BELOXXI INDUSTRIES LTD & ANOR. V. HWA TAI INDUSTRIES BERHARD LTD.
(2011)LCN/4667(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of July, 2011
CA/L/504/2010
RATIO
PRELIMINARY OBJECTION: PROCEDURE TO BE FOLLOWED BY A RESPONDENT INTENDING TO RELY UPON A PRELIMINARY OBJECTION
The law is trite and specific on the procedure relating raising of a preliminary objection as provided under Order 10 and in particular Rule 1 of the Rules of Court which same reproduced states:- “1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time.” PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT: WHAT THE CONCEPT OF SUMMARY JUDGMENT ENTAILS
The concept of summary judgment by nature is one given in favour of a plaintiff without a plenary trial of the action. In other words, the conventional normal procedure requiring the filing of all necessary pleadings, hearing evidence of witnesses and addresses by counsel and upon which a judgment is given are bypassed and not followed. Rather the materials upon which such a judgment is based are the writ of summons, the statement of claim, and also the plaintiffs application for judgment by way of a motion or summons which is supported by an affidavit. A statement of defence could also at times be an additional material accompanied as well as counter affidavit by the defendant. The procedure serves a quick measure for disposing with despatch, cases which are uncontested and thus precluding frivolous defences for purpose of mere delay; see the cases of Sodipo V. Leminkaimen (1986) 1 NWLR 220, and Mac Gregor Associates V. N.M.B. (1996) 2 SCNJ 72 at 81. PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT: THE GENERAL PRINCIPLES OF LAW GOVERNING SUMMARY JUDGMENTS
The general principles of law governing summary judgments have been well summarized in Civil Procedure in Nigeria by Fidelis Nwadialo, 2000 Edition at page 524 in the following words:- “once the Defendant shows that there is a genuine defence in law or infact, unconditional leave will be given him to defend. He needs only to raise an arguable defence or triable issue. As a general rule, where the Defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence or even a fair probability that he has a bona-fide defence, he ought to be given leave to defend. At the stage in which a Defendant is applying for leave to defend, it is not necessary for the trial judge to consider whether the defence has been proved, the merit of the defence would be determined at the substantive trial if leave to defend is given. PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT: WHETHER IN SHOWING CAUSE WHY A DEFENDANT SHOULD BE ALLOWED TO DEFEND THE ACTION, HE ONLY NEED TO SHOW THAT THERE IS A TRIABLE ISSUE OR QUESTION OR THAT FOR SOME OTHER REASONS THERE OUGHT TO BE A TRIAL
Furthermore, in showing cause why a Defendant should be allowed to defend the action, a complete defence need not be shown, it only being necessary for the defence set up to show that there is a triable issue or question or that for some other reasons there ought to be trial. The Defendant may also raise a technical defence, for example, that the plaintiff’s action is not within those to which order 11 applies or that the affidavit in support of the application does not comply with the laid down requirements or that there have been some other procedural irregularity. PER CLARA BATA OGUNBIYI, J.C.A
SUMMARY JUDGMENT: CIRCUMSTANCES WHEN LEAVE TO DEFEND WILL BE GIVEN UNDER THE SUMMARY JUDGMENT PROCEDURE
Under the summary judgment procedure, leave to defend will be given, if the defendant shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim. See the case of Ray V. Barker (1379) 4 Ex.D.283. It is also trite law that the defendant’s affidavit must condescend upon particulars and deal with the plaintiffs claim and affidavit, stating clearly the defence. See the case of Sanusi V. Cotia (2000) 6 SC (Pt. 111) 43 at 53. PER CLARA BATA OGUNBIYI, J.C.A
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. BELOXXI INDUSTRIES LTD
2. OBI EZEUDE Appellant(s)
AND
HWA TAI INDUSTRIES BERHARD LTD. Respondent(s)
CLARA BATA OGUNBIYI, J.C.A, (Delivering the Leading Judgment): The appeal at hand is a product of a ruling of the High Court of Lagos State sitting at Ikeja delivered on the 4th day of February 2010, and was made following the Claimant/Respondents’ application dated 2nd April, 2009 wherein the following reliefs sought were as follows:-
(1) An Order entering final judgment against the Defendants jointly and severally in the sum of USD111,748,09 (One hundred and eleven thousand, seven hundred and forty eight dollars and nine cent) being debts owed the Claimant by the Defendants in respect of goods supplied to the Defendants which the Defendants have defaulted to pay for.
