ELFA LIMITED v. CITIBANK NIGERIA & ANOR
(2013)LCN/6748(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 7th day of May, 2013
CA/L/97/06
RATIO
WHETHER ALLEGATIONS OF FRAUD AND FORGERY CAN BE RESOLVED AT A SUMMARY TRIAL
It is a well settled principle, that allegations (or issues) of fraud and forgery raised in pleadings constitute very difficult and complex points (questions) of law which can only be resolved at a plenary (as against summary) trial. In the case of FMG VS. SANI (1990) 4 NWLR (Pt. 147) 688, wherein the Supreme Court was reported to have aptly and rather authoritatively held, thus –
Even where the Defendants cannot point to a specific issue which ought to be tried but nevertheless satisfy the court that there are circumstances that ought to be investigated the court should allow the Defendants leave to defend the action. Both issues of fraud and forgery pleaded by the Defendants are difficult points of law. Per Wali, JSC @ 722. Instructively, the case of FMG VS. SANI (supra) is on all fours with the instant case. That case relates to summary judgment procedure under Order 10 of the defunct Lagos State High Court (Civil Procedure) Rules 1972, which is in pari materia with order 11 of the extant Lagos State High Court (Civil Procedure) Rules, 2004. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
ESSENCE OF A SUMMARY JUDGMENT
Indeed, it’s a well settled principle, that the main object of summary judgment procedure is to allow expeditious disposal of a case or dispute, without the need to resort to a plenary trial on the merits. This trite principle has been cherishingly reiteratively expressed in a plethora of authorities, including – THOR LTD VS. FCMB LTD (2003) 14 NWLR (Pt. 946) 696 @ 710 – 711, paragraphs A – E; LEWIS VS. UBA PLC (2006) 1 NWLR (Pt. 962) 546 @ 567 paragraphs C – D. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
Before Their Lordships
IBRAHIM MOHAMMED MUSA SAULAWAJustice of The Court of Appeal of Nigeria
JOSEPH SHAGBOAR IKYEGHJustice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMUJustice of The Court of Appeal of Nigeria
Between
ELFA LIMITEDAppellant(s)
AND
1. CITIBANK NIGERIA
2. MR. LAWRENCE MADUNEMERespondent(s)
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.(Delivering the Leading Judgment): The instant appeal was filed against the judgment of the High Court of Lagos State, Lagos Judicial Division, delivered on June 8, 2005 in suit No. LD/875/03. By that decision, the lower court, coram O. A. Ipaye, J; granted a summary judgment in favour of the 1st Respondent. Dissatisfied with the said decision, the Appellant filed the notice of appeal thereof in the court below on June 13, 2005.
BACKGROUND FACTS:
The 1st Respondent is an incorporated and duly licensed banking company with the principal place of business thereof situate at 1, Idowu Taylor Street, Victoria Island, Lagos. It equally has branches in other States of the Federation. The Appellant, on the other hand, is an incorporated limited liability company. It has the place of business thereof situate at 73B, mainland way, Dolphin Estate, Ikoyi, and Central administrative office at Norah House, 69 Badagry Express Way, Lagos. The 2nd Respondent is one of the Directors of the Appellant.
The Appellant applied for, and was duly granted, the sum of N98,750,000.00 (equivalent of US$1,000,000) as a discounting banker acceptance import credit facility, for a maximum period of 120 days. That import finance facility was guaranteed by the 2nd Respondent and one Mr. Lawrence Umeche (the Appellant in the sister appeal No. CA/L/452/05). The loan was purposely to enable the Appellant to open a letter of credit (L/C) for the importation of some non-perishable merchandise.
The case of the 1st Respondent at the lower court was that, despite repeated demands, the Appellant defaulted in liquidating the outstanding loan. Consequent whereupon, the 1st Respondent filed the said suit (LD/875/03) in the lower court, thereby claiming various reliefs against the Appellant and two other persons. By paragraphs 20 & 21 of the Statement of claim thereof (pages 3 – 5 of the Record), the 1st Respondent sought against the Appellant and two others, the following reliefs:
20. WHEREOF the Plaintiff claim against the Defendants jointly and severally or in the alternative the sum of N49,050,163.67 being the overdraft and import Finance Facilities granted by the Plaintiff to the Defendants and which repayment the Defendants have failed neglected and omitted to make despite repeated demand.
21. The Plaintiff also claim interest on the said N49,050,163.67 at the rate of 22.6% from 1st day of February, 2003 until judgment and thereafter until the judgment debt is fully and finally liquidated.
The Plaintiff also claim the cost of the suit from the Defendants.
