BEN NWANKWO v. KAY-KAY CONSTRUCTION LIMITED
(2014)LCN/7610(CA)
In The Court of Appeal of Nigeria
On Monday, the 8th day of December, 2014
CA/E/55/2013
RATIO
APPEAL: GROUND OF APPEAL; WHETHER A GROUND OF APPEAL MUST BE AGAINST THE JUDGEMENT OF THE LOWER COURT
A ground of appeal must attack or complain against what the judgment of the Lower Court decided. If not, it is in valid. See SARAKI & ANOR V. KOTOYE (1992) 11/12 SCNJ 26 AND AKPAN V. BOB & ORS (2010)17 NWLR (PT. 1223) 421 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.
COURT: JUDGEMENT; WHAT THE JUDGMENT OF A TRIAL COURT MUST DEMONSTRATE
It is trite law that the judgment of a trial court must demonstrate and reflect a full and dispassionate consideration of the entire evidence before it and all the issues raised or that arose from the evidence and arguments before it. It is expressly stated in the judgment of the trial court in this case, that the judgment did not result from a consideration of the evidence and issues raised or arising, before it in this case, it rather states that it is based on the trial courts evaluation of the evidence in another case (E/246/2012), which said evidence was not before the trial court and did not form part of the materials to be considered in the case before it. per. EMMANUEL AKOMAYE AGIM, J.C.A.
COURT; EVALUATION OF EVIDENCE; WHAT EVALUATION ENTAILS
The judgment did not demonstrate the reasoning of the trial court behind the said decision. As this court held in ONWUGBELU V. EZEBUO & ORS (Judgment in CA/E/56/2009 delivered on 21-2-2-13), “Evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence the Court has a duty to consider the relation between the evidence and the issue as well as the probative value of such evidence. This will involve a thorough appraisal, analysis and assessment of the evidence that will logically result in a conclusion of Law or an inference of fact. See AWUSE VS. ODILI (2005)16 NWLR (pt. 952) 416 at 506. Evaluation of evidence provides or explains the factual basis of the reasoning or decision of the Court. It demonstrates the relationship or connection between the decision and the evidence before the Court. It helps an understanding of how the Court arrived at its conclusions on the facts. It is an indicator of whether the trial Court dispassionately considered and gave due regard to every admitted evidence before it. The Supreme Court held in ADAMU V. THE STATE (1991)6 SC 17 that only evaluation of evidence will logically lead to the reasons for the trial court’s decision. per. EMMANUEL AKOMAYE AGIM, J.C.A.
EVIDENCE: CONTRADICTORY EVIDENCE; WHETHER CONTRADICTORY EVIDENCE AMOUNTS TO NO EVIDENCE AND CANNOT BE USED
It is trite law that each version cancels the other by virtue of the conflict. It is settled by a long line of judicial decisions that contradicting evidence amounts to no evidence and cannot be used or relied on by a court. See OMEREDE V. ELEAZU & ORS (1996) 6 NWLR (PT 452) 1 (SC), C & C CONSTRUCTION CO LTD V. OKHAI (2003) 12 SC (PT 1) 133. In BASIL V. FAJEBE (2001)4 SC (PT 11) 119 AT 127 the Supreme Court held that a party who adduces inconsistent evidence over one and the same issue damages his own case unless he can reconcile the inconsistency. In Ezemba v. Ibeneme (2004) 14 NWLR (pt 894)617, the apex court further held that “No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. See also BOY MUKA & ORS V. THE STATE (1976) 9-10 SC (REPRINT), WILLIAM V. THE STATE (1975) 9-11 SC (REPRINT) 87. per. EMMANUEL AKOMAYE AGIM, J.C.A.
COMPANY LAW: FILING OF PARTICULAR; THE PENALTY FOR NON FILING OF SUCH PARTICULARS IS PROVIDED FOR IN SECTION 292(7) OF CAMA 1990
The requirement by S. 292(4) of CAMA 1090 that a company shall file a return in the prescribed form of the particulars of its directors or a change in the particulars of its directors is one of notice to the public and not a requirement or condition precedent for being a director of the company. So that a person can be a director of a company and function as such even if the return of his particulars have not been sent to or filed with the CAC. The penalty for non filing of such particulars is provided for in S. 292(7) of CAMA 1990. It states that “the company and every officer of the company who is in default shall be guilty of an offence and liable to a fine of N50.” It went on to provide in subsection 8 of the same S.292 that the court may by order compel that the particulars be sent to the CAC as provided in S. 292(4). The CAMA did not state that if such return is not filed a person occupying the office of director of a registered company or acting as such would not be regarded as a director. Such a meaning cannot be read into the clear provisions of S. 292 (7) and (8) which provide for the legal consequences of not sending or filing the return of particulars of a director. per. EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUF Justice of The Court of Appeal of Nigeria
Between
BEN NWANKWO Appellant(s)
AND
KAY-KAY CONSTRUCTION LIMITED Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering The Leading Judgment): The High court of Enugu State, Enugu tried suit No. E/249/2012 on the undefended list on the basis of the plaintiff’s writ of summons supported by an affidavit of 16 paragraphs accompanied by documentary exhibits A to H, the defendant’s notice of intention to defend supported by an affidavit of 27 paragraphs accompanied by documentary exhibits 1 to 8. After the conclusion of the addresses of Learned Counsel to both sides on 16-11-2012 rendered judgment holding thus- “I am, therefore, satisfied upon my evaluation of the evidence presented, that the plaintiff is entitled to judgment for the sum of N200, 000,000.00(two hundred million naira) only. There is nothing in the defendant’s notice of intention lodged before the court to warrant a postponement of the judgment day by shifting the case to the general cause list.
The N10,000,000.00 (ten million naira) claimed by the plaintiff as solicitor’s fees, is in my view misconceived and inappropriate under the undefended list. That arm of the claim is hereby denied and dismissed. However the suit succeeds substantially and the court decrees as follows “that the defendant shall pay the plaintiff the sum of N200,000,000.00(two hundred million naira) being liquidated money demand in respect of a friendly loan granted to the defendant at his request.
I make no order as to costs.”
Dissatisfied with this judgment, the defendant on 16-11-2012 commenced this appeal No CA/E/56/2013 by filing a notice of appeal containing eight grounds for this appeal.
The parties herein have filed, exchanged and adopted their respective briefs of argument as follows – the appellant’s brief of argument, the amended respondent’s brief of argument, the amended appellant’s reply brief. The respondent filed a separate notice of preliminary objection which it reproduced and argued in pages 5 to 14 of its brief of argument. The appellants reply to the respondent’s preliminary objection is contained in pages 1 to 4 of the amended appellant’s reply brief. The respective arguments in respect of the preliminary objection were adopted by both parties herein before their argument of the merit of this appeal.
The appellant’s brief of argument raised the following issues for determination:
1. Whether the learned trial Chief Judge was right or justified in holding that the Notice of Intention to defend the suit filed by the appellant did not evince or disclose any defence to warrant the transfer of the suit to the general cause list and order pleadings Ground 1
2. Whether the learned trial Chief judge was right or justified in holding that the defence put forward by the appellant in her affidavit in support of Notice of Intention to defend with the exhibits attached, were posterior or extrinsic to Exhibits A, B, C and D such as to pronounce the said defence irrelevant in the consideration of the suit. Grounds II, III, IV & V.
3. Whether, having regard to the entire defence put forward by the appellant in her affidavit in support of the Notice of Intention to defend, the learned trial Chief Judge was right to hold that the appellant did not deny the respondent’s Exhibits A, B, C and D. Ground VI.
4. Whether the learned trial Chief Judge was right to hold that the civil suit instituted by the appellant in the High Court of Enugu State to set aside Exhibits A, B, C and D, was inchoate. Ground VII.
5. Whether the learned trial Chief Judge was right when he failed to evaluate the evidence led before him by the appellant but instead relied on purported evaluation of evidence led in suit No. E/246/2012 which was not consolidated with the appellant’s case. Ground VIII.
The respondent’s brief of argument adopted and argued replicando the above issues raised in the appellant’s brief of argument. All the issues are in substance the same. I will therefore determine the said issues together. I will for now put on hold the determination of these issues and consider the respondent’s preliminary objection. I may not return to the merit of this appeal, if I find the objection entirely meritorious.
The grounds for the objection are that-
A. Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal being questions of mixed law and fact raised without the leave of court are incompetent and liable to be struck out.
B. Ground 4 of the Notice of Appeal having not arisen from the judgment of the trial court is incompetent and liable to be struck out.
C. The notice of appeal filed on 16-11-2012 is incompetent for non compliance with section 242 of the 1999 Constitution ( as amended), and liable to be struck out/dismissed.
Grounds 1, 2, 3, 4, 5, 6 and 7 of this appeal are complains against the judgment of the trial court on the facts and law. As rightly submitted by the Learned SAN for the appellant, a judgment following the trial of a suit on the undefended list is a final judgment on the merits of the case. See MARK & ANOR V. EKE (2004) 1 SC (PT. 11) 1, DUKE V. AKPABUYO LOCAL GOVERNMENT (2005)19 NWLR (PT 959) 130 (SC), BANK OF THE NORTH LTD V. INTRA BANK SA (1969) 1 ALL NLR 91 AND F.M.F LTD V. RIVERS POLY, BORI (2005)9 NWLR (PT 930)257 AT 272-273since the said judgment of the trial court is a final one, the appeal against it on those grounds can be validly maintained without the leave of the court first obtained to so appeal. It is settled law that an appeal to this court against the final judgment of the High Court in its original jurisdiction as in this case lies as of right and that the right is automatically exercisable by the filing of a notice of appeal and the party appealing does not require the leave of any court to do so, even if the grounds for the appeal are ones of fact or mixed law and fact. An appeal, as of right, from the decision of a High Court is created by S. 241(1) of the 1999 Constitution as existing in any of the situations prescribed therein.
It provides that- “An appeal shall lie from decisions of the Federal High Court or a High court to the Court of Appeal as of right in the following cases-
(a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
(c) decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) decision in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person;
(e) decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
(f) decisions made or given by the Federal High Court or a High Court-
(i) where the liberty of a person or the custody of an infant is concerned,
(ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a contributory of other officer under any enactment relating to companies in respect of misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an Admiralty action determining liability, and
(v) In such other cases as may be prescribed by an Act of the National Assembly.”
It is clear from the above provisions that an appeal lies as of right, to this court from the final decisions of the High Court rendered by it in the exercise of its original jurisdiction. The provision lists the alternative situations in which an appeal can lie as of right. There is nothing therein stating or suggesting that those situations must all co-exist before an appeal can lie as of right. Therefore, an appeal lies as of right where only one of them exists.
In our present case, only the situation in S. 241(1)(a) exists, namely, a final decision in civil proceedings before a High Court sitting at first instance. By virtue of S. 241(1)(a) of the 1999 Constitution, an appeal from such decision to this court, lies as of right even if the ground for the appeal involve questions of fact or mixed law and facts. In IWUEKE V. IMO BROADCASTING CORPORATION (2005)10 SC 19 the Supreme Court held that “Having come to the conclusion that the decision of the trial court in issue is a final one as opposed to an interlocutory decision, it follows that the leave of either the trial court or the court of Appeal is not needed before appealing against same as it is the law that an appellant appeals as of right against the final decision of a Court of First instance. In such a situation it becomes immaterial or irrelevant that a ground of appeal against such a final decision is of law, facts or mixed law and facts.” In the light of the foregoing, I hold that the first ground of the preliminary objection failed and is hereby dismissed.
Let me now consider the second ground of the preliminary objection that ground 4 of this appeal is not complaining against any part of the judgment of the trial court. The said ground 4 complains that –
“The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that appellant’s exhibit 1, 2, 3, 4, 5, 6, 7, 8 and 9 not being terms of respondent’s Exhibit D are not relevant considerations in the case before the court.
PARTICULARS OF ERROR
Appellant’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 showed-
i. The falsity of the affidavit in support of the application for summary judgment as the deponent was not a director of the respondent as he alleged
ii. The link between the respondent and Chief Chris Uba, the alter ego of Anambra State who compelled the appellant to enter into the false agreement.
iii. Suit duly instituted at the High Court of Enugu State which showed effort made by appellant and others similarly affected to set aside Exhibits A, B, C and D.
Let me straightaway state that following my careful and serene reading of the judgment of the trial court, I have not come across any part of it deciding or holding that the appellant’s exhibits 1, 2, 3, 4, 5, 6 , 7, 8 and 9 were for any reason not relevant considerations in the case before the court.” It is glaring that the said ground 4 of this appeal does not attack any part of the judgment of the trial court.
A ground of appeal must attack or complain against what the judgment of the Lower Court decided. If not, it is in valid. See SARAKI & ANOR V. KOTOYE (1992) 11/12 SCNJ 26 AND AKPAN V. BOB & ORS (2010)17 NWLR (PT. 1223) 421 (SC).
Ground 4 of this appeal is based on the false assumption that the trial court held that the appellant’s exhibits 1, 2, 3, 4, 5, 6, 7 and 8 are not relevant considerations in the case before the court and is therefore invalid.
The second ground of the objection therefore succeeds. Ground 4 of this appeal is incompetent and is hereby struck out.
