AMS LOGISTICS LTD & ANOR v. INFINITY TYRES LTD
(2022)LCN/16213(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/IB/369/2014
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Abdul-Azeez Waziri Justice of the Court of Appeal
Between
1. AMS LOGISTICS LIMITED 2. ALHAJI KHAFILU BABA ABDULKADIR APPELANT(S)
And
INFINITY TYRES LIMITED RESPONDENT(S)
RATIO
THE WAYS BY WHICH INTEREST ON A SUM CLAIMED AS A DEBT CAN ARISE
It is settled law that there are only two ways by which interest on a sum claimed as a debt can arise. These are: (i) where the interest is claimed as of right; and (ii) where the grant of interest is empowered by statute. See GFK INVESTMENT (NIG) LTD v NITEL PLC (2009) LPELR-1294(SC), per Ogbuagu, JSC at pages 36 – 37, para. E; AG FERRERO & CO. LTD. v HENKEL CHEMICALS (NIG) LTD (2011) LPELR-12(SC), per Fabiyi, JSC at page 23, para. A; INTERDRILL (NIG) LTD & ANOR v UBA PLC (2017) LPELR-41907(SC), per Nweze, JSC at pages 21 – 22, para. D; BELL ATLANTIC TELECOMMUNICATIONS LTD & ANOR v NDON & ANOR (2018) LPELR-44431(CA), per Saulawa, JCA (as he then was) at page 26, para. B; and JTCADS (NIG) LTD v STANBIC IBTC BANK (2017) LPELR-42786(CA), per Belgore, JCA at pages 42 para. C.
Interest may be claimed as of right, where it is contemplated by the agreement of the parties, or it is claimable under a mercantile custom or is claimable under principle of equity, such as breach of a fiduciary relationship. In the instant appeal, it is clear that before the trial Court, the Respondent claimed pre-judgment interest of 20% per annum as of right. Where interest is being claimed as of right, as was done by the Respondent before the trial Court, the proper practice is to claim entitlement to it on the Writ of Summons and plead facts in the Statement of Claim which show such an entitlement. See LONDON, CHATHAM & AMP; DOVER RAILWAY v S. E. RAILWAY (1893) A.C. 429 at 434; INTERDRILL (NIG) LTD & ANOR v UBA PLC (supra); and GFK INVESTMENT (NIG) LTD v NITEL PLC (supra).
Indeed, in the case of HIMMA MERCHANTS LTD v ALHAJI INUWA ALIYU [1994] LPELR-1366(SC), the Apex Court, per Onu, JSC held at pages 11 – 12, paras. F – B, that:
“Indeed, there legally two ways by which a claim for interest on a sum of money claimed as a debt can arise. Firstly, as of right and secondly, where there is a power conferred by statute to do so, in exercise of the Court’s discretion. Where therefore there is no evidence whatsoever as in the instant case, that the claim of interest is founded upon any rationale, e.g. mercantile custom or trade usage known to the parties the claim of interest for 20% per month from July, 1988 which …. Dates the judgment passed on 27th October, 1989 by the trial Court is without foundation and ought to have been disallowed by the Court below. “PER MOHAMMED, J.C.A
WHETHER OR NOT A CLAIM FOR INTEREST MUST BE SPECIFICALLY PLEADED
It is also trite that a claim for interest must not only be specifically pleaded, it must be proved by satisfactory evidence. In HIMMA MERCHANTS LTD v ALH. INUWA ALIYU (supra), the same Supreme Court, per Onu JSC, held that:
“The best method of satisfying a Court about the existence of any matter is by adducing credible, sufficient and satisfactory evidence about it. In the case in hand, there is no evidence whatsoever about the rate of interest agreed upon by the parties and the basis upon which it is computed.”
In TRANSNATIONAL CORPORATION OF NIGERIA PLC v EGBE & ANOR (2017) LPELR-42243(CA), this Court, per Garba, JCA (as he then was, now JSC), also held at pages 27 – 28, para. D, that:
“… However, because the 1st Respondent has claimed a particular rate of interest against the Appellant, he has a duty to plead sufficient facts and produce satisfactory evidence in proof of the rate claimed. Perhaps, I should point out here that the proof required is not of entitlement to claim interest on the sum paid to the Appellant, but rather, the proof required is as to the entitlement to the specific rate of interest claimed in the peculiar circumstances of the case. “PER MOHAMMED, J.C.A
WHETHER OR NOT IT IS SUFFICIENT IF THE DEFENCE DISCLOSES A DIFFICULT POINT OF LAW, OR SOME DISPUTE AS TO THE FACTS WHICH OUGHT TO BE TRIED, OR EVEN A REAL DISPUTE AS TO THE AMOUNT DUE WHICH REQUIRES THE TAKING OF AN ACCOUNT
It needs to be stated that at the point of determining whether a defence put forward under the summary judgment procedure has raised a triable issue(s), it is premature to examine the success or otherwise of the issue(s) so raised. It is sufficient if the defence discloses a difficult point of law, or some dispute as to the facts which ought to be tried, or even a real dispute as to the amount due which requires the taking of an account, or any other circumstance that discloses reasonable ground of a bona fide defence. See ED OF NIGERIA LIMITED v SNIG NIGERIA LTD (2013) LPELR-19888(SC), per Muhammad, JSC at page 22, paras. C – G; ATAGUBA AND COMPANY v GURA NIGERIA LTD (2005) LPELR-584(SC), per Tobi, JSC at pages 20 – 30, paras. F – A; DIN v OKOSE (2013) LPELR-20775(CA), per Bdliya, JCA at pages 26 – 27, paras. D – E; DANJALO & ANOR v BALA (2021) LPELR-55545(CA), per Muhktar, JCA at pages 10 – 11, paras. A – A, UNITY BANK PLC v OLATUNJI (2013) 15 NWLR (Pt. 1378) 503 at 506, paras. A – E (CA) and FESCO (NIG.) LTD. v NASCO RICE & CEREAL PROCESSING CO. LTD. (1998) 11 NWLR (Pt, 573) 227.
