ALHAJI IBRAHIM MASTER v. ALHAJI MOHAMMED ALI CHIROMA
(2018)LCN/11827(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 4th day of July, 2018
CA/K/267/2016
RATIO
COURT AND PROCEDURE: SUMMARY JUDGMENT
“The summary judgment procedure is meant to be used for claims for the recovery of a debt or liquidated money demand where the defendant is believed not to have a good defence to the claim against him. The Court at that stage, is not to decide whether the defence has been established, see UBA PLC. V. JARGABA (2007) 11 NWLR (Pt. 1045) 247; MC INVESTMENT LTD. v. C. I. & C. M. LTD. (2012) 12 NWLR (Pt. 1313) 1; BONA ILE LTD. v. A. T. M. PLC. (2013) 2 NWLR (Pt. 1338).
The purpose of summary judgment procedure is to enable a plaintiff to obtain judgment without going into full scale trial where his case as plaintiff is clear and unassailable, but not to foreclose a defendant who can show that he has a good defence.” MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
Between
ALHAJI IBRAHIM MASTER Appellant(s)
AND
ALHAJI MOHAMMED ALI CHIROMA Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the High Court of Kaduna State, sitting at Kaduna Judicial Division delivered by Hon. Justice M.T.M. Aliyu on 22nd February, 2016. By a motion on Notice dated 12th January, 2016 and filed on the 15th January, 2016, for summary judgment, the Respondent as Plaintiff/Applicant prayed the lower Court for the following orders:
1. An order of the Court for the payment of the sum of Seven Million, Four Hundred and Twenty Thousand naira (N7,420,000.00) only being the outstanding balance of the plaintiff’s money with the defendant.
2. General damages in the sum of Ten Million Naira (N10,000,000.00) in favour of the plaintiff against the defendant.
3. Fifteen percent (15%) Court interest of the total sum until the said judgment debt is fully and finally settled.
4. Cost of this action.
In support of the motion is a 19-paragraphs affidavit deposed to by the plaintiff/applicant and a written address in respect of the application. Attached to the affidavit are 9 annexures. (Exhibits A-I). No counter affidavit was filed by the Applicant/Defendant.
The summary of the facts of the case which transform into this appeal was that the parties by an agreement dated 19th May, 2015 termed ‘memorandum of understanding’ for the purpose of carrying out a business of buying and selling vegetable oil, Rice, Sugar and Flour and the profit thereof shall be lodged into a particular bank Account on weekly basis and to be shared monthly on the basis of 1/3 to the Appellant and 2/3 to the Respondent.
Based on this agreement the respondent as principal gave out the sum of N14 million to the appellant as agent for the take off of the business. That after some months, the defendant/appellant did not pay anything into the account and failed/refused to furnish the plaintiff with any evidence of the business despite several demands by the plaintiff. That the plaintiff was compelled by the conduct of the defendant and terminated the agreement in accordance with the term of agreement and served defendant with the notice of termination of the agreement and demanded refund of his money.
That on 6th September, 2015, the defendant undertook to pay the sum of N10 Million within 7 weeks, but before then, he has paid the sum of N4 Million leaving the balance of N10, Million and he thereafter paid N2, 580, 000.00 making the total sum paid of N6, 580.000.00 leaving the balance at N7, 420.000.00 only. That the defendant neglected/refused to pay the balance after several demand, hence, the plaintiff filed a motion for summary judgment dated 12th January, 2016. The defendant did not file counter-affidavit or any processes before the Court.
In a considered ruling, delivered on 22nd February, 2016, found at pages 131-132 of the record, the Court entered judgment in favour of the plaintiff in the sum of N3, 420.000 and transferred the remaining claims of N4 million to the general cause list.
Dissatisfied with the decision, the appellant on 25th February, 2016 lodged a two(2) grounds notice of appeal seen at pages 143-145 of the record and prayed this Court to allow the appeal and set aside the judgment of the lower Court delivered on 22nd February, 2016 by Hon. Justice M.T.M. Aliyu in Suit No. KDH/KAD/43/2016.
In compliance with the Rules of this Court governing the hearing of civil appeals, parties filed and exchanged their respective briefs of arguments. Appellant’s brief of argument settled by S. Shuiaibu, Esq. dated 21st September, 2017. A. M. Imam Esq., settled the Respondent’s brief dated and filed on 24th October, 2017.
At the hearing of the appeal on 10th April, 2018, learned counsel for the appellant, S. Shuiaibu adopted the appellant’s briefs of argument as representing his argument for the appeal. He urged the Court to allow the appeal. Similarly, learned counsel for the respondent, A. M. Imam adopted the respondent’s brief of argument as forming his reaction against the appeal. He urged the Court to dismiss it.
