MR. JOSEPH UMEH v. UNIQUE HOME ITEMS LIMITED
(2019)LCN/12578(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/K/142/2016
RATIO
APPEAL: FAILURE TO DEFEND
“A party who for one reason or the other failed to take prompt advantage of the opportunity given to him to defend himself before a lower Court, cannot be entertained or heard on appeal to complain of having been denied of his right of fair hearing. Such a party should blame nobody but himself. See the decisions in the cases of DARMA VS. ECO BANK PLC (2017) LPELR – 41663 (SC); MFA & ANOR. VS. INOGHA (2014) LPELR – 22010 (SC) and JOEL OKUNRINBOYE EXPORT CO. LTD. & ORS. VS. SKYE BANK PLC (2009) LPELR – 1618 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUDGMENT: SUMMARY JUDGMENT
“Let me start in addressing this issue by restating, that the core essence of summary judgment procedure is to enable a plaintiff recover his liquidated money claim through the instrumentality of designed judicial process which is as fast as possible and without the need to go through the rigours which are usually attendant or prevalent with processes commenced vide writ of summons. The summary judgment procedure is usually and invariably employed to eliminate the delays occasioned to cases that are allowed to go through the normal or routine process of hearings. In summary judgement procedure, the evidence is adduced in form of affidavit evidence; documentary evidence annexed to the affidavit in form of exhibits, and final written address attached to the summary judgment application. See the cases of LEWIS VS. U. B. A. PLC (2016) LPELR – 40661 (SC); THOR LTD. VS. F. C. M. B. LTD. (2005) LPELR – 3242 (SC), and IFEANYI CHUKWU TRADING INVESTMENT VENTURES LTD & ANOR. VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR -24819 (SC).” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH UMEH
(Doing business in the name
and style of A. V. ELECTRONICS) – Appellant(s)
AND
UNIQUE HOME ITEMS LTD. – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Kano State (hereinafter referred to as the lower Court), delivered on the 17th day of February, 2016 by Hon. Justice Mohammed Yahaya, J.
The plaintiff/respondent (hereinafter referred to as the respondent) commenced this action by filing a civil summons, statement of claim and a motion for summary judgment dated the 21st day of July, 2015. It was filed on the 22nd day of July, 2015. The respondent by its statement of claim sought for the grant of following reliefs:
1. The sum of N7,569,001.00 (Seven Million, Five Hundred and Sixty Nine Thousand and One Naira only) being the outstanding balance due and payable from the defendant to the plaintiff in respect of the sales of Electronics and Electrical Appliances Supplies.
2. Interest at the Court rate from the date of judgment till the judgment debt is paid.
3. General damages.
4. Cost of this action.
The respondent’s claim as disclosed or garnered from its statement of claim was that goods were supplied to the defendant/appellant (hereinafter referred to as the appellant) to the tune of N18,714,001.00 (Eighteen Million, Seven Hundred and Fourteen Thousand, and One Naira Only) out of which the appellant made part payments with an outstanding balance of N7,569,001.00 (Seven Million, Five Hundred and Sixty Nine Thousand and One Naira Only) and whereat the said outstanding balance formed the subject matter of the action.
Being a liquidated money demand, the respondent filed a motion on notice for summary judgment to recover the said unliquidated balance without the necessity of going into a full blown trial. The motion for summary judgment was filed on the 22nd day of July, 2015 and it was supported by a six paragraph affidavit, nine documentary exhibits and a written address. The respondent also filed a reply on point of law on the 15th day of January, 2016 in response to the appellant’s counter-affidavit and written address. On the 6th day of January, 2016, the learned counsel for the appellant moved his application dated the 5th day of January, 2016 wherein he sought for the grant of ‘extension of time within which the defendant/applicant shall file and serve his counter affidavit out of time,’ with the deeming order. The respondent did not oppose the said application and it was accordingly granted as prayed, by the learned trial judge. The case was then adjourned to the 26th day of January, 2016 for hearing. Thus, the appellant in reply to the respondent’s application filed a counter-affidavit of six paragraphs, two exhibits and a written address.