Given the trite position of law relating to the illegality of the Police delving into civil transactions or acting as debt collectors, the allegations as averred by the Appellants of the use of the Police to extort the documents relied upon by the Respondent have, in my view, raised triable issues which will require interrogation at trial. See MCLAREN v JENNINGS (2003) 3 NWLR (Pt. 808) 470; per Salami, JCA (as he then was); NWADIUGWU v IGP & ORS (2015) LPELR-26027(CA), per Iyizoba, JCA at pages 33 – 37, paras. A – A; ABBAH v FRN (2017) LPELR-43373(CA), per Onyemenam, JCA at pages 23 – 24, para. C; and NA ALLAH v KOFAR KADE (2020) LPELR-49596(CA), per Wambai, JCA at pages 22 – 29, para. C. I therefore resolve issues 2 and 3 in favour of the Appellants. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): In suit no. AB/288/2013, filed before the Ogun State High Court (the trial Court), the Respondent, as Claimant, sued the Appellants (as Defendants) vide a Writ of Summons and Statement of Claim dated 7th August, 2013 at pages 1 – 9 of the Record of Appeal, wherein he sought for the following reliefs:
a. The sum of N4,965,261.00 (Four Million, Nine Hundred and Sixty-Five Thousand, Two Hundred and Sixty One Naira), being the unpaid and outstanding sum owed by the Defendants to the Claimant on the tyres sold to the 1st Defendant by the Claimant which sum remains due and unpaid since 20th July, 2011 and interest on the afore-said sum at the rate of 20% per annum from 20th July, 2011 till liquidation being damages for loss of use of the said sum arising from failure and or neglect of the Defendants to liquidate same within the agreed time OR ALTERNATIVELY, the sum of N2,000,000.00 (Two Million Naira) as general damages.
b. The cost of action as assessed by the Court.
The Respondent accompanied its Writ of Summons with a Motion for Summary Judgment as per the reliefs sought in the Writ of Summons and Statement of Claim. (See pages 22 – 44 of the Record). The Appellants opposed the motion with a counter-affidavit and written address. They also filed a Statement of Defence. Upon hearing the parties on the motion for summary judgment, the trial Court granted the motion and entered judgment for the Respondent (Claimant) granting the reliefs sought by the Respondent, as well as N45,000.00 cost. The judgment of the trial Court is at pages 109 – 112 of the Record of Appeal.
Dissatisfied by the judgment of the trial Court, the Appellants filed an initial Notice of Appeal on 6th May, 2014 which is at pages 113 – 118 of the Record. This was subsequently amended vide the Amended Notice of Appeal filed on 15th April, 2019. The Record of Appeal was transmitted to this Court on the 2nd of December, 2019. The Record of Appeal along with the Appellant’s Brief of Argument filed on 15th April, 2019, the Respondent’s Brief of Argument filed on 31st May, 2019 and the Appellant’s Reply Brief of Argument filed on 19th December, 2019 were all deemed properly filed and served on the 8th of November, 2021, the date the appeal was heard.
At the hearing of the appeal on the 8th of November, 2021, the Respondent who had filed a Notice of Preliminary Objection on 31st May, 2019 and incorporated arguments on same in the Respondent’s Brief of Argument, abandoned the objection and the appeal was heard on the merit.
APPELLANT’S ISSUES:
The Appellant distilled the following four issues for determination:
1. Whether, having regard to the state of the pleadings and evidence adduced on behalf of the Respondent and the Appellants’ defence to the suit, the learned trial judge was not wrong in law when he held that the Appellants had no legal defence to the suit and therefore not entitled to have the suit defended on the merit? This issue is distilled from grounds 1 and 2 of the Amended Notice of Appeal.
2. Whether the learned trial judge was not wrong in law when he entered summary judgment against the 2nd Appellant jointly and severally with the 1st Appellant, having regard to the fact that the 2nd Appellant was sued as agent of the 1st Appellant, who was a disclosed principal of the 2nd Appellant? The issue is distilled from ground 3 of the Amended Notice of Appeal.
3. Whether the learned trial judge was not wrong in law when he awarded judgment interest against the Appellants and in favour of the Respondent with respect to the judgment sum at the rate of 20% per annum from 20th July, 2011 till judgment and thereafter, at 10% per annum till final liquidation, when there was no evidence adduced to support the award of such interest in the circumstance of this matter? This issue is distilled from ground 3 of the Amended Notice of Appeal.
4. Whether the learned trial judge did not deny the Appellants fair hearing as guaranteed under the constitution of the Federal Republic of Nigeria, 1999 when he failed to hear and determine the Appellants’ counter-claim against the Respondent in this matter? This issue is formulated from ground 4 of the amended Notice of appeal.
RESPONDENT’S ISSUE:
Conversely, the Respondent distilled the following sole issue for determination:
1. Whether the learned trial judge was right to have entered judgment against the Appellants on the strength of the Respondent’s Motion on Notice for summary judgment dated 7th August, 2013 (distilled from grounds 1 – 5 of the Amended Notice of Appeal).
I shall adopt the issues raised by the Appellant in deciding this appeal. However, I intend to rearrange the number of the issues such that issues 3, 2, 1 and 4 will now be issues 1, 2, 3 and 4, respectively. I shall start with the issue on pre-judgment interest because it is one of the reliefs endorsed on the Writ of Summons and the Statement of Claim of the Respondent before the trial Court. The determination of that issue will invariably decide whether the Respondent’s suit as constituted before the trial Court was one which should have been entertained by the trial Court under the summary judgment procedure in the first place. Accordingly, the issues for determination as rearranged shall be:
1. Whether the learned trial judge was not wrong in law when he awarded judgment interest against the Appellants and in favour of the Respondent with respect to the judgment sum at the rate of 20% per annum from 20th July, 2011 till judgment and thereafter, at 10% per annum till final liquidation, when there was no evidence adduced to support the award of such interest in the circumstance of this matter. (This issue was distilled from ground 3 of the Amended Notice of Appeal).
2. Whether the learned trial judge was not wrong in law when he entered summary judgment against the 2nd Appellant jointly and severally with the 1st Appellant, having regard to the fact that the 2nd Appellant was sued as agent of the 1st Appellant, who was a disclosed principal of the 2nd Appellant. The issue is distilled from ground 3 of the Amended Notice of Appeal.
3. Whether, having regard to the state of the pleadings and evidence adduced on behalf of the Respondent and the Appellants’ defence to the suit, the learned trial judge was not wrong in law when he held that the Appellants had no legal defence to the suit and therefore not entitled to have the suit defended on the merit? This issue is distilled from grounds 1 and 2 of the Amended Notice of Appeal.