The third ground of the respondent’s preliminary objection fails in the light of my earlier decision herein that the appellant can bring this appeal without the leave of court because it is an appeal against the final decision of the High Court sitting at first instance which S. 241(1)(a) of the 1999 Constitution prescribes exists as of right. S. 242 of the 1999 Constitution is not applicable to appeals that lie as of right by virtue of S. 241 (1)(a) of the Constitution. This is because S. 242(1) subordinates itself to S. 24 (1)(1)(a) of the Constitution and from the express words and tenor of S. 242 of the Constitution it only applies to situations where an appeal cannot lie as of right and the party desiring to appeal has to seek leave of court to appeal. The Supreme Court in NalsaTean Associates v. NNPC (1991) 11-12 SC 83, applied S. 213(2) and (3) of the 1979 Constitution of Nigeria which are exactly similar to S. 241(1)(a) and S. 242 of the Constitution and held that the two provision create two distinct types of rights of appeal, namely, the right of appeal as of right in S. 213(1) 1979 Constitution equivalent to S. 241(1) 1999 Constitution under S. 213(2) 1999 Constitution equivalent to S. 242 1999 Constitution and the right of appeal with leave of court.
In the light of the foregoing, the third ground of the objection fails and is hereby dismissed. The reliefs sought for by the respondent in the notice of preliminary objection on the basis of this objection are accordingly equally dismissed.
Since all the grounds of this appeal except ground 4, have been held to be valid, I will now come back to the issues for determination in this appeal.
I prefer to determine all the issues together.
The 13 pages judgment of the trial court started with a brief introduction in the first 1’1/2 page. Thereafter, it, in nine pages reproduced the plaintiff’s affidavit in support of its writ of summons, and the defendant’s affidavit in support of his notice of intention to defend. It then proceeded to determine the case. The decision of the trial court is in the last 2’1/4 pages of the judgment.
I agree with the submission of the Learned SAN for the appellant that the instant suit from which this appeal arose was not consolidated with suit No E/246/2012. There is nothing in the record of this appeal showing that there was such consolidation. There was therefore no basis in law for the trial court to have determined the merit of the instant case on the basis of the evidence adduced in suit No E/246/2012 and its evaluation of that evidence.
It is trite law that the judgment of a trial court must demonstrate and reflect a full and dispassionate consideration of the entire evidence before it and all the issues raised or that arose from the evidence and arguments before it. It is expressly stated in the judgment of the trial court in this case, that the judgment did not result from a consideration of the evidence and issues raised or arising, before it in this case, it rather states that it is based on the trial courts evaluation of the evidence in another case (E/246/2012), which said evidence was not before the trial court and did not form part of the materials to be considered in the case before it.
It is glaring that apart from reproducing the affidavit in support of the writ of summons and the affidavit in support of the notice of intention to defend, the trial court did not review, evaluate and analyze the affidavit evidence and the documentary exhibits attached to the respective affidavits of the parties in the suit before it in arriving at the decision in its judgment. The judgment did not demonstrate the reasoning of the trial court behind the said decision. As this court held in ONWUGBELU V. EZEBUO & ORS (Judgment in CA/E/56/2009 delivered on 21-2-2-13), “Evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence the Court has a duty to consider the relation between the evidence and the issue as well as the probative value of such evidence. This will involve a thorough appraisal, analysis and assessment of the evidence that will logically result in a conclusion of Law or an inference of fact. See AWUSE VS. ODILI (2005)16 NWLR (pt. 952) 416 at 506. Evaluation of evidence provides or explains the factual basis of the reasoning or decision of the Court. It demonstrates the relationship or connection between the decision and the evidence before the Court. It helps an understanding of how the Court arrived at its conclusions on the facts. It is an indicator of whether the trial Court dispassionately considered and gave due regard to every admitted evidence before it. The Supreme Court held in ADAMU V. THE STATE (1991)6 SC 17 that only evaluation of evidence will logically lead to the reasons for the trial court’s decision.
I agree with the submission of the Learned SAN for the appellant that the trial court clearly erred in law when it decided the merit of the case between the parties without evaluating the evidence in the case before it. However, this error simpliciter, cannot vitiate the judgment, unless if it occasioned a miscarriage of justice in the sense that without it the judgment of the trial court would have been different See Bayol Ahemba (1999) 7 SC (Pt.1) 92 and Anyanwu V Mbara & Anor (1992) 6 SCNJ 90. A determination of whether the error occasioned a miscarriage of justice can only be made upon a proper review and evaluation of the totality of affidavit before the trial court. If the evidence supports the decision, then the error has not occasioned a miscarriage of justice. Since issues nos. 2 to 5 require an evaluation of the said evidence, this court will evaluate the totality of the affidavit evidence for the joint purpose of finding out if the error occasioned a miscarriage of justice and determining issues Nos. 2-5. In any case where a trial court did not evaluate the evidence in the case before it, it is settled law that this court can evaluate such evidence and draw the proper inferences or conclusions from the evidence, particularly the documentary exhibits adduced by the both parties in the case at the trial court. In FATUADE V. ONWOAMANAM (1990)3 SC (PT. 11) 138, the Supreme court held that “where a trial court fails to consider and evaluate material evidence essential to a proper and just determination of the case, the Court of Appeal is in as much a good position as the trial court to consider and evaluate such evidence and make proper findings. See the same holdings of the Supreme Court in ABUSONWAN V. MERCANTILE BANK OF NIGERIA LIMITED (1987) 6 SC 570 AND FAGBENRO V. AROBADI & ORS (2006) 2-3 SC 18.
I will now evaluate the evidence adduced by both sides in their respective affidavits and documentary exhibits to find out if the trial court was right in its holding that the affidavit in support of the appellant’s notice of intention to defend did not disclose a defence on the merits as to warrant the suit being transferred to the general cause list for trial and if it was right in its judgment granting the plaintiff’s claim of N200,000,000.00.
The evidence contained in the plaintiff’s affidavit in support of his writ of summons and the accompanying documentary exhibits and on the basis of which the suit was placed for trial on the undefended list by the trial court are as follows. On 12-10-2010 the appellant wrote a letter titled “Application for Loan” to the respondent stating thus- “Sequel to our discussions, I humbly wish to apply for a friendly loan to enable me finance the contract I secured. The estimated cost will be about N=200m (Two hundred million naira only) to execute the contract. In event of your approval, I apply that the loan be amortized in 4 years.
I hope my application will be favorably considered.”
The letter is attached to the respondent’s affidavit in support of the writ of summons as exhibit A. On 26-10-2010, the respondent wrote replying thus- “Your application dated 12th Oct. 2010 with respect to the above refers. We are pleased to inform you that your application for a friendly loan to finance the contract you secured has been approved subject to a loan agreement to be signed by you. The loan agreement is attached to this letter. If the terms as contained in the agreement is acceptable to you, kindly sign the relevant portions and return same to us with your letter of acceptance of the offer. You will note that the company has approved an interest free loan of N200m (Two hundred million Naira only) which shall be amortized by you within 4 (four) years only.”
This letter is attached to the said respondent’s affidavit as exhibit B. On 27-10-2010, the appellant to the respondent a further letter leaded “APPLICATION FOR LOAN- ACCEPTANCE OF OFFER” stating thus- “I am pleased to inform you that your offer has been accepted and the attached agreement will be duly executed and returned to you as requested. I am grateful for your assistance.”
A written agreement was entered into on 28-10-2010 and signed by the appellant in the presence of one Prince Dr Emeka Eze of Toronto Hospital, Onitsha and indicating that the common seal of the respondent was affixed in the presence of one Engr. Izundu Eddy of 18/32 Chime Avenue New Haven, Enugu. The respective witnesses signed as such witnesses.
It is attached to the respondent’s said affidavit as exhibit D. Clauses 1, 2, 3, 4, 5 and 6 there state that-
1. The Lender hereby lend to the BORROWER the sum of N200m (Two Hundred Million naira) only, interest free, the receipt of which the BORROWER hereby acknowledges.
2. The said loan shall be amortized for 4 (four) years and it shall be repaid to the LENDER by the BORROWER at her head office at Enugu, on four installments of N50m (fifty Million Naira) per year commencing on the 1st day of January, 2012. The second installment of 50m (fifty Million Naira) shall be repaid on 1st day of January, 2013. The third installment of N50m (Fifty Million Naira) shall be repaid on the 1st day of January, 2014. The last installment of N50m (Fifty Million Naira) shall be repaid on the 1st day of January, 2015.
3. That where the BORROWER fails or neglects to repay any of the installments at the due date herein specified, this agreement shall cease and determine and the LENDER reserves the right to recover the entire or outstanding balance, the fact of their maturity date notwithstanding.
4. The BORROWER shall as security for the said loan deposit with the LENDER a signed personal cheque/s for the exact amount.
5. The parties to this agreement agree that their respective signatures to those present on the date above stated, are conclusive of this contract without more.
6. The LENDER is entitled to call off the loan by giving the BORROWER one month notice in writing and in default of repayment of the loan by the BORROWER when called upon to do so, the LENDER is entitled to take all necessary legal steps to recover the loan from the BORROWER.
7. In event of the LENDER being unable to realize the loan at any time upon maturity or if any of the cheques deposited to LENDER by BORROWER fails to clear for, the BORROWER shall bear the cost of legal and all other expenses incidental to the recovery of the loan by the LENDER.”
Pursuant to clause 4 of the loan agreement the appellant issued to the respondent four signed undated personal cheques each bearing the sum of N50 million naira as security for the said loan. These cheques are attached to the respondent’s affidavit in support of the writ of summons as exhibit E1, E2, E3 and E4. The appellant failed to pay the loan sum as agreed in exhibit D.
On 22-1-2012, the respondent wrote to the appellant, a letter captioned- “Re: LOAN OF N200,000,000.00 (TWO HUNDRED MILLION NAIRA REQUEST FOR INSTRUCTION TO AUTHORIZE THE PRESENTATION OF THE MATURED 1ST N50,000,000.00 (FIFTY MILLION NAIRA) ONLY CHEQUE FOR PAYMENT”
And stating therein thus- “We write to remind you that the date for the repayment of the sum of N50,000,000.00 (Fifty Million Naira) only being the first installment out of the friendly loan of N200,000,000.00 (Two Hundred Million Naira) which was advanced to you on the 28th day of October, 2010, has long been overdue. Accordingly, since you have failed on your own to redeem the cheque we hereby request you to give necessary instruction authorizing us to present same for payment. Please note that it will amount to further breach of our agreement where you fail or neglect to give us the requisite authorization as requested, within (7) seven days from the date of this letter. Note further that we shall avail ourselves by recourse to legal action since the above is the last option we have pursuant to the provision of our agreement.”
This letter is attached to the respondent’s affidavit as exhibit F. On 25-5-2012, the respondent’s Solicitors wrote to the appellant demanding that she pays the loan sum. It further states that – “As a result of your failure to commence the repayment of the friendly loan extended to you by our client, our client is invoking clause 6 of the loan agreement executed by your good self and our client. By this letter you are hereby given (1) one month notice to pay back in full the loan facility advanced to you by our client. Please be informed that failure to comply with this demand will leave us with no other alternative than to proceed against you in a court of law; and bear in mind that according to clause 7 of the earlier mentioned loan agreement, you will bear the cost of any necessary legal steps taken to recover this loan from you. It is our hope that you will comply with this demand notice timorously to avoid any embarrassment.”
This letter is attached to the affidavit in support of the writ of summons as exhibit G.
On the basis of the above facts the respondent commenced the suit at the trial court by causing the issuance of a writ of summons claiming for “the sum of N200,000,000.00 (Two hundred million naira only) being a liquidated money demand in respect of a friendly loan granted to the defendant at her written request to enable her execute a contract awarded to her sometime in 2010, which friendly loan inspite of repeated demands made by both the plaintiff’s officials and its Solicitors has remained unpaid. The plaintiff also claims the sum of N10,000,000.00 (Ten million naira only) being the plaintiff’s Solicitors professional fees charged and payable by the plaintiff to its Solicitors – Messrs Taiwo Abe & Company in accordance with the agreement executed between the parties.”
The trial court, upon being satisfied from the facts contained in the affidavit in support of the writ of summons that the plaintiff’s claim has merit and that it deserved being tried on the undefended list on the 12-7-2012 order that it be issued on the undefended list.
Upon being served with the respondent’s writ of summons, the affidavit in support and accompanying documentary exhibits and the order of the trial court placing it for hearing on the undefended list, the appellant filed a notice of intention to defend, supported by an affidavit accompanied by documentary exhibits, which raised two defenses as follows-
(i) that the plaintiff did not at any time, either directly or through Chief Christian Uba and Engineer Emeka Okeke, deliver the sum of N200,000,000 (two hundred million naira) or any other sum to him as alleged or at all, and that he signed Exhibits D and E1 to E4 based on the duress, fraud and deceit of Chief Christian Uba who was bent on terminating his candidacy which he had spent all her resources to attain.
(ii) That he signed exhibits D and E1 to E4 as a result of the mutual understanding between her and the respondent that the respondent shall provide him with the loan sum and that when the respondent failed to keep its side of the agreement, he wrote demanding for the return of the undated cheques, exhibits E1 to E4 and the cancellation of the loan agreement, exhibit D.
He explained the background of the transaction in paragraphs 5, 7 to 12 and 15 of his said affidavit thus-
5. I am not, and have never been engaged in business either at all or in the manner described by the plaintiff. I equally did not have any contract due to be executed in Enugu State and did not represent to the plaintiff that I did. On the contrary, as at October, 2010, I was the managing consultant for the Leading Edge Academy, engaged in human resource and management consulting located at No. 938 Ahmadu Bello Way, Apo, Abuja.
7. No contract was ever awarded to me, for which I required any loan to satisfy. On the contrary with the Notice of Election issued by Independent National Electoral Commission (INEC) for the National Assembly scheduled for April, 2011, I expressed interest to secure the sponsorship of the People Democratic Party (P.D.P).
8. In Anambra State at the material time, there were series of intraparty disputes which gave way to the emergence of factions of the State Executive of the party.