On the said date fixed for the hearing of the application, both the appellant and his counsel did not show up for the conduct of the day’s proceedings and did not bother to inform the trial Court, that they will not be attending and the reason(s) for their absence. Notwithstanding this, the lower Court proceeded with the business of the day and the learned counsel for the respondent moved and adopted its application for summary judgment. Thereafter, the case was adjourned for delivery of judgment.
The learned trial judge in his judgment duly considered the respondent’s application and discountenanced the appellant’s response due to the fact that he failed to adopt the same in evidence. Consequently, the learned trial judge found merit in the respondent’s application, entered judgment in its favour and granted the sum of N7,569,001.00 (Seven Million, Five Hundred and Sixty Nine Thousand and One Naira Only) in respect of the main claim, N17,320.00 (Seventeen Thousand, Three Hundred and Twenty Naira only) and N20,000.00 (Twenty Thousand Naira Only) as costs. (See pages 38 -39 of the record of appeal.)
The appellant was dissatisfied with the said decision and has thereby appealed against the same vide his notice of appeal, dated and filed on the 18th day of March, 2016. His appeal was predicated on two grounds. The grounds of appeal are reproduced without their particulars as follows:
GROUNDS OF APPEAL
1. The learned trial judge erred in law when he held that since the appellant filed a counter affidavit to the motion of the respondent for summary judgment but did not show up in Court, it amounted to dumping a documentary evidence in Court’s file.
2. The learned trial judge erred in law and denied the appellant fair hearing when he refused or failed to consider the appellant’s counter affidavit stating a defense to the respondent’s application for summary judgment.
In prosecution of this appeal, the appellant compiled and caused the record of appeal to be served and transmitted to this Court. Thereafter, the parties filed and duly exchanged their respective briefs of argument. The appellant’s brief of argument was settled by Charles Asogwa Esq. The said appellant’s brief of argument was dated and filed on the 12th day of January, 2018. It was deemed as properly filed and served by the order of this Court made on the 15th day of January, 2016.
On the other side of the coin, the respondent’s brief of argument was prepared by Paul A. Attabor Esq. The said respondent’s brief of argument was filed on the 10th day of April, 2018. It was deemed as properly filed and served by the order of this Court made on the 17th day of April 2018.
The learned counsel for the appellant in determination of this appeal donated a sole issue for resolution. The issue is reproduced below:
1. Whether the appellant’s counter-affidavit duly filed against the motion for summary judgment disclosed a prima facie defence or reasonable grounds for setting up a defence or a fair probability of a bonafide defence to warrant leave of the trial Court to the appellant to defend the suit.
The learned respondent’s counsel on his part distilled two issues for resolution. The issues are as follows:
1. Whether regard being had to the unassailable affidavit evidence of the respondent before the trial Court establishing the indebtedness of the appellant in a business transaction between the appellant and the respondent, the learned trial judge was right in entering summary judgment in favour of the respondent notwithstanding the counter affidavit of the appellant (Distilled from ground one of the notice of appeal).
2. Whether regard being had to the provisions of Order 11 of the Rules of Kano State Court Rules, 2014 and the attitude of the appellant before the lower Court in defending the respondent’s claims, it is right for him to complain of lack of fair hearing (Distilled from ground 2 of the notice of appeal).
I have perused the two set of issues distilled by the learned counsel for the parties, and I am of the firm viewpoint that the issue donated by the appellant has comprehensively captured the two issues distilled by the learned respondent’s counsel, and the same is adopted for resolution in the determination of this appeal.
ARGUMENT ON ISSUES.
The learned counsel for the appellant set out by submitting that ‘the appellant’s counter affidavit to the motion for judgment filed and deemed as properly filed and served on the 6th of January, 2016 by the trial Court provided and disclosed a prima facie defence or reasonable grounds for setting up a defence or a fair probability of a bonafide defence to warrant leave to be granted by the trial Court to the appellant to defend the suit.’ He further submitted, that ‘once the defendant shows a prima facie defence to the suit, he should be granted leave to do so.’ He cited and quoted from the cases of MACGREGOR ASSOCIATES LTD. VS. NIGERIA MERCHANT BANK LTD. (1996) 2 NWLR (PT. 431) 378 and N. A. B. LTD. VS. FELLY KEME NIGERIA LTD. (1995) 4 NWLR (PT. 384) 100.
