MICHAEL ADEBOYE v. STEVE BAJE
(2016)LCN/8279(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of March, 2016
CA/L/934/2014
RATIO
APPEAL: ISSUE FOR DETERMINATION; THE INFORMATION THAT MUST BE CONTAINED IN AN ISSUE FOR DETERMINATION
However, before I proceed to the resolution of the issues formulated by the parties, I must say that while it is usually not easy to produce a statement of issue that both informs and influences the Court while using few words, an issue for determination must give information about a substantial point of law or fact and at the same time try to influence the Court on its cogency. Therefore, it is necessary that counsel must at all times understand and appreciate very clearly the pertinent issues in the appeal. In CBN v JACOB OLADELE AMAO & 2 ORS [2010] 16 NWLR (PT 1219) 271 SC; (2010) LPELR – 833 (SC) pp. 12 – 13, paras G -?? B, the Supreme Court, Per ONNOGHEN, JSC stated quite succinctly thus:
“It is important for counsel to note that an issue put before a Court mast be substantial in nature so as to determine the matter in controversy one wag or the other upon its resolution by the Court. What is important therefore is not the number of issues formulated by counsel but the quality of the issues(s) so formulated. If a single issue can dispose of a matter one way or the other why formulate many to waste the precious time of the Court. The Courts do not deal with hypothetical or academic issues directed at demonstrating academic dexterity or excellence.”
Issues for determination, being substantial questions for determination by the Court must not only relate to the ground of appeal, it must of utmost necessity be precise, cogent and compelling that a decision in favour of a party to the appeal will entitle him to the judgment of the Court. See: KALU v ODILI [1992] 6 SCNJ 76; NWANKWO v YAR’ADUA [2010] 12 NWLR [PT 1209] 518 SC; AKPAN v BOB [2010] 17 NWLR (PT 1223) 421 SC. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
APPEAL: ISSUES FOR DETERMINATION; WHETHER AN ISSUE FOR DETERMINATION MAY BE FORMULATED BY EITHER OF THE PARTIES OR BY THE COURT SUO MOTU
It is settled law that issues for determination may be formulated by either of the parties or by the Court suo motu. While in both cases, the issues must relate to the ground of appeal, in the latter case, parties must be afforded the opportunity of addressing the Court on the issue raised suo motu before the Court can decide the matter on such issues. The Apex Court, Per IGUH, JSC in MUSA SHA (JNR) v KWAN [2000] 8 NWLR (PT 670) 685; (2000) LPELR -3031 (SC) p. 20, paras D – G, held:
“In this connection, it is firmly established that issues tor determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after a consideration of those set out by the parties alongside the ground of appeal filed. The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed, above, to reframe the issues by the parties if, in its view, such issues will not lead to a proper determination of the appeal. However, the issues framed, whether by the parties or by the Court, must all times be related to the grounds of appeal filed.” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: RULES OF COURT: THE PURPOSE OF SUMMARY JUDGEMENT
Instructively, the Supreme Court has in a plethora of cases emphatically enunciated on the purpose of Summary Judgment Procedure under the Rules of Court. As far back as J.990, the Apex Court in OKAMBAH v SULE [1990] 11 – 12 SC 47; (1990) LPELR-2422 (SC), p. 13, paras C – D, per KAWU, JSC held:
“Now the purpose of the procedure under this order is to enable the plaintiff to obtain summary judgment without trial where his case is patently clear and unreasonable. See Cow v. Casey (1919) 1 KRA 74 and Sodipo v. Lemninkainen & Ors (1986) NWLR (Pt.15) 220. It is not designed to shut out a defendant who can show that there is a triable issue.”
See also UTC (NIG.) LTD v PAMOTEI [1989] 2 NWLR (PT.103) 244; (supra); UBA v JAGARBA [2007] 11 NWLR (PT.1045) 247; THOR v FCMB LTD [2005] 14 NWLR (PT 946) 696. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
Evidently, the law is trite that an appellate Court will not disturb the findings of fact made by a trial Court unless same is perverse and does not reflect a dispassionate analysis of the facts of the case. It is even of no moment that the Appellate Court would have reached a different conclusion from that reached by the trial Court. See: AROWOLO v OLOWOOKERE & ORS (2011) LPELR – 561 (SC); LAMIDI RABIU v TOLA ADEBAJO [2012] LPELR – 9709 (SC) IDIOK v THE STATE [2008] 13 NWLR (PT 1104) 225 SC. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
EVIDENCE: ADMISSION; WHETHER AN ADMISSION BY A PARTY AGAINST HIS OWN INTEREST REQUIRES FURTHER PROOF
It is trite law that an admission by a party against his own interest is at best the most appropriate evidence in favour of his opponent. In ATOBATELE ALI v UBA [2014] LPELR – 22635, this Court, per AUGIE, JCA; 39, B- E held:
“It is presumed, that no man would declare anything against himself unless it was true. See Eigbe v. N.U.T [2008] 5 NWLR (Pt 1081) 604. Thus, a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim. See Ipinlaye II v. Olutokun (1996) 6 NWLR (Pt.453) 148SC…”
See also ONYENGE v EBERE [2004] 13 NWLR (PT 899) 20; OKUNADE v OLAWALE [2014] LPELR – 22139 (CA). per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES:
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
MICHAEL ADEBOYE – Appellant(s)
AND
STEVE BAJE – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State, Per Williams J., delivered on the 17th day of September, 2014.
The brief fact of the case before the trial Court is that the Respondent, desirous of acquiring a private property within Eric Moore Estate, Surulere, Lagos approached the Appellant in respect of a property known as Block S House 4, Royal Estate, Phase 1, Eric Moore Surulere, Lagos. At the conclusion of negotiations between the Appellant and Respondent, the Appellant issued an offer letter to the Respondent who subsequently made a fifty percent down payment of N20,000,000.00 (Twenty Million Naira) with a further payment of N22,000,000.00 (Twenty – Two Million Naira). The Respondent then alleged that after receipt of the said money, the Appellant became evasive for several months and refused to let the Respondent into the property as promised.
When it became apparent that there was no property to be given to the Respondent and upon refusal and failure of the Appellant to refund the money collected with respect to the alleged property, the Respondent filed an action in the High Court of Lagos State, in suit No. LD/832/2012 wherein the Respondent as Claimant by his Writ of Summons and Statement of Claim claimed against the Appellant as Defendant the following reliefs:-
“(a) The sum of N42,000,000.00 (Forty-two Million Naira) only being money paid to, had and received from the Claimant by the Defendant and in respect of the sale of Block S House 4, Royal Estate, Phase 1, Eric Moore, Surulere, Lagos, vide the defendant has refused, neglected and failed to pay to the Claimant despite repeated demands.
(b) Interest in the said sum of N42,000,000.00 at 2% per annum from June, 2011 till final liquidation.
(c) Cost of this action.”
The Respondent’s originating process was accompanied by an application for summary judgment brought under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004. In compliance with Order 11 Rule 4, the Appellant/Defendant filed his Statement of Defence, Witness Statement on Oath, List and Copies of document(s) to be relied on, Counter Affidavit in opposition to Motion for Summary Judgment as well as accompanying Exhibits. On 17th day of September, 2014, the Learned Trial Judge entered final judgment in favour of the Respondent in the sum of Forty One Million Naira (N41,000,000.00).