9. I was compelled to subscribe to the faction projected by Chief Christian Uba, the alter ego of the plaintiff, owing to my long standing association and affiliation with him in political matters in Anambra State, as well as his personal assurance that his faction, whose Chairman was Chief Benji Udeozor, had secured an advantage through judgment obtained against the P.D.P. National.
10. Chief Christian Uba as a further incentive assured me as well as all other aspirants for the sponsorship of the People Democratic Party (PDP) for the election, that he would provide us with financial support to enable us-
(i) Contest the General election
(ii) Pay for all stages of the legal services for the intra party disputes following the success of the state faction in Court over the National Headquarters of the P.D.P.
11. After having obtained the party sponsorship, following the conduct of primaries by the State Executive which subscribed to the leadership and over lordship of Chief Christian Uba, he invited I and other candidates to a meeting. Thereat, he threatened to withdraw our sponsorship and concede the intra-party disputes in Court to favour the candidates in the list of candidates projected by the National Secretariat, unless we signed the documents which he produced, and the signature page of plaintiff’s Exhibit D.
12. We pleaded that documentation was unnecessary and assured Chief Christian Uba of our loyalty. He however waived us aside, informing us that he once received the assurance of Dr. Chris Ngige prior to facilitating the PDP sponsorship for him, and that he had taught him a bitter lesson in that regard.
15. The cheques were not signed in October, 2010 as alleged by the plaintiff, but were signed on 29th March, 2011, as will be evident from my cheque stubs which are still intact in the booklet issued to me by the bank.
In paragraphs 16 to 19 of his said affidavit he stated the immediate cause of this dispute thus-
16. Following our victory at the election, we approached Chief Christian Uba as the de facto leader of the party and expressed our gratitude for the sponsorship of the party. I and others thereafter raised the issue of the heavy cost of the election as well as the ensuing litigation which are still pending. Chief Christian Uba retorted that we were in the position to finance both the intra party disputes and the election petitions filed against us.
17. To my greatest consternation sometime in April, 2012, Chief Christian Uba invited me and demanded that I should pay him the sum of N50,000,000 (fifty million naira) per annum for each year I served as a member of the House of Representatives, failing which he would sue based on the document. I demanded a return of the cheque but he refused. All entreaties to persuade him to abandon this inglorious quest proved abortive.
18. Rather than relent, he told me when I made further demand for the cheque, that I should be mindful of what he did to Dr Chris Nwabueze Ngige OON, now Senator of the Federal Republic of Nigeria, when he utilized resignation letters purported to be signed by the Senator as well as some lewd photographs to harass him while in occupation of the office of the Governor of Anambra State and the ensuing mayhem which followed. He threatened that my situation will make that which transpired a child’s play.
19. When all appeals proved abortive, I was compelled to write a letter to the plaintiff on 21st May, 2012 demanding the return of the cheques as there was no consideration at all for their issuance. Plaintiff did not reply. In that letter, following in like manner, the pattern laid down by the plaintiff to the effect that it granted me a loan, I categorically demanded a recession on the clear premise that no money was ever given to me.
He further stated in paragraphs 20, 21 and 22 of his affidavit that-
20. The letter shown as Exhibit F was forged in order to overreach my own aforesaid letter as no such letter was written or sent to me in January, 2012. Likewise, Exhibit G was formulated to lend credence to this spurious suit.
21. The plaintiff is in fact, not in a financial position to give a loan of N200,000,000.00 (Two Hundred Million Naira) each to the candidates sponsored for the election by the PDP in Anambra State and did not give any friendly loan to anybody as alleged or at all. I did not receive the sum of N200,000,000.00 (Two Hundred Million Naira) from the plaintiff in cheque, cash, draft or any other form of payment whatsoever.
22. Plaintiff who has a share capital of N1,000,000.00 (One Million Naira) and has not earned any income since 2005 and has not filed any annual returns at the Company Registry Abuja, since 2005
He also stated in paragraph 23 of his affidavit the particulars of the other candidates for election to the membership of the House of Representatives whom respondent had similar transactions with and had sued for the recovery of 200 million naira even though the said sum was not actually received by any of them. He stated in paragraph 26 that-
26. I have initiated an action to set aside the purported agreement as it was obtained by fraud and deceit as the plaintiff never gave or intended to give the stated sum to me. The processes of the said action are hereto delivered as Exhibit 11.
Learned SAN for the appellant has argued that paragraphs 3 and 4 of the affidavit in support of the notice of intention to defend disclosed that Engineer Emeka Okeke, the deponent of the affidavit in support of the writ of summons, falsely swore that he is a director of the respondent when he was not and that for this reason, the trial court should have treated the affidavits as unreliable and irrelevant evidence. He relied on the decisions in ARISA V. STATE (1988) 3 NWLR (PT 83) 386 AT 397 AND OKOYE V. CPMB LTD (2008) 15 NWLR (PT 1110) 335 AT 362 for this submission.
The Learned SAN also submitted that the trial court failed to consider whether it was a mere coincidence that the appellant and each of all those similarly affected, approached the respondent for a loan of the same amount of 2 million naira on the same terms or the ability of the respondent who has a share capital of one million naira to award loans of over one billion naira free of interest to the same set of people. The Learned SAN submitted that it was manifest that the appellant was intimidated into entering into a purported false agreement which clearly is against public policy for fear of losing his hard fought party nomination, and that what was disguised in Exhibit D was a calculated design to compel legislators to pay a price for representation of their Constituency, the implication of which is that corruption will be enthroned. According to the Learned SAN, the appellant clearly averred illegality, fraud, threat, deceit, forgery, duress and intimidation in his affidavit and ought to have been allowed to prove this effectively. Relying on the decisions in OSIFO V. OKOGBO COMMUNITY BANK LTD (2006)15 NWLR (PT 1002) 260 AT 275-276 AND FASEL SERVICES LTD V. NPA (2009)9 NWLR (PT 1146)400 AT 416, he submitted that it is trite law that in such a case, the court is mandated to determine that issues before proceeding to judgment. Relying on C.C.C THRIFT & CREDIT SOCIETY V. EKPON (2001)17 NWLR (PT 743) 649 AT 675 he also submitted that the appellant made out a case of duress or intimidation. Relying C. E. FATB LTD V. PATNERSHIP INV. CO. LTD (2001) 1 NWLR (PT 695) 517 AT 531 AND SHOMEFUN V. SHADE (1999) 12 NWLR (PT 632) 531 AT 542 the Learned SAN submitted that fraud vitiates consent or any transaction, that such a contract fraught with fraud cannot be enforced by a court and that such transaction cannot stand as it is void. He submitted that for the foregoing reasons, the trial court should have transferred the suit to the general cause list to try the issue of duress, fraud and illegality.
The Learned SAN argued that parties were not in agreement with respect to any aspect of the case and that the evidence adduced by each side in their affidavits and documentary exhibits were irreconcilably in conflict and so there was need for oral evidence to resolve these conflicts and for this reason the suit ought to have been transferred to the general cause list for trial so that oral evidence can be adduced to prove the issues joined. He referred to the decisions in GARBA V. UNIVERSITY OF MAIDUGURI (1986)1 NWLR (PT 18) 530, ISHAQ V. EHITOR (2003) 10 NWLR (PT 828) 221 AT 242, ATANDA V. OLAREWAJU (1988)4 NWLR (PT 89) 394 AND MILITARY ADMINISTRATOR V. FHA (1991) 1 NWLR 405 AND UKU V. OKUMAGBA (1974) 3 SC 35 AND EJEZIE V. AMUWU (2008) 12 NWLR (PT.1101) 446 in support of the submission that conflicting affidavit evidence should generally be resolved by oral evidence.
Relying on the decisions in OLOKO V. UBE (2004) 17 NWLR (PT 903) 647, KABIRU V. IBRAHIM (2004) 2 NWLR (PT.857) 326 AT 346, the Learned SAN submitted that what the trial court should have considered is whether the affidavit in support of the notice of intention to defend disclosed a triable issue and not pre-occupy itself as it did with the merit of the defence put forward by the appellant and that at that stage, it does not matter if the defence is shallow or shadowy provided it raises a triable issue. He then urged this court, relying on NIWA V. S.T.B PLC (2008) NWLR (PT 1072) 483 AT 502-503 UNN V. ORAZULIKE TRAADING CO (1989) 5 NWLR (PT 119) 19 AT 31-32 AND F.I.B PLC V. PEGASUS TRADING OFFICE (2004) 4 NWLR (PT 863)369, to hold that the appellant’s defence raised a triable defence and that the suit ought to have been transferred to the general cause list for trial.
The above arguments of the Learned SAN were made under issue No 1 of the appellant’s brief of argument.
Under issue No 2 of the appellant’s brief of argument the Learned SAN submitted that the crucial point now is whether the appellant who did sign the documents alleged to form the transaction can lead evidence to prove his assertion that the documents were products of fraud, duress and illegality and that the appellant was entitled to go outside the ambit of the said documents to lead such evidence by virtue of proviso (a) to S. 128(1)(a) of the 2011 Evidence Act. He relied on Phipson on Evidence, 12th Edition, paragraphs 1909 and 1911 to support this submission. He then submitted that the decision of the trial court that the facts of fraud, duress, illegality and forgery averred in the appellant’s affidavit were extrinsic, posterior or foreign to exhibits A, B, C and cannot be admitted or applied to attack their validity is contrary to the said proviso (a) to S. 128(1) of the 2011 Evidence Act and that it is this reasoning that caused the trial court to enter judgment in the suit on the undefended list instead of transferring it to the general cause list. The Learned SAN further submitted that the case of the appellant was mounted on the said proviso (a) to S.128 (1) of the Evidence which necessarily implies the use of matters posterior or extrinsic to a document for impeaching a document which is asserted to be unenforceable. He referred to the decision of this court in OLOKO V. UBE (supra) to buttress this submission
The Learned SAN under issue No 3 of the appellant’s brief of argument argued that the decisions in ADEDEJI V. NBN LTD (1989)2 NWLR 212, M.B. V. WEST CONSTRUCTION CO. LTD (2000)18 NWLR (PT 744) AND OIL FIELD SUPPLY CENTRE V. JOHNSON (1987) 2 NWLR (PT 96) 232 relied on by the trial court for its view that it is morally wrong for the appellant to attack the validity of exhibit D after taking benefits thereunder, is inapplicable to this case because the appellant has denied taking benefit of any kind from the respondent under the said agreement and has alleged that he signed the agreement under duress. Relying on the decision in NNADOZIE V. MBAGWU (2008)3 NWLR (PT 1074) 364 AT 394-395 ONWUCHEKWE V. NDIC (2002) 5 NWLR (PT 760)371, WEST CONSTRUCTION CO. LTD V. BATALHA (2006) 9 NWLR (PT 986) 595, UBN LTD V. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT 421) 558 he reiterated that it is illegal to enter into a contract which is contrary to public policy and that such an agreement must not be pleaded in any court of law and if pleaded cannot be enforced. The Learned SAN also argued that it was wrong for the trial court to hold that the appellant did not deny exhibit A, B, C and D, which in fact the totality of the appellant’s case is a denial of those exhibits and the attack of their validity.
Under issue No 4 of the appellant’s brief of argument, the Learned SAN further argued that it was wrong for the trial court to have ignored, waived aside and branded as in choate exhibit 11 accompanying the affidavit in support of the notice of intention to defend, the writ of summons of a pending suit he filed on 13-8-2012 to set aside exhibits A, B, C and D on grounds of fraud and illegality, which constituted a vital component of the defence of the appellant in the instant case, and that by exhibit 11 the appellant sought to bring to the notice of the trial court that the validity of exhibits A, B, C and D relied on by the respondent in the case before it is an issue in another suit pending before it.
Learned SAN for the respondent has argued in reply in respect of issue No 1 that the allegations of duress, fraud, forgery and illegality being criminal in nature, by virtue of S.135(1) of the Evidence Act 2011 the appellant is required to prove them beyond reasonable doubt, that the entire gamut of the appellant’s affidavit evidence fell short of proving any iota of the ingredients of the crimes alleged and that when placed side by side with the cogent, verifiable, solid and unequivocal evidence produced or presented by the respondent, no reasonable judge will be in doubt that indeed the appellant’s notice of intention to defend contained not only bundles of lies but one upon which a suit such as this one cannot be transferred to the general cause list for oral hearing. According to the Learned SAN the whole essence of deposing to those facts of duress, fraud, deceit and illegality is to use extrinsic evidence to add, vary, subtract from or contradict the clear, unequivocal and unambiguous terms in exhibit D. He referred to UBN LTD V. SAX NIGERIA LTD & 20 ORS (1994) 8 NWLR (PT 361) 150 AT 163, UBN LTD V. OZIGI (1994) 3 NWLR (PT 333) 385 AT 400 AND EKULO FARMS LTD & ANOR V. UBN PLC (2006) ALL FWLR (PT 319)895 AT 920. He then submitted that the appellant’s affidavit having failed to raise any triable issue, the trial court was right to hold that it disclosed no defence to warrant the suit being transferred to the general cause list.
The Learned SAN for the respondent also submitted under issue No 2 that it is not in doubt that the trial court clearly understood that extrinsic evidence in certain circumstance may be admissible but in this instance, the appellant has not brought his case within the known exceptions to the general rule. He referred to the case of Savannah Bank of Nigeria Ltd v. Salami (1996)8 NWLR (pt 465) 131 at 147. The Learned SAN further submitted that it was not enough for the appellant to make barren and bare assertions of duress, fraud, intimidation or illegality just to have the suit transferred to the general cause list without furnishing the particulars of these ingredients, having regard to the fact that they are all criminal allegations made against the respondent.