4. Whether the learned trial judge did not deny the Appellants fair hearing as guaranteed under the constitution of the Federal Republic of Nigeria, 1999 when he failed to hear and determine the Appellants’ counter-claim against the Respondent in this matter? This issue is formulated from ground 4 of the amended Notice of appeal.
ISSUE 1: Whether the learned trial judge was not wrong in law when he awarded judgment interest against the Appellants and in favour of the Respondent with respect to the judgment sum at the rate of 20% per annum from 20th July, 2011 till judgment and thereafter, at 10% per annum till final liquidation, when there was no evidence adduced to support the award of such interest in the circumstance of this matter.
APPELLANT’S SUBMISSIONS:
It was submitted on behalf of the Appellant that the trial Court was wrong to have awarded interest against the Appellants with respect to the sum of N4,965,261.00 at the rate of 20) per annum from 20th July, 2011 till judgment and thereafter at the rate of 10% per annum until final liquidation when there was no evidence led before the trial Court in support of that claim. He referred the Court to page 112 of the Record of Appeal. Citing Sections 131 and 132 of the Evidence Act, 2011 and relying on the cases of DIAMOND BANK LTD v PIC LTD. (2009) 12 MJSC (Pt. II) 1 at 26 -27; EKWUNIFE v WAYNE (W/A) LTD (1989) 12 SC 92 at 112 – 115; EZEMBA v IBENEME (2004) 7 SC (Pt. I) 45 at 62; VEEPEE INDUSTRIES LTD v COCOA INDUSTRIES LTD (2008) 7 MJSC 125 at 142; and CHINWEZE v MASI (1989) 1 SC 33 at 42, he submitted that the trial Court had lent itself to a speculative and conjectured claim for interest by the Respondent as there was nothing before the trial Court to entitle the Respondent to an award of interest in the circumstances.
RESPONDENT’S SUBMISSIONS:
The Respondent on the other hand had referred to pages 23 – 25 of the Record of Appeal and submitted that while under Order 35 Rule 4 of the High Court of Ogun State (Civil Procedure) Rules, 2008 the trial Court has the power to award post-judgment interest, there was affidavit evidence attached to the Respondent’s motion on notice as to the economic loss which resulted from the Appellants’ default, which was not denied by the Appellants in their defence. It was further submitted that the trial Court exercised its undoubted discretion in granting pre-judgment interest in the interest of justice, and the only grouse of the Appellants was in respect of the said pre-judgment interest awarded by the trial Court. It was argued that the exercise of discretion by the trial Court to grant pre-judgment interest was proper.
APPELLANT’S REPLY:
In reply, the Appellants argued that the Respondent not only sought for pre-judgment and post-judgment interest, but also for general damages which is not contemplated in a summary judgment proceeding. Reference was made to the reliefs in the Statement of Claim at page 4 of the Record of Appeal. Relying on the cases of G.M.O. NWORAH & SONS CO. LTD v AKPUTA (2010) S.C. (Pt. I) 23 at 35; and CHRISDON INDUSTRIAL CO. LTD & ANOR v AFRICAN INTERNATIONAL BANK LTD (2002) 36 W.R.N. 52 at 81 – 83, it was submitted that there was no agreement between the Respondent and the Appellants as to the payment of interest in respect of the alleged debt and it is incorrect for the Respondent to contend that the only grouse of the Appellants is in respect of the pre-judgment interest since it is not open to a judge in a trial under summary procedure to award part judgment which can only be appropriately done under general cause.
RESOLUTION OF ISSUE 1:
The Summary Judgment procedure is akin to the Undefended List Procedure. It is a truncated form of civil hearing aimed at ensuring quick dispensation of cases involving debts or liquidated money demands where there is no genuine defence on the merit to such claims. See UBA & ANOR v BABANGIDA JARGABA (2007) 11 NWLR (Pt. 1045) 247 at 272, paras. E – H; AGWUNEME v EZE(1990) 3 NWLR (Pt. 137) 242; INTERNATIONAL BANK FOR WEST AFRICA LTD. V UNAKALAMBA (1998) 9 NWLR (Pt. 565) 245; CO-OPERATIVE AND COMMERCE BANK (NIG) PLC v SAMED INVESTMENT CO. LTD. (2000) 4 NWLR (Pt. 651) 19; and BANK OF THE NORTH v INTRA BANK SA (1969) 1 All NLR 91.
Thus, the summary judgment procedure is meant to enable a Claimant obtain quick judgment in clear cases where the Defendant has no defence to the Claimant’s claim. The procedure is not intended to be adopted in proceedings where the facts or issues are contentious or throw doubt on the Claimant’s claim. See LEWIS V. UBA (2016) LPELR – 40661 (SC), per Kekere-Ekun, JSC; IMONIYAME HOLDINGS LTD & ANOR v SONEB ENTERPRISES LTD & ORS (2010) LPELR -1504(SC); AIME NIG. LTD v HB LTD (2021) LPELR-54874(CA), per Umar, JCA at pages 25 – 26, paras. B; GENERAL OIL & ANOR v FSB INTERNATIONAL BANK PLC (2004) LPELR-7371(CA), per Muhammad, JCA (as he then was) at page 8, para. A; UZAKAH v OKEKE (2017) LPELR-43445(CA), per Ogunwumiju, JCA (as he then was) at page 15, para. C; and NWARIE v ADAKWA (2016) LPELR-41600(CA), per Adefope-Okojie, JCA at pages 23 – 24, paras. G.
In the instant appeal, the Record of Appeal shows at page 1(a) that before the trial Court, the Respondent claimed as follows:
a. The sum of N4,965,261.00 (Four Million, Nine Hundred and Sixty-Five Thousand, Two Hundred and Sixty One Naira), being the unpaid and outstanding sum owed by the Defendants to the Claimant on the tyres sold to the 1st Defendant by the Claimant which sum remains due and unpaid since 20th July, 2011 and interest on the afore-said sum at the rate of 20% per annum from 20th July, 2011 till liquidation being damages for loss of use of the said sum arising from failure and or neglect of the Defendants to liquidate same within the agreed time OR ALTERNATIVELY, the sum of N2,000,000.00 (Two Million Naira) as general damages.
b. The cost of action as assessed by the Court.