Dissatisfied with the decision of the trial Court, the Appellant appealed against the said judgment vide his Notice of Appeal dated the 22nd day of September, 2014 but filed on the 25th day of September, 2014 on three grounds.
In compliance with the Rules of the Court, parties by their counsel filed and exchanged briefs of argument. Appellant’s brief of argument dated 28th day of May, 2015 and filed on 1st day of June, 2015 but deemed 4th day of June, 2015 as well as a Reply Brief dated 29th day of January, 2016 and filed on 1st day of February, 2016 but deemed 2nd day of February, 2016 was settled by Enyinnaya Uwaezuoke Esq., of Phoenix Solicitors. The Appellant identified three issues for determination thus:
1. “Under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (also the same as Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012, can the Claimant succeeded,
3
(sic) on the entire sum claimed when the evidence in support of the Motion thereof does not support the total sum claimed.
2. Under the rule that unchallenged, averment in an affidavit are deemed admitted by a party who have had, opportunity to challenged (sic) them but choose not to do so can the lower Court unilaterally discountenance evidence of payments made by the Appellant (defendant) and, still give Judgment for the Respondent including sums already paid.
3. To maintain an action under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2012, a Claimant must show by clear evidence that the sum claimed was owed by the Defendant and still remain unpaid, the evidence here is that at the time of bringing this action the total sum claimed was not owed. To what extent can the Court still believe the Claimant that the defendant is liable to the whole sum claimed.”
The Respondent’s Brief of Argument dated and filed on the 3rd day of September, 2015 but deemed on 2nd day of February, 2016. Same was settled by Chief Nelson O. Imoh and Kini Inemkpo, Esq., of Nelson and Nelson Law firm. A sole issue was formulated therein for the
4
determination of this appeal thus:
1. “Whether having regards to the state of the pleadings and affidavit evidence, the learned, trial Judge was right when he entered final judgment in favour of the Respondent under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rule, 2004 (Grounds 1, 2, and, 3 of the Appellant’s Ground of Appeal).”
Dealing with the first issue formulated by him, Appellant’s counsel submitted that although the Respondent deposed to several facts in his affidavit in support of motion for summary judgment, he however depended on the Appellant’s information to him before making payments in full for the property he desire. Counsel noted that in Paragraphs q and r of the Respondent’s affidavit in support, the Respondent mentioned four Skye Bank cheques with Nos 21952509, 21952506, 21952507 and 2192510 respectively and dated 29th day of April 2012, 30th day of April 2012 and 2nd day of May 2012 but he however tendered and exhibited only two (2) Skye bank cheques as Exhibit C1, (cheque numbers 21952506 and 21952509 dated 30/4/2012 and 29/5/2012 for N10,000,000.00 each respectively and both cheques
5
were marked UDCR”) and he seeks to pass off the two (2) Keystone Bank deposit tellers as another evidence of the Appellant’s further indebtedness to a further sum of N20,000,000.00. Counsel referred to Order 11 Rule 1 of the Rules to submit that the Respondent’s application dated 29th May, 2012 and filed on 30th May, 2012 must of necessity towards its success contain facts and evidence in the nature exhibits, affidavit and stating the grounds which ground support the claim for the sum of N42,000,000.00 and that the Respondent have failed to meet this requirement in this case. He relied on Section 140 and 167 (d) of the Evidence Act, 2011; ONWUJUBA v. OBIENU [1991] 4 NWLR (PT 183) 16; NSC (NIG.) LIMITED v. INNIS – PALMER [1992] 1 NWLR (PT 128) 422; NSIRIM v. ONUMA CONST. CO. (NIG.) LIMITED [2001] FWLR (PT.4) 405; ABIA STATE TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2009) 3 – 4 SC 187 at 236 – 237. He contended that no single deposition in the affidavit explained why the remaining two cheques were not exhibited. He cited ALAM OPARAJI & ORS v. NWOSU OHANU & ORS (1999) 6 SC (PT 1) 41 at 53; MUFUTAU AREMU & ANOR v. STATE (1991) 7 SC (PT 11) 82
6
at 93 to submit that the Respondent having omitted to exhibit cheques of the Appellant which could show that the Respondent is entitled to summary judgment, his application must fail and that for him to succeed, he must then lead oral evidence regarding the whereabouts of the remaining cheques and lay proper foundation of their existence and whereabouts before the Court can act upon it.
Arguing his second issue, Appellant’s counsel noted that the Appellant’s case is that he made several payments to the Respondent, since the agent who received the Respondent’s funds have become unavailable to refund the money and that the Appellant have made these payments to the Respondent, his other lawyers and agents of the government whom the Respondent had commissioned to recover the alleged funds which facts have been expressed deposed in his counter affidavit and exhibits found in pages 158 to 193 of the record. He referred to a portion of the Ruling of the trial Court at page 219 of the record as well as Order 11 Rules 1 & 4 of the Rules of the Trial Court to submit that the trial judge has ‘one of three courses to take as provided for under Order 11 Rule 5 of
7
the High Court of Lagos State (Civil Procedure) Rules, 2012 to make a finding based on the evidences (sic) in the affidavit and the counter affidavit before him. Counsel contended that it can be deciphered from the ruling of the trial judge in pages 213 to 220 of the record that the learned trial judge acknowledged that the defence of the Appellant is not a sham and that there are doubts about the sum allegedly paid by the Appellant but that the doubts are unfounded in the light of the fact that Exhibit D1 of the Respondent and Exhibit MA 11 are the same document and is to the effect that the Appellant paid the sum of Three Million Naira and Two Million Naira on Tuesday 8th day of May, 2012 and 11th day of May, 2012 respectively. Counsel noted that Exhibit MA 07 by the Respondent’s other lawyers as at 25th day of September, 2013 had acknowledged that supposed indebtedness then was the sum of N28,000,000.00 which was wrong having omitted the sum of N1,000,000.00 already paid by the Appellant and the Appellant’s counsel letter of 28th day of October, 2013, Exhibit MA 08 aptly corrected same so that the deposition of the Appellant in Paragraph 40 of the counter
8
affidavit of 9th of May, 2014 cannot possibly have been wrong to warrant the Court lack of belief of same. He relied on CHIDUME OKORO & ANOR v. IKECHI OKORO [2009] ALL FWLR (PT 489) 480 at 487 – 488. He also referred to NATIONAL BANK v. WEIDE & Co. (1996) 9 – 10 SCNJ 147 at 156, Per Ogwuegbu JSC; ABUJA TRANS-NATIONAL MARKET v. ABDULRAZQ ABDU & ORS [2007] ALL FWLR (PT 376) 657 at 682, paras E – F, Per Oyebisi Folayemi Omoleye JCA; SANTORY CO. LTD v. ELABED [1998] 12 NWLR (PT.579) 538.