Another submission of the Learned SAN is that the respondent’s exhibits A to D were executed in 2010, while the suit leading to this appeal was commenced sometime in July, 2012, almost two years after the execution of the documents, that throughout these periods, there were no written or verbal complaints against the respondent regarding the issue of duress, fraud, intimidation or illegality and that the appellants pending suit No E/301/12 against the respondent and Chief Chris Uba has since its filing not seen the light of day and the respondent has not been served a copy of it.
Under issue No 3, the Learned SAN for the respondent has submitted that the defence of the appellant was that the duress, fraud, deceit was perpetrated by one Chief Chris Uba by the threat to terminate the candidacy which the appellant had spent all his resources to attain and that the question to be asked is whether “from the documents attached by the appellant is there any evidence of the position of Chief Chris Uba to be able to perpetrate this illegality in the Peoples Democratic Party”” He then submitted that it is not practicable for Chief Chris Uba who is neither the National chairman of the party nor the Anambra State chapter Chairman to have the power to perpetrate the alleged termination of the appellant’s candidacy and that the absence of any evidence whatsoever connecting Chief Chris Uba with the running of the affairs of Peoples’ Democratic Party in Anambra State, the appellant’s defence is but a sham and we urge your Lordships to so hold.
The Learned SAN also submitted that it is also apt to note that there is no iota of truth in the unfounded allegation of the appellant concerning the purported duress, threat and fraud or illegality allegedly perpetrated by Chief Chris Uba regard being had to the fact that Exhibits A, B, C and D were executed at different dates and that exhibit “A” was executed by the appellant on the 12th day of October, 2010, Exhibit, “B” was executed on the 26th day of October, 2010 Exhibit “C” was executed on the 27th day of October, 2010 while Exhibit “D” the parties’ agreement was executed by the parties on the 28th day of October, 2010.”
He then argued in the alternative that assuming without conceding that Chief Chris Uba allegedly perpetrated the duress, threat, fraud or illegality averred by the appellant, it does not accord with common sense and logic that a woman threatened by duress on the 12th day of October, 2010 – when Exhibit “A” was executed still allowed herself to be so threatened on the 26th day of October, 2010 – when Exhibit “B” was received by her and would again proceed on the 27th day of October, 2010 to write Exhibit “C”, let alone to execute the agreement on the 28th day of October, 2010 – Exhibit “D” (see pages 26-29 of the Record of Appeal) and that indeed one would have expected by now that the appellant would have commenced a very serious criminal action against the said Chief Chris Uba or be seen to seriously pursue her civil action purportedly filed since August, 2012 which is yet to see the light of day.”
After also submitting that the appellant’s denial of exhibits A, B, C and D should be seen in the light of a cunningly devised fable contrived to enable the appellant avoid repaying the loan and that the appellants entire effort in vigorously attacking the validity of those exhibits show that she is dishonest and fraudulent as revealed from the chain of transactions culminating in the agreement in exhibit D, he urged this court to hold that the trial court was right in its decision that the appellant did not deny issue No 4, the Learned SAN for the respondent submitted that the trial court was right to have held that the appellant’s suit No E/301/2012 was inchoate because the writ of summons as contained in exhibit 11 was not signed, sealed and dated by the Registrar of the High Court as required by Order 6 Rule 2(1) of the 2006 Enugu State High Court Rules, that being a public document it is not a certified true copy and that the reliefs sought for in that suit, are the very questions already raised in the appellant’s affidavit in support of the notice of intention to defend and pending before the trial court before that suit was filed by the appellant and so the appellant’s said suit is an abuse of court process. He referred to the decisions in TOMTEE NIG. LTD V. FHA (2009)12 SC (PT.111) 162 AT 182 AND SARAKI & ANOR V. KOTOYE (1992) 9 NWLR (PT 264) 156 AT 188 on when abuse of Court Process occurs.
Let me now consider the merits of the above arguments on both sides. The argument of the Learned SAN for the appellant in paragraph 5.22 of the appellant’s brief of argument that the trial court pre-occupied itself with the merit of the appellant’s defence, when what is required at that stage is to find out if the defence raised a triable issue, that the chance of success or merit of the defence is then immaterial, and that it does not matter if the defence is shallow or shadowy provided it raised a triable issue, gives rise to the question of what the Court should look for from the affidavit in support of the notice of intention to defend in deciding whether to transfer the suit to the general cause list or enter judgment on the undefended list or put another way, the trial court having decided that the plaintiff had in his affidavit in support of his writ of summons made out a meritorious case that justified it being placed and heard on the undefended list, what must the defendant’s affidavit in support of his notice of intention show or contain to justify the transfer of the suit to the general cause list for trial by pleadings.
Let me straightaway state that the Learned SAN for the appellant was, with due respects, wrong in drawing a distinction between a defence on the merits and a defence that raises a triable issue and in submitting that it is only the later that is relevant to the determination of the question of whether to transfer the trial of a suit from the undefended list to the general cause list or not. There is no distinction between the two. A defence raises a triable issue only when it has merit. I am fortified in this view by the holding of the Supreme Court in NWANKWO & ANOR V. ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (2007)1-2 SC 145 per Onoghen JSC that “To constitute a triable issue it has been stated that an affidavit in support of notice of intention to defend must set out a defence on the merit, not a sham one intended to delay and frustrate justice” See also MACAULAY V. NAL MERCHANT BANK LTD (1990) 6 SC 206, AGRO MILLERS LTD V. C.M.B (1997)10 NWLR (PT 525) 469 (SC) NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (2010) 14 NWLR (PT 1213) 169 (SC), UBA & ANOR V. JARGABA (2007) 5 SC 1 AND AGBACHI V. AZUBUIKE (2010) LPELR 3646 (CA).
The submission of the Learned SAN for the appellant relying on the decision of this court in KABIRU V. IBRAHIM(supra) that it does not matter at this stage even if the defence is shallow or shadowy provided it raises a triable issue is in my view wrong. It is a contradiction to talk of a shallow or shadowy defence that raises a triable issue. The new International Webster’s Comprehensive Dictionary of the English Language (deluxe encyclopedic Edition, 2010) at page 1154 states that the word shadowy means unsubstantial or illusory, unreal, ghostly, imaginary, vain”. At page 1155 it states the meaning of shallow as “lacking depth, lacking intellectual depth, not wise or profound, superficial”. Therefore a shallow or shadowy defence is a sham or frivolous defence and cannot constitute a real defenceor defence on the merits and so cannot raise a triable issue.
I think that what the affidavit in support of the notice of intention to defend must contain are facts which are consistent, credible and materially contradict the relevant facts on which the plaintiff’s claim is based and thereby raising a fair, bona fide and genuine dispute. See NWANKWO & ANOR V. ELUMERICAL DEVELOPMENT CO-OPERATIVE SOCIETY (supra) where the Supreme Court stated that “an affidavit in support of a notice of intention to defend must set out a defence on the merit, and not a sham one intended to delay and frustrate justice. In ATAGUBA & CO V. GURA NIGERIA LTD (2005)2 SC (PT 11) 101 the Supreme Court held that “It is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved, that there is dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of a bona fide defence.” See also NKWO MARKET COMMUNITY BANK (NIG) LTD V. OBI (SUPRA), MACAULAY V. NAL MERCHANT BANK LTD (supra).In SHELL PETROLEUM DEVELOPMENT OF NIGERIA LTD V. ARHO-JOE NIG. LTD (2006) 3 NWLR (PT 966) 172, Court held that “the point has been made that the notice of intention to defend must be accompanied by an affidavit. I must add that, it is the affidavit that discharges the burden imposed on the defendant to show that the grounds for asking to be heard in his defence are not frivolous, vague or craftily designed to filibuster the proceeding. He must show that there is a dispute between the parties. The grounds of his defence must satisfy the Court that there is a triable issue and a triable issue or defence on the merit is such that the plaintiff will be expected to explain certain matters with regard to his claim or where the affidavit throws some doubt on the plaintiff’s claim.”
I will now determine if the affidavit in support of the appellant’s notice of intention to defend disclosed a triable defence. In doing so, I will consider the facts deposed to therein in relation to the facts deposed to in the affidavit in support of the writ of summons, in keeping with the holding of the Supreme Court in INTERCONTINENTAL BANK LTD V. BRIFINA LTD (2012) LPELR 9717 (SC) that “The principle applicable in an undefended list proceedings is that the Court has a duty to consider the notice of intention to defend as well as the affidavit filed in support of the writ of summons.”
I have serenely and carefully read and considered the affidavit in support of the notice of intention to defend and the affidavit in support of the writ of summons. The facts contained in the affidavit in support of the notice of intention to defend show that the appellant raised two contradicting defences to the respondent’s claim as follows. The first defence is that ab initio both parties understood that there would be no consideration for the agreement in exhibit D. In other words that both parties ab initio understood that the respondent would give nothing for the appellant to accept to sign exhibit D acknowledging receipt of 200 million naira and the obligation to repay same as agreed therein and that he signed exhibit D under threat and duress because the respondent’s chairman threatened that if he did not sign the agreement, he will ensure that he is dropped and will cease to be the PDP candidate for the election to the membership of the House of Representatives. This defence is contained in paragraphs 5, 7 to 18 of the said affidavit in support of the notice of intention to defend which are reproduced at pages 15 to 18 of this judgment.
The second defence which is obviously implicit in paragraphs 19 of the affidavit in support of the notice of intention to defend and exhibit 6 attached thereto is that ab initio both parties understood and agreed that the respondent shall furnish consideration for the agreement by providing the fund. Even though paragraph 19 of the said appellant’s affidavit is reproduced at page 20 of this judgment, let me reproduce it here again for ease of reference. It states that- When all appeals proved abortive, I was compelled to write a letter to the plaintiff on 21st May, 2012 demanding the return of the cheques as there was no consideration at all for their issuance. Plaintiff did not reply. In that letter, following in like manner, the pattern laid down by the plaintiff to the effect that it granted me a loan, I categorically demanded a recession on the clear premise that no money was ever given to me.
It is noteworthy that the appellant had stated in paragraph 10 of his said affidavit that the chairman of the respondent promised to provide her and others financial support for her contest of the general election, costs of legal services for intra party pre-election cases and election or post electioncases.The said paragraph is reproduced here again as follows-
10. Chief Christian Uba as a further incentive assured me as well as all other aspirants for the sponsorship of the People Democratic Party (PDP) for the election, that he would provide us with financial support to enable us-
(i) Contest the General election
(ii) Pay for all stages of the legal services for the intra party disputes following the success of the state faction in Court over the National Headquarters of the P.D.P.
These two defenses conflict on whether the appellant voluntarily signed exhibit D or not. While the first defence states that appellant did not voluntarily sign exhibit D, the second defence states that he voluntarily did so and that the making of exhibit D was consensual, but that the consideration failed as the chairman of the respondent failed to provide the agreed funds to the appellant. The consensualness of making of exhibit D and his voluntary signing of same is clearly admitted by him in exhibit 6.
This material conflict renders the entire defence unreliable. The Court cannot choose between the two versions which to believe and which not to believe. It is trite law that each version cancels the other by virtue of the conflict. It is settled by a long line of judicial decisions that contradicting evidence amounts to no evidence and cannot be used or relied on by a court. See OMEREDE V. ELEAZU & ORS (1996) 6 NWLR (PT 452) 1 (SC), C & C CONSTRUCTION CO LTD V. OKHAI (2003) 12 SC (PT 1) 133. In BASIL V. FAJEBE (2001)4 SC (PT 11) 119 AT 127 the Supreme Court held that a party who adduces inconsistent evidence over one and the same issue damages his own case unless he can reconcile the inconsistency. In Ezemba v. Ibeneme (2004) 14 NWLR (pt 894)617, the apex court further held that “No witness who has given on oath to material of inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. See also BOY MUKA & ORS V. THE STATE (1976) 9-10 SC (REPRINT), WILLIAM V. THE STATE (1975) 9-11 SC (REPRINT) 87. An affidavit in support of a notice of intention to defend that contains materially and irreconcilably conflicting averments as to the exact defence of the defendant to the plaintiff’s suit, cannot raise a triabledefence to the suit as the said conflicting averments are not evidence in law and cannot be relied on by the court.
Paragraph 19 of the affidavit in support of the notice of intention to defend and exhibit 6 shows clearly that after the appellant had become elected as a member of the House of Representatives he tried to rescind the loan agreement and demanded for the return of the undated cheques, exhibits, E1 to E4. The reason he gave for this was that he had signed the agreement on the understanding that the respondent would supply the loan sum and that the respondent had not kept its part of the agreement since it did not provide the funds. He did not say that the reason for his rescission of the agreement and demand for the return of the cheques was that he was threatened and forced to sign the agreement. I agree with the submission of the Learned SAN for the respondent that between October 2010 when exhibit D was signed and the undated cheques issued and the service of the originating processes of the respondent’s suit on him, the appellant never complained in writing or verbally that he signed E1 to E4 under duress. This issue was for the first time raised in the affidavit in support of the notice of intention to defend filed on 13-7-2012 and the suit filed by her on 13-7-2012 in reaction to the respondent’s suit leading to this appeal. In the light of the foregoing, I hold that the averment that he signed exhibit D under duress as a result of the threat by the respondent’s chairman to terminate his candidacy is an afterthought.
Paragraphs 4, 5 and 6 of the affidavit in support of the writ of summons state that –
4. That the defendant is a businessman who approached the plaintiff with a view to securing the grant of a friendly loan to execute a contract awarded to it.