ISSUE NO. 1:
Instructively, the Main Record of Appeal, deemed to have been properly compiled and transmitted on 29/03/07, spans a total of 95 pages. It was compiled and transmitted by Olayinka Bello Esq, of Dapo Elemide & Associates, of Appellant’s counsel. A supplementary record of appeal was equally compiled and transmitted on 13/11/07 by Nwabufo Osigwe Esq. The supplementary record of appeal spans a total of 30 pages. Pages 1 – 8 thereof relate to motion on notice filed on 05/10/05 by 2nd Defendant. Pages 9 – 27 relate to 3rd Defendant’s preliminary objection and written address. While pages 28 – 30 relate to the Certified True Copy of the ruling of the lower court, delivered on 27/10/05, respectively.
The motion on notice for summary judgment, the affidavit and written address in respect thereof, are contained at pages 41 – 49 of the Main Record. And by the said motion, the 1st Respondent had prayed the lower court for a sole relief:
1. Leave of the Honourable Court entering final judgment with cost in favour of the Claimant/Applicant in the sum of N49,050,963.67K against the Defendant/Respondents at the interest rate of 22.6% from 1st February 2001 until judgment debt is fully and finally liquidated.
An affidavit of 13 paragraphs was filed in support of the application. Attached thereto are 11 exhibits, viz:
(a) Letter of offer dated 6th March, 2000.
(b) Overdraft agreement dated 6th March, 2000.
(c) Negative Pledge dated 6th March, 2000.
(d) Continuing personal Guarantee of 2nd and 3rd Defendants.
(e) Facility Agreement dated 9th March, 2000.
(f) Bill (of) Acceptance and Discount Master Agreement dated 27th March, 2001.
(g) Facility Agreement dated 9th March, 2001.
(h) Claimant letter of call dated 25th September, 2002.
(i) Defendant letter dated December 20, 2001, 25th September 2002, and 16th Nov. 2001.
(j) O. O. Iranloye’s letter of demand dated 28th February 2003 and 18th March, 2003.
(k) 2nd Defendant’s Statement of Account.
On the part thereof, the Appellant’s notice of preliminary objection could be found at pages 50 – 60 of the Main Record (The Appellant’s written address and Reply inclusive). By the preliminary objection in question, the Appellant urged upon the lower court for –
1.01 AN ORDER striking out and/or dismissing the Claimant’s motion on notice dated 2nd December 2004.
2. AN ORDER striking out the Affidavit in Support of the said motion.
And the grounds upon which the preliminary objection was predicated are to the effect thus:
1. The Claimant’s motion is not within the purview or contemplation of order 11 (1) of the High Court of Lagos Civil Procedure Rules 2004.
2. The affidavit in support of the motion is in breach of sections 86, 87, 88 and 89 of the evidence act cap. 112, 1990.
The Appellant filed a defence to the 1st Respondent’s suit in question, thereby denying the claim in its entirety, thereby alleging that-
“The suit is baseless lacking in merit and deserves to be dismissed with costs.” See pages 10 – 11 of the Record.
The Appellant filed a statement of witness on oath, and a notice of preliminary objection to the 1st Respondent’s application for summary judgment. By order of court, the application for summary judgment and the preliminary objections thereto were consolidated, heard and reserved for ruling.
On June 13, 2005, the lower court delivered the vexed ruling, thereby summarily entering judgment in favour of the 1st Respondent, against the Appellant and others, and dismissing the Appellant’s preliminary objection.
Being dissatisfied with the decision of the lower court, the Appellant filed the instant appeal, thereby urging upon this court for –
“Reversal of the lower court’s decision of June 8, 2005 and a remission of the suit to the lower court for a plenary hearing before another judge of that court.” (pages 92 – 95 of the Record).
Instructively, the record of appeal was initially transmitted to this court on 14/12/06, but deemed to have been properly compiled and transmitted on 29/3/07. A supplementary record of appeal was equally transmitted on 13/11/07. The Appellant’s brief of argument was filed on 03/5/07. The 1st Respondent’s brief was filed on 13/11/07. The 2nd Respondent’s brief was initially filed on 13/11/07. The 2nd Respondent filed a subsequent brief on 19/01/11.
At page 3 of the brief thereof, the Appellant has raised two issues for determination, viz:
(i) Was it not wrong of the Lower Court to refuse striking out the application for summary judgment for absence of the necessary supportive affidavit when the 1st Respondent’s affidavit failed to express a positive belief that the Appellant had no defence to the suit as required by Order 11 rule 1 of the High Court of Lagos State Civil Procedure Rules 2004 deponent who could not have been directly privy to the facts of the case failed to disclose the sources of his information and other particulars which are mandatory requirements of the Evidence Act?
(ii) Can it be properly said that the Appellant does not deserve to be heard on its defence on a plenary trial considering the weighty contentions that:
(a) The identifiable and identified officers of the 1st Respondent were in league with the 2nd Respondent to perpetrate fraud on the loan account to the Appellant’s detriment;and
(b) Not only were terms of the loan transaction changed without its due knowledge in fraulent circumstances including diversion of funds meant for repayment of the loan, the sabotage by the 1st Respondent’s agents of efforts at making the 2nd Respondent to repay had created an estoppel in its favour?