Furthermore, the learned counsel for the appellant argued that in summary judgment procedure, once a defendant has filed his counter affidavit in opposition to the plaintiff’s application, the Court is bound to consider the counter affidavit irrespective of whether or not the counter affidavit was physically adopted during the hearing of the application. He supported his argument with the decisions in the cases of EZUMA VS. NKWO MARKET COMMUNITY BANK LTD. (2000) 10 NWLR (PT. 676) 638; CALVENPLY LTD. VS. PEKAB INT.L. LTD. (2001) 9 NWLR (PT. 717) 164 and N. A. B. LTD. VS. FELLY KEME (NIG.) LTD. (supra).
The learned counsel for the appellant further contended, that the appellant had outlined facts and disputed his liability to the respondent and further stated that contrary to the claim contained in the respondent’s statement of claim, it was the respondent that should be adjudged as being indebted to him. Additionally, that the respondent hurriedly brought this action in order to prevent the appellant from claiming his entitled 3% percent commission from the respondent. He referred us to the appellant’s counter affidavit filed in opposition to the affidavit in support of the respondent’s motion for summary judgment. He urged us to hold, that the appellant has by his counter affidavit cast serious doubt on the claim of the respondent and the lower Court was required by law to call for oral evidence or order the transfer of the case to the general cause list to be determined on the merit. He called in aid the decisions in the cases of AGWUNEME VS. EZE (1990) 3 NWLR (PT. 137) 242; JIPREZE VS. OKONKWO (1987) 3 NWLR (PT. 62) 737 and ABIOYE VS. MARAUF GLOBAL CONCEPTS LTD. (2013) ALL FWLR (PT. 711) 1586 – 1599.
Finally, the learned counsel for the appellant submitted, ?that the learned trial judge by neglecting the counter affidavit of the appellant and the depositions thereof which contradicts and conflicts with the respondents position in his affidavit, denied the appellant fair hearing when he refused or failed to consider the appellant?s counter affidavit showcasing a defence to the application for summary judgment.
In reply, the learned counsel for the respondent counter argued, that the respondent has deposed to credible facts that entitled it to the judgment entered by the lower Court in its favour. He further argued that the respondent in its avowed bid to prove its claim annexed documentary evidence that depicted clearly and graphically, that the appellant collected goods from the respondent without effecting all due payments as well as a document that was signed by the appellant, wherein he acknowledged the extent of his indebtedness to the respondent. Thus, he maintained once again, that the respondent has proferred credible evidence and established his case, ‘and unless and until the appellant produce any evidence of payment in rebuttal of this averment he will not be allowed to dribble and frustrate a case under summary judgment procedure’. The learned respondent’s counsel, supported his position and placed reliance on the cases of EFFANGA VS. ROGERS (2003) ALL FWLR (PT. 157) 1058 AT 1072; ONADEKO VS. UNION BANK OF NIGERIA PLC. (2005) ALL FWLR (PT. 250) 61 AT 77; COTTA VS. SANUSI BROTHERS (2006) SCNJ, 455 and OBIDIGWE VS. K. K. C. LTD. (2016) ALL FWLR (PT. 815) 294 AT 295.
In addition, the learned respondent’s counsel submitted, that ‘the counter affidavit of the appellant referred to above did not disclose any bona fide defence, concise defence, sufficient particulars to entitle him to leave to defend by ordering trial, a mere denial or general averment is not a sufficient defence, the respondent is expected to elucidate his defence with particulars and specific facts and exhibit in contradiction which he failed to do in this case.’
According to the learned counsel, that the learned trial judge rightly entered judgement in favour of the respondent upon the giving of due considerations to the ?unfounded stories contained in the appellant’s counter affidavit.