5. That after the due consideration of the defendant’s written application by the management of the plaintiff’s company, the plaintiff approved the written application of the defendant for a friendly loan as requested. The defendant’s application dated the 12th day of October, 2010 and plaintiff’s company approval letter dated the 26th day of October, 2010, the receipt of which the defendant duly acknowledged are herewith attached and marked as Exhibit “A” and “B” respectively.
6. That the defendant by his letter dated the 27th day of October, 2010 duly accepted the offer of the grant of the sum of N200,000,000.00 (Two hundred million naira only) as friendly loan to enable him execute the contract awarded to him including the terms and conditions attached thereto as contained in the agreement forwarded to the defendant by the plaintiff’s company which was duly executed and witnessed by the parties. The defendant’s acceptance letter dated 27th day of October, 2010 is herewith attached and marked as Exhibit “C”.
The appellant in his affidavit in support of his notice of intention to defend apart from stating that he was not awarded any contract did not in any way deny the above depositions that on 12-10-2014 he wrote (exhibit A) to the respondent applying for a loan of 200 million naira, that the respondent on 26-10-2010 wrote (exhibit B) granting his application and that he on 27-10-2010 wrote (exhibit C) accepting the offer. In spite of the fact that he did not deny the above facts, he stated in paragraph 25 of his affidavit in support of the notice of intention to defend that the said exhibits A, B, C (along with exhibits D, E and F) “are products of fraud and illegality.” Without denying that he wrote exhibit A, that he received exhibit B in reply thereto, and consequently wrote exhibit C, the allegation of fraud and illegality of exhibits A, B, C remain barren, baseless and meaningless. Furthermore he has not stated in what respects the said exhibits are fraudulent and illegal. He did not deny writing and signing exhibits A and C and did not deny receiving exhibit B. The said paragraph 25 of his affidavit did not raise any real or genuine dispute in respect of exhibits A, B and C. Such a bare allegation of fraud by a defendant in the affidavit in support of his notice of intention to defend was held to be useless by the Supreme Court in MACAULAY V. NAL MERCHANT BANK LTD (supra). It held that “if the defence relied on is fraud, the affidavit should state the particulars of the fraud (Wallingford v. Mutual Society (1880)5 App (as 685) A mere general allegation of fraud is useless (ibid)” Even in the Suit he filed on 13-8-2012, offer being served with the originating processes in this case, he attacked only the legality of the loan agreement (exhibit D) and the undated cheques (exhibits E1 to E4) and did not challenge the legality or validity or genuineness of exhibits A, B and C and was silent about them The writ of summons and statement of claim in that suit is attached to hisaffidavit in support of his notice of intention to defend as exhibit 9. Therefore I agree with the submission of the Learned SAN for the respondent that the trial court was right in its holding that nothing in the appellant’s notice of intention to defend dismantled exhibits A, B and C exhibited with the affidavit in support of the writ of summons. Since he did not deny the deposition in paragraphs 4, 5 and 6 affidavit in support of the writ of summons, those depositions remained unchallenged and uncontradicted and must be treated as having been admitted by the appellant as the correct narration of the facts therein. In A-G Plateau State v. A-G Nasarawa State (2005)4 SC 55, the Supreme Court held that when facts deposed to in an affidavit are unchallenged the court may accept those facts as true and correct.” In ADESINA & ANOR V. COMMISSIONER, IFON ILOBU BOUNDARY COMMISSION (1996) LPELR 148 (SC) THE SUPREME COURT HELD that- “If a party deposes to certain facts in an affidavit, his adversary who wishes to dispute the facts so stated, has a duty to swear to an affidavit to the contrary, otherwise the facts deposed to may be regarded as duly established.”
In OKOEBOR V. POLICE COUNCIL (2003)5 SC 11 the Supreme Court held that “Where the evidence of a witness is not inadmissible in law, uncontradicted and unchallenged, a court of law can act on it and accept it as a true version of the case it seeks to support. In the same vein, it was decided that whatever any evidence, whether affidavit or oral stands uncontradicted, unless the evidence is patently incredible, the court ought to regard the matter to be proved by that evidence as admitted by the adverse party.
“Where evidence given by a party to any proceedings was not challenged by the opposite party who, like in the instant case, had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it.”
The appellant averred in paragraphs 21 and 22 of her affidavit in support of his notice of intention to defend that the respondent did not have the financial capacity or ability to give a loan of 200 million naira to him and to each of the other candidates. But his deposition in paragraph 10 of his said affidavit and exhibit 6 show that she believed and that the chairman of the respondent and the respondent had the financial strength to give him that sum of money. In paragraph 10 he stated that the chairman of the respondent “as a further incentive assured him and other aspirants that he would provide them with financial support for them to contest the general election, to pay for legal services for intra party pre-election disputes and election and post -election disputes”.
Paragraphs 4, 5 and 6 of the affidavit in support of the writ of summons and exhibits A, B and C annexed thereto establish that the appellant voluntarily and of his own volition applied for a loan of 200 million naira from the respondent and was offered the said loan which offer he voluntarily accepted. In the face of this unchallenged and uncontradicted evidence, the depositions of the appellant in paragraphs 11 and 12 of his affidavit in support of notice of intention to defend that she signed the loan agreement because of the threat by the chairman of the respondent to terminate her candidacy cannot stand as a genuine defence. It is a sham. The unchallenged and uncontradicted deposition in paragraph 6 of the affidavit in support of the writ of summons states clearly that the loan agreement was attached to exhibit B and forwarded along with the said exhibit B to the appellant who replied vide exhibit C accepting the offer and stating that the attached agreement will be duly executed and returned to the respondent. It states thus “I am pleased to inform you that your offer has been accepted and the attached agreement will be duly executed and returned to you as requested. I am grateful for your assistance.” (Underlining is mine)
Let me again reproduce here the exact wordings of paragraphs 11 and 12 of the appellant’s affidavit in support of his notice of intention to defend. It states thus-
“11. After having obtained the party sponsorship, following the conduct of primaries by the State Executive which subscribed to the leadership and over lordship of Chief Christian Uba, he invited I and other candidates to a meeting. Thereat, he threatened to withdraw our sponsorship and concede the intra-party disputes in Court to favour the candidates in the list of candidates projected by the National Secretariat, unless we signed the documents which he produced, and the signature page of plaintiff’s Exhibit D.
12. We pleaded that documentation was unnecessary and assured Chief Christian Uba of our loyalty. He however waived us aside, informing us that he once received the assurance of Dr. Chris Ngige prior to facilitating the PDP sponsorship for him, and that he had taught him a bitter lesson in that regard.
It is clear from the above paragraphs that the appellant is saying that-
(i) It was in a meeting with the chairman of the respondent that he and others were forced to sign exhibit D.
(ii) The threat was that he will terminate their candidacy unless they “signed the documents which he produced, and the signature page of plaintiff’s exhibit D”
(iii) They pleaded that documentation was unnecessary.
The appellant’s previous statement in exhibit C defeats his assertions in the above paragraphs of his affidavit for the following reasons. Firstly, the respondent having sent a copy of the loan agreement along with exhibit B to the appellant, and the later having acknowledged receipt of same and stated in exhibit C that “the attached agreement will be duly executed and returned to you as requested, the chairman of the respondent had no need to invite him to a meeting, produce the signature page of exhibit D (the same loan agreement) and threatened him to sign same. Secondly, he promptly signed the agreement on 28-10-2010, a day after he wrote exhibit C and there was no need to be invited by the chairman of the respondent and threatened to sign the loan agreement. Thirdly, the appellant who had stated in exhibit C that he would sign and return to him as requested by the respondent could not have been pleading that documentation was unnecessary. Furthermore, the appellant did not identify the other documents which he said in paragraph 11, the chairman of the respondent produced and threatened them to sign.
The appellant’s defence in paragraph 13 of his affidavit in support of the notice of intention to defend that the respondent did not give him the sum of 200 million naira is a sham in the face of the unchallenged and uncontradicted depositions in paragraphs 4, 5 and 6 of the affidavit in support of the writ of summons, his application for the loan (exhibit A), the offer of the loan (exhibit B), to which was attached the loan agreement and his acceptance of the offer, acceptance of receipt of the attached loan agreement and that he will sign and return same (exhibit C) and her written acknowledgment of receipt of the sum of 200 million naira as loan from the respondent in clause 1 of exhibit D. Clause 1 of exhibit D, wherein the appellant acknowledged receipt of the loan sum of 200 million naira is in law evidence of receipt of the loan sum by the appellant. In ETAJATA & ORS V. OLOGBO & ANOR (2007) 6 SC (PT 11) 1 the Supreme Court held that -“A receipt generally is that document or a piece of paper which signifies that goods or services have been paid for. It is an evidence of payment. In Bowes v. Foster (1858) 27 L.J. Ex. 262 at 266, Martin B. held that:- “To constitute a receipt of anything there must be a person to receive and a person from whom he receives, and something received by the former from the latter and that something must be a sum of money.” Equally, in the case of General Council of the Bar (England) v. Inland Revenue Commissioners (1907) 1 KB 462 at 471, 472 and 478, it was held that for a document to be a receipt:- “It must be a document whereby the receipt or deposit or payment of money is acknowledged or expressed.” See also A.G. v. Northwood Electric Light and power Co. Ltd. (1947) KB 511 at 517, 518, per Lord Green MR.”
This Court in AFRIBANK NIG PLC V. SHANU & ANOR (1997)7 NWLR PT. 514 held that “It is an elementary rule of our legal practice that the most authentic and reliable way of proving that a person received any money, is by tendering a receipt which is an acknowledgment or admission signed by that person that such money was received by him.
Exhibit D (the loan agreement) states that it was made on the 28th October 2010. So even if there was threat to terminate his candidacy, the threat ceased upon him successful election as member of the House of Representatives in April 2011. So assuming the chairman of the Respondent did threaten him and was in a position to effect the threat, he was no longer in a position to withdraw his nomination after election. There is nothing in the notice of intention to defendant to show that the appellant laid a criminal complaint or initiated any form of legal process against the chairman of the respondent concerning his signing of exhibit D or any other document under duress until the commencement of the suit leading to this appeal, two years after exhibit D was made.
By his own showing in paragraph 17 of his affidavit in support of the notice of intention to defend, he did not promptly take steps to rescind the agreement immediately the threat ceased, and, it was only after April 2012 (one year after his election) when according to him, the chairman of the respondent demanded that he repay the loan, that he demanded for the return of his undated cheques, (exhibits E1 to E4). The said paragraph 17 states thus-
“To my greatest consternation sometime in April, 2012, Chief Christian Uba invited me and demanded that I should pay him the sum of N50,000,000 (fifty million naira) per annum for each year I served as a member of the House of Representatives, failing which he would sue based on the document. I demanded a return of the cheque but he refused. All entreaties to persuade him to abandon this inglorious quest proved abortive.”
The only thing he did as paragraph 19 of her affidavit shows is that she wrote exhibit 6 demanding for the return of the cheques for the reason that the respondent failed to keep its side of the agreement as it failed to provide the loan sum. He did not complain that he signed the agreement under duress. He sought no legal redress uptill the commencement of the suit against her. After the suit leading to this appeal had been filed and ordered to be placed on the undefended list and after receiving the originating processes in this said suit, he on the 13-8-2012 filed his notice of intention to defend and also on that day filed a suit challenging the legality of the loan agreement and the undated cheques on the ground that they were obtained by fraud. It is annexed to his affidavit in support of her notice of intention to defend as exhibit 9. The fact that the affidavit in support of the notice of intention to defend the respondent’s suit was sworn to on 13-8-2012 and filed on that day along with the said notice clearly show that the appellant received the originating processes in the respondent’s suit before 13-8-2012. So as at that date, when he went to file his suit, he had already prepared to file a notice of intention to defend wherein he had already challenged the legality of the loan agreement on the ground that it was obtained under duress. Since the suit raised the same issue he was raising in his notice of intention to defend, it is an abuse of court process. It was clearly filed in reaction to the respondent’s suit. The Learned SAN for the appellant argued that by exhibit 9 the appellant sought to bring to the notice of the trial court that the validity of exhibits A, B, C and D relied on by the respondent in the case before it is an issue in another suit pending before it. So exhibit 9 was aimed at creating the impression of the existence of a genuine dispute so as to cause the suit to be transferred to the general cause list for hearing. It was created for that purpose. It did not exist until after he had been served with the originating processes in the respondent’s suit.The filing of the suit in exhibit 9 to litigate the issues already on trial in the present suit and in reaction to being served the processes in the existing suit serves no legitimate purpose. There was no reason for the multiplicity of suits except to create the fact of the existence of such a suit to give an impression of that there is a genuine dispute and cause the matter to be transferred to the general cause list. As the Supreme Court held in SARAKI & ANOR V. KOTOYE (1992) 9 NWLR (PT 264) 156 AT 188.” It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the imitation and annoyance of his opponent and the efficient and effective administration of justice. …. The abuse lies in the multiplicity and manner of the exercise of the right, parse. The abuse consists in the intention, purpose and aim of the person exercising the right to harass, imitate and annoy the adversary, and interfere with the administration of justice; such as instituting different actions between the same parties simultaneously in different courts, even though on different grounds”.
The submission of the Learned SAN for the appellant that the suit in exhibit 9 challenged the legality of exhibits A, B, C and D is not correct. It is clear from the reliefs claimed in the writ of summons and statement of claim therein that it challenged only the loan agreement (exhibit D) and the undated bank cheque (exhibits E1 to E4). It was silent about exhibits A, B and C. The appellant stated in the statement of claim thus- “WHEREOF plaintiff claims against the Defendants jointly and severally as follows:-
(i) Declaration that the document captioned AGREEMENT, dated 28th October, 2010 and signed by the plaintiff together with the undated cheques are illegal being extracted through duress, fraud and deceit.