Appellant’s counsel further contended that to discountenance the payment made by the Appellant to the Respondent in person or to his other lawyers and agents and treat those facts as non-existent will rather amount to elevating the Respondent’s suit under Order 11 Rule 11 of the lower Court’s Rules to such level of infallibility that once the claimant deposes to the fact that the defendant had no defence to the suit the defendant no matter what is held liable. He further contended that all that the Appellant is required to do is to give particulars which if proven would constitute a defence to the claim or part of the claim thereof and this has been done by him. He
9
cited ATAGUBA & CO. v. GURA NIGERIA LIMITED [2005] ALL FWLR (PT 256) 1219 at 1230 – 1231, per Edozie JSC before urging the Court to uphold this issue in favour of the Appellant.
On his third issue, Appellant’s counsel submitted as per the provision of Order 11 Rule 1 of the Rules of the lower Court vis-a-vis the reliefs sought by the Respondent before the lower Court and then invited the Court to examine the exhibits upon which the Respondent’s prayer is predicated. Counsel further urged this Court to take cognisance of the fact that although the writ was issued in the last days of May, 2012, the Motion for ‘ENTERING OF FINAL JUDGMENT (sic) was only heard after two years on the 6th of June, 2014 within which period the suit had been struck out and relisted on the 12th of March, 2014, and the Respondent had employed several other lawyers and the Appellant had made several payments.’ It is the submission of counsel that the Respondent did not meet the requirement of Order 11 Rule 1 of the Lower Court’s Rules to be entitled to final judgment. He noted that the Respondent’s failure in this regard is in two folds, namely, that the Respondent prayed the
10
Court for ‘ENTERING OF FINAL JUDGMENT (sic) instead of summary judgment’ and also that the Respondent did not furnish sufficient grounds to support the claim for the sum of N42,000,000.00 and interest on the said sum. He cited REBOLD INDUSTRIES LIMITED v. MAGREOLA LADIPO [2007] ALL FWLR (PT 395) 522 at 53, Per PAUL ADAMU GALINJE, JCA. That by asking for final judgment instead of summary judgment as provided under Order 11, it creates a situation where the Court’s duty to grant the Respondent’s prayer is a foregone conclusion. He cited UBA PLC v. ALHAJI BABANGIDA JARGABA [2007] ALL FWLR (PT 380)1419 at 1436 to submit that the Court shall only enter judgment for the claimant once there is absence of reasonable doubt to the Claimant’s claim. He referred to Order 11 Rule 5 & 6; OKAMBAH LIMITED v. SULE [1990] 7 NWLR (PT 160) 1 at 13; NBN LTD v. GUTHRIE [1993] 24 NSCC (PT 1) 401 at 411; MACAULAY v. NAL MERCHANT BANK [1990] 21 NSCC (PT II) 433 at 444 to submit that the Appellant opposed the Respondent’s application for final judgment and that the Respondent has not substantiated his claim sufficiently. He cited MR. KWASI KARIKAH ADUSEL & ANOR v. MR TOYIN AKEBAYO
11
[2012] 49 (PT.III) NSCQR 1492 at 1509; BUHARI v. INEC [2008] 36 (PT 1) NSCQR 475 at 689 – 690; ALIUCHA v .ELECHI (2012) 50 (PT 1) NSCQR 270 at 297B to submit that the Respondent did not relate any of the documents he exhibited as the basis of the claim that an admission has been made and that the incomplete cheque showing the whole sum of N42,000,000.00 does not help the matter; that the lower Court erred without stating the basis of the conclusion that the Appellant have only paid N1,000,000.00 based only on the two Diamond Bank Drafts for N500,000.00 in the absence of an acknowledgement of the bank draft by the Respondent and that there is too much doubt that can be resolved by facts the lower Court relied on to give judgment for the Respondent. He finally urged that this appeal be allowed.
As earlier noted, the Respondent’s counsel nominated a sole issue for determination. Before nominating the issue, Counsel argued that the Appellant vaguely raised three issues for determination without relating any of the issues to the Ground of Appeal in this Notice of Appeal. Nonetheless, while arguing his sole issue, Respondent’s counsel submitted that the learned
12
trial judge was patently and legally right when on available evidence he entered final judgment in favour of the Respondent on the admission of the Appellant and under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004. He made reference to the Respondent’s Statement of Claim filed on the 30th day of May, 2012 to submit that the Respondent’s pleadings were never positively denied by the Appellant nor a contrary token of evidence provided by the Appellant in rebuttal thereof, hence no triable issue. Respondent’s counsel submitted that the Appellant admitted his indebtedness to the Respondent in the sum of Forty – Two Thousand Naira in his Counter-Affidavit deposed to on the 9th day of May, 2014 and that all the documents attached to the Appellant’s Counter-Affidavit were neither annexed, nor marked as exhibits in support of the Counter Affidavit so that they were never identified in any form, manner or style in any of the paragraphs of the Appellant’s Counter Affidavit. That they ought to be disregarded and discountenanced by the Learned Trial Judge. He cited UBA PLC v. DAVIES (2011) 11 NWLR (PT 1259) 591 at 622,
13
Paras. G – H to submit that unless an averment in a pleading is expressly admitted or not denied by the adversary, it is incumbent on the party making such plea to lead evidence in support of it; otherwise it must be regarded as having been abandoned. He contended that the Appellant in one breadth denied his indebtedness to the Respondent while in another pleaded and make an allegation of part payment of the same debt and was therefore enjoined at law to prove by cogent evidence how and when the alleged part payments were made and to whom they were acknowledged. He cited AREGBESOLA v. OYINLOLA (2011) 9 NWLR (PT 1253) 458, paras G – H; 697, paras A – G; OJOH v. KAMALU [2005] 18 NWLR (PT 958) 523; ALAO v. AKANO [2005] 11 NWLR (PT 935) 160; AKINFOSILE v. IJOSE (1960) SCNLR 447; IMANA v. ROBINSON (1979) 3 – 4 SC 1. Referring to DANJUMA v. TERENGI [2011] 6 NWIR [PT 1244] 542 at 557, paras A – B; ANYAH v. IMO CONCORDE HOTELS LTD [2002] 18 NWLR (PT 799) 377; SPDC LTD v. OLANREWAJU [2008] 18 NWLR (PT 1118) 1, counsel argued that pleadings not supported by evidence are deemed abandoned and that in the instant case, the Appellant having not supported his plea of part payment of
14
his admitted indebtedness to the Respondent abandoned the averments in both his Statement of Defence and Counter Affidavit. He cited OKWARANONOBI v. MBADUGHA [2013] 17 NWLR (PT 1383) 255 at 272, Paras A; 273, Paras A – D; STATE v. RABIU [2013] 8 NWLR (PT 1357) 585 SC; ODEH v. FRN [2008] 13 NWLR (PT 1103) 1; MATANMI v. DADA [2013] 7 NWLR (PT 1353) 319 at 342, paras F – H; ODOFIN v. AYOOLA (1984) 11 SC 72; ONOWAN v. ISERHIEN (1976) (incorrect citation); FED. COMM. WORKS & HOUSING v. NWACHUKWU [2013] 3 NWLR (PT 1342) 503 at 518, Paras E – F; KUBOR v .DICKSON [2013] 4 NWLR (PT 1345] 534 at 585, paras G; 586, Paras B – C; KAMALU v. UMUNNA [1997] 5 NWLR (PT 505) 321, Para 9; AREGBESOLA v. OYINLOLA (supra) at 609, Paras E – F; OMEGA BANK (NIG) PLC v. O.B.C. LTD [2005] 8 NWLR (PT 928) 547; GARUBA v. KWARA INVESTMENT CO. LTD [2005] 5 NWLR (PT 917) 160. He also relied on BUNGE v. GOVERNOR OF RIVERS STATE [2006] 12 NWLR (PT 995) 573 at 599 – 600, Paras H – a; BIEZAN EXCLUSIVE GUEST HOUSE LTD v. UNION HOMES SAVINGS & LOAN LTD (2011) 7 NWLR (PT 1246) 246 at 285, Paras C – D; AROMOLARAN v. OLADELE [1990] 7 NWLR (PT 162) 262 at 368, Paras E – F; CAPPA & D’ALBERTO LTD v.