The learned counsel for the respondent further submitted that ‘there is no provision for the Court to deem the written address and counter affidavit of the appellant as deemed adopted merely because it was filed … hence the honourable trial Court is not empowered by rules to do so.’
He supported his submission with quotation from the elucidating pronouncements made in the case of EVEMILI VS. THE STATE (2013) ALL FWLR (PT. 711) 1565 AT 1583. It was further contended, that ‘cases under summary judgment procedure must be heard expeditiously on the date fixed for hearing and the absence of the defendant does not compel adjournment.’ He called in aid and quoted from the decision in the case of ONADEKO VS. UNION BANK OF NIGERIA PLC (supra).
Furthermore, the learned counsel for the respondent maintained, that the appellant was given adequate and sufficient opportunity to defend himself against the respondent?s claim at the lower Court, but he failed to utilize the opportunity, thus, he could not be heard to complain about fair hearing before this Court. He referred us to pages 34, 35, 38 and 39 of the record of appeal. It was therefore submitted, that the trial Court gave the appellant enough opportunity to present his case to the Court and to fully participate in the litigation process, but he and his counsel refused to take advantage of the same. According to the learned counsel, it is thus wrong for the appellant to turn round and seek to blame the trial Court for denial of his right of fair hearing. And we were urged to so hold. He supported his submissions with the cases of NEWSWATCH COMMUNICATIONS LTD. VS. ALHAJI ALIYU IBRAHIM ATTA (2000) ALL FWLR (PT. 318) 601 and ATAMAH VS. EBOSELE (2010) ALL FWLR (PT. 504) 1943.
Let me start in addressing this issue by restating, that the core essence of summary judgment procedure is to enable a plaintiff recover his liquidated money claim through the instrumentality of designed judicial process which is as fast as possible and without the need to go through the rigours which are usually attendant or prevalent with processes commenced vide writ of summons. The summary judgment procedure is usually and invariably employed to eliminate the delays occasioned to cases that are allowed to go through the normal or routine process of hearings. In summary judgement procedure, the evidence is adduced in form of affidavit evidence; documentary evidence annexed to the affidavit in form of exhibits, and final written address attached to the summary judgment application. See the cases of LEWIS VS. U. B. A. PLC (2016) LPELR – 40661 (SC); THOR LTD. VS. F. C. M. B. LTD. (2005) LPELR – 3242 (SC), and IFEANYI CHUKWU TRADING INVESTMENT VENTURES LTD & ANOR. VS. ONYESOM COMMUNITY BANK LTD (2015) LPELR -24819 (SC).
In the instant appeal matter, the respondent’s motion for summary judgment together with the requisite processes were filed and duly served on the appellant. The appellant in reply filed his counter-affidavit and written address in response and or opposition to the application. However, the appellant and his counsel failed and/or neglected to appear before the lower Court on the date fixed for the hearing of the respondent’s application to adopt the said counter-affidavit and written address. In this case, there is no debate or question as to whether the appellant and his counsel were aware of the adjournment date which was fixed for the hearing of the application, because they were both in Court when the said date was fixed. (See pages 35 – 36 of the record of appeal.) After the hearing of the application, the learned trial judge in a bid to ensure that the appellant was fully aware with regard to hearing and or position of the application, further gave the appellant and his counsel what could be regarded as another opportunity or a second bite at the cherry.
He ordered that fresh hearing notice be served on the appellant. From the record of appeal placed before us, the hearing notice was issued and duly served on the appellant personally and affidavit of service filed at the lower Court. (See pages 60 – 61 of the record of appeal).