(underlining mine) The above claim is also contained in paragraph 18(a) and (b) of the Respondent’s Statement of Claim at page 4 of the Record of Appeal.
From the above claim of the Respondent before the trial Court, it is clear that apart from seeking to recover the sum of N4,965,261.00 (Four Million, Nine Hundred and Sixty Five Thousand, Two Hundred and Sixty One Naira), being the unpaid and outstanding sum owed it by the Appellants, the Respondent also sought for 20% interest per annum on the said sum “from 20th July, 2011 till liquidation being damages for loss of use of the said sum arising from failure and or neglect of the Defendants to liquidate same…”.
At page 112 of the Record of Appeal, the trial Court had in its summary judgment held as follows:
Consequently, the application succeeds. Judgment is accordingly entered in favour of the Claimant/Applicant against the Defendants/Respondents jointly and severally in the sum of N4,965,263.00 being unpaid and outstanding sum owed by the Defendants to the Claimant on the tyres sold to the 1st Defendant by the Claimant which sum remains due and unpaid since 20th July, 2011. Interest is also awarded to the Claimant/Applicant on the said sum, at the rate of 20% per annum from 20th July, 2011 till judgment, and thereafter at 10% per annum until final liquidation.
(underlining mine for emphasis).
It is settled law that there are only two ways by which interest on a sum claimed as a debt can arise. These are: (i) where the interest is claimed as of right; and (ii) where the grant of interest is empowered by statute. See GFK INVESTMENT (NIG) LTD v NITEL PLC (2009) LPELR-1294(SC), per Ogbuagu, JSC at pages 36 – 37, para. E; AG FERRERO & CO. LTD. v HENKEL CHEMICALS (NIG) LTD (2011) LPELR-12(SC), per Fabiyi, JSC at page 23, para. A; INTERDRILL (NIG) LTD & ANOR v UBA PLC (2017) LPELR-41907(SC), per Nweze, JSC at pages 21 – 22, para. D; BELL ATLANTIC TELECOMMUNICATIONS LTD & ANOR v NDON & ANOR (2018) LPELR-44431(CA), per Saulawa, JCA (as he then was) at page 26, para. B; and JTCADS (NIG) LTD v STANBIC IBTC BANK (2017) LPELR-42786(CA), per Belgore, JCA at pages 42 para. C.
Interest may be claimed as of right, where it is contemplated by the agreement of the parties, or it is claimable under a mercantile custom or is claimable under principle of equity, such as breach of a fiduciary relationship. In the instant appeal, it is clear that before the trial Court, the Respondent claimed pre-judgment interest of 20% per annum as of right. Where interest is being claimed as of right, as was done by the Respondent before the trial Court, the proper practice is to claim entitlement to it on the Writ of Summons and plead facts in the Statement of Claim which show such an entitlement. See LONDON, CHATHAM & AMP; DOVER RAILWAY v S. E. RAILWAY (1893) A.C. 429 at 434; INTERDRILL (NIG) LTD & ANOR v UBA PLC (supra); and GFK INVESTMENT (NIG) LTD v NITEL PLC (supra).
Indeed, in the case of HIMMA MERCHANTS LTD v ALHAJI INUWA ALIYU [1994] LPELR-1366(SC), the Apex Court, per Onu, JSC held at pages 11 – 12, paras. F – B, that:
“Indeed, there legally two ways by which a claim for interest on a sum of money claimed as a debt can arise. Firstly, as of right and secondly, where there is a power conferred by statute to do so, in exercise of the Court’s discretion. Where therefore there is no evidence whatsoever as in the instant case, that the claim of interest is founded upon any rationale, e.g. mercantile custom or trade usage known to the parties the claim of interest for 20% per month from July, 1988 which …. Dates the judgment passed on 27th October, 1989 by the trial Court is without foundation and ought to have been disallowed by the Court below.”
In its case before the trial Court, the Respondent claimed as of right, pre-judgment interest of 20% per annum on the said sum of N4,965,261.00 owed it by the Appellants. But as stated above, before a party can claim pre-judgment interest as of right, he has to plead not only his entitlement to such interest, but the basis of the entitlement, either by statute or contract agreement between the parties or under mercantile custom or under principle of the equity: DANTAMA v UNITY BANK PLC (2015) LPELR-24448(CA), per Galinje, JCA (as he then was) at pages 14 – 16, paras. E.
I have examined the Statement of Claim of the Respondent before the trial Court, which is at pages 2 – 4 of the Record of Appeal. I have seen nowhere the Respondent pleaded specific facts relating to pre-judgment interest of 20% from the 20th of July, 2011 until liquidation as claimed in his relief (a) reproduced above. The Respondent had only pleaded in paragraphs 15 and 16 of the Statement of Claim, as follows:
15. The failure of the Defendants to liquidate the debt has deprived the Claimant the use of its funds and as such resulted in great economic loss to the Claimant.
16. The Claimant would have invested the said funds in diverse ventures which would have yielded immense profit to it, but for the fact that it had its resources limited due to the willful refusal of the Defendants to liquidate the debt, by reason whereof, the Claimant has suffered financial loss by being put out of use of the said funds.
The above were also deposed as paragraphs 13 and 14 in the Respondent’s supporting affidavit to the Motion for Summary Judgment.
Most certainly, the above two paragraphs cannot be taken to satisfy the requirement for specific facts that can justify the grant of 20% pre-judgment interest. Even in the documents attached to the supporting affidavit of the Respondent’s Motion for Summary Judgment as Exhibits TD1, TD2A and B, TD3. TD4, TD5, and TD6, which are at pages 26 – 37 of the Record of Appeal, there is nowhere the issue of interest was contemplated by the parties.
It is settled law that except where parties have agreed on payment of interest, it is not right to award interest pre-dating the date of judgment. See AFRIBANK NIGERIA PLC v MR CHIMA AKWARA (2006) LPELR-199(SC), per Ogbuagu JSC.
It is also trite that a claim for interest must not only be specifically pleaded, it must be proved by satisfactory evidence. In HIMMA MERCHANTS LTD v ALH. INUWA ALIYU (supra), the same Supreme Court, per Onu JSC, held that:
“The best method of satisfying a Court about the existence of any matter is by adducing credible, sufficient and satisfactory evidence about it. In the case in hand, there is no evidence whatsoever about the rate of interest agreed upon by the parties and the basis upon which it is computed.”