The submission on 1st issue is contained at pages 4 – 9 of the Appellant’s brief. The issue is stated to have been distilled from ground one of the notice of appeal.
In a nutshell, it was submitted that from the provision of order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004, the requirements for a belief that there is no defence to the claim and the grounds therefor, are mandatory. Reference was made to sections 87 & 88 of the Evidence Act, to the effect that an affidavit shall not contain extraneous matter, by way of legal argument or conclusion etc. It’s contended that the question of belief that there is no defence is one of fact, while the content of that belief is a legal conclusion, which only a judge can make definitively.
Equally contended, that the affidavit (paragraphs 9 & 11) which merely asserts that a Defendant has no defence, is offensive and must be struck out. See FINUNION LTD VS. MV BRIZ (1997) 10 NNLR (Pt. 523) 95 @ 103 – 1304 paragraphs H – A.
That, once paragraphs 9 & 11, are struck out, then the basis of the 1st Respondent’s motion for summary judgment would be found to have been nonexistent, ab initio. Allegedly, the lower court got embroiled in the 1st Respondent’s confusion of the requirements for default judgment as different from those for summary judgment. See UTC NIG. LTD VS. PAMOTEI (1989) 2 NWLR (Pt. 103) 244.
According to the Appellant’s learned counsel, at the time the motion for summary judgment was filed, the Appellant was yet to comply with the requirements of the new rules of the lower court (which came in to effect after the suit was filed) regarding the filing of statement of defence and pleadings. However, the Appellant subsequently remedied this default. (Pages 78 – 79, Record).
That, in the instant case, no attempt was made by the 1st Respondent to satisfy the requirement of the rules of court, regarding the need to state grounds. And that-
“no attempt whatsoever was made in the 1st Respondent’s supporting affidavit’s to satisfy this requirement.”
The learned counsel thus cited and relied upon the decision of this court in SGB VS. SHASANYA (1987) 4 NWLR (Pt. 66) 676 @ 686 H, to the effect that for an affidavit to properly verify a claim to entitle the claimant to summary judgment, it must conform to the precedents in ATKIN’S COURT FORMS OR IN CHITTY AND JACOBS QUEEN’S BENCH FORMS.
Vehemently further contended, that the 1st Respondent’s affidavit has fallen abysmally short of the precedents in question.
The provisions of sections 86 & 89 of the Evidence Act were equally copiously referred to, regarding the mandatory requirement vis – a – vis the finding of the lower court at page 83 of the Record. For failing to provide particulars as required by the Evidence Act, the 1st Respondent’s affidavit is fatally defective, thus bound to be struck out. See NIDB VS. FEMBO NIG. LTD (1997) 2 NWLR (Pt. 489) 543 @ 560 – 561; FMB VS. SANI (1990) 4 NWLR (Pt. 47) 688 @ 713 E; BENDELFEED & FLOUR MILL LTD VS. NIMB LTD (2005) 5 NWLR (Pt. 655) 29.
The second issue was distilled from the 2nd ground of the notice of appeal. The submission proffered thereon is to the effect, that the Appellant had disclosed ample materials in the statement of defence thereof to entitle it to defend the suit on the merits in a plenary trial.
The law is settled, that the purpose of summary judgment is not to shut out a defendant who probably has a defence to the action. See FMB VS. SANI (supra) @ 713 C. Refence was made to paragraphs 2, 3 & 4 of the Appellant’s statement of defence, to the effect (i) that the import finance facility, the foundation of the suit, was renewed fraudulently by the 2nd Respondent in connivance with 1st Respondent’s officers – there was no board resolution of the Appellant authorizing the renewal; (ii) that binding customs were breached by the 1st Respondent to the letter detriment of the Appellant; (iii) names and particulars of 1st Respondent’s officers involved in the fraud, the circumstances and the roles played by each of those officers.
At page 11, paragraph 4.13 of the brief thereof, the Appellant’s learned counsel posed some rhetorical, albeit pertinent, questions thus:
4.13 If the facts contained in paragraph 4 alone and their purport are true, as they must be assumed at this stage and in the present exercise cannot be reasonably said that there is no probable defence to the action? Or that at least there is no need for any explanation from the 1st Respondent?
It’s the vehement contention of the Appellant’s learned counsel, that the answers to these provocative questions are only available upon a plenary trial.
Allegedly, the 1st Respondent’s pleadings are incomplete. The Appellant’s statement of defence is said to be in the nature of a confession and avoidance, to the effect of the admission introducing such new facts and circumstances as would operate to absolve the Appellant of any liability. In such a circumstance, the 1st Respondent was required to file a reply in order to join issues on those new facts. See BULLEN & LEAK AND JACOB’S PRECEDENTS OF PLEADINGS (12th edition) 107; FMG VS. SANI (supra) @ 722. ADEBISI MECGREGOR ASS. LTD VS. NMB LTD (1996) 2 NWLR (Pt 431) 378.