(2) An order directing the Defendants to pay interest on the said sum at the rate 45% per annum from August 4, 2004 till full and final judgment debt is paid.
(3) An order directing the Defendants to pay N2,000,000:00 (Two Million Naira) general damages to the claimant.”
The application was supported by a 13 paragraphs affidavit and three Exhibits A, B and C as well as a written address dated 2nd April, 2009. The defendants/appellants opposed the application by filing a 15 paragraphs counter affidavit accompanied with 5 Exhibits AE1 – AE5 also a written address dated 18th May 2009.
The Defendants/Appellants maintained that in summary judgment proceedings, the court is only obliged to determine whether the Defendants have made out a triable issue and to proceed to trial of the action on the merits where it finds that a case has been made out. It was further maintained that the suit was an abuse of process given that the same issues were being tried in SUIT No. ID/1070/2008 between the same parties.
The learned trial judge in its ruling dated 4th February 2010 and at page 140 of the additional record of appeal formulated two issues upon which the application was determined as follows:-
(1) Whether based on the affidavit evidence before this Honourable court, the Defendants can be said to have admitted owing the sum of USD111,748.09 (One hundred and Eleven thousand, seven hundred and forty eight dollars, nine cents).
(2) Whether there was an abuse of the court process by the institution of this suit based on the fact that the subject matter of this present suit is already being canvassed in the SUIT NO.ID/1070/2008, between the same parties.”
At pages 143 and 144 of the additional record of appeal the learned trial judge held and said:-
“…………the Defendants averments are clear and unambiguous and the court is satisfied from the facts averred in the said paragraphs that the Defendants’ admission of its indebtedness to the claimant in the amount stated is clear and unequivocal.
In view of the above facts I find this to be a clear admission of indebtedness to the Applicant only in the admitted sum and find no need to consider any other evidence in the determination of whether or not there was an admission of indebtedness to the claimant by the Defendants in that sum. A Defendant is precluded from retracting his admission of specific facts placed by a plaintiff. Such facts having been admitted, no further proof of their truth is required. The Defendant is held bound by the facts and the trial court would be justified in acting upon it. Adeye Vs. Adesanya (2001) 6 NWLR (Pt.708) page 1 at 3.
In the light of the above I find the Defendants’ admissions to be clear, unequivocal, specific and unambiguous. On the above premise, I hereby enter judgment for the claimant in the admitted sum of USD106,748.09 (One Hundred and six thousand, seven hundred and forty-eight dollars and nine cents.) in its naira equivalent. The Defendant is further ordered to pay the interest on the admitted sum at the rate of 10% from the 4th August 2004 till full and final judgment sum is paid…………I am of the opinion that this present suit is not an abuse of the court process on the ground that an abuse of process occurs when a claimant uses legal process to harass or irritate an adversary or employs it to impede the administration of justice. In other words, abuse of process arises where the court’s process is being used mala fide. It is not enough that because two suits have been instituted against the same parties on the same subject matter. He has to go further to establish that claimant’s suit was not motivated mala fide, which in my opinion he has failed to do. Nwoboshi v State (1998) 10 NWLR (Pt. 568) page 131 at 141.”
The cumulative summary of the findings by the learned trial judge are to the effect that:-
(1) The defendants had admitted owing the Plaintiffs/Respondents and hence the reason for entering judgment for them in the sum of USD106,748.09 (One hundred and six thousand, seven hundred and forth-eight dollars nine cents) in its Naira equivalent.
(2) The present suit is not an abuse of the court process as the Defendants/Appellants have not shown that the action is motivated by mala fide.
