BABANGERI v. ROMAC INT’L CO. LTD
(2022)LCN/16331(CA)
In the Court of Appeal
(KANO JUDICIAL DIVISION)
On Friday, February 18, 2022
CA/K/458/2016
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
ALHAJI BABANGERI APPELANT(S)
And
ROMAC INTERNATIONAL COMPANY LIMITED RESPONDENT(S)
RATIO
THE DUTY OF THE COURT IN EVALUATING EVIDENCE PLACED BEFORE IT BY WITNESSES
This issue deals with evaluation of evidence, how properly conducted. In evaluation of evidence, Court would put evidence on imaginary scale while in arriving at preponderance regard would be had to the following parameters; admissibility of evidence, relevance, credibility, conclusiveness, comparative probability of version by both parties, it is thereafter that conclusion on accepted evidence would be drawn. See the case of TANGALE TRADITIONAL COUNCIL vs. ALH. FAWU & ANOR (2002) FWLR (Pt. 117) 1137 at 1176 (CA).
Similarly, in EYA & ORS vs. ALHAJI QUDUS & ANOR (2002) FWLR (Pt. 106) 1089 at 1122 C.A, this Honourable Court held that when invited to examine the proper evaluation of a piece of evidence, the appellate Court would seek to know – the evidence before the trial Court, whether the trial Court rejected the evidence upon the correct perception, whether it correctly approached the assessment of evidence before placing probative value on it, whether it used the imaginary scale to weigh the evidence on either side, whether it appreciated upon the preponderance of evidence, which side the balance should tilt having regard, to the burden of proof. See OLAGBEMISOYE & ANR vs. OYEBUNMI & ANOR (2003) FWLR (Pt. 139) 1607 AT 1630. PER MUSALE, J.C.A.
WHETHER OR NOT A COURT CAN LAWFULLY COMPARE A DISPUTED SIGNATURE WITH AN UNDISPUTED ONE AND COME TO THE CONCLUSION THAT THE DISPUTED SIGNATURE WAS FORGED
It should be noted that the law is settled that a Court can lawfully compare a disputed signature with an undisputed one and come to the conclusion that the disputed signature was forged. See the case of TOMTEC NIGERIA LTD vs. F.H.A (2010) ALL FWLR (Pt. 509) 400, where it was held that under Section 108 of the repealed Act (now Section 101) a Court can lawfully compare a disputed signature of counsel on a process with an undisputed one on another process filed in Court and come to the conclusion that the disputed signature was forged.
However, even though the law permits trial Court to compare signatures in order to discover their authors, such comparison should be done in open Court and not when the judge is writing his judgment. This was the decision of the Supreme Court in NDOMA-EGBA vs. ACB PLC (2005) 14 NWLR (Pt. 944) 79. The apex Court concluded that when a trial judge observes some dissimilarities on two alleged signatures of the same person, he should express his observations to both or all the parties in the legal tussle and call for their reactions before making his findings thereon, and that failure by the judge to follow this procedure will nullify the judge’s findings on the issue. Similarly, in OBUOBIPI Vs. OBUFORIBO (2010) ALL FWLR (Pt. 546) 543 AT 566, this Court held that where a trial judge compares a signature in dispute with an undisputed signature, he must read his observations to the parties in open Court and then call for the reaction of the parties before making his final findings on the issue. Thus, it would be unfair and in breach of fair hearing for the trial judge to raise the issue of the signature contained in the writ of summons while writing his judgment and based his decision on it without affording an opportunity for the respective counsel in the matter to address him on the issue. PER MUSALE, J.C.A.