(ii) Declaration that the defendants did not in fact give to the plaintiff, the sum of N200, 000, 000.00 (Two Hundred Million Naira) free interest loan or any other sum whatsoever.
(iii) An order compelling the defendants to deliver to the court the document captioned agreement together with the undated cheques signed by the plaintiff and all other documents supporting the illegal transaction for the purpose of being destroyed”
Let me now consider the argument of the Learned SAN for the appellant that the trial court should have considered Engr. Emeka Okeke”s false deposition that he is the Managing Director of the respondent and treat the affidavit in support of the writ of summons as unreliable. Engr. Emeka Okeke is the deponent of the affidavit in support of the writ of summons. He deposed in paragraph 1 therein that he is the Managing Director of Kay Kay Construction Limited.
The appellant in paragraph of his affidavit in support of his notice of intention to defend stated thus- “Engineer Emeka Okeke who is the deponent of the affidavit in support is not a director of the plaintiff but adorned that toga for the purpose of this case, in a bid to shroud the nature of the transaction which led to this suit.” Exhibits 4 and 5, the respondent’s forms C02 and C07, particulars of shareholders and particulars of directors respectively of the respondent do not have the name of Engineer Emeka Okeke as one of its directors. The question that arises at this juncture is whether the deposition in paragraph 1 of the affidavit in support of the writ of summons has been shown to be false because his name is not in the respondent’s particulars of directors (Form C07), exhibit 5 and that he is not such a director but adorned the toga for the purpose of this case. Exhibits B, D and F show that Engineer Emeka Okeke wrote exhibit B on 26-10-2010 as Managing Director of the respondent, replying the appellants application for loan, offering him the loan and forwarding a copy of the loan agreement for him to sign and return to the respondent. The appellant wrote exhibit C replying to that letter, accepting the offer and indicating that he will sign the loan agreement and return to the respondent as requested in exhibit B. Following his failure to repay the loan as agreed, it was Engineer Emeka Okeke who wrote on 12-1-2012 as Managing Director of the respondent demanding repayment of the loan by the appellant.
The appellant having communicated with Engineer Emeka Okeke as Managing Director of the respondent in October 2010, two years before this case was commenced at the trial court, when he wrote exhibit C accepting the loan offer contained in exhibit B, the letter written by Engineer Emeka Okeke as Managing Director of respondent, cannot now turn around and contend that Engineer Emeka Okeke is not Managing Director of the respondent so as to frustrate the trial of the respondent’s suit for the recovery of the loan sum from him on the undefended list and transfer same to the general cause list for a protracted hearing. I do not think that he can now turn around to contend that the same Engineer she communicated with as Managing Director of the respondent, two years before this suit commenced, adorned the toga of Managing director for the purpose of this suit to hide the nature of the transaction which led to this suit. I fail to see how Engineer Emeka Okeke being Managing Director shrouds the nature of this transaction. In any case the part of the said paragraph 4 of the appellant’s affidavit which states that he “adorned that toga for the purpose of this case, in a bid to shroud the nature of the transaction which led to this suit is a conclusion and not a fact. It is trite law that an affidavit shall not contain such extraneous matter. See S. 115(1) and (2) of the Evidence Act 2011 which states thus-
(1) “Every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.”
It is clear from exhibits B and F that, even though his name is not in the form C07 (particulars of directors) of the respondent filed at the Corporate Affairs Commission, Engineer Emeka Okeke occupied the office of Managing Director of the respondent, acted as such and was held out by the respondent as its Managing Director during the transaction leading to this suit. He is clearly, in fact (de facto) and law (de jure) the Managing Director of the respondent as exhibits B and F show. In law he is a director of the respondent by virtue of S. 650 of the Companies and Allied Matters Act 1990 which defines the director of a company registered under the Act like the respondent as including “any person occupying the position of director by whatever name called.” It is clear from this provision that what determines if a person is a director is not whether his or her name is listed in the particulars of directors (Form C07) in the Corporate Affairs Commission. If he occupies that position by any name called, he is a director of the company.
The requirement by S. 292(4) of CAMA 1090 that a company shall file a return in the prescribed form of the particulars of its directors or a change in the particulars of its directors is one of notice to the public and not a requirement or condition precedent for being a director of the company. So that a person can be a director of a company and function as such even if the return of his particulars have not been sent to or filed with the CAC. The penalty for non filing of such particulars is provided for in S. 292(7) of CAMA 1990. It states that “the company and every officer of the company who is in default shall be guilty of an offence and liable to a fine of N50.” It went on to provide in subsection 8 of the same S.292 that the court may by order compel that the particulars be sent to the CAC as provided in S. 292(4). The CAMA did not state that if such return is not filed a person occupying the office of director of a registered company or acting as such would not be regarded as a director. Such a meaning cannot be read into the clear provisions of S. 292 (7) and (8) which provide for the legal consequences of not sending or filing the return of particulars of a director.
Assuming the company held him out as its director or allowed him to occupy that office and function as such without being duly appointed by the company, he is still in fact and law a director, until any member of the company obtains an order of court restraining him or the company from acting as such a director until he is duly appointed. In this case the company shall only be liable to the payment of a fine of N1,000 for each day it holds him of out. This is clearly provided for in S. 244(4) of CAMA as follows- “if it is the company that holds him out as a director, it shall be liable to a fine of N1000 each day it holds him out, and he and the company may be restrained by any member from so acting unless or until he is duly appointed.” Since Engineer Emeka Okeke occupies the position of Managing Director of the respondent, acts as such and is held out by the respondent as its managing director, he remains factually a director of the respondent since he has not been restrained by any member of the respondent. This is so by virtue of the combined application of S.244 (4) and S.650 of CAMA 1990. See the English cases of Dawson V African Consolidated Land & Trading Co (1898) 1Ch.D6, British Asbestos Co V Boyd (1903)2 Ch. 439,Secretary of state for Trade & Industry and Tjolle (1998) 1 BCLC 333 and Candian Land Reclaiming and Colonizing Co, Re (1880) 14 ch. D. 660. In Hydrodam (corby) Ltd Re (1994) 2 BCLC 180 at 183. In any case, in her transactions with the respondent, the appellant by virtue of S. 244(2) CAMA 1990, enjoys the presumption that all persons who are described or held out by the respondent as directors, whether as executive or otherwise, have been duly appointed by the company as such. See MAHONEY V. EAST HOTYFORD MINING C (1875) LR HL 869.
In the light of the foregoing, I hold that Engineer Emeka Okeke’s deposition in paragraph 1 of the affidavit in support of the writ of summons that he is the Managing Director of the respondent is not false.
On the whole, the appellant’s affidavit in support of her notice of intention to defend did not disclose a real, genuine and bonafide defence to the case made out in the affidavit in support of the writ of summons. It did not disclose a triable defence. So the failure of the trial Court to evaluate the entire affidavit evidence before it did not occasion any miscarriage of justice as the evaluation of the said evidence herein has shown that its decision would have been the same if it evaluated the evidence. The trial court rightly entered judgment for the respondent and refused to transfer the suit to the general cause list. This is clearly in keeping with one of the cardinal principles guiding the judicial decision of whether to transfer a suit to the general cause list or enter judgment therein on the undefended list, laid down by the Supreme court in Nishizawa v. S. M. Jethwani Ltd (1984) 12 SC 234 and followed by the same court in Macaulay v. Nal Merchant Bank Ltd (supra). The principle states that – “a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness.”
For the above reasons, I resolve all the issues for determination in favour of the respondent.
This appeal lacks merit and is hereby dismissed. The judgment of the High Court of Enugu State in Suit No E/249/2012 delivered on 16-11-2012 by I. A. Umezulike CJ is hereby affirmed. The appellant shall pay cost of N100,000.00 to the respondent.
AMIRU SANUSI, J.C.A.: I agree
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: On 12th July, 2013 the respondent herein as the plaintiff in the court below filed a writ of summons accompanied by a 16 paragraph affidavit titled “Affidavit in Support of Writ of Summons on the undefended list” sworn to the same day. The respondent’s claim as endorsed on the writ of summons is for:
“The sum of N200,000,000.00 (Two Hundred Million Naira only) being a liquidated money demand in respect of a friendly loan granted to the Defendant at his written request to enable him execute a contract awarded to him sometime in 2010, which friendly loan in spite of repeated demands made by both the plaintiffs officials and its Solicitors has remained unpaid.
The Plaintiff also claims the sum of N10,000,000.00 (Ten Million Naira only) being the plaintiffs Solicitors Professional fees charged and payable by the plaintiff to its solicitors – Messrs Taiwo Abe & Company in accordance with the agreement executed between the parties.”
By a motion ex-parte dated 2nd July 2012 and filed on the same day brought pursuant to the inherent jurisdiction of the Court, the respondent applied for the following Orders:-
1. “AN ORDER of this Honourable Court granting leave to the Plaintiff/Applicant to issue a writ of summons on the Undefended List” and for the writ to be so marked.
2. AN ORDER of this Honourable Court granting leave to the Plaintiff/Applicant to serve the Defendant out of the Jurisdiction of this Honourable Court in the Federal Capital Territory’ Abuja through the office of the Clerk of the House of Representatives, National Assembly Complex, Three Arms Zone, Abuja.”
The motion was supported by an 18 Paragraphs affidavit sworn to on 12th July 2012, and the Exhibits attached thereto. The Court after hearing the respondent’s counsel made the following Orders:
“1. That leave is granted to the Plaintiff/Applicant to issue a writ of summons on the Undefended List.
2. That leave is granted to the Plaintiff/Applicant to serve the Defendant out of Jurisdiction of this Honourable Court in the Federal Capital Territory, Abuja through the Office of the Clerk of the House of Representatives, National Assembly Complex. Three Arms Zone, Abuja.”
3. That the case is adjourned to the 3rd day of October, 2012 for mention.
Pursuant to the Order of the Court made on 12tn July, 2012, the writ was issued on the same day and it was supported by a 16 paragraph affidavit sworn to also on 12th July, 2012 and titled “Affidavit in Support of Writ Or Summons on the undefended list”. On that same day, the respondent also filed a motion on notice for summary judgment against the appellant pursuant to Order 11 Rules 2 and 7 of the High Court Rules of Enugu State, 2006. The motion was also supported by a sixteen paragraphs affidavit.
Order 11 Rules 1-8 of the High Court Rules makes provision for summary judgment. The rules are produced below:
“1. This Order shall apply only to liquidate money demands.
(2) The provisions of Order 3 rule 2 shall not apply to any proceedings brought under this order.
2. Where a plaintiff believes that there is no defence to his claim, he shall file with his writ of summons, a
Motion on Notice for summary judgment which shall be accompanied by an affidavit stating the grounds for his belief.
3. A plaintiff shall in addition to the Court’s copy, deliver to the Registrar as many copies of the processes referred to in rule 2 of this Order, as there are defendants.
4. Where a defendant served with the process referred to in rule 2 of this Order intends to defend the Suit’ he shall within 5 days of service on him (or in the case of a person served outside Enugu State within 30 days) of the service, file notice in writing of his intention to defend the Suit together with an affidavit setting out the grounds of his defence.
5. The parties that is to say both plaintiff and defendant shall each within 14 days of the filing of the defendant’s notice of his intention to defend file a written brief articulating their respective cases.
6. The Parties or their Legal Practitioners shall not be required to exchange the written briefs referred to in rule 5 above.
7. Where upon going through the documents filed by or on behalf of the parties under the proceeding rules of this Order, it appears to a Judge that the defendant has no good defence to the claim, the Judge shall on the date fixed on the motion paper for hearing or any other date the case is adjourned, enter Judgment for the plaintiff without requiring further evidence.
8. Where it appears to a Judge, that a defendant has a good defence and ought to be permitted to defend the claim, the Judge shall grant the defendant leave to defend the Suit and the Suit shall subject to rules 9 and 10 of this Order, be adjourned for trial.
I will not concern myself with the procedure adopted in this case, it has not been challenged in this appeal. Upon service of the writ and the accompanying processes on the appellant herein, he filed a notice of intention to defend the suit and a 27 paragraphs affidavit setting out his defence. The trial Court considered the affidavits of both parties and the documents attached thereto. In a considered judgment delivered on l6th November, 2012, the court entered judgment in favour of the respondent herein as follows: (Page 158-159 of the record)
“I have critically examined Exhibits A, B, C, D, E, F, G, and H annexed in the said plaintiff’s affidavit in support of the summons under the undefended list together with Exhibits 2, 3, 4, 5, 6, 7, 8 and 9 annexed to the affidavit in support of the notice of the defendants’ intention to defend and I find myself unable to appreciate any specific or convincing or direct denial of Exhibits A, B, C, D annexed to the plaintiffs affidavit in support of the undefended list . Exhibit D which embodied the agreement between the parties and Exhibits A, B, and C leading to contract agreement Exhibit D were neither specifically denied nor directly dismantled. It is settled on the authorities that when parties reduce their intentions into writing or document except for certain exceptions which doesn’t apply here or which I find inapplicable here, parties must be gentleman enough to be bound by the accord which they have voluntarily sought’ accepted and executed. There is evidence before this Court that the defendant did not apply for the friendly loan under Exhibit A’ that he did not make the unconditional acceptance under Exhibit C and that he did not execute the contract expressed under Exhibit D. The pious defence and Exhibits I to 9 lodged in the process by the defendant are merely posterior and external to the parties’ agreement as expressed under Exhibit D.
If the Courts allow parties to contracts to turn round to repudiate same on raising sundry vitiating elements against these same contracts they have derived benefits from, then only a few contracts, if at all, will have a sporting chance of passing the test of validity. Parties should be willing and ready to abide by the terms of the contract which they have willingly entered into.