The Defendants/Appellants being dissatisfied by this Ruling have now appealed against same by filing a Notice and Grounds of Appeal dated and filed on the 18th February, 2010. The Notice which contained seven Grounds of Appeal is at pages 130-134 of the main record of appeal. The appeal was entered on the 14th May, 2010. An additional record of appeal was also filed on the 21st May, 2010 and containing the ruling of the lower court which is sought to appeal.
In accordance with the rules of court, briefs were exchanged between parties. The Appellants’ brief was dated and filed the 25th June, 2010, while that of the respondent was dated and filed 28th July 2010. A reply brief was also filed on behalf of the appellants on the 2nd September, 2010, having been served the Respondent’s brief on the 24th August, 2010.
On the 4th April, 2011 at the hearing of the appeal, one Mr. L.C. Ilogu in company of C.E. Azih represented the appellants while Mrs. F.O. Iredu was a counsel who appeared on behalf of the respondent. On the onset, the appellants learned counsel applied to abandon their issues 6 and 7 and same were accordingly struck out as well as their corresponding Grounds of appeal Numbers 6 and 7 .
The learned counsel therefore urged in favour of allowing the appeal while a dismissal was called for on behalf of the respondent.
From the existing five grounds of appeal, the appellants formulated five issues which are as follows:-
(1) Whether the trial judge was right in law to have proceeded to summarily try the two (2) issues identified as arising for determination instead of allowing the Defendants to defend and try those issues on the merits.
(2) Whether the learned trial judge erred in law in not granting the Defendants leave to defend the action when the Defendants had met the requirements of Order 11 Rules 4 and 5 of the High Court of Lagos (Civil Procedure) Rules, 2004.
(3) Whether the learned trial judge was entitled in law to enter summary judgment when the conditions had not been met.
(4) Whether the trial judge was right in holding that the claimant’s suit was not an abuse of process.
(5) Whether the trial judge was right in awarding interest to the claimant from the 04-08-2004 till full and final judgment sum is paid.
On behalf of the respondent, the lone issue formulated was:-
Whether there is any good defence whether in law or fact furnished by Defendant or fundamental defect in procedure adopted by trial court which is capable of impeaching the findings, decision and order of the trial court in its ruling of 04-02-2009 now being appealed against.
I hasten to point out at this juncture that the respondent from its formulation of issue had related that the ruling sought to appeal was delivered on the 04-04-2009.This I hold is an error because the ruling subject of this appeal was made on the 04-02-2010. Be that as it may I would consider this a devil’s printer which has not affected the appeal in any material particular. Further still and with the appellants having responded to the respondent’s brief by filing a reply brief, is a clear indication that they were not mislead in anyway as to the date the ruling was delivered. The error I hold is not therefore fundamental in the circumstance.
It is also significant to point out that the respondent at paragraph 4.1 of its brief is challenging the entire grounds of appeal as well as the issues formulated there from. In other words that the issues formulated were neither raised and argued at the lower court nor are they contained in the ruling appealed against. Counsel therefore urged that the appeal in the circumstance should be dismissed.
The law is trite and specific on the procedure relating raising of a preliminary objection as provided under Order 10 and in particular Rule 1 of the Rules of Court which same reproduced states:-
“1. A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time.”
There is no evidence either on the respondent’s brief or viva voce at the hearing of the appeal that such compliance had been met. In my view therefore, the objection sought to argue by the respondent regarding the issues raised by the appellants holds no substance and is hereby discountenanced.
From the five issues raised by the appellants and also the one formulated by the respondent the perusal of the sum total could be summarized into two issues as follows:-
(1) Whether the learned trial judge was right in law to have summarily tried the two (2) issues identified instead of allowing the Defendants to defend same on the merits.
(2) Whether the learned trial judge was again right in law in holding that the claimant’s suit was not an abuse of process.