THE POSITION OF LAW ON A SUMMARY JUDGEMENT
Summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases where there can no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow the defendant to defend for mere purpose of delay. It is for the plain and straight forward not for the serious and crafty. See UBA Vs. JARGABA (2007) 11 NWLR (Pt. 1045) 247. It follows that the purpose of summary judgment procedure is to prevent a defendant, with no defence from dribbling a plaintiff, especially in an indefensible suit. CPL Vs. SCANBECH (FRANK-BECH) DENMARK (2002) FWLR (Pt. 104) 574 AT 583 C.A. Although, the plaintiff should not be permitted to shut out a real defence that is not a sham, overall justice must be taken into consideration and not technicalities, ETERNAL SAVINGS & LOANS LTD & ANR vs. BEAUTY FAIR LABORATORIES LTD. (2002) FWLR (Pt. 112) 134 AT 142-3 C.A.
In the summary judgment procedure, the liquidated money demand include debt and it means specific amount which has accrued in favour of the plaintiff from the defendant. The sum due and described as liquidated must have accrued and it must be certain. See GARBA Vs. SHEBA INT’L NIG LTD (2002) 1 NWLR (Pt. 748) 372. PER MUSALE, J.C.A.
USMAN ALHAJI MUSALE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State in suit no. K/254/2015 delivered on 28th day of April, 2016 by Hon. Justice Mohammed Yahaya.
The facts of the case are briefly as follows:
By a writ of summons together with a motion on notice for summary judgment both dated the 19th October, 2015, the plaintiff/respondent claimed against the defendant/appellant as follows:
i. The sum of N15,368,646.00k (Fifteen Million Three Hundred and Sixty-Eight Thousand, Six Hundred and Forty-six Naira only) being outstanding balance of debt arising from the purchase of iron rods.
ii. Post-judgment interest at the current rate of 10% from the date of judgment until the liquidation of the judgment sum.
iii. The cost of this action as assessed by the Court.
The plaintiff/respondent claimed to have transacted with appellant in the sum of N15,368,646.00k for the period of 2010, 2011, 2012, 2013 and 2014 and attached invoices marked as Exhibits RO 1-6.
The appellant/defendant filed statement of defence, witness statement on oath and attached exhibit marked as Exhibits A-G with a written address dated 2nd February, 2016 after obtaining leave of the Court.
The respondent/plaintiff filed a reply on points of law dated 11th February, 2016.
The appellant put it as his defence that he never transacted with respondent in 2013 and 2014 and denied all the Exhibits annexed in the statement of claim and claimed that all were fake and appellant’s signature were wrongly forged.
Relying on the signature on the writ of summons signed by the defendant which he found to be the same with one on Exhibits RO 1-6, the learned trial judge held that the defendant has no defence to the action and entered judgment for the plaintiff in the sum of N15,365,136 (Fifteen Million Three Hundred and Sixty Five Thousand One Hundred and Thirty Six Naira only) and further held that the defendant has not proved the alleged forgery beyond reasonable doubt.
Dissatisfied with this judgment, the appellant appealed to this Court by his Notice of Appeal filed on the 26th day of May, 2016 containing 5 grounds:
1. The learned trial judge erred in law when he failed to painstakingly evaluate the plaintiff/respondent’s affidavit with the defendant/appellant’s affidavit even though such disclose triable issues to warrant the grant of leave to defend/transfer to general cause list.
2. The learned trial judge erred in law when he heavily relied on the signature on the writ of summons and entered judgment against the defendant/appellant in a special procedure of summary judgment and therefore occasioned miscarriage of justice against the appellant.
3. The learned trial judge erred in law when he denied the defendant/appellant opportunity to be heard on the merits of the case despite both appellant and respondents’ affidavit disclosed irreconcilable conflicts.
4. The learned trial judge erred in law when he held “the signature on the writ of summons signed by the defendant is the same with one(sic) in Exhibit(sic) RO1-6”
b. The learned trial judge erred in law when he held that the defendant/appellant did not prove the allegation of forgery beyond reasonable doubt.