15
AKINTILO [2003] 9 NWLR (PT.824) 49 at 69, Paras C – F; AGBAHOMOVO v. EDUYEGBE [1999] 3 NWLR (PT 594) 170 at 183, Paras F – G; Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004; Section 123 of the Evidence Act, 2011; NATIONAL BANK OF NIGERIA v .GUTHRIE [1993] NWLR (PT 284) 634 at 654 – 657; M.G. s LTD v. N.N.S CO LTD (Incorrect Citation); PAS (NIG) LTD v. N.N.S CO. LTD [1990] 6 NWLR (PT 159) 764; NWUKE v. U.B.N PLC [2009] 10 NWLR (PT.1148) 1 at 28, Paras E – H; ANASSAN FARMS v. NAL MERCHANT BANK (1994) 3 NWLR (PT.331) 244 at 251 – 252; A-G FEDERATION v. AJAYI [2000] 12 NWLR (PT 509) 527. Submitting further, counsel noted that the primary object of summary judgment procedure is to allow speedy disposition of a controversy without the need for trial. He referred NNABUDE v. G.N.G (W/A) LTD [2010] 15 NWLR (PT.1216) 365 at 379, Paras F – G; NISHIZAWA LIMITED v. JETHWANI (1984) 15 NSCC 877 at 888 – 889; BENDEL FEED & FLOUR MILL LTD v. NIMB LTD (2000) CLR 4; UTC v. PAMOTEI [1989] 2 NWLR (PT 103) 244 at 283; FSB INTERNATIONAL v. IMANO MOTORS [1995] 2 NWLR (PT.377) 285; SANUSI BROTHER NIGERIA LIMITED v. CARTIA E. ISA [2000] 11 NWLR (PT 679) 566 at
16
576 – 577 before submitting that it would seems that the Appellant’s counsel does not appreciate what summary judgment means in the light of his argument at Paragraphs 4.3.3 – 4.3.4 of his Brief of Argument. He referred to UTC v. PAMOTEI (supra) to argue that by its very nature, summary judgment is a judgment on the merit, hence a final judgment. Counsel submitted further that the reference by the Appellant’s counsel to the fact that the ‘Court shall only enter judgment for the claimant once there is absence of reasonable doubt to the claimant’s claim’ is misconceived as proof by reasonable doubt is only applicable in criminal proceedings. He cited ODEDO v. INEC [2008] 17 NWLR (PT 1117) 554; TANIMOLA v. SURVEYS AND MAPPING GEODATA LTD [1995] 6 NWLR (PT 403) 617; NWOBOSI v. A.C.B [1995] 6 NWLR (PT 404) 656 OGBONNA v. PRESIDENT F.R.N (1997) 5 NWLR (PT 504) 281; NDULUE v. IBEZIM (2002) 12 NWLR (PT 780) 139; NNABUDE v. G.N.G (W/A) LTD (supra) at 391, Paras B -D. He also relied on COTECNA INTERNATIONAL LTD v. I.M.B. LTD [2006] 9 NWLR (PT 985) 275; OGBEBOR v. DANJUMA [2003] 15 NWLR (PT 843) 403; NDIC v. OKEM ENTERPRISES LTD [2004] 10 NWLR (PT 880) 107. He finally submitted
17
that the judgment of the learned trial judge is not perverse as it does not run counter to the evidence and pleadings of the parties. He cited P.A.I.S.C LTD v. JKPEEZ IMPEX CO. LTD [2010] 3 NWLR (PT 1182) 441 at 460, Paras F – G; ANASON FARMS LTD v. NAL MERCHANT BANK [1994] 3 NWLR (PT 1208) 357 at 377, Paras C – D, MOMOH v. UMORU [2011] 15 NWLR (PT 1270) 217 at 271, Paras C – D; 281, Paras C – D; EGRI v. UKPERI (1973) 11 SC 299; KOFI v. KOFI 1 WACA 244; THE STOOL OF ABINABINA v. ENTIMADU (1953) 12 WACA 171; ONU v. IDU [2006] 12 NWLR (PT 995) 657. He also referred to D.P.M.S LTD v. LARMIE [2000] 5 NWLR (PT 655) 138 at 155, Para B; 157, Para E and AYO SOLANKE v. ABRAHAMABED & ANOR [1962] ALL NLR 231 to submit that a person cannot rely on his wrongful act to claim benefit from a Court of law. He urged that this issue be resolved in the Respondent’s favour and the appeal be dismissed.
In reply, Appellant’s counsel referred to SHA v. KWAN [2000] 5 NWLR (PT 670) 685 at 700; AJALA v. AFOLAYAN [1994] 5 NWLR (PT 346) 765 at 772; GEIDAM v. NEPA [2001] 2 NWLR (PT 969) 45 at 53; ATANDA v. AJANI [1989] 3 NWLR (PT111) 511 at 543 – 544; CHIA v. STATE [1996] 6 NWLR (PT 455] 456
18
at 474; OBI v. OZOR [1991] 9 NWLR (PT 213) 94 at 106 – LO7; OGBUANYINYA v. OKUDO [1990] 4 NWLR (PT 146) 551; EKE v. OKWARANYIA [2001] 12 NWLR (PT 726) 181 at 213 – 214; BAMGBOSE v. OLARENWAJU [1991] 4 NWLR (PT 184) 132 at 146 to submit, inter alia that the sole issue formulated by the Respondent is not cogent, precise and accurate and that if the Respondent is to be allowed to formulate issue for determination separate from those formulated by the Appellant, he ought to first attack the issues as formulated by the Appellant and discredit it for not being in line with triable issues and pleadings and also that the Respondent ought to have filed a Respondent Notice.
On the Respondent’s argument as per Appellant’s alleged misrepresentation, fraud and issuance of dud cheques, he submitted that same are not within the class which the trial Court can hear under Order 11 and that such allegations are criminal in nature which are not triable by affidavit. He cited SODIPO v. LEMNINKAINEN [incomplete citation); FMG v. SANNI [1990] 4 NWLR (PT 147) 688 at 704 & 722; OKAMBAH v. SULE (supra).