The Appellant, most certainly, is not done yet. He postulated, that the involvement of the 1st Respondent’s officers in the fraudulent interference with the Appellant’s account, made the 1st Respondent liable for the undoubtedly criminal acts in question. See UBN VS. OKOROR (2002) 10 NWLR (Pt. 773) 1; ADENEJI VS. STATE (1992) 4 NWLR (Pt. 234) 248.
Conclusively, the court has been urged upon to allow the appeal, set aside the order of the lower court and allow the Appellant to defend the suit on the merits.
On the part thereof, the 1st Respondent has raised two issues at page 3 of the brief thereof, viz:
1. Whether from the fact placed before the trial court the 1st Respondent has not made sufficient disclosure to entitle trial court to precede to judgment in absence of facts to the contrary.
2. Whether the court is enjoined to pursue technical justice instead of confirming to doing substantial justice between the parties?
The 1st Respondent’s learned counsel prefaced his submission on issue No. 1 by alluding to the various front loaded processes and document thereof filed in the lower court. The motion on notice, dated 02/12/04 (Page 74 of the Record) filed pursuant to order 11 Rule 1 of the High Court of Lagos State Rules (supra) was equally referred to.
It was further submitted, that the affidavit in support of the vexed motion was not controverted by the Appellant. That, under order 11 Rule 1 (supra), transferring a matter to the general cause list is not automatic. Leave of court must be granted, judicially and judiciously, upon careful perusal of all the facts placed before the court. And the position of the law is that parties are bound by their pleadings, and evidence on facts not pleaded goes to no issue. See BAMGBOYE VS. OLANREWAJU (1991) 4 NWLR (Pt. 184) 132; TITILOYE VS. OLUPO (1991) 7 NWLR (Pt.205) 519; UGOCHUKWU VS. UNIPETROL (2002) 3 SC 80; 87.
That, the court is duty bound to consider each application on its merits. And to afford reasonable opportunity for parties’ rights to be argued, investigated, and determined on their merits. See OWUNARI LONG JOHN VS. BACK (1998) 5 SC 83; 103; REV. MOSES ABIEGBE VS. UGBODIME (1973) 1 SC 13; OBOMHERK VS. ERHAHUM (1993) 7 NWLR (Pt. 303) 22.
According to the learned counsel, the bankers/customers’ relationship does not permit the 1st Respondent to investigate how an account of a customer with mandate is operated. That, both the 2nd Respondent and Mr. Larry Umeche are with mandate to operate the account with 1st Respondent. Both of them actually exercise the rights. See JOACHINSIN VS. SWISS BANK CORP. (1921) 3KB 110; 129.
Thus, the lower court was right upon the uncontroverted evidence, to proceed to give judgment in favour of the 1st Respondent, against the Appellant, Mr. Larry Umuche and 2nd Respondent. See PLANWELL WATERSHED LTD VS. OGALA (2003) 12 SC (Pt. 17) 41; MACAULAY VS. NAL MERCHANT BANK LTD (1990) 6 SCNJ 117; THOR LTD VS. FCMB (2000) 4 NWLR (Pt. 652) 274; VASWANI VS. JOHNSON (2001) 11 NWLR 9Pt. 679) 582.
On issue No. 2, it was submitted that by virtue of the provision of section 84 of the Evidence Act (supra), whatever defect is inherent in the 1st Respondent’s affidavit, deposed to by Dele Babalola, may have been cured.
The provisions of Orders 1 Rule 1 (2) and 5 Rule 2 of the High Court of Lagos State Rules (supra) have been cited, to the effect that rules of court should be directed toward achieving a just, efficient and speedy dispensation of justice. Allegedly, Appellants’ argument in that regard is found on form and not substance of the affidavit in question. Nothing was said to be offensive of section 84 – 89 of the Evidence Act. Thus, the wheel of justice could no longer be allowed to be clogged with technicalities. See AFOLABI VS. ADEKUNLE (1983) 2 SC NLR 141.
On the other hand, the brief of the 2nd Respondent spans a total of 18 pages. At page 2 thereof, two issues have equally been raised for determination, viz:
(1) Whether the lower court was right in refusing to dismiss the 1st Respondents application for summary judgment. When the affidavit in support of the said application did not meet the requirements of sections 86, 87, 88 and 89 of the Evidence Act and Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004?
(2) Whether the lower court was right in entering judgment summarily in favour of the 1st Respondent when the issues and allegations of fraud made out against the 1st Respondent in the Statement of Defence and counter affidavit filed on the lower court should have been resolved one way or the other in a full plenary trial?