In his brief of argument, filed on 5th day or October, 2021 and deemed properly filed on 6/10/2021 and his reply brief filed on 24th day of November, 2021 and deemed properly filed on the same day. The appellant submitted four issues for the determination of the appeal as follows:
1. Whether the learned trial judge properly evaluated the statement of claim, affidavits and statement of defence as well as the exhibits or the pleadings before him. (Grounds 1 and 40)
2. Whether in a summary judgment procedure, a judge may examine a document that is not part of the pleading before him to reach judgment. (Ground 2)
3. Whether the claim was one which the Court could properly determine on the summary judgment procedure. (Ground 3)
4. Whether the trial Court was right to hold that the defendant did not prove his case beyond reasonable doubt. (Ground 5)
The respondent, in his brief of argument filed on 20th day of October, 2021 adopted the four issues formulated by the appellant, and same are also adopted by this Honourable Court.
ISSUE NO. 1
Learned counsel to the appellant submitted that the trial Court failed to evaluate the statement of defence of the appellant and his witness statement on oath, to see whether the statement of defence disclosed triable issues in the context of summary judgment. The learned counsel referred to the cases of NKWO MARKET COMMUNITY (NIG) LTD vs. PAUL EJIKEME UWABUCHI OBI (2010) ALL FWLR (PT 329) 1094. He continued that in this kind of suit, the only processes the Court should look at are the respective claim and defence. In Intercity Bank Plc. vs. F.T.A LTD. (2006) 15 WRN 30 AT 35, the Court held that:
“Where the plaintiff states in the affidavit in support of his application to have the matter entered in the undefended list that to his belief the defendant has no defence to the claim. If the defendant files a notice of intention to defend in good time together with an affidavit in support of same, the Court should as a matter of duty subject the affidavit to close scrutiny and if it discloses oven the slightest defence on the merits, the judge is duty bound to have the suit transferred from the undefended list to the ordinary cause list tor full trial to take place.”
Learned counsel for the appellant submitted that there are several signatures different on the faces of Exhibits RO 1-6 and all these signatures are forged.
The learned counsel submitted that the issue of forgery borders on facts and not on law which warrant joining of issues. The facts that issues have been joined warrant automatic transfer of the matter to the general cause list. The learned counsel urged this Honourable Court to resolve this issue in the appellant’s favour.
In his response, learned counsel to the respondent submitted that the learned trial judge properly evaluated the pleadings, affidavit and exhibits before him. It is pertinent to state that this suit was fought on documentary evidence, he contended. He equally submitted that the learned trial judge after both parties presented their case made the following findings (see page 255 of the record):
“After hearing both parties and after carefully reading the respective affidavit of the applicant and that the defendant and after perusing the processes of this Court. I am concerned that the signature on the writ of summons signed by the defendant is the same with the one on exhibit RO 1-6, in fact is trite law that whoever alleges crime in a civil matter the burden of move lies on him and in the instance case, affidavit evidence of the defence has not move the alleged forgery beyond reasonable doubt.
Therefore, the denial of signature by the defence is only an after though therefore it is discountenanced… Therefore I hold that the defendant has no defence to this action and I hereby enter judgment for the plaintiff against the defendant in the sum of N15,365,136…”
Page 255 of the record.
The learned counsel submitted that the appellant as it stands now has not been able to clearly present the aspect of the pleadings and evidence evaluated and the aspect of the same pleadings and evidence not properly evaluated by the trial Court. That merely asserting that the pleadings and evidence were not properly evaluated without more is fatal to the appellant’s position. He relied on Sections 136, 137 and 138 of the Evidence Act, 2011.
It is his further submission that evaluation of evidence is the duty of the trial Court. The appellate Court could only interfere if appellant is able to prove:
i. That the trial Court failed to make findings on vital issues before it especially as it affects the statement of claim, statement of defence, affidavits and documents before it.
ii. That the trial Court’s evaluation is perverse.
iii. That the trial Court drew wrong inference from the totality of evidence.
iv. That the trial Court applied wrong law.