In TRANSNATIONAL CORPORATION OF NIGERIA PLC v EGBE & ANOR (2017) LPELR-42243(CA), this Court, per Garba, JCA (as he then was, now JSC), also held at pages 27 – 28, para. D, that:
“… However, because the 1st Respondent has claimed a particular rate of interest against the Appellant, he has a duty to plead sufficient facts and produce satisfactory evidence in proof of the rate claimed. Perhaps, I should point out here that the proof required is not of entitlement to claim interest on the sum paid to the Appellant, but rather, the proof required is as to the entitlement to the specific rate of interest claimed in the peculiar circumstances of the case.”
It must be emphasized that the jurisdiction of the trial Court under the rules relating to summary judgment or undefended list procedure, is limited to claims for liquidated money demand. It cannot be extended to cover the general powers of the Court in other causes. In UBAH & ANOR v FIDELITY BANK PLC (2013) LPELR-20657(CA), this Court, per Saulawa, JCA (as he then was, now JSC) held at pages 48 – 49, para. B – B, that it will amount to an extension of the provision of the rules to hold that an interest or percentage yet to be calculated, brings the claim within the jurisdiction of the Court to hear the suit under the undefended list or summary judgment.
Given the claim of the Respondent before the trial Court for 20% pre-judgment interest which was never shown to have been agreed upon or contemplated by the parties, such a claim must not only be specifically pleaded but also proved with credible evidence by the Respondent before same can be granted. This clearly meant that the Respondent’s suit as constituted before the trial Court which included a claim for 20% pre-judgment interest ought not to have been entertained by the trial Court under the summary judgment procedure. The trial Court was therefore wrong when it entered summary judgment in favour of the Respondent and granted the Respondent’s claim for 20% pre-judgment interest without any specific pleading or evidence supporting such claim. This issue is therefore, resolved in favour of the Appellants.
ISSUES 2 & 3 TOGETHER
ISSUE 2: Whether the learned trial judge was not wrong in law when he entered summary judgment against the 2nd Appellant jointly and severally with the 1st Appellant, having regard to the fact that the 2nd Appellant was sued as agent of the 1st Appellant, who was a disclosed principal of the 2nd Appellant.
ISSUE 3: Whether, having regard to the state of the pleadings and evidence adduced on behalf of the Respondent and the Appellants’ defence to the suit, the learned trial judge was not wrong in law when he held that the Appellants had no legal defence to the suit and therefore not entitled to have the suit defended on the merit? This issue is distilled from grounds 1 and 2 of the Amended Notice of Appeal.
APPELLANTS’ SUBMISSIONS:
On the second issue, learned Counsel for the Appellants had submitted that the 2nd Appellant, being an agent of the 1st Appellant, a disclosed principal, cannot be sued or made liable jointly and/or severally with his principal for the alleged contractual debt owed by the 1st Appellant. He contended that while the 2nd Appellant was a necessary party due to the claims made against him and the 1st Appellant, the claims against him are without reasonable cause of action, as the 2nd Appellant is an agent of a disclosed principal. He relied on AKIBU v ODUNTAN (2000) 10 WRN 48, to the effect that a cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. He also cited OMIN III v THE GOVERNOR, CROSS-RIVER STATE (2007) 41 WRN 158 at Pp. 185 – 187, to the effect that lack of cause of action relates to the jurisdiction of the Court.
Learned Counsel further relied on VASSILEV v PAAS INDUSTRIAL NIGERIA LTD. (2000) 12 NWLR (Pt. 681) 347 at Pg. 357, where this Court reiterated the impropriety of suing an agent of a disclosed principal, as well as FERGUSON v WALSON (1866) LR 2 ch. 77 at 89, on the relationship between a company and its agents. He submitted that there was no legal basis for the learned trial judge to have held that 2nd Appellant jointly and severally liable with the 1st Appellant for the debt purportedly owed the Respondent by the 1st Appellant.
On the third issue, it was submitted that the trial Court’s finding that the Appellants did not make any specific response to the Respondent’s claim had misconceived the state of pleadings of the parties. It was argued that the trial Court’s finding was not a fair assessment of the Appellants’ averments in their Statement of Defence and that the said conclusion of the trial Court is perverse and wrong in law. The averments in the Appellants’ Statement of Defence and Counter-Claim, as well as the cases of UDENGWU v UZUEGBU (2003) 7 SCNJ 145 at 153; ADONRI v OJO-OSAGIE (1994) 6 SCNJ 192 at page 204 and FEDERAL MINISTRY OF HEALTH & ANOR v COMET SHIPPING AGENCIES LTD (2009) 4 – 5 SC 110 at 137, were relied upon.
It was further submitted that from the contents of Exhibits TD3 and TD4, it was clear that the undertaking, the agreement as well as the payments made by the Appellants, which were relied upon by the Respondent, were extorted from the Appellants under duress. It was argued that it is only at a properly conducted trial that such allegation can be determined. It was contended that contrary to the finding of the trial Court, there is no law which compels a party to institute fundamental rights action against the police before a case of extortion of money under duress can be validly made out.
RESPONDENT’S SUBMISSIONS:
On his part, learned Counsel for the Respondent referred to page 29 of the Record of Appeal and submitted that it is clear that the 2nd Appellant undertook to liquidate the indebtedness of the 1st Appellant. He argued that by the action of the 2nd Appellant, he had held himself out to be responsible for the debt of the 1st Appellant in the event that the 1st Appellant defaulted. He therefore urged this Court to hold that there was a cause of action against the 2nd Appellant. He relied on SHELL PETROLEUM DEVELOPMENT COMPANY NIG. LTD. v NWAKA (2003) 1 SC (Pt. 11) 127.
Learned Counsel for the Respondent also cited LEADERS & COMPANY LTD. v KERRIE-DEE INDUSTRIES LTD. & ANOR (2018) LPELR–45352(CA); and OBASANJO FARMS NIG. LTD. v MUHAMMAD (2016) LPELR–40199(CA), to the effect that the purpose of summary judgment is to alleviate undue delay and loss of time and resources where the Defendant has no defence to the claim on the merit. He submitted that the grant of the motion for summary judgment by the trial Court was in the circumstances proper and in line with judicial authorities. He cited BAGOBIRI v UNITY BANK PLC (2016) LPELR–41161(CA); and DOYIN MOTORS LTD. v SPDC (NIG) LTD & 8 ORS. (2018) LPELR–44108(CA), to the effect that failure to respond to a business letter which requires a response or refusal will be deemed to be an admission of its contents. He contended that the failure of the Appellants to respond to and deny in specific terms the contents of Exhibit TD6 was not only an express admission but also a clear indication that the Appellants lacked any defence on merit.