Learned counsel for the appellant in his brief of argument, formulated two (2) issues for determination to wit:
1. Whether the lower Court was right in the absence of any express admission by the appellant and in an application for summary judgment to have entered judgment for the Respondent on a specific sum not admitted rather than granting leave for the appellant to defend the action holistically.
2. Whether the trial judge was not wrong over his failure to take cognizance of the processes filed by the Appellant on the 22nd February, 2016 before the judgment was delivered.
On the other hand, learned counsel for the Respondent distilled two (2) issues for determination:
1. Whether the learned trial judge was wrong in entering judgment for part of the sum claimed in absence of any defence or counter affidavit in opposition to the motion of summary judgment and appearance of counsel to the appellant as respondent before him.
2. Whether the Court below owe a duty to take cognizance of a process that was filed opposing an application that was moved and stood down same for Ruling.
ARGUMENTS OF THE ISSUES.
ISSUE ONE
In arguing issue one, learned counsel for the appellant submitted that the respondent claimed the sum of N7, 420, 000.00k before the lower Court, the Court, according to counsel, is required to look at the respondent’s processes placed before the Court with the view of ascertaining whether there is any evidence of admission or indebtedness by the appellant of the sum claimed. It was submitted that there is no where, in the entire processes filed by the respondent shows that the Appellant had admitted the indebtedness to the tune of N3, 420, 000 for which judgment was entered.
He contended that the lower Court was wrong to have granted leave for the respondent to prove the sum of N4 million. That the amount claimed under a summary judgment procedure as in the instant appeal, should be clear, and certain. He referred to BENDEL FEED & FLOUR MILL LTD v. NIMB (2000) 5 NWLR (Pt. 655) 29; DANGE SHUNI LOCAL GOVERNMENT COUNCIL v. OKONKWO (2008) All FWLR (Pt. 415) 1775 for the view.
Counsel referred to order 11 Rule 5(3) of the Kaduna State High Court (Civil Procedure) Rules, 2007 which provides thus:
”where it appears to a judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the judge may thereupon enter judgment for that part to which there is no defence.”
And submitted that the lower Court did not rely on this provision in entering judgment in part for the respondent.
In responding to this issue, learned counsel for the respondent submitted that the trial judge was right when he entered judgment partly in favour of the respondent and transferred the claim for the sum of 4million to the general cause list for the respondent to prove same.
Learned counsel submitted that at the time of the hearing of the application, there was no any process filed by the appellant/defendant to challenge the depositions of his affidavit in support of the application for summary judgment before the Court despite being served with the motion on the 19th January, 2017.
He argued that when the matter came up for hearing of the application on the 22nd February, 2017, neither the appellant nor his counsel was in Court and no any process opposing the application before the Court. That Order 11 did not restrict the lower Court judge to enter judgment, if it appears to him that the defendant has no defense to a particular amount particularly where no defence or written addresses was filed as in the instant case. He referred to page 130 of the records.
Counsel submitted that the respondent in proof of his case, has placed sufficient material evidence before the lower Court to be entitled to judgment, that the findings of the lower Court was based on the facts and material evidence placed before it; the Court said counsel was therefore right to have found for the respondent. He urged the Court to resolve this issue in favour of the Respondent.
ISSUE TWO (2)
In arguing this issue, learned counsel for the appellant submitted that the learned trial judge was wrong for his failure to take cognizance of the processes filed by the appellant on the 22nd February, 2016 before the judgment was delivered on the same date. He contended that the Courts are enjoined to look at the documents in the file which forms part of the record upon due filing. That the Court can even suo motu make reference to the case file before it and make use of any document and relevant evidence. He cited AGBAHAMOVA v. EDUYEGBE (1999) 3 NWLR (Pt. 594) 170; FAMUDOA v. ABORO (1991) 9 NWLR (Pt. 214) 210; ONAGORUWA v. ADENIJI (1993) 5 NWLR (Pt. 293) 317 for the view.
In reacting to this issue, learned counsel for the respondent submitted that the learned trial judge does not owe a duty to take cognizance of a process that was filed in respect of an application that was heard and ruling for same was stood down.
Counsel submitted that the process referred to by the appellant is a motion on notice dated 19th February, 2016 and filed on the 22nd February, 2016.
Seeking for an extension of time to file his statement of defence and written address in opposition to the application for summary judgment that was already heard. That when the matter came up for hearing of the application for summary judgment, the appellant’s application was never filed, no process before the Court, for the Court to recognize and the appellant was not even before the Court nor his counsel. He referred to pages 130-131 of the record.