Relying on Section 24(b) and (c) of the Evidence Act, he submitted that
19
the trial Court had acted wrongly in the findings made which the Respondent now rely on by alleging that the issuance of a cheque is an admission of indebtedness, which in fact is merely an instruction to a banker to pay the bearer and not merely an acknowledgment of indebtedness. He cited ACCESS BANK PLC v. M.F.C.C.S (2005) ALL FWLR (PT 251) 308 at 320 – 321.
He further argued that the provision of Order 11 of the Rules only relates to Summary Judgment and not Final Judgment. He cited A-G OF LAGOS STATE v. A-G FEDERATION (2004) 20 NSCQR 99 at 187; CHIME v. UDE [1996] 7 NWLR (PT 461) 379 at 437 F-G; INTERCONTINENTAL BANK v. BRIFINA LIMITED (2012) 50 (PT 1) NSCQR 307 at 328.
The foregoing represents the arguments and counter argument of the parties in support of their respective position in this appeal. However, before I proceed to the resolution of the issues formulated by the parties, I must say that while it is usually not easy to produce a statement of issue that both informs and influences the Court while using few words, an issue for determination must give information about a substantial point of law or fact and at the same time try to influence
20
the Court on its cogency. Therefore, it is necessary that counsel must at all times understand and appreciate very clearly the pertinent issues in the appeal.
In CBN v JACOB OLADELE AMAO & 2 ORS [2010] 16 NWLR (PT 1219) 271 SC; (2010) LPELR – 833 (SC) pp. 12 – 13, paras G -?? B, the Supreme Court, Per ONNOGHEN, JSC stated quite succinctly thus:
“It is important for counsel to note that an issue put before a Court mast be substantial in nature so as to determine the matter in controversy one wag or the other upon its resolution by the Court. What is important therefore is not the number of issues formulated by counsel but the quality of the issues(s) so formulated. If a single issue can dispose of a matter one way or the other why formulate many to waste the precious time of the Court. The Courts do not deal with hypothetical or academic issues directed at demonstrating academic dexterity or excellence.”
Issues for determination, being substantial questions for determination by the Court must not only relate to the ground of appeal, it must of utmost necessity be precise, cogent and compelling that a decision in favour of a party to the
21
appeal will entitle him to the judgment of the Court. See: KALU v ODILI [1992] 6 SCNJ 76; NWANKWO v YAR’ADUA [2010] 12 NWLR [PT 1209] 518 SC; AKPAN v BOB [2010] 17 NWLR (PT 1223) 421 SC. A careful perusal of the issues identified by the Appellant in this instant case shows that they were inelegantly drafted, imprecise and proliferated. As the Respondent’s counsel rightly noted, the three issues raised by the Appellant are not only patently vague, the issues are also prolix. Ipso facto, contrary to the submission of the Appellant’s counsel that the sole issue nominated by Respondent’s counsel should be discountenanced by this Court as he has failed to file a Respondent Notice, it is settled law that issues for determination may be formulated by either of the parties or by the Court suo motu. While in both cases, the issues must relate to the ground of appeal, in the latter case, parties must be afforded the opportunity of addressing the Court on the issue raised suo motu before the Court can decide the matter on such issues. The Apex Court, Per IGUH, JSC in MUSA SHA (JNR) v KWAN [2000] 8 NWLR (PT 670) 685; (2000) LPELR -3031 (SC) p. 20, paras D – G,
22
held:
“In this connection, it is firmly established that issues tor determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the Court after a consideration of those set out by the parties alongside the ground of appeal filed. The Court of Appeal is at liberty and possesses the jurisdiction to modify or reject all or any of the issues formulated by the parties and frame its own issues or, as pointed, above, to reframe the issues by the parties if, in its view, such issues will not lead to a proper determination of the appeal. However, the issues framed, whether by the parties or by the Court, must all times be related to the grounds of appeal filed.”
Having regard to the foregoing, I shall adopt the sole issue formulated by the Respondent as it is not only precise, weighty and cogent; Also it flows from the grounds of appeal contained in the Notice of appeal, thereby capturing the essence and grievance of the Appellant against the decision of the trial Court. For the purpose of emphasis, the sole issue for the determination of this appeal is:
“Whether having regards to the state of the
23
pleadings and affidavit evidence, the learned, trial judge was right when he entered, final judgment in favour of the Respondent under Order 11 Rule 1 and Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rule, 2004 (Grounds 1, 2, and. 3 of the Appellant’s Ground of Appeal).”
This issue calls for the determination of the application of Order 11 and Order 19 of the High Court of Lagos State (Civil Procedure) Rules, 2004 (same as the 2012 Rules). The relevant provisions of Order 11 of the Rules are as follows:
1. Where a claimant believes that there is no defence to his claim, he may file with his Originating Process, the Statement of Claim, list of documents to be relied upon, the depositions of his witnesses and an application for summary judgment which application be supported by an affidavit stating the grounds for his belief, and a written brief in respect thereof.
2.
3.
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the time prescribed for defence, file:
(a) his statement of Defence;
(b) depositions of his
24
witnesses;
(c) list and copies of documents to be used in his defence; and
(d) a Counter Affidavit and a written brief in reply to the application for summary judgment.
5. (1) where it appears to a judge that a Defendant has a good defence and ought to be permitted to defend the claim he may granted leave to defend.
(2) where it appears to a judge that the Defendant has no good defence the judge may thereupon enter judgment for a claimant.
(3) where it appears to a judge that the Defendant has a good defence to a 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.”
Order 19 Rule 14 provides:
“The judge may, on application, at a case Management Conference or at any other stage of the proceedings where admissions of fact have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.”
It is
25
in line with the above provisions of the Rules that Respondent had filed an application for summary judgment before the lower Court.
Instructively, the Supreme Court has in a plethora of cases emphatically enunciated on the purpose of Summary Judgment Procedure under the Rules of Court. As far back as J.990, the Apex Court in OKAMBAH v SULE [1990] 11 – 12 SC 47; (1990) LPELR-2422 (SC), p. 13, paras C – D, per KAWU, JSC held:
“Now the purpose of the procedure under this order is to enable the plaintiff to obtain summary judgment without trial where his case is patently clear and unreasonable. See Cow v. Casey (1919) 1 KRA 74 and Sodipo v. Lemninkainen & Ors (1986) NWLR (Pt.15) 220. It is not designed to shut out a defendant who can show that there is a triable issue.”
See also UTC (NIG.) LTD v PAMOTEI [1989] 2 NWLR (PT.103) 244; (supra); UBA v JAGARBA [2007] 11 NWLR (PT.1045) 247; THOR v FCMB LTD [2005] 14 NWLR (PT 946) 696.
Appellant’s counsel had argued that the Respondent’s application before the trial Court ought to have failed because the Respondent prayed the Court for ‘ENTERING OF FINAL JUDGMENT‘ instead of summary judgment.