On issue No. 1, it was submitted, without much ado, that the lower court was wrong in refusing to dismiss the 1st Respondent’s application for summary judgment. The reason being that the affidavit in support of the application did not meet the requirements of sections 86, 87, 88, and 89 of the Evidence Act CAP. E14 Laws of the Federation of Nigeria, 2004 and Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (supra).
Equally referred to were the provisions of sections 76 & 77 of the Evidence Act, regarding burden of proof of evidence. See ABIODUN VS. CJ KWARA STATE (2007) 18 NWLR (Pt. 1065) 109; 1118; 143 – 144 H – B.
It was contended, that the combined reading of sections 76, 77, 86, 87, 88 & 89 of the Evidence Act, and ABIODU VS. KWARA STATE (supra), ADELEKE VS. ANIKE (2006) 16 NWLR (Pt. 1004) 131; EDU VS. COMM. OF AGRIC; WATER RESOURCES & NAT. DEV. (2000) 12 NWLR (Pt. 681) 316, is that a deposition in an affidavit is an evidence of fact in issue, and such deposition must be direct.
According to 2nd Respondent, the said BABALOLA, the deponent of 1st Respondents’ affidavit –
“did not state how and where he got his information and therefore, breached the fudamented provisions of the evidence Act”. See ABIODUN VS. CJ KWARA STATE (supra); GOV. OF LAGOS STATE VS. OJUKWU (1986) 1 NWLR (Pt. 18) 621; et al.
On the whole, the court is urged to resolve issue No. 1 in favour of the Appellant, and accordingly allow the appeal.
On issue No. 2, it was submitted that the lower court was equally wrong in entering judgment summarily in favour of the 1st Respondent when the issues and allegations of fraud made out against the 1st Respondent in the Statement of defence and counter affidavits filed should have been resolved one way or the other in a full plenary trial.
And that the allegation of fraud is criminal by nature. Thus, when raised in civil cases, the standard of proof thereof is, as in criminal cases, strict senso; it must be proved beyond reasonable doubt. ONUOHA VS. STATE (1998) 5 NWLR (Pt. 548) 118; 142 – 143 G – B.
It was postulated, that it’s the law that where a Defendant sets up a bonafide counter claim arising out of the same subject matter of the action and connected with grounds of defence, the correct order is that of an unconditional leave to defend the action. See EDITH ASOMUGHA VS. MANDILLAS ENT. LTD. (1985) 3 NWLR (Pt. 12) 325 et al.
The court has been urged to resolve this second issue in favour of the Appellant, and accordingly allow the appeal.
Conclusively, the court has been urged upon to reverse the decision of the lower court, dated 08/6/05, allow the appeal, and remit the suit to the lower court for a full trial in the interest of justice, equity and fairness.
Having accorded an ample consideration upon the submissions of the learned counsel, contained in their respective briefs of argument vis-‘E0-vis the record of appeal, as a whole, I am of the firm view that the two issues raised in the Appellant’s brief are capable of sufficiently determining the appeal. It’s pertinent to allude to the fact that the two issues raised in the respective briefs of the Appellant, 1st and 2nd Respondents are not mutually exclusive. However, the Appellant’s two issues are apparently unwieldy and rather verbose. Thus, I have taken the liberty to rephrase them, anon.
ISSUE NO. 1:
1. Whether the lower court was right in refusing to strike out the 1st Respondent’s application for summary judgment for failure to express positive belief in the affidavit that the Appellant had no defence to the suit, as required by order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004, and the deponent’s failure to disclose the source of his information, as required by the Evidence Act.
2. Whether the lower court was right in holding that no material issue of fact has arisen to justify further investigation at a plenary trial, thereby proceeding to enter summary judgment in favour of the 1st Respondent.
By the said decision, the lower court held that on the totality of the materials placed before it by the Appellant, there was no material issue of fact that has arisen to justify further investigation at a plenary session. The lower court satisfied itself that the 1st Respondent has established its claims vide the affidavit, statement on oath of witness and documentary evidence thereof placed before it. The court thereby came to the conclusion thus:
In the final analysis, therefore leave to defend the claims is hereby refused to each Defendant and final judgment is hereby entered for the Claimant against the three Defendants jointly and severally in the sum of N49,050,163.67…. interest on the said sum shall be at the contractually agreed rate of 22% per annum from 01/02/03 until final liquidation of same.
By virtue of the provision of order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (supra), where a Claimant believes that there is no defence to the claim thereof he shall file, along with an originating process, the statement of claim, the exhibits, the depositions of witnesses, and the application for summary judgment. Such an application must, however, be supported by an affidavit, stating the (factual) grounds for his belief. He shall equally file a written brief.
Where such an application for a summary judgment is filed, the trial court is required to critically, albeit dispassionately, consider the pleadings, the motion and (in some exceptional cases), additional evidence adduced by respective parties, in order to determine whether or not there is a genuine issue of material fact, rather than of law.