The 1st issue questions the propriety of the learned trial judge in summarily trying and disposing of the case without giving the defendants/appellants the opportunity to defend the suit. The appellants’ grouse therefore is to the effect that the lower court failed to properly identify the issues before it for the purpose of summary judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004. That the sole issue before the trial court was to be determined under Order 11 and strictly on the analyses provided there under. That of significant relevance are sub-sections 4 and 5 of the said order supra whereby the learned counsel argued that the trial court failed to avert its mind or attention thereto- That the trial court erred in law in failing to grant the Defendants leave to defend the suit having met the requirements as laid down by the Rules. The learned counsel related affirmatively to the publication, “Summary of Civil procedure in Nigeria by Fidelis Nwadialo, 2000 Edition”, wherein general principles of law governing summary judgments have been dealt with in great extent. That all that is expected of the affidavit of the defendants is to exhibit a triable issue in law or fact. Reference in support was drawn to the pronouncement by their Lordships of the supreme court in the case of Atagubu & Co. v. Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429.
That the Defendants have filed a defence which raises triable issues of law and fact to warrant their being allowed to defend the suit. That they have also raised the issue of the suit being an abuse of the process of this court in that the subject matter of this suit (indebtedness in the sum of (USD 111,748.09) is part of the issue being vigorously canvassed by the same parties in suit No.ID/1070/2008 now pending before Hon. Justice Alogba at the High Court Ikeja division wherein Exhibits AE1 , AE2, AE3, AE4 and AE5 are pleadings in that case and therefore serve as evidence.
That by the claimant’s action threatening in suit ID/1070/2008 and seeking to dismiss the same as an abuse of process on 2nd April 2009, and also filing on the same day the suit herein being an application for summary judgment and deposing to an affidavit that the Defendants have no defence to the action is a gross abuse of court process in the circumstance. That the trial court therefore erred in law when it gave summary judgment to the claimant for the sum of USD 106,748.09 when the conditions for such summary judgment had not been met. That the appeal should on this ground be allowed therefore.
In response to the submission, the learned respondent’s counsel argued that the appellants have not only failed to fault the ruling of the court but rather had ended up re-arguing the motion filed in the lower court afresh. Counsel further argued that the appellants argument on the question of triable issues cannot sustain this appeal. That the appellants misconstrued Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004 particularly Rule 5. That to constitute a triable issue the defendants must furnish a good defence which must be disclosed in the statement of defence. Reference was made to Rules 1 and 4 of the High Court of Lagos (Civil- Procedure) Rules in question.
That unlike the 1994 Rules or the uniform Procedure rules, the current law is a radical departure there from whereof the trial court in the current dispensation is opportune to see the whole case of a party including oral and documentary evidence for purpose of forming an opinion whether a party has a good defence or not. The learned counsel urged this court to discountenance the contention by the appellants that they have a triable issue and all other allegations or claims surrounding same because they are not of any substance to warrant upturning the ruling of the lower court in this matter. That the findings and decision arrived at by the learned trial judge were well founded based on the materials placed before him.
The 1st issue for determination questions the propriety or not of the learned trial judge in summarily trying the issues before him instead of allowing the Defendants to defend on the merit.
The concept of summary judgment by nature is one given in favour of a plaintiff without a plenary trial of the action. In other words, the conventional normal procedure requiring the filing of all necessary pleadings, hearing evidence of witnesses and addresses by counsel and upon which a judgment is given are bypassed and not followed. Rather the materials upon which such a judgment is based are the writ of summons, the statement of claim, and also the plaintiffs application for judgment by way of a motion or summons which is supported by an affidavit. A statement of defence could also at times be an additional material accompanied as well as counter affidavit by the defendant.
The procedure serves a quick measure for disposing with despatch, cases which are uncontested and thus precluding frivolous defences for purpose of mere delay; see the cases of Sodipo V. Leminkaimen (1986) 1 NWLR 220, and Mac Gregor Associates V. N.M.B. (1996) 2 SCNJ 72 at 81. Instant judgment in straight forward and undefended cases cut on costs and stands on the same pedestal with full trial judgments because it is also on the merit. This is apt as it follows naturally from the fact that it is based on want of defence to the plaintiff s claim by the defendant.