The learned counsel submitted that the appellant failed to establish any of the above requirements. The learned counsel referred to the cases of EYA & ORS vs. OLOPADE & ANOR (2011) ALL FWLR (Pt 584) 28 AT 45 and ADEBIYI vs. ADEOSOLA (2014) ALL FWLR (Pt 722) 1785 AT 1800 and ORDER 11 RULES 5(2) OF THE KANO STATE HIGH COURT RULES 2014. Relying on the afore-cited authorities the learned counsel to the respondent urged this Honourable Court to resolve Issue No. 1 in favour of the respondent.
This issue deals with evaluation of evidence, how properly conducted. In evaluation of evidence, Court would put evidence on imaginary scale while in arriving at preponderance regard would be had to the following parameters; admissibility of evidence, relevance, credibility, conclusiveness, comparative probability of version by both parties, it is thereafter that conclusion on accepted evidence would be drawn. See the case of TANGALE TRADITIONAL COUNCIL vs. ALH. FAWU & ANOR (2002) FWLR (Pt. 117) 1137 AT 1176 (CA).
Similarly, in EYA & ORS vs. ALHAJI QUDUS & ANOR (2002) FWLR (Pt. 106) 1089 AT 1122 C.A, this Honourable Court held that when invited to examine the proper evaluation of a piece of evidence, the appellate Court would seek to know – the evidence before the trial Court, whether the trial Court rejected the evidence upon the correct perception, whether it correctly approached the assessment of evidence before placing probative value on it, whether it used the imaginary scale to weigh the evidence on either side, whether it appreciated upon the preponderance of evidence, which side the balance should tilt having regard, to the burden of proof. See OLAGBEMISOYE & ANR vs. OYEBUNMI & ANOR (2003) FWLR (Pt. 139) 1607 AT 1630.
At this juncture, I need to state that evaluation of evidence is considered as premature at the stage of consideration of the notice of intention to defend. What is to be considered is whether triable issue or question has been raised which prima facie ought to go to trial. See DALA AIR SERVICES LTD vs. SUDAN AIRWAYS LTD. (2004) ALL FWLR (Pt. 238) 684 AT 697.
In his findings, while holding that the signature on the writ of summons is same with the signature on Exhibit RO 1-6, the learned trial judge ignored the differences between Exhibits RO 1 and RO 2-5.
If the learned trial judge properly evaluated that statement of claim, statement of defence and the witness statements on oath together with the exhibits attached thereto before him, he would have found that the signature on Exhibit RO 1 is different from that on Exhibit RO 2-6. While all of them differ from Exhibit A-G.
Thus, I am of the view that the learned trial judge did not properly evaluate the pleadings before him. This issue is resolved in favour of the appellant.
ISSUE NO. 2
On this issue, learned counsel for the appellant submitted that the Court is not empowered in a special procedure like this to look at an extraneous document. The only document the Court is to look at are the respective affidavit or statement of claim and the statement of defence. This is the requirement of ORDER 11 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 2014. Also, this was the decision in IMONIYAME HOLDING LTD Vs. SONEB ENT. LTD (2010) ALL FWLR (Pt. 517) 627. It is further submission that the document which the trial Court heavily relied on which is not part of the pleadings it, amounts to speculation as it has been held in ADETORO vs. OGUNLEYE (2000) FWLR (Pt. 26) 1833 and GBAJOR vs. OGUNBERUGUI (1961) ALL NLR 853. That reliance on a document which is not what the law requires the Court to examine occasioned a serious miscarriage of justice, the learned counsel argued. The learned counsel referred to the case of INTERCITY BANK PLC vs. F.T.A LTD. (2006) 15 WRN 30 AT 35, where the Court inter alia held, that if the defendant files notice of intention to defend with affidavit in support in good time, the Court is duty bound to scrutinise the affidavit and if it discloses even the slightest defence on the merit, the Court is bound to transfer the suit to the general cause list for full trial.
The learned counsel concluded that the only documents for the Court to examine are the statement of claim, statement of defence and their respective testimonies, he urged the Court to so hold.