Counsel submitted that Assuming but not conceding that the process referred by the appellant was before the Court, can the Court be expected to move the motion and rule thereon; counsel argued that the law is that the Court cannot be expected to rule on a motion that was not moved. He cited SAVANNA BANK OF NIG. PLC. v. JATAU KYENTU (1998) 2 NWLR (Pt. 536) 4.
RESOLUTION OF THE ISSUES.
ISSUE ONE
The chief grievance of the appellant under this issue is that in an action under summary judgment procedures, the Court should look at the processes filed with the view of ascertaining whether there is any evidence of admission of indebtedness by the defendant.
The summary judgment procedure is meant to be used for claims for the recovery of a debt or liquidated money demand where the defendant is believed not to have a good defence to the claim against him. The Court at that stage, is not to decide whether the defence has been established, see UBA PLC. V. JARGABA (2007) 11 NWLR (Pt. 1045) 247; MC INVESTMENT LTD. v. C. I. & C. M. LTD. (2012) 12 NWLR (Pt. 1313) 1; BONA ILE LTD. v. A. T. M. PLC. (2013) 2 NWLR (Pt. 1338).
The purpose of summary judgment procedure is to enable a plaintiff to obtain judgment without going into full scale trial where his case as plaintiff is clear and unassailable, but not to foreclose a defendant who can show that he has a good defence.
The law is that, where a Court is called upon for summary judgment, as in the instant case, the Court is required to look at the facts deposed to in the plaintiff’s processes and the defendant’s counter-affidavit or statement of defence where applicable and see if it raises good defence. Where the Court finds that the defendant has no defence to a plaintiff’s claim, the Court has no option other than to enter judgment for the plaintiff for the sum claimed, see TAHIR v. UDEAGBALA HOLDING LTD. (2004) 2 NWLR (Pt. 854) 451; OBITUDE v. ONYESOM COM. BANK LTD. (2014) 4 NJSC (Pt. II); AMADE v. UBA PLC. (2018) 6 NWLR (Pt. 1614) 29.
For the plaintiff to be entitled to summary judgment, it must be shown in his supporting affidavit that the adverse party has no defence to the liquidated sum claimed. In the instant case, the respondent as plaintiff averred that he gave the appellant the sum of N14 Million for the purpose of the business of buying and selling of vegetable oil, Rice, sugar and flour as contained in Exhibit C, while Exhibit D is the evidence of the payment of the said amount. The defendant/appellant by Exhibit H accepted his failure to meet up with the business and pleaded with the respondent and undertook to pay the remaining N10, million within 7 weeks from 6th September, 2015 as can be seen in the said Exhibit H.
The plaintiff/respondent’s motion was served on the defendant/appellant. The defendant decided not to file any counter-affidavit in response to the motion, the learned trial judge on 22nd February, 2016 delivered his ruling and found for the plaintiff and entered judgment in the sum of N3.420, 000.00 and transferred to the general cause list the proof of N4. Million. The proceedings before the lower Court of 22nd February, 2016 is hereunder reproduced for ease of reference.
22/02/2016
Plaintiff/Applicant in Court.
A.N. Imam for Plaintiff
Imam: The matter is for hearing of our application and we are ready.
Senior Reg: The defendant is (sic) served with the writ of summon on Notice on 19/01/16.
Imam: The motion is brought under Order 11 Rule 1 of the Rules of this Court. It is dated 12/1/16. I pray to withdraw prayers 2 and 3 of the motion paper.
Court: Prayers 2 & 3 of the motion paper are struck out.
Imam: the applicant prays for the sum of N7,420.000.00 only being outstanding balance of the plaintiff money. We also seek for payment cost of this suit.
The application is supported by a 19 paragraph affidavit annexed are Exhibit A-I we rely on all depositions and exhibit. We also have our written address dated 12/1/16 we adopt it and pray that the application be granted as prayed.
Court: Stood down to 1:30 for Ruling.
Signed.
Resumed 4:00.
Plaintiff in Court.
A.M. Imam for the Plaintiff Ibrahim Ahmed holding Suleiman Shuaibu’s brief for defendant.
Ruling
The claim of the plaintiff against the defendant is the sum of N7, 420.000.00 being outstanding balance of the plaintiffs money with the defendant.
The defendant was served with the originating process i.e the statement of claim, exhibits deposition of witness and the present application in accordance with the provision of Order 11 Rule 3 on 19th January, 2016. The defendant has failed to comply with the provision of Order 11 Rule 4 of the Rules of Court. Consequently, I hereby enter judgment in favour of the plaintiff against the defendant in the sum of N3,420,000 (Three Million, Four Hundred and Twenty Thousand Naira) only. I transfer the remaining claims of N4M to the general cause list for the plaintiff to prove.