The general principles of law governing summary judgments have been well summarized in Civil Procedure in Nigeria by Fidelis Nwadialo, 2000 Edition at page 524 in the following words:-
“once the Defendant shows that there is a genuine defence in law or infact, unconditional leave will be given him to defend. He needs only to raise an arguable defence or triable issue. As a general rule, where the Defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence or even a fair probability that he has a bona-fide defence, he ought to be given leave to defend. At the stage in which a Defendant is applying for leave to defend, it is not necessary for the trial judge to consider whether the defence has been proved, the merit of the defence would be determined at the substantive trial if leave to defend is given. Furthermore, in showing cause why a Defendant should be allowed to defend the action, a complete defence need not be shown, it only being necessary for the defence set up to show that there is a triable issue or question or that for some other reasons there ought to be trial. The Defendant may also raise a technical defence, for example, that the plaintiff’s action is not within those to which order 11 applies or that the affidavit in support of the application does not comply with the laid down requirements or that there have been some other procedural irregularity.”
Under the summary judgment procedure, leave to defend will be given, if the defendant shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiffs claim. See the case of Ray V. Barker (1379) 4 Ex.D.283. It is also trite law that the defendant’s affidavit must condescend upon particulars and deal with the plaintiffs claim and affidavit, stating clearly the defence. See the case of Sanusi V. Cotia (2000) 6 SC (Pt. 111) 43 at 53.
Summary judgment procedures are provided for in the High Court Rules on a writ specially endorsed under Order 11 of the High Court Rules (Lagos) which has its counterpart in the English Rules of the Supreme Court by Order 14. The procedure in a nutshell is where the plaintiff is entitled to apply for judgment summarily after a defendant has entered appearance in an action in which the writ is specially endorsed with or accompanied with the statement of claim. The application which is made to a judge in chambers is supported by an affidavit verifying the cause of action as well as deposing to the belief of the deponent that there is no defence to the claim. The plaintiffs affidavit must therefore satisfy the two basic requirements in the rules, namely, verifying the cause of action and stating that in the deponent’s belief there is no defence for the application to succeed. The statement of claim must therefore contain all the material facts disclosing a competent cause of action.
On the part of the defendant he may wish to contest the application for summary judgment and the showing of this is by filing an affidavit in which the facts relied on as the basis of his defence are deposed to. It is trite law also that the mere filing of an affidavit by the defendant does not ipso facto automatically entitle him to defend. See Mac Gregor Associates V. N.M.B. (1996) 2 SCNJ 72 at 79 – 80. The affidavit showing the proposed defence is to enable the judge decide whether the defendant should be given leave to defend. See, again the case of Nishizawa Ltd V. Strichand N. Jethwani (1984) 12 SC 234. Order 11 although it does not specifically authorize the filing of statement of defence in order to show cause, it does not however prevent a defendant from filing a defence before the service of the plaintiff s application for summary judgment.
In the procedure, at hand, the defendant is not permitted to defend except by leave of the court which will only be granted upon satisfying the judge that he has a good defence to the action. It is also trite law that where the defendant filed a statement of defence before or at the time of filing the affidavit to show cause why he should be let in to defend the action, the court in its determination cannot ignore the defence but should rather examine same and, if necessary, rely thereon in deciding whether or not to let the defendant defend the action. See F.M.G. V. Sanni (1990) 4 NWLR 688 and Nishizawa v. Jethwani Supra. The learned trial judge is duty bound and cannot consider an application for summary judgment under Order 11 without considering the affidavit of the defendant showing cause where there is one; this is because the application is inseparable from such affidavit. See National Bank V. Welde & Co. (1996) 9-10 SCNJ 147 at 156.
The Court is also under an obligation to satisfy itself that the defendant has a good defence on the merit to the action. Such duty required would involve taking into consideration all the papers filed and which must include, the plaintiff’s statement of claim, the affidavits, the counter affidavit by the defendant, and his statement of defence, if any, and all other relevant exhibits see Macaulay V. Nal Merchant Bank and Mac Gregor Associates V. Nal Merchant Bank supra. All that the defendant needs to show is to raise an arguable defence or triable issue. It is trite also that where the defendant shows that he has a fair case for defence or reasonable grounds for setting up a defence or even a fair probability that he has a bonafide defence, he ought to be given leave to defend. Again and of relevance in reference is the authority in the case of Mac Gregor Associates V. N.M.B. (supra).