In responding to the second issue, learned counsel to the respondent contended that the trial Court did not get into clinical examination of the writ of summon which no doubt emanated from the respondent. The trial Court for purpose of comparison of signatures on documents in the Court’s file only looked at the signature duly signed by the appellant when he was served with the writ of summons and other Court processes in this suit. This was done in the process of doing justice in this suit to all the parties. The learned counsel contended that it is settled law that where the Court is confronted with the resolution of denial of signature by a party who is alleged to have signed a document, the options open to the Court includes comparing the signatures admitted by the denying party to be his, with the alleged signature of his by virtue of Section 108(1) of the Evidence Act 1990. He also relied on AFOLARIN ADANLE vs. FOLARIN OLUDE (2003) FWLR (Pt. 157) 1074 AT 1083-1084. That since the appellant admitted signatures on Exhibits A-G and that on writ of summons, the learned counsel submitted that the appellant personally signed Exhibit RO 1-6 and 07.
It is contended by the learned counsel for the respondent that having a look at the signature written in the writ of summons, does not in any way amount to examination of a document that is not part of the pleading. The learned counsel referred to the case of AKINOLA Vs. V.C. UNILORIN (2004) 11 NWLR (Pt. 885) 616 and AGBAHOMOVO vs. EDUYEGBE (1999) 2 S.C 79 AT 85 where the Supreme Court was faced with similar question and it was answered thus:
“The next logical question is whether he (the judge) has a right to look at the document in the file which was not tendered as exhibit. My answer to the question is in the affirmative.”
The learned counsel also relied on the Supreme Court case of EZECHUKWU vs. ONWUKA (2016) ALL FWLR (Pt. 824) 148 wherein Peter-Odili JSC held:
“…That the learned trial judge in resolving this conflict on service was right to compare the accepted signature of MR I.S Shior in the record of the Court on the memorandum of appearance with Exhibits R and C endorsement on the hearing notice and the renunciation respectively …I see no reason to fault as where there is documentary evidence from which the Court can settle conflicts in affidavit then, there is no point calling for oral evidence.”
The learned counsel therefore urged this Honourable Court to resolve issue no. 2 in favour of the respondent.
It should be noted that the law is settled that a Court can lawfully compare a disputed signature with an undisputed one and come to the conclusion that the disputed signature was forged. See the case of TOMTEC NIGERIA LTD vs. F.H.A (2010) ALL FWLR (Pt. 509) 400, where it was held that under Section 108 of the repealed Act (now Section 101) a Court can lawfully compare a disputed signature of counsel on a process with an undisputed one on another process filed in Court and come to the conclusion that the disputed signature was forged.
However, even though the law permits trial Court to compare signatures in order to discover their authors, such comparison should be done in open Court and not when the judge is writing his judgment. This was the decision of the Supreme Court in NDOMA-EGBA vs. ACB PLC (2005) 14 NWLR (Pt. 944) 79. The apex Court concluded that when a trial judge observes some dissimilarities on two alleged signatures of the same person, he should express his observations to both or all the parties in the legal tussle and call for their reactions before making his findings thereon, and that failure by the judge to follow this procedure will nullify the judge’s findings on the issue. Similarly, in OBUOBIPI Vs. OBUFORIBO (2010) ALL FWLR (Pt. 546) 543 @ 566, this Court held that where a trial judge compares a signature in dispute with an undisputed signature, he must read his observations to the parties in open Court and then call for the reaction of the parties before making his final findings on the issue. Thus, it would be unfair and in breach of fair hearing for the trial judge to raise the issue of the signature contained in the writ of summons while writing his judgment and based his decision on it without affording an opportunity for the respective counsel in the matter to address him on the issue.