RESOLUTION OF ISSUES 2 AND 3:
In resolving these issues, it is pertinent to stress that the scope of this appeal is essentially to determine whether the defence put forward by the Appellants before the trial Court as contained in their Statement of Defence and Counter-Affidavit to the Respondent’s Motion for Summary Judgment had disclosed a triable issue(s) which will require a trial instead of the summary judgment procedure granted by the trial Court. In other words, this appeal is to essentially determine whether before the trial Court the Appellants have made out a defence on the merit to the Respondent’s claim or whether they have raised any triable issue(s) which would have warranted the transfer of the case to the general cause list instead of the summary judgment entered by the trial Court. See IMMINENT NIGERIA COMPANY v PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK (NIGERIA) LTD. (2014) LPELR – 22700 (CA); and S. P. D. C. LTD. v ARHO JOE NIG. LTD. (2006) ALL FWLR 9331) 1330 at 1345.
On the second issue, the Respondent had stated in paragraphs 10 – 12 of its Statement of Claim at page 3 of the record, as well as paragraphs 8 – 10 of its affidavit in support of the Motion for Summary Judgment which is contained at pages 23 – 25 of the Record of Appeal, that when the 1st Defendant (1st Appellant) failed to adhere to the installmental repayment plans, the 2nd Defendant (2nd Appellant) entered into an Undertaking dated 20th July, 2011 to liquidate the indebtedness of the 1st Defendant (1st Appellant) by paying N1 Million at the end of July, 2011 and subsequently N500,000.00 monthly until full and final settlement of the debt, but he failed to honour the undertaking. The copy of the undertaking was attached as Exhibit TD3.
However, in paragraphs 8 – 14 of their Statement of Defence and Counter-Claim contained at page 87 of the record, the Appellants have stated that the garage of the 1st Appellant which is located at Kilometer 40, Lagos – Ibadan Expressway is open to the public and that various trucks which do not belong to the 1st Appellant do park and pay for the services rendered, and this fact was known to the Respondent. It was stated that if tyres were supplied by the Respondent, it must have been to any of such users of the Appellants’ Park and not the Appellants. That the Appellants had demanded for Delivery Note or Invoice from the Respondent which the Respondent could not produce, rather, the Respondent had severally instigated the arrest of the 2nd Appellant over the alleged indebtedness of the 1st Appellant and the 2nd Appellant had been severally arrested at the X-Squad of the Lagos State Police Command, the Special Fraud Unit of the Police at Milverton, Ikoyi, Lagos and at various Police Stations where the 2nd Appellant was compelled to make the letter of 4th October, 2010 and issue two post-dated cheques under duress and also compelled to make some payments while in Police detention as a condition to regaining his freedom. The Appellants also counter-claimed for the sum of N11,572,239.00 from the Respondent which they alleged the Respondent had extorted from the Appellants with the aid of the Police.
Therefore, the Appellants have in their defence, not only denied buying tyres from the Respondent and stated that the Respondent may have sold tyres to users of their park and pay facility, they have also raised the allegation that all the documents relied upon by the Respondent as a basis for seeking summary judgment (Exhibits TD1, TD2A & B, TD3, TD4, TD5 and TD6) were extorted from them by the Respondent using the Police. This includes Exhibit TD3, the alleged undertaking made by the 2nd Appellant to settle the indebtedness of the 1st Appellant which the Respondent posits was the basis upon which he was joined as a party to the suit before the trial Court.
It needs to be stated that at the point of determining whether a defence put forward under the summary judgment procedure has raised a triable issue(s), it is premature to examine the success or otherwise of the issue(s) so raised. It is sufficient if the defence discloses a difficult point of law, or some dispute as to the facts which ought to be tried, or even a real dispute as to the amount due which requires the taking of an account, or any other circumstance that discloses reasonable ground of a bona fide defence. See ED OF NIGERIA LIMITED v SNIG NIGERIA LTD (2013) LPELR-19888(SC), per Muhammad, JSC at page 22, paras. C – G; ATAGUBA AND COMPANY v GURA NIGERIA LTD (2005) LPELR-584(SC), per Tobi, JSC at pages 20 – 30, paras. F – A; DIN v OKOSE (2013) LPELR-20775(CA), per Bdliya, JCA at pages 26 – 27, paras. D – E; DANJALO & ANOR v BALA (2021) LPELR-55545(CA), per Muhktar, JCA at pages 10 – 11, paras. A – A, UNITY BANK PLC v OLATUNJI (2013) 15 NWLR (Pt. 1378) 503 at 506, paras. A – E (CA) and FESCO (NIG.) LTD. v NASCO RICE & CEREAL PROCESSING CO. LTD. (1998) 11 NWLR (Pt, 573) 227.
Given the trite position of law relating to the illegality of the Police delving into civil transactions or acting as debt collectors, the allegations as averred by the Appellants of the use of the Police to extort the documents relied upon by the Respondent have, in my view, raised triable issues which will require interrogation at trial. See MCLAREN v JENNINGS (2003) 3 NWLR (Pt. 808) 470; per Salami, JCA (as he then was); NWADIUGWU v IGP & ORS (2015) LPELR-26027(CA), per Iyizoba, JCA at pages 33 – 37, paras. A – A; ABBAH v FRN (2017) LPELR-43373(CA), per Onyemenam, JCA at pages 23 – 24, para. C; and NA ALLAH v KOFAR KADE (2020) LPELR-49596(CA), per Wambai, JCA at pages 22 – 29, para. C. I therefore resolve issues 2 and 3 in favour of the Appellants.
ISSUE 4: Whether the learned trial judge did not deny the Appellants fair hearing as guaranteed under the constitution of the Federal Republic of Nigeria, 1999 when he failed to hear and determine the Appellants’ counter-claim against the Respondent in this matter? This issue is formulated from ground 4 of the amended Notice of appeal.