A further and applicable reference is also the case of Atagubu & Co. V. Gura (Nig) Ltd 2005 8 NWLR (Pt.927)429 wherein their Lordships of the Apex Court in considering the concept of a “triable issue” had this to say at pages 456 – 457 per Ejiwunmi JSC (of blessed memory).
“A defence on the merit for the purposes 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. A defence on the merit is not the same as success of the defence in litigation. All that is required is to lay the foundation for the existence of a triable issue or issues. See Nortex (Nigeria) Limited V. Franc Tools Co. Ltd. (1997) 4 NWLR (Pt.501) 603.”
In delivering the lead judgment Edozie JSC at page 448 had thus to say:-
“it is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved.”
It follows therefore that the facts of the case in issue is a major determinant consideration of what will constitute a defence on the merit. The prerogative of this lies within the discretion of the trial court which must be exercised judicially and judiciously having regard to all the facts deposed to especially in the affidavit in support of the notice to defend. For the defendant to be allowed to defend at the lower court, his affidavit must of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A mere general denial therefore of the plaintiff’s claim and affidavit is devoid of any evidential value and which would not serve sufficient enough to throw such doubt on the plaintiffs claim. See Agro Millers Limited V. Continental Merchant Bank (Nigeria) Plc. (1997) 10 NWLR (Pt.525) 469. A reasonable defence must prima-facie be disclosed; see also Jipreze V. Okonkwo (1937) 3 NWLR (Pt.62) 757.
It is pertinent at this point to reproduce and set out the provisions of Order 11 Rules 4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 which governs the summary trial procedure, the subject of contention. The subsections had this to say:-
“4. Where a party served with the processes and documents referred to in Rule 1 of this order intends to defend the suit he shall, not later than the time prescribed for defence, file:
(a) His statement of defence,
(b) Depositions of his witnesses,
(c) Exhibits to be used in his defence; and
(d) A written brief in reply to the application for summary judgment.
5(1) where it appears to a judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2)Where it appears to a judge that the defendant has no good defence the judge may thereupon enter judgment for a claimant.
(3)Where it appears to a judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.”
From the record of appeal before us for instance, the writ of summons and statement of claim as well as the motion for judgment and the supporting affidavit together with exhibits A, B and C by the claimant/respondent are all contained at pages 1 – 18 of the main record. The reproduction of paragraph 8 of the affidavit in support of the motion for summary judgment is hereby relevant wherein it states:-
“8. Attached and marked Exhibits A, B and C are electronic mails sent to the claimant by the defendants on 25th October 2004, 2nd day of November 2004 and 24th day of November 2004 by the defendant admitting the indebtedness, giving reason for their default and promising to pay the said sum.”
In response and on behalf of the defendants/appellants the following are contained in the record:- The memorandum of appearance, Statement of Defence, list of Defendants witnesses, List of Exhibits and Counter affidavit with written addresses. From the averments on the statement of Defence the summary is a total denial of the claimant’s suit wherein same at paragraph 32 was alleged to be vexatious, frivolous and an abuse of court process and which this court was therefore called upon to dismiss.
Also in response to paragraph 8 of the claimant/respondent’s affidavit in support of the motion for summary judgment reproduced earlier, the defendants/appellants counter affidavit at paragraph 11 denied same and said:-
“11. That the purported email letter shown as Exhibits A, B & C are disputed and I know as a legal practitioner that they are inadmiserable”
The defendants/appellants by their statement of defence had raised substantial issues of law and fact as to the competence of the suit as well as exhibit C which alleges the admission of the indebtedness of the sum in question.