I am therefore satisfied upon my evaluation of the evidence presented, that the plaintiff is entitled to judgment for the sum of N200,000,000.00 (Two hundred Million Naira) only. There is nothing in the defendant’s notice of intention lodged before the Court to Warrant a postponement of the Judgment day by shifting the case to the general cause list.
The N10,000,000.00 (ten Million Naira) claimed by the plaintiff as solicitor’s fees is, in my view, misconceived and inappropriate under the summons under the undefended list. However, the Suit succeeds substantially and the Court decrees as follows: “That the defendant shall pay the plaintiff the sum of N200,0000000.00 (Two Hundred Million Naira) being liquidated money demand in respect of a friendly loan granted to the defendant at his request.”
It is in respect of the above judgment that the appellant has filed 8 grounds of appeal in this Court via notice of appeal dated 16th November, 2012 and filed on the same day. The grounds of appeal without their particulars are reproduced below:
GROUNDS OF APPEAL
1. The learned trial Chief Judge erred in law and occasioned a miscarriage of justice when he held that the Appellant did not disclose a case worthy of transfer to the general cause list.
2. The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that there was nothing in the notice of intention to defend which dismantled the legal status of Exhibits A, B, C, and D of the Respondent.
3. The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that the defence put up by the Appellant were posterior or extrinsic to Exhibit D and thereby failed to adequately consider the totality of the defence of the Appellant.
4. The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that Appellant’s exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 not being terms of Respondent’s Exhibit D are not relevant considerations in the case before the Court.
5. The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that the Appellant cannot resile from Exhibits A, B, C, & D, and attack them on matters posterior and foreign to them having taken benefit from them.
6. The learned trial Chief Judge erred in law and occasioned a gross miscarriage of justice when he held that Appellant did not deny the respondent’s Exhibits A, B, C, & D when in fact the totality of the Appellant’s case rested on denial of the Respondent’s Exhibits A, B, C, & D.
7. The learned trial Chief Judge erred in law and occasioned a miscarriage of justice when he held that civil suit instituted by the Appellant in the High Court of Enugu State duly executed before him were inchoate.
8. The learned trial Judge erred in law and occasioned a gross miscarriage of justice when he failed to evaluate the evidence led before him but instead relied on purported evaluation of evidence led in E/246/2012 which was not consolidated with the appellant’s case.
Briefs of Argument were filed and exchanged. Both counsel adopted their briefs on 20/10/14. The appellant’s brief of argument is dated 4th March 2013 and, filed on 5th March, 2013. The appellant’s counsel, Ikpeazu, SAN formulated the following five issues for determination:-
“1. Whether the learned trial Chief Judge was right or justified in holding that the Notice of Intention to Defend the Suit filed by the Appellant did not evidence or disclose any defence to warrant the transfer of the Suit to the general cause list and order pleadings.
2. Whether the learned trial Chief Judge was right or justified in holding that the defence put forward by the Appellant in his affidavit in support of Notice of Intention to Defend with the Exhibits attached, were posterior or extrinsic to Exhibits A. B. C and D such as to pronounce the said defence irrelevant in the consideration of the Suit.
3. Whether having regard to the entire defence put forward by the Appellant in his affidavit in support of Notice of Intention to Defend, the learned trial Chief Judge was right to hold that the Appellant did not deny the Respondent’s Exhibits A, B, C, and D.
4. Whether the learned trial Chief Judge was right to hold that the Civil Suit instituted by the appellant in the High Court of Enugu State to set aside Exhibits A, B, C, and D was inchoate.
5. Whether the learned trial Chief judge was right when he failed to evaluate the evidence led before him by the Appellant but instead relied on purported evaluation of evidence led in Suit No.E/246/2012 which was not consolidated with the Appellant’s case Ground.”
The respondent’s counsel, Ahmed Raji, SAN adopted his amended brief of argument dated 15tn July, 2013 and filed on the same day. The brief was deemed as properly field and served on 6th May, 2014. respondent’s counsel adopted the five issues formulated by the appellant’s counsel. However, he raised a preliminary objection to the appeal via a notice of preliminary objection dated 15th July, 2013 and filed on the same day. He also incorporated same in his brief of argument. The objection prayed for an order striking out all the grounds of appeal and the issues distilled there from and consequently dismiss the appeal for non-compliance with section 242 of the 1999 Constitution ‘ [as amended].
Counsel submitted that all the grounds of the appeal are of mixed Law and facts which cannot be raised without the leave of Court. According to him, the failure to seek and obtain the leave of Court before raising those questions of law and of mixed law and fact render the grounds of appeal defective and liable to be struck out. He further submitted that ground 4 did not emanate from the judgment of the trial Court. He referred to the judgment of the trial Court on pages 160-161 of the record. He argued that contrary to the appellant’s view in ground 4 of the appeal, the reasoning of the trial court shows that all the exhibits were duly considered. He referred to Ajayi Vs Omorogbe [1993] 6 NWLR Pt.301 page 512 At 531, Reg. Trustees of Amorc Vs Adeyeono [1994] 7 NWLR Pt. 355 page 154 at 189, Popoola Vs Adeyemo (1992) 8 NWLR Pt.257 page 1, Egbe Vs Alhaji [1990] 1 NWLR Pt.128 page 546 at 590.
Counsel further argued that all the issues formulated for determination are based on defective grounds of appeal and are therefore liable to be struck out along with all the arguments on the issues. He referred to Chief T. G. Bereyin & 5 Ors. Vs. Chief prayer Brown Gbodo [1989] 1 NWLR Pt.97 page 372, Kano Plc Vs G. & H (Nig) Ltd. 120021 2 NWLR Pt.751 page 420 at 445. Pam Vs Gwom. [1998) 2 NWLR pt.538 page 470 at 476, Transkomplet (Nig) Ltd Vs Galadima [1999] 2 NWLR PT. 596 PAGE 635 at 643, Nsirim Vs Nsirim [19901 3 NWLR pt.138 page 285 at 296 Gen. Electric Co. Vs. Akande [2010] 18 NWLR Pt.1225 page 596 at 615 (C-D).
Order 6 Rule 6 of the Court of Appeal Rules 2011 and Section 6 (6) of the 1999 Constitution (as amended)
In his response to the preliminary objection contained in his Amended Appellant’s Reply Brief And Reply to the Preliminary Objection dated 19th May, 2014 and filed on the same day, appellants’ counsel, submitted that the instant judgment on appeal is a final judgment on merit and being a final judgment, the appellant is entitled to appeal against the judgment as of right by virtue of Section 241(1)(a) of the 1999 Constitution (as amended). He referred to F.M.F. Ltd Vs. Rivers Poly Bori (2005) 9 NWLR Pt.930 page 257 at 272-273 (H-A) Azumi Vs Pan-African Bank Ltd (1996) 8 NWLR Pt. 467 page 4462 at 477 (G), Monguno Vs Blue whales Co. (2011) 2 NWLR Pt.1231 page 275 at 310 (D), Usung Vs Nyong (2010) 2 NWLR Pt.1177 page 83 at 115 (B), Iwueke Vs I.B.C. (2005) 17 NWLR pt.955 page 447 at 469 (F-G), 476 (C-E).
It has been decided by this Court and the apex Court that in determining whether a ground of appeal raises question of law alone or of mixed law and fact, the grounds of appeal must be thoroughly perused together with the particulars of error or misdirection. See U.B.A. Ltd Vs G. M. B. H. (1989) 3 NWLR Pt. 110 page 374 at 389-390 (H-B), Njemanze Vs Njemanze (2013) 8 NWLR Pt. 135 page 376.
I have perused each of the grounds of appeal set out earlier in this judgment together with their particulars. In my humble view, they all raise questions on the evaluation of the facts revealed by the affidavits before the Court below and the application of the relevant laws to the facts as carried out by the trial Chief Judge. It is beyond controversy that the grounds of appeal are of mixed law and facts. The right of appeal by a party who is aggrieved by the decision of a Court or Tribunal is conferred either by the relevant statute or the Constitution. In the instant case, the right of appeal by the appellant who is aggrieved by the decision of the Court below is as provided by the provisions of Section 241 (1) of the [1999] Constitution (As amended) Which reads:-
“An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:-
a. Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance:
b. Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
c. Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
d. Decisions in any civil or criminal proceedings on questions as to whether any of the provision of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person;
e. Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death;
f. Decisions made or given by the Federal High Court or a high Court:-
i. Where the liberty of a person or the custody of an infant is concerned.
ii. Where an injunction or the appointment of a receiver is granted or refused.
iii. In the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise.
iv. In the case of a decree nisi in a matrimonial cause or a decision in an admiralty action determining liability, and
v. In such other case as may be prescribed by any law in force in Nigeria.
The provisions of Section 241(1) of the Constitution reproduced above has been interpreted by this Court and the Supreme Court in several cases, See Raphal Ogumka Vs Corporate Affairs, Commission [2010] – LPELR 4891, CA, Mohammed Saba Bida & Anor Vs Alhaji Usman Abubakar & Ors [2010]- LPELR 3875 (CA). In Nigerian Labouratory Corp. & I Or Vs Pacifica Merchant Bank Ltd, Suit No. SC. 183 /2005, [2012] -LPELR-7859 (SC), the Supreme Court stated the instances where a party has a right of appeal without leave as follows:-
“It is true that where one of the parties to litigation before a Court of Law is aggrieved with a decision given by that Court, he has an option or sometimes, a right to fall back to appeal to a higher Tribunal or Court. Where the decision is handed down by a state High Court (as in this matter), or by the Federal High Court, the aggrieved person can exercise his right of appeal as conferred upon him by section 241 (1) of the Constitution, [1999] (as amended). In any other subject matter which is not covered by section 241(1) of the Constitution (Supra), the person aggrieved may have to ask for leave either from the Federal High Court, State High Court (As the case may be) and, or, from the Court of Appeal as circumstances may warrant. This category of cases is covered by Section 242(1) of the Constitution.”
The Law as can be garnered from the decisions of this court and the Supreme Court is that an appeal from the final decision of the Federal High Court or the State High Court sitting at first instance as in the instant case lies as of right at the instance of a party to the proceedings irrespective of whether the grounds of appeal are of fact or mixed law and fact. The appellant’s appeal being one against a final judgment of a State High Court, sitting at first instance, he did not require the leave of either the High Court or this Court to exercise his right of appeal whether the grounds of appeal are of law, of facts or mixed law and facts.
As regards ground 4 of the appeal, the ground of objection is that it does not arise from the judgment of the Court below. For avoidance of doubt, I reproduce ground 4 of the appeal again, this time with its particulars:
ERROR IN LAW
“The learned trial Chief judge erred in law and occasioned a gross miscarriage of justice when he held that Appellant’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 not being terms of Respondent’s Exhibit D are not relevant considerations in the case before the Court”.
PARTICULARS OF ERROR
Appellant’s Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9 and showed 1. The falsity of the affidavit in support of the application for summary judgment as the deponent was not a director of the Respondent as he alleged.
2. The link between the respondent and Chief Chris Uba, the alter ego of PDP in Anambra State who compelled the Appellant to enter into the false agreement.
3. Suit duly instituted at the High Court of Enugu State which showed efforts made by the Appellant and other similarly affected to set aside Exhibits A, B, C, and D.”
In respect of Exhibits 1-9 attached to the appellants affidavit the court held as follows;
“The pious defence and exhibits 1 to 9 lodged in the process by the defendant are merely posterior and external to the parties’ agreement as expressed under Exhibit D.”
It is abundantly clear from the judgment reproduced above that one of the reasons for finding that the appellant’s affidavit in support of his notice of intention to defend the respondent’s claim did not disclose a defence on the merit is that Exhibits 1-9 attached to the affidavit are matters outside the agreement entered into by the parties. Ground 4 of the appeal is clearly directed against that ratio decidendi being one of the reasons for the judgment now on appeal.
For the above reasons, the objection lacks merit and it is hereby dismissed.
I have considered the five issues formulated for determination by the appellant’s counsel and adopted by the respondent’s counsel. I am of the view that issue I aptly captured the crux of this appeal and Issues 2-5 are subsumed therein. That issue in my view is enough to determine this appeal. The issue is:
“Whether the learned trial Chief Judge was right or justified in holding that the Notice of Intention to Defend the Suit filed by the Appellant did not evidence or disclose any defence to warrant the transfer of the Suit to the general cause list and order pleadings.”
The summary of the argument of the appellant’s counsel is that the defence put forward by the appellant in the affidavit in support of his notice of intention to defend the action raised triable issues which ought to have weighed in the mind of the trial Court to transfer the case to the general cause list for proper adjudication on the pleadings to be filed by the parties. He submitted that at that stage, the chance of success of the defence put forward by the appellant is immaterial, he relied on Kabiru Vs Ibrahim [20041 2 NWLR Pt. 857 page 326 at 346. On when a case will be transferred to the general cause list and pleadings ordered, he referred to N.I.W.A. vs S.T.B. Plc [2008] 2 NWLR Pt.1072 page 502-503 (G-B), U.N.N. Vs Orazulike Trading Co. [1989] 5 NWLR Pt.119 page 19 at 31-32, F. I. B. Plc Vs Pegasus trading Office [2004] 4 NWLR Pt.863 page 369.
