly interest in respect of the facilities were not the appropriate denominators.
(v) Contrary to one of the terms and conditions of the credit facilities as stipulated in the Plaintiffs letter of July 29, 2008 and October 21, 208, that is, “interest: 25% p.a. This rate is subject to upward or downward review in line with money market realities as shall be advised in Intercontinental from time to time…..”, the 1st Defendant did not receive any advice from the Plaintiff on the upward review of the interest rate, yet the Plaintiff charged 37% per annum as interest on the credit facilities.
(vi) The regulation of Central Bank of Nigeria on interest rate was 22% per annum as the maximum, but the Plaintiff charged 37% per annum.
(vii) The Central Bank of Nigeria Guide to Bank Charges (GBC) makes 0.25 of the facility amount the maximum that is Permissible to be charged as Processing fee, but the Plaintiff charged 1% for the first credit facility of N10,000,000.00, which was granted by the Plaintiffs letter of 21st February 2007; while it charged 1.5% for the second credit facility of N10,000,000.00 which it granted by the letter of 24th May 2007 and 1.7% for the third credit facility of N10,000,000.00, which it granted by its letter of 21st August 2007.
(viii) The Central Bank of Nigeria Guide to Bank Charges (GCB) does not make any provision for “availment Fee”, but the Plaintiff charged availment fee of 1.0% flat of the facility amount for the first credit facility, 1.5% flat of the facility amount for the second credit facility and 1.75% flat of the facility amount for third credit facility.
(ix) The excess charges, commissions, interest and unjustifiable fees form part of the 1st Defendant’s account.
69. The 1st Defendant contends that part of the misrepresentations concerning its account is reflected in its statement of account, which is stated to cover 01/01/2006 – 19/11/2010, when in fact the 1st Defendant opened its account on 21/02/2007.
70. Further to paragraph 69 hereof, the 1st Defendant states that the failure of the Plaintiff to acknowledge in its Statement of Claim that the 1st Defendant paid N500, 000.00 into its account on 24th February 2011 is another indication of the Plaintiffs concealment of the true state of the 1st Defendant’s account and consequently part of the misrepresentations concerning the claim in this action.
71. The 1st Defendant states that the Plaintiff does not use ledger cards and it is, therefore, impossible for its Statement of account to be compared with any ledger card.”
The 1st Appellant, by the above averments, strenuously disputed the exact sum alleged by the Respondent to have been owed by it. It is clear in the averments of the 1st Appellant that several over-charging of interests, legal fees, the percentage approved by CBN, etc; were made by the Respondent which raised the sum allegedly owed to it, to an astronomical level.
The Appellant argued that it is only by full trial, the exact sum would be deduced by the court. They further highlighted that the said sum of N500,000 the 1st Appellant paid to the Respondent in February 2011 was never deducted from the total sum of indebtedness shown in Exhibit “E” and upon which the trial court based its judgment regarding the sum being owed by the 1st Appellant. They seriously disputed the rates of interest charged by the Respondent.
The judgment of the lower court as shown at pages 430 – 431 of the record did not show the determination or resolution of any of the issues raised by the parties in their respective addresses before the Court. The learned trial Judge merely stated that it appears to him that the Defendants do not have any good defence to the claim, and he is of the view that the plaintiff is entitled to judgment in its favour.
It is clear in the said judgment that most of the facts raised by the parties in their respective pleadings were not considered together with the issues distilled in their respective addresses before the court. The court did not explain how it appeared to the learned trial Judge that the Defendants had no defence to the claim nor how it was convinced that the plaintiff is entitled to judgment. Various documents were exhibited before it via the affidavit evidence and Witness Statements on Oath of the parties, yet none was referred to by the trial Court in the said judgment. The said judgment was bereft of any evaluation of affidavit evidence of the parties or the issues raised by them in their respective pleadings and the documentary evidence produced by them.
As was observed by Hon. Justice Roslyn Atkinson, Supreme Court of Queensland in her presentation to AIJA Conference, Brisbane, on the 13th September 2002 on Judgment Writing, there are four purposes for any judgment that is written:
(1) to clarify your own thoughts;
(2) to explain your decision to the parties;
(3) to communicate the reasons for the decision to the public; and
(4) to provide reasons for an appeal court to consider.
She said that in communicating with the parties, the parties and their Counsel need to know how and why a decision has been reached, that, it is particularly important the losing party knows why he or she has lost the case. The judgment has to show that the losing party has been listened to, that the issues contested and challenged by him were considered, that the evidence has been understood, the submission comprehended and a decision reached.
The learned jurist further expressed that clarification of thoughts seems the most important secret to good judgment writing. She said that if the Judge’s ideas are clear, then he will be able to express them clearly and this pivots on structure and style. The judgment should be structured on resolution of facts in issue which are determined by the pleadings, setting out the relevant statutes and case laws’ then applying the law to the facts because the public will accept the decision much more willingly if they perceive that the decision is the result of the objective application of law to the facts that have been found and then the conclusion which should be the inevitable result of the application of the law to the facts. The style has to do with the skill of judgment writing. The objective of every Judge is to achieve the just resolution of conflict which is the core business of each court.
She further explained that courts communicate to the public through the judgment they write, therefore, in order to communicate, a judgment must be clear, precise and say everything that needs to be said as to why a decision was reached and no more.