Invariably, the term summary judgment connotes a judgment granted by a court of competent jurisdiction on a claim (or defence) about which there is no genuine issue of material fact.
Indeed, it’s a well settled principle, that the main object of summary judgment procedure is to allow expeditious disposal of a case or dispute, without the need to resort to a plenary trial on the merits. This trite principle has been cherishingly reiteratively expressed in a plethora of authorities, including – THOR LTD VS. FCMB LTD (2003) 14 NWLR (Pt. 946) 696 @ 710 – 711, paragraphs A – E; LEWIS VS. UBA PLC (2006) 1 NWLR (Pt. 962) 546 @ 567 paragraphs C – D.
Very recently, it was aptly observed by this very noble court that –
Undoubtedly, the summary judgment procedure provided under order 11 of the Lagos State High Court (Civil Procedure) Rules, 2004 (supra) is akin to what obtains under the undefended list procedure (albeit with some minor procedural variations). As alluded to above, that procedure is designed to enable a litigant obtain a (summary) judgment without the need to proceed to trial on the merits.
See CHIEF OLIVER UBAH & ANR VS. FIDELITY BANK PLC; Appeal No. CA/L/29/09; Judgment delivered on 23/4/13 (unreported); CHIEF OLIVER UBA & ANR VS. FIDELITY BANK PLC: Appeal No. CA/L/676/07; Judgment delivered on 23/4/13, per Saulawa, JCA. See also BRIFINA LTD VS. INTECONTINENTAL BANK LTD (2003) 5 NWLR (Pt. 814) 540; KADUNA STATE TRANSPORT AUTHORITY VS OFODILE (1999) 10 NWLR (Pt. 622) 259; NASR VS. ELEGBEDE (198) 1 – 3 CCRJ 336; BARCLAY’S BANK OF NIGERIA LTD VS. NWIZUGBO (1980) 4 – 6 CCRCJ 93; BEFAREEN PHARM. LTD VS. AIB LTD (2005) 17 NWLR (Pt. 954).
I have considered it expedient to reproduce hereunder the provision of order 11 Rule 1 of the High Court Rules (supra):
1. Where a claimant believes that there is no defence to his claim, he shall file with his originating process the statement of claim, the exhibits, of his witnesses and application for summary judgment which application shall be supported by an affidavit stating the grounds for his belief and a written brief in respect thereof.
As aptly postulated by the Appellant’s learned counsel, a belief that there is no defence to the claim and the grounds for so believing are most crucial mandatory requirements for the affidavit supporting the application in question. In the instant case, the gravamen of the Appellant’s grouse relates to paragraphs 8 and 9 of the 1st Respondent’s affidavit, supporting the application for summary judgment in question (pages 43 – 44 of the Record), which are to the following effect:
8. That by Claimant calculation the forty -two (42) days permitted by the rules has elapsed and Defendant has refuse (sic) fact or neglected to diligently deemed their case.
9. That looking at the initial defence of all the Defendant filed before the advert (sic) of the new rules does not amount to a defence on merit.
Thus, it becomes rather obvious, that by the averments thereof in paragraphs 8 & 9 above, the 1st Respondent merely avers that the Appellant has no defence, devoid of belief that it has no defence at all. As aptly postulated by the Appellant, the averments in paragraphs 8 & 9 of the 1st Respondent’s affidavit have amounted to legal conclusions for being bereft of belief. The two paragraphs are undoubtedly in breach of the provisions of sections 87 & 88 of the Evidence Act, as amended. Thus, they are liable to be discountenanced and struck out. The trite position of the law is very much clear on that issue. See FINUNION LTD VS. MV BRIZ (1997) 10 NWLR (Pt. 523) 95 @ 104 – 104 paragraphs H – A; UTC NIG. LTD VS. PAMOTEI (1989) 2 NWLR (Pt. 103) 244.
On that note, I have no hesitation in holding that the lower court ought not to have accorded any credence to the 1st Respondent’s affidavit, much less granting the application.
At page 79, lines 7 – 10, of the Main Record, the lower court found, inter alia, thus:
On 04/02/05, the 2nd Defendant filed certain processes as follows namely a statement of defence and counter claim, a witness deposition, a witness list exhibit list and copies of exhibits so listed and on 21/02/05 a written address opposing the motion on notice for sum the Appellants summary judgment.
The (1st Defendant) statement of defence is found at pages 10 – 11. That of the 2nd Respondent is contained at pages 2 – 17 of the Record.
From the averments in paragraphs 2, 3, 4 & 5 of the Appellant’s statement of defence, it’s rather obvious that some officers of the 1st Respondent were alleged to have connived with the 2nd Respondent (a Director of the Appellant) to defraud the Appellant, thereby undermining the Appellant’s ability to liquidate the outstanding finance facility advanced thereto.