26
Firstly, it will appear that the Appellant’s counsel does not appreciate the essence of an application under Order 11. As a corollary to what I said earlier, a summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial. Any judgment given thereon is a judgment on the merits because it is based on the lack of defence to the claim and same cannot generally be set aside by the Court that granted it except as provided, if any, by the applicable Rules or Statues. Consequently, it is deemed a final judgment and the only option available to an aggrieved litigant is to proceed on appeal if he wishes to have the judgment to be set aside. Secondly, it is apparent from the motion paper filed by the Respondent that he sought for an order principally under the summary judgment procedure as provided under Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2012 and neither the Appellant, the trial Court nor this Court is under any form of misapprehension as to the scope of the order being sought by the Appellant before the lower Court. To my mind, the argument of the learned counsel for the Appellant
27
in this regard is bereft of substance.
It is pertinent to say here that in the appeal before us, particularly as evident from the argument of the Appellant’s counsel in his brief that the Appellant is not denying the fact that he is indebted to the Respondent. Rather, the grouse of the Appellant is that the Learned Trial Judge erred when he held that the Appellant had only made payment of One Million Naira thereby giving judgment in favour of the Respondent in the sum of Forty-one Million Naira (N42,000,000.00).
For the purpose of clarity, the learned trial judge held at page 219 of the Record thus:
“it has been held, that a defendant whose affidavit or oral examination by the Judge does not disclose that he has a good defence to the action on the merits or disclose sufficient facts to entitle him to defend the action generally, will fail to stop the plaintiff from entering summary judgment.
The defence put forward by the defendant in this suit is that the defendant paid the money the claimant paid to him to an agent who promised to refund it, that in spite of that the defendant issued cheques to the Claimant to the tune of N4,000,000.00
28
(Four Million Naira) (as deposed in the counter affidavit) or N16,000,000.00 (Sixteen Million Naira) as pleaded. Yet the defendant has pleaded that the Claimant is not entitled to the discretion of the Court. I beg to differ, As I see it, contrary to he submissions of the defendant, the issuance of cheques is not only an admission of indebtedness; it is also clearly an undertaking to repay the debt. It is not a good defence at all for the defendant to say that he paid the money over to an agent with whom the claimant has no relationship.
The whole pint of the Rules of Court is not parties must frontload their case. A defendant who has been served an “Order 11 application” is all the more put on notice that he must disclose and frontload a triable defence. I have carefully considered all the documents presented by the defendant and none of them convinces me that he has any good defence to this suit. In one of the letters, the defendant claimed he has paid the claimant the sum of N15,000,000.00 (Fifteen Million Naira) but there are only two copies of cheques in this bundle of documents. There are two bankers’ cheques for the sum of N500,000.00 (Five Hundred
29
Naira) each dated 02/04/14 and 22/04/14, that is after this suit was instituted. So if the defendant paid anything at all, he only paid N1,000,000.00.
In the premise, the claimant has established his case by pleadings and affidavit evidence and the salient facts have not been denied or controverted. Having considered the totality of this action, I firmly believe the claimant is entitled to judgment…”
It is instructive to note that although the Claimant/Respondent’s main claim against the Appellant is for the sum of Forty-Two Million Naira, the learned trial judge gave judgment in his favour in the sum of Forty-One Million Naira having found as a fact that the Respondent had already liquidated the sum of One Million Naira, albeit during the pendency of the suit. This finding and conclusion of the trial Court has not been appeal and same stands. Therefore, the relevant question to be answered is, whether the trial Court was correct in its finding and conclusion as reproduced above?
Respondent’s counsel had urged this Court not to disturb the finding of the trial Court as same accords with the law and circumstances of the case. Evidently, the
30
law is trite that an appellate Court will not disturb the findings of fact made by a trial Court unless same is perverse and does not reflect a dispassionate analysis of the facts of the case. It is even of no moment that the Appellate Court would have reached a different conclusion from that reached by the trial Court. See: AROWOLO v OLOWOOKERE & ORS (2011) LPELR – 561 (SC); LAMIDI RABIU v TOLA ADEBAJO [2012] LPELR – 9709 (SC) IDIOK v THE STATE [2008] 13 NWLR (PT 1104) 225 SC.
In the instant case, the Appellant in his Counter Affidavit deposed thus:
“10. That as a result of the claimant’s interest, I made enquires about the property and upon discussing with one of the agents mandated by the landlord to sell the property and found out the pricing and gave the claimant an offer letter, such transaction obviously must be in writing.
11. …
17. That the claimant first issued a cheque for the sum of Twenty Million Naira (N20,000,0000.00) which cheque was returned unpaid and the claimant thereafter made a cash payment.
18. …
27. That according to the claimant instructions I paid over the purchase price to the landlords Agent, Mr.
31
Yinka Adebayo as I had previously done with the initial deposit made by the claimant, which was returned to him by the said Landlord’s Agent when the claimant initially sought to back out from the transaction, but then changed his mind.
28. …
31. That when the said Yinka Adebayo was not forth coming I had applied his best endeavour to ensure that the claimant Funds was returned and had urged the claimant to be patient about it.
32….
40. That I have till date paid the claimant the total sum of Sixteen Million Naira (NGN16,000,000.00) directly to the claimant his several lawyers and the Economic and Financial Crimes Commission. The claimant shall rely on the available documentations showing these payments.
41…
42…
43. That I got a letter from the claimants solicitor in respect of this matter in Court, I did respond and showed him that I had been paying back the money to the claimant from my income and intend to pay back all.
44. That I has since paid various sums of money to the claimant other lawyer Mr. Yinka Sanni, and in June 2013 had also paid the sum of Three Million Naira to the claimant personally and
32
thereafter the cumulative sum of One Million (NGN1,000,000.00) Naira to the Economic and Financial Crimes commission (EFCC).
45. …
53. That I do not owe the claimant the sum claimed in this suit or any sum at all and the claimant is not entitled suit or any sum at all and the claimant is not entitled to the discretion of this Honourable Court as sought.”
I must say that a perfunctory perusal of the counter affidavit of Respondent dated and filed on the 9th of May, 2014 will not only reveal patent inconsistencies in the defence proposed by the Appellant, it will also seem that the depositions therein are those of a sinking man who is trying to hold on to any straw he can find in the waters. Clearly, the provision of Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 enjoins the Court, inter alia, to give judgment in favour of a party to the extent of the admission by the other party in his pleadings. This can be done at the pre-trial stage known as the Case-Management Conference. Order 19 Rule 4 states:
“The Judge may, on application, at a Case Management Conference or at any other stage of the proceedings
33
where admissions of fact have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.”
However, in cases like the one leading to the instant appeal, where the application of the Respondent is also brought pursuant to the Summary judgment procedure under Order 11, the Court must exercise restraint and ensure that such admission by the opposing party is clear, unequivocal and relates to the substantive claim of the Claimant. Therefore, to be able to decide whether there was admission of the alleged indebtedness by the Appellant, which will entitle the Respondent to the sum claimed; one must look at the Appellant’s counter-affidavit as a whole and not just consider each paragraph in isolation. See TITILOYE v OLUPO [1991] 7 NWLR (PT 205) 519; STEEL BELL NIGERIA LIMITED & ORS V NIGERIAN DEPOSIT INSURANCE CORPORATION & ORS (2014) LPELR – 23349 (CA); BUHARI v OBASANJO [2005] 13 NWLR (PT 941) 261.