APPELLANTS’ SUBMISSIONS:
The learned Counsel for the Appellant also submitted that the Appellants’ counter-claim being a separate action, the trial Court ought to have obliged the Appellants by setting down the same for trial to enable evidence to be taken and evaluated by the trial Court, even if the trial Court had rightly entered a summary judgment in favour of the Respondent with respect to the Respondent’s claims, but the trial Court failed to do so, thereby denying the Appellants the opportunity to prove their counter-claim. He relied on Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and the cases of SOSANYA v ONADEKO (2005) 2 SC (Pt. II) 13 at 35; FEDERAL CIVIL SERVICE COMMISSION v LAOYE (1989) 2 NWLR (Pt. 106) 652, OYEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS (1993) 6 NWLR (Pt. 299) 344 and ADIGUN v A.G. OYO STATE (1987) 1 SC (Pt. 53) 678). He pointed out that on the 30th of April, 2014, the trial Court only granted the Appellants’ motion regularizing their defence and counter-claim, and on the same day the Court proceeded to hear the Respondent’s motion for summary judgment and granted same without setting down the Respondent’s counter-claim for trial. Referring to the proceedings of the trial Court at page 105 of the Record of Appeal, he argued that the trial Court had breached the Appellant’s right to fair hearing, as the dismissal of the Appellants’ counter-claim by the trial Court was perverse and wrong in law.
RESPONDENT’S SUBMISSIONS:
On the Appellant’s argument that the lower Court was wrong to have dismissed the Appellants’ counter-claim, learned Counsel for the Respondent referred to the Respondent’s preliminary objection that this issue did not flow from the judgment of the trial Court. It was submitted that it was not the duty of the trial Court to ensure that a party prosecutes his claim or case, and it was for the Appellants to have pursued their matter after the summary judgment which they failed to do. It was argued that even if the said counter-claim of the Appellants had been dismissed as contended, the lower Court was on firm footing as the defence of the Appellants was held to be a sham. Reliance was placed on the case of NIGERIAN ARMY & ANOR v ALADE & ORS (2019) LPELR-46915, to the effect that Court should not involve itself with a case that is an academic exercise with no utilitarian value.
APPELLANTS’ REPLY:
The Appellants contended that under summary judgment procedure, even without a Notice of Intention to Defend supported by an affidavit disclosing a defence, a Court is still obliged to consider the defence set out in a Statement of Defence, a set-off or counter-claim and to grant leave to defend the suit. Reliance was placed on U.T.C. v PAMOTEI & ORS (1989) 3 SC (Pt. I) 79. It was argued that it was impossible for the Appellants to pursue their counter-claim in the circumstance of this appeal since the trial Court had rendered a final judgment without giving any leeway for them to pursue their claim.
RESOLUTION OF ISSUE 4:
At pages 86 – 88 of the Record of Appeal, the Appellants (as Defendants) had filed on 17th April, 2014, the Defendants’ Statement of Defence and counter-claim. Specifically in their counter-claim in paragraphs 21 – 23 which is at page 88 of the Record, the Appellants repeated all the averments contained in the preceding paragraphs 1 – 20 and denied owing the Respondent (Claimant), and stated that it was the Respondent who with the aid of the Police on several occasions arrested the 2nd Appellant and under duress extorted and or collected the sum of N11,572,239 from the Appellants illegally and for that reason, counterclaimed against the Respondent the said sum.
It is settled law that where a defendant had counter-claimed against a plaintiff, the counter-claim must be adequately considered in the judgment of the trial Court and the Court must either uphold or dismiss it. See SAJE ALHAJI & ORS v NYAKO (2018) LPELR-44482(CA), per Abiriyi, JCA at pages 17 – 18, para. E; BATURE & ORS v YERO (2019) LPELR-48263(CA), per Abundaga, JCA at page 33, paras. C and MUSA v YUSUF (2006) LPELR-7586(CA), per Tsamiya, JCA at pages 26 – 27, para. F. This is a fair hearing requirement embodied in the natural justice principle of audi alteram partem, which mandates that all parties to a suit must be given reasonable and equal opportunity to ventilate their grievances before the Court. This fair hearing right which is fundamental, is guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In the case of PAM v MOHAMMED (2008) 16 NWLR (Pt. 1112) 13, the Supreme Court held inter alia:
“The very sense of fair hearing under Section 36 of the 1999 Constitution is a hearing which is fair to both parties to the suit be they Plaintiff or Defendants prosecution or defence. The Section does not contemplate a standard of justice which is based in favour of one party and to the prejudices of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be lair to both parties of the conflict… a party who will be affected by the result of a judicial inquiry must be given on opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal…”
See also DEMSA LOCAL GOVERNMENT v JOKEMS NIGERIA LIMITED (2012) LPELR-20864(CA), per Denton-West, JCA at pages 16 – 17, para. B.
In the instant appeal, the Record of Appeal shows that in the entire summary judgment contained at pages 109 – 112, the trial Court made no reference to the Appellant’s counter-claim against the Respondent. At page 110 of the record, the trial Court has only held as follows:
“On the other hand, the Defendants in their Statement of Defence have not made specific response to the claim other than to deny the debt. They have alleged that the huge sum of N11,572,237.00 paid by them to the Applicant, at various times, were all paid with the aid of the Police. Yet there is no evidence that the Respondents have taken any steps either against the Police or the Applicants to recover this sum or obtain remedy for the purported extortion. In my view, the defence is wooly, a sham and of no substance in law.”
Then at page 111, the learned trial judge held that:
“Looking at the averments in the Statement of Claim, the Affidavit in Support of this application, the exhibits, viz-a-viz the Statement of Defence, I am satisfied that there is merit in this application and that the Defendants have no legal defence, and therefore not entitled to have the case defended at a trial.
Consequently, the application succeeds. Judgment if accordingly entered in favour of the Claimant/Applicant against the Defendants/Respondents jointly and severally in the sum of N4,965,263.00 being unpaid and outstanding sum owed by the Defendants to the Claimant on the tyres sold to the 1st Defendant by the Claimant which sum remains due and unpaid since 20th day of July, 2011.
Interest is also awarded to the Claimant/Applicant on the said sum, at the rate of 20% per annum from 20th July, 2011 till judgment, and after at 10% per annum until final liquidation.”