Therefore, such weighty and rather incriminating allegations leveled by the Appellant against the 1st Respondent were so crucial to the determination of the case. Most certainly, the summary judgment procedure, as embarked upon by the lower court in the instant case, was inimical to the doctrine of fair hearing, cherishingly provided under section 36 of the 1999 constitution, as amended.
The lower court was, therefore, in error when it granted the application and entered judgment for the 1st Respondent against the Appellant. And I so hold.
In the circumstance, the answer to issue No. 1 is in the negative, and same is hereby resolved in favour of the Appellant.
ISSUE NO. 2:
The second issue raises the vexed question of whether the lower court was right in holding, as it did, that no material issue of fact has arisen to justify further investigation at a plenary session, thereby proceeding to enter summary judgment against the Appellant. I would want to believe, that having resolved the first issue in favour of the Appellant, there is every cogent reason for me to hold that the second issue ought to equally be resolved in favour thereof, for some obvious reasons.
As alluded to above, the Appellant’s statement of defence has disclosed, to my satisfaction, that there are enough materials to entitle the Appellant to defend the suit on the merits. And that could only be made possible at a full plenary trial, not in limine, as was unfortunately done to by the lower court. At this very crucial state in time, especially in view of the obvious revelation in the statement of defence in question, it would amount to a travesty of justice to shut out the Appellant, and deny it the opportunity to defend the suit. And whether or not it eventually succeeds in so doing is not at all material at this material point in time.
Undoubtedly, the only means of unearthing the golden truth in the instant case, is by resorting to a full blown plenary trial. After all the foremost object of a judge is to seek, find and uphold the truth.
I think, it was Lord Eldon who once remarked that –
“Truth is best discovered by powerful statements on both sides of the question”. See EXPARTE LLOYD (1822) MONT. 70 @ 72N.
It is trite, that justice is best done by a judge who holds balance (of the scale of justice) between the contending parties, devoid of himself descending into the arena of the disputations. And by all means, he must assiduously avoid getting his vision clouded by the dust and fog of conflict. Reiterating the well cherished trite golden doctrine, Lord Denning, MR, in his notorious erudite characteristics, remarked thus:
Yes, he (the judge) must keep his vision unclouded. It is all very well to paint justice blind, but she should be blind indeed to favour or prejudice, but clear to see which way lies the truth, and the less dust there is about the better. Let the advocates one after the other put the weights in to the scales – the “nicely calculated less or more” – but the judge at the end decides which way the balance tilts, be it ever so slightly.
…
There is one thing to which everyone in this country is entitled and that is fair hearing at which he can put his case properly before the judge.
… No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it. See
JONES VS NATIONAL COAL BOARD (1957) 2 QB 55.
As aptly contended by the Appellant, the 1st Respondent has not made any effort to contradict the detailed allegations contained in paragraphs 14 – 20 of the statement of defence of the 2nd Defendant (Mr. Umehe), and paragraph 5 of the Appellant’s statement of defence (pages 10 – 17 of the Record). The said paragraphs of the statement of defence were to the effect, inter alia, that effort made by the Appellant to repay the outstanding loan was actually ‘sabotaged’ by the 1st Respondent’s senior officers, who at all material times acknowledged the 2nd Respondent as their real debtor.
Undoubtedly, by the said Appellant’s statement of defence, new facts and circumstances have emerged levying very serious allegations of fraud and gross negligence against the 1st Respondent, nay some of the senior officers thereof. There are issues which would require further investigation vide adduction of oral evidence, and address by the learned counsel to the respective parties. In my paramount view, that can only be achieved by embarking on a full plenary trial of the suit.
It is a well settled principle, that allegations (or issues) of fraud and forgery raised in pleadings constitute very difficult and complex points (questions) of law which can only be resolved at a plenary (as against summary) trial. In the case of FMG VS. SANI (1990) 4 NWLR (Pt. 147) 688, wherein the Supreme Court was reported to have aptly and rather authoritatively held, thus –
Even where the Defendants cannot point to a specific issue which ought to be tried but nevertheless satisfy the court that there are circumstances that ought to be investigated the court should allow the Defendants leave to defend the action. Both issues of fraud and forgery pleaded by the Defendants are difficult points of law. Per Wali, JSC @ 722. Instructively, the case of FMG VS. SANI (supra) is on all fours with the instant case. That case relates to summary judgment procedure under Order 10 of the defunct Lagos State High Court (Civil Procedure) Rules 1972, which is in pari materia with order 11 of the extant Lagos State High Court (Civil Procedure) Rules, 2004.