ISSUE NO. 3
Submitting on this issue, learned counsel for the appellant argued that for transfer to the general cause list under the summary judgment procedure, all that the defendant needs to show is just facts that cast doubts on the claim of the plaintiff. The learned counsel cited and relied on the case of ATAGUBA & CO Vs. GURA (NIG) LTD. (2005) 8 NWLR (Pt. 927) 429. Supreme Court, per Ejiwunmi JSC at pp 456-457 held thus:
“…A defence on the merit for the purpose of undefended list procedure may encompass a defence in law as well as on fact. The defendant must put forward some facts which cast doubt on the claim of the plaintiff…”
The learned counsel also referred to the case of G.M.O. NWORAH & SONS LTD Vs. AKPUTA (2010) ALL FWLR (Pt. 524) 86:
“…What then amounts to a triable issue in the context of an undefended list proceeding? If a defendant’s affidavit in support of the notice of intention to defend, where one is filed or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim such brings the parties within the context of “joining issues” …”
The learned counsel submitted further that the facts deposed in the appellant’s statement of defence and witness statement on oath clearly revealed triable issues in that the appellant claimed that he did not transact with respondent to the amount purportedly claimed by the respondent and also claimed that the purported signatures of the appellant on the invoices were fake and forged. It is the submission of learned counsel for the appellant that the only means the Court could further explore as to the proof of the forgery is by calling oral evidence which the lower Court did not. The very denial of the appellant to explain by oral evidence amounted to denial of fair hearing as enshrined in SECTION 36 (1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED).
In his reply, learned counsel to the respondent submitted that this is a matter that can be clearly resolved vide summary judgment procedure as same was reconciled on documents. He continued that the respondent’s case was narrowed down to 2014 transactions which are strictly on documents. That Exhibits RO 1-6 were duly signed by the respondent and the appellant. The learned counsel argued that the appellants did not even file a counter-affidavit to challenge the respondent’s motion for summary judgment. The learned counsel referred to the case of CHANCHANGI AIRLINES (NIG) LTD vs. AP PLC (2014) LPELR-22922 (CA). He also referred to the case of TASI’U vs. ADAMU (2014) LPELR-22917 (CA). The learned counsel argued that the learned trial judge in applying his unfettered discretion, rightly entered judgment in favour of the respondent, because merely chanting forgery without more, does not help the case of the appellant.
It is also contended by the learned counsel to the respondent that where a Court is faced with a situation of oath against to oath, documentary evidence produced could be used to test the veracity of the parties that is, where such documents are of permanent character. The learned counsel referred to the case of FASHANU Vs. ADEKOYA (1974) 6 SC 83.
The learned counsel further contended that the appellant only traced his business transaction/relationship with the respondent down to 2012. The appellant woefully failed to furnish the Court with what happened in 2013 and 2014 in his business, either with the respondent or otherwise. Being confronted with the invoices of 2014 transaction, that is Exhibits RO 1-6, the appellant raised forgery as a shield and as a sword. Where are the particulars of forgery as raised and relied upon by the appellant? The learned counsel argued.
The learned counsel contended further that a party such as the appellant in this case cannot rely on allegation of forgery or fraud where the allegation is based on facts not specifically pleaded with particulars duly itemized. The learned counsel cited and relied on WEST AFRICAN BREWERIES LTD Vs. SAVANAH VENTURES LTD & ORS (2002) FWLR (Pt. 112) 53 AT 74.
The learned counsel therefore urged this Honourable Court to resolve issue no.3 in favour of the respondent as the claim of the respondent was one in which the lower Court could rightly determine under the summary judgment procedure given the feeble defence of the appellant.
This is the main issue in this appeal, the other issues simply revolve around it.
Summary judgment is a procedure for disposing with dispatch, cases which are virtually uncontested. It also applies to cases where there can no reasonable doubt that a plaintiff is entitled to judgment and where it is inexpedient to allow the defendant to defend for mere purpose of delay. It is for the plain and straight forward not for the serious and crafty. See UBA Vs. JARGABA (2007) 11 NWLR (Pt. 1045) 247. It follows that the purpose of summary judgment procedure is to prevent a defendant, with no defence from dribbling a plaintiff, especially in an indefensible suit. CPL Vs. SCANBECH (FRANK-BECH) DENMARK (2002) FWLR (Pt. 104) 574 AT 583 C.A. Although, the plaintiff should not be permitted to shut out a real defence that is not a sham, overall justice must be taken into consideration and not technicalities, ETERNAL SAVINGS & LOANS LTD & ANR vs. BEAUTY FAIR LABORATORIES LTD. (2002) FWLR (Pt. 112) 134 AT 142-3 C.A.