From the facts and evidence on the printed record placed before this Court, the appellant was afforded adequate opportunity to defend and/or oppose the respondent’s application, but he chose to stay away. Apparently, the appellant was no longer interested in the pursuit of his defence if any and tactically decided to just seek an escape route and or lie in ambush, which he is now pursuing at this Court. A party who for one reason or the other failed to take prompt advantage of the opportunity given to him to defend himself before a lower Court, cannot be entertained or heard on appeal to complain of having been denied of his right of fair hearing. Such a party should blame nobody but himself. See the decisions in the cases of DARMA VS. ECO BANK PLC (2017) LPELR – 41663 (SC); MFA & ANOR. VS. INOGHA (2014) LPELR – 22010 (SC) and JOEL OKUNRINBOYE EXPORT CO. LTD. & ORS. VS. SKYE BANK PLC (2009) LPELR – 1618 (SC).
It should also be noted, that fair hearing and or justice is not a one-sided affair, it is a two way traffic. In the same way that a defendant has the right to be given adequate and sufficient opportunity to defend himself; the plaintiff/claimant also has the same right to have his claim determined timeously. Thus, where a defendant has without any disclosed reason or justification stayed away from participating in the conduct of Court proceedings or take a step required of him by the law and/or practice and procedures of a Court, within the specified time and has equally not taken step(s) timeously to explain his absence or rectify his error, the Court will not wait for him to take all of eternity to wake from his slumber. Such a defendant will be allowed to continue with his escapade in the dream world and to bear the consequence(s) of his folly and indolence subsequently thereafter.
In the given circumstance of the case at hand, even though the appellant filed and served his counter affidavit, but having failed to adopt the process in open Court, the said counter affidavit and all the accompanied process are deemed in law to have been abandoned. See the cases of CHUKWUKADIBIA VS. EZE & ORS. (2015) LPELR – 25748(CA); OPOBIYI & ANOR. VS. MUNIRU (2011) LPELR – 8232 (SC), (2011) 18 NWLR (PT. 1278) 387 and OCHEGBUDU VS. AGBALA (2014) LPELR -22650 (CA).
The respondent in this case has by its affidavit evidence and documents attached thereto as exhibits, properly made a valid claim for liquidated money demand and has thereby discharged the burden placed on it by the law. The appellant who was required to file a counter affidavit which discloses a defence, if he chooses to challenge the respondent’s claim failed and/or neglected to do so at the lower Court. Though he made an attempt to challenge the claim, but he abandoned his quest along the way. The implication of this in law, is that he is deemed to have admitted all the facts and pieces of evidence contained or deposed to in the respondent’s affidavit, and those facts are by law deemed proved. See the cases of OCEANIC BANK INT.L PLC VS. AWETO GUEST QUARTER HOTELS LTD (2011) LPELR – 9110 (CA); IJEZIE VS. IJEZIE (2014) LPELR – 23773 (CA) and OGOEJEOFO VS. OGOEJEOFO (2006) 3 NWLR (PT. 966) 205. Therefore, I agree with the decision of the learned trial judge when he found and held that the respondent has established its case and entered judgement in its favour. Thus this issue is hereby resolved against the appellant and in favour of the respondent. As an aside and in passing; the question be asked: In the instant case, where is the defence? I have duly perused the record of appeal placed before us. I must admit, that I cannot fathom or discern anything defensive or defensible in the entire gamut of appellant’s counter – affidavit, to warrant being let in to defend the instant action filed by the respondent. To my mine, it is a charade of a defence. No more. No less. Period.
Flowing from the resolution of the issue adopted in determination of this appeal in the manner stated above, this appeal is hereby found by me to be utterly lacking in merit and it is accordingly dismissed. Thus, the decision of the lower Court, delivered in this case on the 17th day of February, 2016 together with the consequential orders made therein are hereby affirmed by me. Costs in the sum of N50,000.00 is also awarded in favour of the respondent and against the appellant.
UWANI MUSA – ABBA AJI, J.C.A.(as she then was) presided at the hearing of the instant appeal matter on the 30th day of October, 2018 and participated during the conference held thereafter and in that regard. However, my noble Lord was subsequently elevated/appointed and sworn in as an honourable Justice of the Supreme Court on the 8th day of January, 2019.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree
Appearances:
CHARLES ASOGWA ESQ.For Appellant(s)
M.A. JALOMI ESQ. with hIM, I. O. ENAGBONMA ESQ.For Respondent(s)