This is an unusual proceeding and a close study of the record reveals haphazardness in the
34
processes filed at the lower Court. Both parties have not been diligent in their state of affairs. The Statement of Claim as well as Motion for Summary Judgment was filed on 29/5/2012 together with the required accompanying processes. The suit was subsequently struck out on 21/3/2013 but the Respondent thereafter filed an application for relisting which was not taken until 12/3/2014 by which time the matter was set down for hearing against 12/5/2014. See Page 107 of the Record. The Appellant/Defendant in turn filed a counter affidavit as well as the required processes to show that he has a defence to the suit.
It is pertinent to note that by this time, parties had engaged in several negotiations towards settling the matter. This is evident from the various document and correspondences exchanged by parties, including engagement of State Agents like the Economic and Financial Crimes Commission, the Police and other negotiations by lawyers on behalf of the parties. See Pages 131 to 150 of the record. Surprisingly, the Respondent did not deem it proper to amend its process or file a Reply to the Counter Affidavit to reflect what had transpired during this
35
time. He stuck to his guns as per his depositions in the Affidavit in Support of Motion for Summary Judgment to the effect that the Appellant still remained liable to him to the tune of Forty-Two Million Naira.
Notwithstanding the foregoing, though the Appellant admitted the fact of his indebtedness to the Respondent at paragraphs 10, 17, 27 and 31 of the counter affidavit, he nonetheless stated that he had made certain payments in an attempt to settling the indebtedness at paragraphs 40, 43 and 44 thereof. It is instructive to note that the Respondent neglected or failed to challenge or contradict the depositions made by the Appellant in his counter affidavit to the extent that he had paid some money to the Respondent with respect to the total sum owed. The law is settled that facts in an affidavit not challenged, contradicted nor controverted by a party are deemed to be admitted by him unless such facts on the face of it will lead to absurdity if it is taken to be the truth of what is being sought to be established. Where an affidavit is filed deposing to certain facts and the other party does not file a counter-affidavit or a reply to the
36
counter-affidavit, as the case may require, the facts deposed to in the affidavit (or counter-affidavit) would be deemed unchallenged, undisputed and in essence, admitted. Such admitted evidence requires no further proof. See: MAISAJE v HASSAN [2004] 11 NWLR (PT 883) 181; EZEANAH v ATTA [2004] 7 NWLR (PT 873) 648; BUHARI v OBASANJO (supra). However, in OGOEJEOFO v OGOEJEOFO [2006] 3 NWLR (PT 966) 205; (2006) 1 sc (PT 1) 57; (2006) LPELR 2308 (SC); 14, C D, the Apex Court, Per MOHAMMED, JSC held:
“It is also the law that the unchallenged and uncontroverted facts deemed admitted in the affidavit must be capable of proving and supporting the case of the appellant as the applicant. In other words, the evidence contained in the unchallenged affidavit must be cogent and strong enough to sustain the case of the applicant.”
See also M.I.N LTD v M.F.K.W.A LTD [2005] 10 NWLR (PT 934) 645.
The relevant question here is whether the uncontroverted evidence in the Appellant’s counter affidavit is capable of proving and supporting the case of the Appellant so that same is deemed admitted and requires no further proof by the Appellant?. As earlier noted,
37
the Appellant’s counter affidavit is replete with inconsistent depositions.
Similar finding was made by the learned trial judge at page 219 of the record. Although, by virtue of paragraph 27 and 40 of his Counter Affidavit, he admitted to owing the sum of Forty-Two Million Naira (N42,000,000.00) and paid only a total sum of Sixteen Million Naira (N16,000,000.00), he subsequently stated at paragraph 53 of the Counter Affidavit that he does not owe the Respondent the sum claimed or any sum at all. Therefore, I am of view that the facts deposed in the Appellant’s Affidavit as to the payment made by him to the Respondent requires further proof by the Appellant. See AKWA v C.O.P. [2003] 4 NWLR (PT 811) 461; (2002) LPELR – 7153; R.E.A.N v ASWANI TEXTILE LTD [1992] 3 NWLR (PT 227) 1 at 13; NATIONAL BANK v ARE BROTHERS LTD (1977) 6 SC 97 at 108.
In this respect, the Appellant deposed in paragraph 4 of the Counter Affidavit that he will rely on several document marked Exhibits MA 01 to MA 14 to contest, oppose and refute the fact in the Respondent/Claimant’s affidavit in support of the application for summary judgment. I am therefore at a loss as to
38
argument of the Respondent’s counsel in his brief of argument that “all the documents attached to the Appellant’s counter affidavit were neither annexed nor marked as exhibits” and that they should be disregarded.
These bundle of documents attached to the counter affidavit are also the same as the copies of document accompanying the Appellant’s Statement of Defence and his Witness Statement on Oath and also outlined under the list of documents to be relied on by the Appellant. See Page 123 of the Record. These documents were frontloaded as required under Order 11 Rule 4 of the Rules and also pleaded in the Appellant’s counter affidavit. In fact, the learned trial judge referred to these documents in his judgment in reaching the conclusion that the Appellant made payment of the sum of One Million Naira to the Respondent during the pendency of the suit. See Page 219 of the Record on the reference by the learned trial judge to the “bankers’ cheques for the sum of N500,000.00 each dated 02/04/14 and 22/04/14”.
Let me say at this point that although the Appellant sought to rely on some document in proof of the extent of his indebtedness as earlier
39
enumerated, I am of the view that not all the documents, though pleaded, are admissible in law. Thus, no probative value is to be attached to them. Exhibit MA01 is a document showing the Appellant’s email of 29th, October 2013 outlining some of the payments made to the claimant. It is important to note that nothing on the face of the document indicates who the email was sent to and whether it was in fact acknowledged by the person it was sent to. The Appellant even failed to show the relevance of the content of the mail to the instant case. Exhibit MA02 and Exhibit MA03 are compromise and settlement agreements negotiated by the Appellant and two different law firm acting on behalf of the Respondent at the various times. This agreement was neither dated nor executed by the parties. It has no value more than the ordinary paper upon which it was written. Same is of no relevance to this case. Exhibit MA04 is a document showing EFCC bail condition to the defendant dated 26th June, 2013 and has no bearing to the suit. Exhibit MA05 is a document showing an email from Bols Attorneys & Solicitors (Respondent’s counsel) dated 20th August, 2013, indicating that
40
the Respondent was willing to explore amicable settlement of the dispute. Exhibit MA06 is the Appellant’s email sent to the Respondent and dated 5th April, 2013 containing the conditions of a proposed compromise agreement. Exhibit MA07 is a letter written by Kelsey Grene Practice to the Appellant and dated 25th September, 2013, wherein a demand of the outstanding sum was made on behalf of the Respondent. Exhibit MA08 is Phoenix Solicitors, the Defendant’s Solicitor’s letter to Kelsey Grene Practice and dated 28th October, 2013 in response to the demand letter. Exhibit MA09 is a document showing the Appellant’s email of 30th May 2012 captioned ‘Fwd: STOP CHEQUE’ and forwarded to one Taofik Sowunmi Olufowobi. Exhibit MA10 is a Nelson & Nelson Chambers’ demand letter dated 11th May, 2012 written to the Appellant. Exhibit MA11 is a Michael Adeboye letter of 14th May 2012 in response to the demand letter from Nelson & Nelson Chambers. Exhibit MA12 is a Kelsey Grene Practice Letter of January 21st, 2014 accepting the Appellant’s Solicitor’s proposal as to how the outstanding sum will be liquidated by the Appellant. Exhibit MA13 and Exhibit M14 are two copies
41
of Diamond Bank Managers’ Cheques dated 2nd April, 2014 and 22nd April, 2014 in favour of the Respondent for the sum of Five Hundred Thousand Naira (N5,000,000.00) each.