At page 142 of the record of appeal for instance the learned trial judge in its Ruling approved of Exhibit C as being an unequivocal admission of the defendants’ indebtedness to the claimant’s claim in the sum of USD106,748.09 (one hundred and six thousand, seven hundred and forty eight Dollars and nine cent.) It is needless to reiterate that the said statement of defence together with the counter affidavit of the defendants/appellants ought to have been taken in the entire con of the materials placed before the court. This is more so especially where the defendants’ counter affidavit at paragraph 11 deposed that the said Exhibit C is inadmissible. This in itself had posed a triable issue which ought to have let the matter be determined at the trial. The learned trial judge in the circumstance of this case and as rightly submitted by the learned appellants’ counsel, did en in law in entering summary judgment on an amount which is being contested and/or disputed by the Defendants/appellants. In otherwords, the learned trial judge should have declined entering summary judgment as advised by their Lordships of the Apex court in the case of Atagubu & Co. V. Guru (Nig) Ltd Supra. This is premised on the findings that triable issue had been raised in defence of the suit by the Defendants/Appellants therein.
As rightly submitted by the learned appellants’ counsel therefore, the reliance by the learned trial judge on sections 19 and 21 of the Evidence Act was, with all respect inappropriate and taken out of con since the alleged “admissions” were greatly challenged and controverted. The said issue is therefore resolved in favour of the appellant.
The 2nd issue questions the propriety as to whether the trial court was right in law in holding that the claimant’s suit was not an abuse of process. I hasten to say right away that the said issue pre-supposes a decision having been made on the merit. This is not the situation at hand which was wrongfully determined under the summary judgment procedure. In other words and with the determination of the 1st issue, the question of the 2nd issue is only pre-emptive at this stage as it could only be determined at the merit of the case. It would follow therefore that the relief sought by the appellants in dismissing the claimant’s claim as an abuse of court process is grossly misplaced and also misconceived. The suit in this matter should appropriately proceed to trial under the general cause list. The ruling of the lower court in determining the suit under the summary judgment procedure is hereby set aside and hence the appeal succeeding in part. The said case should therefore be listed for hearing on the general cause list. I further make an order that each party should bear its costs of prosecuting this appeal.
Appeal succeeds in part and I make no order as to costs.
JOHN INYANG OKORO, J.C.A: I read in advance the Judgment of my learned brother, Ogunbiyi, JCA just delivered and I agree that this appeal has merit and ought to be allowed. My learned brother has ably dealt with the salient issues submitted for the determination of this appeal and I do not have much to say except to emphasize the need for trial courts to always consider dispassionately the affidavit of a defendant in support of notice of intension to defend the action. In as much as the concept of Summary Judgment under Order 11 Rules 4 & 5 of the High Court of Lagos State (Civil Procedure) Rules 2004 is to make for quick dispensation of justice, care must be taken not to deny any party who has a genuine defence to an action an opportunity to do so.
Whenever a defendant has shown in his affidavit that he has a genuine defence either in law or in fact, it is my view that he ought to be given an opportunity to defend. Once there is a triable issue, the defendant should be allowed to defend. See Mortex Nig. Ltd. v. Franc Tools Co. Ltd. (1997) 4 N.W.L.R. (Pt.501) 603.
In the instant case, the Appellants had clearly stated in paragraph 11 of their counter affidavit that Exhibits A, B & C are disputed and are inadmissible in law. These documents are actually the basis for the learned trial Judge entering Judgment for the Respondent. I hold the view that the Appellant ought to have been given an opportunity to defend the action having identified a triable issue. See Atagubu & Co. v. Gura Nig. Ltd. (2005) 8 N.W.L.R. (Pt.927) 429.
Based on the above and the fuller reasons contained in the lead Judgment of my learned brother, Ogunbiyi JCA, I agree that this appeal succeeds and is also allowed by one. I abide by the consequential orders made in the lead judgment, that relating to costs, inclusive.
MOHAMMED AMBI-USI DANJUMA J.C.A: At the trial, the Claimant/Respondent had claimed the reliefs in the terms already set out in the lead Ruling and I need not reproduce same. The Application was supported by a 13 paragraph affidavit and three exhibits A, B, and B together with an accompanying written address. The Defendant/Appellant opposed the application by filing a 15 paragraphs counter affidavit with 5 exhibits AE, – AE5 and a written address.