In the summary judgment procedure, the liquidated money demand include debt and it means specific amount which has accrued in favour of the plaintiff from the defendant. The sum due and described as liquidated must have accrued and it must be certain. See GARBA Vs. SHEBA INT’L NIG LTD (2002) 1 NWLR (Pt. 748) 372.
Where there is a conflict in the affidavit of parties under the summary judgment procedure, evidence is the only way by which the conflict can be resolved and it is mandatory to enter the suit in the general cause list. See EBONG Vs. IKPE (2002) 17 NWLR (Pt. 797) 504.
As for the nature and requirements of a defence on the merit, it should be noted that in showing cause whether or not the Court should enter judgment under an application for summary judgment by leave to enter judgment, the decision in the case of MACAULAY Vs. NAL MERCHANT BANK LTD. (1990) 4 NWLR (Pt. 144) 283, requires the defendant to:- condescend on the particulars and as far as possible, deal specifically with the plaintiff’s claim and affidavit and state clearly and concisely what the defence is and what facts are relied on as supporting it, state whether the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relies as showing he is not indebted. A mere general denial would not suffice. Where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or any part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on, in all cases, give sufficient facts and particulars to show that there is a bona fide defence.
Having examined the purpose of summary judgment, the nature and requirements of a defence on the merit, I will now consider the requirement as it relates to the present appeal.
In his statement of defence and statement on oath before the lower Court, the appellant deposed to the following facts:
a. That he never transacted with the respondent on credit.
b. That he transacted with the respondent in 2010, 2011 and 2012.
c. That he also stated the particulars of the transaction specifically with date and amount.
d. We denied ever transacting with the respondent in 2013 and 2014.
e. He had never purchased good of more than N584,000 from the respondent.
f. That he denied the signature contained in Exhibit RO 1-6.
g. That the signatures on Exhibit RO 1-6 were forged.
h. He also attached his genuine signature.
By the above stated facts, the appellant showed his defence i.e. non-indebtedness on the ground that he had never transacted with the respondent in 2013 and 2014 neither did he transact with the respondent on credit bases nor purchased goods of more than N584,000 with the respondent. The appellant attached Exhibits A-G in support of the afore-mentioned facts. In light of above-mentioned facts, I am of the view that the appellant raised a defence on the merit and triable issues whose resolution required a full trial.
It should be noted that there is no need at the stage of consideration of the notice to defend nor for the defendant to prove defence, where there is a notice in writing of intention to defend with an affidavit disclosing a prima facie defence on the merit, it is not necessary to show that defence must succeed; Court shall let him defend and suit entered on the general cause list. See ENGINEER P. NYA & ANOR vs. CHIEF J. EDEM & ANOR (2001) FWLR (Pt. 57) 852 AT 860 C.A. Therefore, the defence must not be an iron-cast or an air-tight defence, or disclose proof beyond reasonable doubt or a defence that would succeed in any event. See UYOETTE Vs. IBIONO IBOM LOCAL GOVERNMENT (2003) FWLR (Pt. 178) 1126 AT 1143 C.A.
In ALHAJI MOHAMMED Vs. SOCIETE GENERAL BANK LTD & ORS (2006) ALL FWLR (Pt. 340) 1182 AT 1199 C.A, considering the nature of defence that should be contained in a notice of intention to defend under the undefended suit, it was stated that defence are facts, which if proved, would exonerate the defendant from the plaintiff’s claim (though this might not exonerate but show that there is a triable issue).