A review of the content of these documents show that while some are relevant towards showing the extent of the Appellant’s indebtedness to the Respondent, others are not and will therefore be disregarded.
Exhibit MA07 is a letter dated 25th September, 2013 which was written and signed by one Segun Gbolahan, Principal Partner of Kesley Grene Practice and acting as Solicitors of the Respondent. See pages 176 to 179 of the record. By virtue of the said letter, the Respondent demanded for the payment of the outstanding sum due out of the total sum and in this respect stated the amount that has already been paid by the Appellant to the Respondent. The letter reads in its sixth paragraph thus:
“Meantime Bar. Adeboye, it is rather shocking and disheartening that for more than two years standing, up until the time this letter was brought to our attention by our client you have made little effort in liquidating this debt, rather you elected to toss the sum of Twelve Million Naira
42
(N12.000.000.00) to our client in bits and, pieces, in the space of twenty four months….”
Similar tone is evident in Exhibit MA12, the letter dated 25th of January, 2014 written by the same lawyer acting on behalf of the Respondent accepting the payment proposal put forward by the Appellant. See page 190 to 191 of the Record. Instructively, this letter written by the Respondent’s (former) counsel to the Appellant was written after the commencement of the suit before the lower Court.
Apparently, the suit was initiated by a Writ of Summons dated and filed on the 30th of May, 2012 and the application by way of motion on Notice for summary (final) judgment was also filed the same day.
Therefore, it is possible that the payment that was referenced by the Respondent’s Solicitor was made after the commencement of the suit.
A fortiori, the content of the letters written by the Respondent’s Solicitor on his behalf dated 25th September, 2013 and 21st January, 2014 and which remains unchallenged and have not been denied as not emanating from the Respondent indicates quite clearly that as at the 21st day of January, 2014, the Appellant had paid
43
the sum of Twelve Million Naira (N12,000,000.00) to the Respondent in partial satisfaction of the total sum of Forty-Two Million Naira (N42,000,000.00) owed to the Respondent.
This is a case of admission against interest by the Respondent, which requires no further proof by the Appellant. It is trite law that an admission by a party against his own interest is at best the most appropriate evidence in favour of his opponent. In ATOBATELE ALI v UBA [2014] LPELR – 22635, this Court, per AUGIE, JCA; 39, B- E held:
“It is presumed, that no man would declare anything against himself unless it was true. See Eigbe v. N.U.T [2008] 5 NWLR (Pt 1081) 604. Thus, a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim. See Ipinlaye II v. Olutokun (1996) 6 NWLR (Pt.453) 148SC…”
See also ONYENGE v EBERE [2004] 13 NWLR (PT 899) 20; OKUNADE v OLAWALE [2014] LPELR – 22139 (CA). The admission by the Respondent in the instant case based on the content of Exhibit MA07 and MA12, suggests a clear and unequivocal inference that the Appellant had indeed paid the sum of Twelve Million Naira
44
(N12,000,000.00) in bits and pieces’ to the Respondent contrary to the contention of the latter. It will be a grave miscarriage of justice for this Court to disregard the payments made by the Appellant during the pendency of the suit and before judgment, as shown by the above exhibits. It will be unconscionable in the light of the facts and circumstances of this case to expect the Appellant to pay the total sum as claimed by the Respondent.
To this extent, I am unable to agree with the trial Court that the Appellant only paid the sum of One Million Naira to the Respondent out of the sum of Forty-Two Million Naira (N42,000,000.00) paid to him by the Respondent. A dispassionate consideration of the Affidavit evidence and exhibits before the Court will and did in fact reveal that the Appellant paid the sum of Twelve Million Naira (N12,000,000.00) and subsequently the sum of One Million Naira (N1,000,000.00) (evidenced by the bankers’ cheque dated 02/04/14 and 22/04/14) to the Respondent, bringing the amount paid to the Respondent to a total sum of Thirteen Million Naira as at the date the judgment of the lower Court was delivered.
The Trial Court,
45
having failed to consider the important facts arising in the instant case into account, thereby came to wrong conclusion as to the extent of the Appellant’s liability. Thus, the sole issue is partly resolved in favour of the Appellant. I therefore hold that the Appellant is liable for and the Respondent is entitled to the sum of Twenty-Nine Million Naira, being the outstanding sum.
In the final result, this appeal is meritorious and is allowed. The Ruling of the High Court of Lagos State, per Williams J. delivered on 17th of September 2014 is set aside. In its place, the Respondent is awarded the sum of Twenty-Nine Million Naira (N29,000,000.00) and the Appellant shall pay interest on the said sum at the rate of 15% per annum from 30/5/12 when the suit was instituted before the trial Court till full and final liquidation of the debt. Parties to bear their own cost.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A.O. OBASEKI-ADEJUMO JCA. I agree with his Lordship’s reasoning and conclusions. In the case of Woodgrant Ltd & Anor v. Skye Bank PLC (2011) LPELR-8941(CA) the Court of
46
appeal Lagos Division per Danjuma JCA observed:
“A summary Judgment procedure for a case under the undefended list does not automatically call into play a favourable judgment. It has to be a judgment on the merit as deserved and one based upon the documents filed. Once the Court is satisfied, it has a duty to enter judgment as deserved.”
The lower Court did not consider fully the documentary evidence led by the parties in entering judgment for the Respondent in the sum of N41,000,000.00 (forty-one million naira) when there was a document tendered by the Respondent admitting that the Appellant had reduced the indebtedness by the sum of N12, 000,000.00 (twelve million naira).
As pointed out by the SC in Agbi v. Ogbeh (2006) 39 LRCN 17 @ 39; (2006) 11 NWLR (Pt.990) 65 @ 120 Para D, the duty of a Court in a civil claim is only to render unto a party according to his proven claim. I agree that this appeal is meritorious. I also allow the appeal and abide by the consequential orders in the lead judgment including the order as to costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the lead judgment just delivered by my
47
learned brother A.O. Obaseki-Adejumo JCA.
I fully adopt the judgment as mine and also abide by the consequential orders made therein.
48
Appearances:
E. UWAEZUOKI For Appellant(s)
CHIEF NELSON IMOH WITH HIM, K.I. MARCUS For Respondent(s)
Appearances
E. UWAEZUOKI For Appellant
AND
CHIEF NELSON IMOH WITH HIM, K.I. MARCUS For Respondent