The Defendant/Appellant maintained that the court’s only obligation was to see from the counter affidavit or defence filed whether a triable issue had been made out upon which the case was to proceed to trial in opposition to a summary Judgment as sought by the Claimant/Respondent , who had argued that there had been an admission of the part of the sums claimed and more so that the suit was not an abuse of court process.
I have of reading before now the lead Judgment just delivered by my learned brother, Clara Bata Ogunbiyi JCA, PJ and I agree entirely that the appeal against the Ruling of the trial Judge of the Lagos State High Court, wherein summary Judgment was entered rather than an order for a hearing on the merit upon an entry in the general cause list, was wrongful.
Order 11 Rule 5(3) of the Lagos State High Court Civil Procedure Rules 2004 provides as follows:
“5(3) where it appears to a Judge that the Defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that paft of the claim to which there is no defence and grant leave to defend that part to which there is a defence.”
The trial court had entered Judgment summarily purporting to rely on admission of indebtedness and as founded upon paragraphs 8 of the averments of the Applicant/Respondent’s Affidavit.
It is crystal clear that paragraph 11 of the Defendant/appellant’s counter affidavit is a total denial of the said exhibits A, B and C founded and relied upon by the Respondent/Claimant, in that its admissibility had been challenged. A triable issue had therefore been raised for a determination of the suit on the merit and for same to be placed on the general cause list.
If the Defence raised were a sham defence, then obviously the Defendant may not be allowed to be let in defence of the suit brought in a summary procedure suit. See MACAULAY V. NAL MERCHANT (1990) 4 NWLR (Pt. 144) 283, THOR u. F.C.M.B (2005) 728 LRCN, 445, NISHIZAWA LIMITED V. JETHWANI (7984) NSCC 877 ration 3 at 878 – 879
However, in the case, forming the subject of this appeal, the Appellant as Defendant had condescended to disclosing a defence on the merit such that he ought have been allowed to defend the entirety of the claim by transferring the suit to the general cause list. While it is correct that under the summary Judgment procedure, if there is no conceivable defence on the merit, the mere denial of liability will be of no moment, see the unreported decision of this court in AFRIBANK NIGERIA PLC. V. MEDICAL CONSULTANT SERVICES LTD. 2. MARYLAND MEDICAL CONSULTANT SERVICES LTD., 2. MARYLAND MEDICAL CENTRE – Suit No. CA/L/7302 delivered on 23rd February, 2011, wherein I said at page 16 of my lead Ruling thus:
“I am for the foregoing reasons, of the humble view that the summary Judgment was rightly entered and the Appellant was rightly refused the opportunity of entering defence as there was non disclosed, let alone a reasonable one. ”
The converse or reverse is the case in a situation such as exists in this one on appeal herein. The finding by the learned trial Judge as appearing at page 142 of the Record of Appeal that exhibit C was an unequivocal admission of liability flies against the conflicting averment in challenge of that exhibit by paragraph 11 of the Counter Affidavit and paragraph 32 of the statement of defence wherefore, the entirety of the claim was impugned as being vexatious, frivolous and an abuse of court process.
On the second issue, whether the trial court was right in holding that the suit was not an abuse of court process: It is obvious that with the resolution of the first issue, the 2nd issue does not arise as a hearing on the merit had not been made, let atone its abuse by any person.
It is for these reasons and reinforced by the more detailed and incisively articulate reasoning and conclusion of my lord C.B Ogunbiyi JCA, PJ in the lead Judgment which I adopt as mine that I too allow the appeal in part only. I also join my lord in setting aside the said summary Judgment entered and order that the case be listed for hearing on the general cause list of the trial court.
I also abide by the order that each party shall bear its costs.
Appearances
Mr. I.C. Ilogu;
C.E. Aziah;For Appellant
AND
Respondent not Represented.For Respondent