In this appeal, the facts deposed to by the appellant that he had never purchased goods worth more than N584,000 from the respondent and none of his transaction was on credit ought to have given the learned trial judge the signal to allow full trial.
It is instructive to note that before the Court decides to take a short cut in the process of adjudication, it must weigh the facts of the case very carefully and consider the implication of short-circuiting proceeding that would have enabled it give a considered decision.
Summary judgment should not be given unless the defendant’s defence is vague and lacking in substance. Where, the facts presented by the parties are diametrically opposed, the Court should afford the parties equal opportunities to canvas their case. See PROGRESS BANK PLC vs. CONTACT POINT HOLDINGS LTD. (2001) FWLR (Pt. 52) 2093 AT 2099.
Another issue raised by the appellant in his defence touches on the forgery of his signature. It is instructive to note that even if the signatures contained in Exhibit RO 1-6 are the same with the one on the writ of summons, the appellant argued that it was forged and thus he is entitled to an opportunity to prove same beyond reasonable doubt at the trial as required by law.
It is worthy of notice that proof beyond reasonable will necessarily require opportunity beyond the filing of affidavit evidence. This alone, warrant the transfer of the case to the general cause list for full trial.
In view of this, I resolved this issue in favour of the appellant.
ISSUE NO. 4
On this issue, learned counsel to the appellant submitted that the appellant did not transact with the respondent to the amount purportedly claimed by the respondent and that the purported signatures of the appellant on the invoices were fake and forged. The appellant attached the invoices of his transaction with the respondent carrying his real signature. He further submitted that the only means the Court could further explore the proof of forgery is by calling for oral evidence which the lower Court did not. That the denial of the appellant to explain by oral evidence amounted to denial of fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The learned counsel finally submitted that the findings of the trial Court are perverse and the decision reached thereafter is per incuriam. He urged the Court to allow the appeal and order a retrial on the merit.
In reply, learned counsel to the respondent submitted that contrary to the submissions of his learned friend, the appellant was given ample opportunity of proving the allegation of forgery but he failed to discharge the burden of proof. It is contended that from the processes filed by the appellant at the lower Court, particularly, the statement of defence, the appellant woefully failed to specifically plead and give particulars of the allegation of forgery as required by law. The learned counsel referred to ADEDEJI & ANOR Vs. CFAO (NIG) PLC (2014) LPELR-22309 (CA). That appellant equally failed to adduce any iota of evidence in proof of the alleged forgery even in his statement on oath. He further submitted that, assuming without conceding that the lower Court erroneously held that the defendant did not prove his case beyond reasonable doubt, that such error is inconsequential and has not occasioned a miscarriage of justice warranting this Honourable Court to set aside the judgment of the lower Court in the light of the overwhelming evidence, (signature of the appellant on the writ of summons/proof of service) lending credence to the fact that the appellant signed Exhibits RO 1-6.
The learned counsel also submitted that an error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. He relied on the case of MOBIL PRODUCING (NIG) UNLTD Vs. JOHNSON & ORS (2018) LPELR-44359. Finally, the learned counsel urged the Court to dismiss the appeal with substantial cost.
This issue deals with proof of the alleged forgery beyond the reasonable doubt to warrant the transfer of the case at hand to the general cause list.
I have since ruled that where there is a conflict in the affidavit of the parties, adducing evidence is the only way to resolve it. It therefore becomes mandatory to transfer the case to the general cause list, EBONG Vs. IKPE (supra). I therefore have no hesitation in resolving this issue in favour of the appellant.
Having resolved all issues in favour of the appellant, the appeal is found meritorious and it is allowed. Consequently, the judgment of the lower Court is set aside. Re-trial is ordered before another Judge. Parties to bear their cost.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my learned brother, U. A. Musale, JCA, that the appeal has merit. I too allow it and abide by the consequential orders in the lead judgment.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, USMAN ALHAJI MUSALE, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.
Appearances:
A. M. Maidugu, Esq. For Appellant(s)
Okitikpi Toritseju, Esq. For Respondent(s)