Signed
Gleaned from the above, there was no counter-affidavit or any process filed by the appellant before the Court. The appellant was in Court at the resumed sitting at 4:00PM when the Ruling was delivered but he did not inform the Court before and even after the ruling of his counter-claim or any process, if any was/is before the Court. The appellant having been served with the application, it was expected of him to show that he has a good defence entitling him to defend the action by filing a counter-affidavit.
Learned counsel for the appellant contended that there is nothing to support with certainty the amount claimed by the respondent for which the lower Court entered judgment for N3,420.000. He relied on the case of Bendel Feed & Flour Mill Ltd V. NIMB. (supra). I have gone through the facts and indeed all other materials placed before the Court in both the Bendel’s case and the instant case, the case of Bendel cited by the appellant is not on all fours with the instant case, in that the learned trial judge proceeded to give judgment in favour of the respondent when the amount claimed and the crucial documents in support are clearly at variance.
In the case at hand, the amount claimed and the documents especially Exhibits mac C, mac D and mac H speak the same language, they are at one. The defendant having neglected to put up any defence, the learned trial judge was therefore right, in my humble view, to have proceeded and in entering judgment in the sum of N3,420.000.00 and in transferring the remaining N4 million to the general cause list for the Respondent/Plaintiff to prove same and I so hold. Issue one is resolved against the appellant.
ISSUE TWO.
Learned counsel for the appellant submitted that Courts are enjoined to look at the document in the Court file which forms part of the record. That the lower Court was wrong when he failed to take cognizance of the process filed by the appellant on the same date when the judgment was delivered.
An appellate Court is guided by the record of appeal, if it has not been impeached as incorrect or incompetent; the Court in the determination of this appeal is bound by the record of appeal. See ONWUKA V. ONONUJU (2009) 11 NWLR (Pt. 1151) 174; GARUBA V. OMOKHODION (2011) 15 NWLR (Pt. 1269) 145.
I have read the record, the spinal cord of the appeal, interestingly, I am unable to see, even with the judicial periscope where the appellant/defendant’s motion was shown to be before the lower Court, on the date of the hearing and the ruling of the application i.e 22nd February, 2016. The Court does not assume documents that have not appeared before it for consideration. Learned counsel for the appellant was before the Court when the Court resumed at 4:00pm for ruling but failed to bring to the attention of the judge his motion if at all it was before the Court. The document cannot be deemed to be within the knowledge of the Court and cannot at that material time be said to be before the Court; see MC INV. LTD. v. C.I. & C.M LTD (2012) 12 NWLR (Pt. 1313) 1.
The Supreme Court in the case of EKPETO v. WANOGHO (2005) 2 NJSC 67 per Kalgo, JSC had this to say:
”The Court like any sensible human being, deals with only issues and matters that are before it does not speculate or assume things that have not appeared before it for consideration. When for example documents are filed in the registry of the Court but have not been filed in the relevant Court files and brought to the attention of the judge, such documents cannot by any stretch of imagination be deemed to be within the knowledge of the Court or judge. The judge or Court concerned is fully entitled to proceed without them since their existence was not known. In other words, the Court of Appeal could not be presumed to know about the motion which was not before it and did not form part of the record at the material time.”
In the instant case, the appellant’s motion for extension of time which was alleged to have been filed on 22nd February, 2016 was not before the lower Court at the material time when the learned trial judge delivered its ruling on the same date i.e 22nd February, 2016. The learned counsel for the appellant was before the Court at that instant time, rather than to do the needful, he decided not to bring it to the attention of the Court. The motion in my view was in that wise not in the Court?s file and the failure of the appellant’s counsel to inform the Court of the document; the document cannot, by any stretch of imagination be deemed to be within the knowledge of the court.
Issue two is resolved against the appellant.
Having resolved the two issues against the appellant, the appeal is unmeritorious and it is hereby dismissed. The Ruling in Suit No. KDH/KAD/43/2016 delivered on 22nd February, 2016 is affirmed. I make no other as to costs.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the priveledge of reading in draft form, the judgment just delivered by my learned brother, Mohammed Ambi-Usi Danjuma, J.C.A.
I agree with the reasoning and the conclusion arrived at in the lead judgment.
I also dismiss this appeal for lacking in merit. I abide by the consequential orders in the lead judgment.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse in draft the leading judgment delivered by my learned brother, Mohammed Ambi-Usi Danjuma, J.C.A. I am in full agreement with the reasoning and conclusion in it. I too penalise the appeal with a deserved dismissal. I abide by the consequential order decreed in it.
Appearances:
S. Shuaibu, Esq. with him, Messrs Daniel Ibrahim and Bashir Shehu
For Appellant(s)
A.M. Imam, Esq.For Respondent(s)