It is trite, that the object of order 11 of the Lagos State High Court (Civil Procedure) Rules, 2004, is to accord the Plaintiff the opportunity of obtaining a summary judgment without the need for a full pledged plenary trial. However, the Plaintiff must be able to prove his claim clearly, and that the Defendant is unable to set up a bonafide defence, or raise an issue against the claim which would necessitate the court to order for a full plenary trial of the case on the merits. This trite principle has been well settled in a plethora of authorities of the Supreme Court, including – SODIPO VS. LEMMINKAINEN (1986) 1 NWLR (Pt. 15) 220; UTC (NIG) LTD VS. PAMATEI (189) 2 NWLR (Pt. 103) 244; FMG VS. SANI (supra) @ 703 – 704 H – A; 710 D; 711 D – E.
It must be reiterated, at this point in time, that the procedure under Order 11 (supra) is not necessarily punitive. In the sense that it’s not at all intended to simply shut out a defendant who can establish, by affidavit evidence, that there are triable issues relating to the Plaintiff’s claim, thereby requiring a full plenary trial of the suit.
What’s more, in the case of SHEPPARDS VS. WILKINSON, 67 LR 13, cited with approval by the Supreme Court in FMG VS. SANI (supra), it was held, inter alia, that –
“The summary jurisdiction conferred by this order (14 of the English Rules) must be used with great care. A Defendant ought not to be shut from defending unless it is very clear indeed that he has no case in the action under discussion.”
Incidentally, Order 14 of the English Rules, upon which the decision of SHEPPARDS VS. WILKINSON (supra) was predicated, is in pari materia with both Order 10 of the old Rules of 1972 and Order 11 of the extant Rules of the Lagos State High Court (Civil Procedure) Rules, 2004. As authoritatively held by the Apex Court –
Furthermore, in showing cause why a Defendant should be allowed to defend the action, a complete defence need not (have) been shown.
The defence set up need only show that there is a trial issue or question or that for some other reason there ought to be a trial. Leave to defend ought to be given unless there is clearly no defence in law and no possibility of a well defence on the question of fact. Per Wali, JSC @ 709 F – G. See also JACOBS’ VS.
BOOIHS DISTILLERY CO. (1901 – 2) VOL. 85 NSTLR 262; RUNNACLES VS. MESQUITA (1876) 1 QBD 416; JONES VS. STONE 91894) AC 122 @ 124.In the light of the above postulations, there is every cogent reason for me to believe that the answer to issue No. 2 is inevitably in the negative, and same is hereby resolved in favour of the Appellant.
Hence, in the circumstances of this appeal, most especially in view of the fact that both the 1st & 2nd Issues in question have been resolved in favour of the Appellant, there’s no gainsaying the fact that the instant appeal is grossly meritorious. And I so hold.
Thus, I have no hesitation whatsoever, in allowing the appeal. The judgment of the lower court, delivered on June 13, 2005 by O. A Ipaye, J; in suit No. LD/875/03, is resultantly set aside.
Consequently, I have deemed it most expedient to order as follows:
1. That the said suit No. LD/975/03 is hereby remitted to the Lagos State High Court for reassignment by the Chief Judge to another judge for trial on the merits.
2. The Appellant shall be entitled to N50,000.00 as costs against the 1st Respondent.
JOSEPH SHAGBOAR IKYEGH, J.C.A.: I had the honour of preview of the judgment pronounced by my learned brother, Saulawa, JCA., in which I concur. I wish to add that the essence of proceedings for summary judgment under Order 11 (former Order 10) of the High Court of Lagos State (Civil Procedure) Rules, 2004, is to give judgment for admitted claims or claims that are not met with a viable or arguable defence. See Sanusi Brothers (Nigeria) Limited v. Cotia Commericio Exportacao E Importacao S. A. (2000) 6 S.C. (Pt.111) 43.
Once a contentious issue such as an allegation of fraud is distinctly alleged by particularization of the incidents of the fraud by a defendant against the claim of a plaintiff or claimant, as happened in this case, the case must go on full blown trial. I think the court below should not have entered summary judgment for the 1st respondent in the circumstance. The case ought to have been heard on the merit as a contested action.
There is merit in the appeal. I would allow it and abide by the consequential orders contained in the lucid judgment of my learned brother, Saulawa, JCA.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my brother IBRAHIM MOHAMMAD MUSA SAULAWA, J.C.A. I agree with his opinion and conclusion in its entirety.
The provisions of order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004 has to do with judgment for admitted claim or claims that have no defence.
The issue of fraud is without doubt a contentious one, where there is an allegation of same. This is because, fraud, when alleged, the claimant must give particulars of fraud. Therefore this only admits of the fact that in order to establish this allegation of fraud, all cards must be placed on the table of justice. In other words, the particulars of fraud must be given.
A full blown trial should have settled the matter between the parties, and this is not a case where the lower court should have entered summary judgment for the 1st Respondent as he did.
This appeal has merit. I allow same. I abide by the consequential order made.
Appearances
FCA OKOLI with Ayodeji Falaye Anyigor ChiomaFor Appellant
AND
O. O Iranloye with E. Ekwele – for the 1st Respondents
M. Ajayi – for the 2nd RespondentsFor Respondent