The primary duty of the trial Court in obedience to the fundamental fair hearing imperative enshrined in Section 36 of the 1999 Constitution is to give the parties equal opportunity to present their respective cases. The record in this appeal shows that even after delivery of the above summary judgment granting the claim of the Respondent, the trial Court gave no opportunity for the Appellants to prosecute their counter-claim. The failure of the trial Court to accord the Appellants the opportunity to ventilate their counter-claim against the Respondent clearly amounts to a breach of the fair hearing right of the Appellants as guaranteed by Section 36 of the 1999 Constitution. See ZI v CHUWAK (2019) LPELR-48004(CA), per Oniyangi, JCA at pages 60 – 63, para. D and DEMSA LOCAL GOVERNMENT v JOKEMS NIGERIA LIMITED (supra) at page 18 para. F. It is trite that a proceeding conducted in breach of fair hearing is completely and entirely vitiated and therefore, null and void. See OVUNWO & ANOR v WOKO & ORS (2011) LPELR-2841(SC), per Chukwuma-Eneh, JSC at page 17, para. A; and MFA & ANOR v INONGHA (2014) LPELR-22010(SC), per Kekere-Ekun, JSC at pages 36 – 38, para. D. In consequence, I also resolve this issue in favour of the Appellants.
As I earlier stated, in an undefended list or summary judgment procedure, the pertinent consideration is whether the defendant has made out a defence on the merit to the plaintiff’s claim or whether raised any triable issue(s) which would warrant a trial in order to resolve: IMMINENT NIGERIA COMPANY v PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK (NIGERIA) LTD. (supra) and S. P. D. C. LTD. v ARHO JOE NIG. LTD. (supra).
In the instant appeal, I have resolved all the four issues in favour of the Appellants and found that by the nature of the Respondent’s claim for 20% pre-judgment interest and the other triable issues which the Appellants have raised in their defence and counter-claim, the trial Court was wrong to have adjudged the Respondent’s suit under the summary judgment procedure. I therefore find merit in this appeal.
Accordingly, the appeal is hereby allowed and the summary judgment of the trial Court delivered on 30th April, 2014 by the High Court of Ogun State, Abeokuta Judicial Division in Suit No. AB/288/2013: INFINITY TYRES LTD v AMS LOGISTICS LTD & ANOR is hereby set aside. The suit is hereby remitted back to the Honourable Chief Judge, High Court of Ogun State for re-trial before another Judge. Costs of N100,000.00 is awarded against the Respondent in favour of the Appellant.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: Under the summary judgment procedure of the High Court of Ogun State (Civil Procedure) Rules, a defendant served with originating processes alongside a motion for summary judgment is enjoined, where he intends to defend the suit, to file a statement of defence and other processes. Where the defendant files his processes, the Court has a duty to consider the same to see if he has disclosed a good defence and ought to be permitted to defend the claim. Although the Court is imbued with the discretion on whether to permit the defendant to defend the claim where he has a good defence, in exercising this discretion, the Court has a duty to consider and evaluate the processes filed by the parties. See BEFAREEN PHARMACY LTD vs. A.I.B. LIMITED (2005) 17 NWLR (PT 954) 230 at 233, UBA PLC vs. JARGABA (2007) 11 NWLR (PT 1045) 247 at 273 and GENERAL SECURITIES & FINANCE CO. LTD vs. OBIEKEZIE (1997) 10 NWLR (PT 526) 577.
The summary judgment procedure is not a procedure for denying the defendant a right to defend the claim against him if he has a defence thereto. See NIGERIAN COTTON SEED CO. LTD vs. CELTIC COMMERCE & IND. LTD (2002) 1 WRN 67 at 75. Therefore, the entitlement of a claimant to judgment in a case under the summary judgment procedure is scuttled where the defendant is able to disclose a good defence, in which case the Court is bound to grant the defendant leave to defend the suit and then conduct a plenary trial. A good defence or defence on the merit has been held to be an issue raised by way of defence, which is prima facie plausible and would necessitate the Court to require further explanation from the claimant. It is a triable issue. See JOS NORTH LG vs. DANIYAN (2000) 3 WRN 60 and FMG vs. SANI (1990) 4 NWLR (PT 147) 688 at 699.
In determining whether a good defence has been disclosed, it is not necessary for the Court to consider whether the defence has been proved at that stage. No. A complete defence need not be shown. It suffices if the defence set up shows that there is a triable issue or question or that for some other reason there ought to be a trial. See OKAMBAH vs. SULE (1990) 7 NWLR (PT 160) 1 and YAHAYA vs. WAJE COMMUNITY BANK (2001) 46 WRN 87 at 96. It is not necessary for the defendant’s processes disclosing his defence to provide a cast-iron defence or disclose proof beyond reasonable doubt before he can be granted leave to defend. See V. S. STEEL (NIG) LTD vs. GOVT OF ANAMBRA STATE (2001) 8 NWLR (PT 715) 454. The defendant is not required at that stage of the proceedings to satisfy the Court that the defence disclosed will succeed, it suffices that the defence disclosed constitutes a valid defence in law or fact.
As has been demonstrated in the lead judgment of my learned brother, Abba Bello Mohammed, JCA, which I was privileged in draft, an insightful consideration of the processes filed divulges that the Appellants disclosed a good defence which entitled them to be let in to defend the action, the lower Court was therefore wrong when it entered summary judgment against them. It is predicated on the foregoing and on the sapient reasoning and conclusion in the lead judgment, that I equally join in allowing this appeal and on the same terms as set out in the lead judgment.
ABDUL-AZEEZ WAZIRI, J.C.A.: I have an opportunity of reading before now, the lead judgment rendered by my learned brother, Abba Bello Mohammed JCA, just delivered. I am in entire agreement with my learned brother. I have closely followed the reasons and conclusions adumbrated in the judgment of which I find them agreeable to me. I therefore adopt them as mine. The appeal is imbued with merit and perforce must be allowed having resolved the four issues in favour of the Appellant and against the Respondent. The judgment of the lower Court is hereby set aside and in its place, the suit is to be remitted back to the Hon., the Chief Judge of Ogun State High Court for a retrial before another Judge. Appeal is allowed.
Appearances:
U. C. Ikegbule Esq, with him, N. I. Esekea Esq, For Appellant(s)
Tokunbo Davies Esq, with him, Omotoso Alade Esq, For Respondent(s)