A careful perusal of the Judgment of the lower court highlighted above shows that it was lacking in clarity of thoughts, there was no explanation or communication of the reasons for the judgment to the parties, it was never explained to the defendants the reason why the lower court felt they had no defence to the case. The issues of facts raised by them were not considered or resolved by the lower court. It is crystal clear the court below did not evaluate the facts presented before it by the parties.
In a similar situation in Ojogbue vs. Nnubia (supra), the Supreme Court expressed that it could not “see the basis on which the Plaintiffs’ case was dismissed nor, what is worse, the grounds on which the learned trial Judge had proceeded to enter judgment for the defendants.”
I could not fathom what actually beclouded the Respondent’s counsel’s mind that he dissipated much energy on matters not raised even in the Appellants’ grounds of appeal. He asserted much on the decision of the lower court on amendment of the Respondent’s processes which were not appealed against by the Appellant. I see no basis whatsoever for these arguments. He only ended up wasting the time of this court by stressing it to read absolutely irrelevant matters before it.
It is evident that the issues in contention between the parties can only be better resolved by granting leave to the Appellants to present oral evidence where the parties could be properly cross-examined by each other. This is not a case of liquidated monetary demand but a matter where the actual figure being owed is strenuously disputed and there are allegations of illegal charges and billings. The parties require oral evidence to resolve most of the facts they joined issue on in their pleadings. Consequently, the judgment of the lower court delivered on 4/8/2011 is hereby set aside. In view of the power conferred on this court by section 15 of the court of Appeal Act 2004, the Appellants are hereby granted leave to defend the suit. Accordingly, suit No. CA/K/241/2011 is hereby sent back to the Chief Judge of Kaduna State for re-assignment to another Judge for trial de novo to enable the parties produce viva voce evidence. I make no order as to costs.

DALHATU ADAMU, J.C.A.: I have gone through the judgment of my learned brother T.N. Abadua JCA. I agree with his reasons and the conclusion reached that the appeal is allowed. The judgment of the lower court is hereby set aside. I abide by the other consequential orders made by the JCA in the leading judgment including order on costs.

ITA G. MBABA, J.C.A.: I have had the privilege of reading a copy of the lead judgment delivered by my Lord, ORJI-ABADUA, JCA and I agree with her reasoning and conclusion.
Accordingly, I too allow the appeal and abide by the consequential Orders in the lead judgment.

Appearances

Wole Agunbiade, Esq;
Y. F. Ugo-Okoro (Mrs.)
A. A. Salisu Esq.For Appellant

AND

O. J. Opawale, Esq.For Respondent