Counsel referred to the affidavits of both parties, he submitted that the appellant having made out a case of duress, intimidation, fraud and illegality which vitiates consent, the learned trial Chief Judge ought to have been wary of entering summary judgment based on Exhibits A, B, C, D, E1, E2, F3, and E4 which were products of fraud, duress, deceit, intimidation and illegality. He further submitted that this is a clear case which ought not to be settled on affidavit evidence and conflicts in the affidavits ought to be vigorously tested and resolved by oral evidence. He referred to Garba Vs Univ. Of Maiduguri [1986] 1 NWLR Pt.18 page 550, Ishiag Vs Editor [2003] 10 NWLR Pt.828 page 221 at 242. On the attitude of the Court towards an illegal contract, he referred to Osifo Vs Okogbo Community Bank Ltd [20061 15 NWLR Pt.1002 page 260 at 275-276 (H-C), Fasel Serv. Ltd Vs N.P. A. [2009] 9 NWLR Pt.1146 page 400 at 416 (C-E). He further submitted that this is one of the recognized exceptions to the rule that oral evidence will not be allowed to alter contents of a document. He referred to Ejezie Vs Anuwu (2008) 12 NWLR Pt.1101 page 446, Section 128(1) and (2) of the Evidence Act. Counsel referred to paragraphs 13, 14, 19, 20, 21, 23, 25 and 26 of the appellant’s affidavit, wherein he denied collecting the sum of Two Hundred Million Naira (N200,000,000.00), he submitted that it was wrong for the trial Court to hold that the appellant did not deny exhibits A, B, C, and D when the totality of the appellant’s case rested on denial of those exhibits and a frontal attack to their validity.
The respondent’s counsel in response submitted that the appellant’s affidavit failed to prove any of the ingredients of criminal allegations of duress, forgery and false deposition which in law must be proved beyond reasonable doubt. He referred to Section 135(1) of the Evidence Act, 2011. Counsel cited U. B.N. Vs Sax Nig Ltd & 2 Ors. [1994] 8 NWLR Pt.361 page 150 at 163 (B-D), U.B.N. Ltd Vs Ozigi [1994] 3 NWLR Pt.333 page 385 at 400 Ekulo farms Ltd & 1 Or Vs U.B.N Plc (2006) All FWLR Pt. 319 page 895 at 920 Savannah Bank of Nigeria Ltd Vs Salam (1996) 8 NWLR Pt.465 page 131 at 147 in support of his submission that the appellant failed to bring his case within the known exceptions to the general rule on exclusion of oral evidence in respect of documentary evidence
The appellant’s counsel in reply submitted that at the stage when summary judgment was entered, there was absolutely no way the appellant could by way of affidavit evidence prove allegations of fraud, intimidation and illegality beyond reasonable doubt. More so when there were conflicts in the affidavits of the parties. He further submitted that the defence of fraud, illegality, duress and false deposition raised by the appellant fundamentally distinguished this case from the cases relied on by the respondent’s counsel.
The procedure for summary judgment under Order 11 of the Enugu State High Court Rules, 2006 is very clear and unambiguous. Under Rules 7 and 8 reproduced above, where the judge finds that a defendant’s affidavit has not disclosed a good defence to the claim, the judge shall on the date stated on the motion on notice for hearing or any other date enter judgment for the plaintiff without requiring further evidence. The duty placed on the trial Court is to go through the affidavits filed by or on behalf of the parties and where it appears to the court that the defendant has no good defence to the claim, to enter judgment without requiring further evidence. Where it appears to the Court that the defendant has a good defence, he shall be granted leave to defend the Suit.
In the instant case, the respondent who was the plaintiff before the Court below filed a 16 paragraphs affidavit to which it attached 8 documents as Exhibits. Paragraphs 3-14 of the affidavit read:
“3. That the plaintiff is a limited liability company duly incorporated in Nigeria and having its registered office in Enugu, Enugu State within the jurisdiction of this Honourable Court.
4. That the Defendant is a businessman who approached the plaintiff with a view to securing the grant of a friendly loan to execute a contract awarded to it.
5. That after the due consideration of the Defendant’s written application by the management of the plaintiffs company, the plaintiff approved the written application of the defendant for a friendly loan as requested. The Defendant’s application dated the 9th day of November, 2010 and plaintiffs company approval letter dated the 23rd day of November, 2010, the receipt of which the Defendant duly acknowledged are herewith attached and marked as Exhibits “A” and “8” respectively.
6. That the Defendant by his letter dated the 25th day of November, 2010 duly accepted the offer of the grant of the Sum of N200,000,000.00 (Two Hundred Million naira only) as friendly loan to enable him execute the contract awarded to him including the terms and conditions attached thereto as contained in the agreement forwarded to the Defendant by the plaintiffs’ company which was duly executed and witnessed by the parties. The Defendant’s acceptance letter dated the 25th day of November, 2010 is herewith attached and marked as Exhibit “C”.
7. That on the 29th day of November, 2010 the Defendant pursuant to his undertaking to execute the loan agreement forwarded to him by the plaintiff jointly with the plaintiffs official and their respective witnesses executed the loan agreement after collecting the consideration in the sum of N200, 000’000.00 (Two hundred million naira only) the receipt of which the defendant duly acknowledged. A copy of the agreement dated the 29th of November, 2010 duly executed between the plaintiff and the Defendant is herewith attached and marked as Exhibit “D”.
8. That the Defendant also issued (4) four undated cheques totaling N200,000,000.00 (Two hundred million naira only) to be held by the plaintiff as security and for presentation for payment on a date to be instructed by the Defendant in accordance with the parties agreement i.e by January, 2012 for the payment of the 1st installment of N50,000,000.00 (fifty million naira only). The four (4) copies of the INTERCONTINENTAL BANK PLC CHEQUES Numbers (1) 12784249 (II) 12784247 (III) 12784248 and (IV) 127849 (undated) in the sum of N50,000,000.00 (fifty million naira only) each are herewith attached and jointly marked as Exhibits “E1,” “E2″,”E3” and “E4” respectively.
9. That after the due date for the presentation of the first cheque to cover the first installment as agreed by the parties in their written agreement, the plaintiff requested the Defendant to give necessary instructions for the presentation of the first cheque for payment which request was ignored by the Defendant without any reason whatsoever, pursuant to which the said cheque could not be presented for payment to cover the first installment thereby making the defendant to breach the terms and conditions agreed upon for the payment of his indebtedness. The plaintiffs letter requesting for the defendant instruction to authorize the presentation of the cheque for payment is herewith attached and marked as exhibit “F”.
10. That the Defendant inspite of the repeated demands made by the Officials of the Plaintiff and the Plaintiffs Solicitors- Messrs Taiwo Abe & Company has refused, failed and neglecting to pay up as demanded inspite of his non denial of the loan granted to him by the plaintiff. The plaintiffs Solicitors letter dated the 25th day of May, 2012 duly served and received by the Defendant personally is herewith attached and marked as Exhibit “G”.
11. That the repayment of the friendly loan granted to the defendant is to be made at the plaintiffs head Office in Enugu, Enugu State within the jurisdiction of this Honourable Court.
12. That except the reliefs sought for by the plaintiff in this Suit are granted and judgment entered in favour of the plaintiff accordingly the Defendant will continue to persist in his reckless refusal to pay the overdue debt to the plaintiff while the plaintiffs business as a result continues to suffer financially as a result of the unwarranted and inconsiderate refusal of the Defendant.
13. That the Defendant has no iota of defence against the plaintiffs claim.
14.That the plaintiffs Solicitors – Messrs Taiwo Abe & Company charged as professional fees for conducting this case the sum of N10,000,000.000 (Ten million naira only) out of which a cash sum of N1,000.000.00 (One million naira only) has been paid. A copy of the Solicitors’ receipt issued to the plaintiffs Company is herewith attached and marked as Exhibit “H”.
In response, the appellant filed a notice of intention to defend the suit and a 27 paragraphs affidavit setting out the grounds of his defence. Paragraphs 1-25 of the affidavit are reproduced below:
“1. That I am a member of the House of representatives, representing the Orumba North and South Federal Constituency, Anambra State. I am equally a member of the Peoples Democratic Party (P.D. P.) that sponsored me for the election which took place in April 2011.
2. I am familiar with the facts of this case and I testify herein based on my personal knowledge of the facts giving rise to this unfortunate Suit.
3. I know the Plaintiff through its alter ego, CHIEF CHRISTIAN UBA otherwise known “OCHIAGHA” OR “Eseluuga” Chief Christian Uba, his wife CHIEF (MRS) IFANYI NWAKAEZE UBA, and NONYE UBA, his daughter are the subscribers of the plaintiff and together with one ISAAC UDENSI are the Directors of the Plaintiff’s company.
4. Engineer Emeka Okeke, who is the deponent of the affidavit in support is not a Director of the plaintiff but adorned that toga for the purpose of this case in a bid to shroud the nature of the transaction which led to this Suit.
5. I am not, and have never been engaged in business in the manner described by the Plaintiff I equally did not have any contract due to be executed in Enugu State and did not represent to the Plaintiff that I did.
6. On the contrary, as at 2010, I was the managing consultant for the leading Edge Academy, engaged in human resource and management consulting located at No 938 Ahmadu Bello Way, Apo, Abuja.
7. No contract was ever awarded to me, for which I required any loan to satisfy. On the contrary with the Notice of Election issued by Independent national Electoral Commission (INEC) for the National Assembly scheduled for April, 2011. I expressed interest to secure the sponsorship of the Peoples Democratic Party (P.D.P).
8. In Anambra State at the material time, there were series of intra-party disputes which gave way to the emergence of factions of the State Executive of the Party.
9. I was compelled to subscribe to the faction projected by Chief Christian Uba, the alter ego of the Plaintiff, owing to my long standing association and alfiliation with him in political matters in Anambra State, as well as his personal assurance that his faction whose Chairman was Chief Benji Udeozor had secured an advantage through judgment obtained against the P.D.P National.
10. Chief Christian Uba, as a further incentive, assured me as well as all other aspirants for the sponsorship of the Peoples Democratic Party (PDP) for the election, that he would provide us with financial support to enable us –
i. Contest the General Election
ii. Pay for all stages of the legal services for the intra party disputes following the success of the state faction in Court over the national Headquarters of the P.D.P.
iii. Pay for legal services for the election petitions and consequential matters bound to attend them, at every stage of the Court system.
11. After having obtained the Party’s sponsorship following the conduct of the primaries by the state executive who subscribed to the leadership and over lordship of Chief Christian Uba, he invited I and other candidates to a meeting thereat, he threatened to withdraw our sponsorship and concede the intra-party disputes in court to favour the candidates in the list of candidates projected by the national Secretariat, unless we signed the documents which he produced and the signature page of Plaintiffs Exhibit D.
12. We pleaded that documentation was unnecessary and assured Chief Christian Uba of our loyalty. He however waved us aside, informing us that he once received the assurance of Dr. Chris Ngige prior to facilitating the PDP sponsorship for him and that he had taught him a bitter lesson in that regard.
13. The Plaintiff did not at any time, either directly or through Chief Christian Uba and Engineer Emeka Okeke, deliver the sum of N200,000,000.00 (Two hundred million naira) or any other Sum to me as alleged or at all.
14. I acknowledge that Exhibit D & E were signed by me based on the duress, fraud & deceit of Chief Christian Uba who was bent on achieving his goal of termination of my candidacy which I had spent all my resources to attain.
15. The cheques were not signed in November, 2010 as alleged by the Plaintiff, but were signed in March, 2011, as will be evident from my cheque stubs which are still intact in the booklet issued to me by the Bank.
16. Following our victory at the election, we approached Chief Christian Uba as the de facto leader of the party and expressed our gratitude for the sponsorship of the Party. I and others thereafter raised the issue of the heavy cost of the election as well as the ensuing litigation which are still pending. Chief Christian Uba retorted that having won the election that we were in the position to finance both the intra party disputes and the election petitions filed against us.
17. To my greatest consternation sometime in April, 2012, Chief Christian Uba invited me and demanded that I should pay him the sum of N50,000,000.00 (fifty million naira) per annum for each year I served as a member of the house of Representatives, failing which he would sue based on the document. I demanded a return of the cheque but he refused. All entreaties to persuade him to abandon this inglorious quest proved abortive.
18. Rather than relent, he told me when I made further demand for the cheque, that I should be mindful of what he did to Dr. Chris Nwabueze Ngige OON, now Senator of the Federal Republic of Nigeria, when he utilized resignation letters purported to be signed by the Senator as well as some lewd photographs to harass him while in occupation of the office of the Governor of Anambra State and the ensuing mayhem which followed. He threatened that my situation will make that which transpired a child play.
19. When all appeals proved abortive, I was compelled to write a letter to the Plaintiff in May, 2012 demanding the return of the cheques as there was no consideration at all for their issuance. Plaintiff did not reply. In that letter, following in like manner, the pattern laid down by the Plaintiff to the effect that he granted me a loan, I categorically demanded a rescission on the clear premise that no many was ever given to me.
20. The letter shown as Exhibit F was forged in order to overreach my own aforesaid letter, as no letter was written or sent to me in January, 2012, likewise, Exhibit G was formulated to lend credence to this spurious suit.
21. The Plaintiff is in fact, not in a financial position to give a loan of N200,000,000,00 (Two Hundred Million Naira) EACH TO THE CANDIDIDATES SPONSORED FOR THE ELECTION BY THE P.D.P in Anambra State and did not give any friendly loan to anybody as alleged or at all. I did not receive the sum of N200,000,000,00 (Two Hundred Million Naira) from the Plaintiff in cheque, casho draft or any other form of payment whatever.
22. Plaintiff has a share capital of N1,000,000,00 (One Million Naira) and has not earned any income since 2005 and has not filed any annual returns at the Company Registry Abuja since 2005.
23. The Plaintiff who did not extend the alleged loan sued other members of the llouse of Representative such as:-
i. HON EUCHARIA AZODO representing Aguata Federal Constituency in Suit No E248/2012;
ii. MR. CHIZOR OBIDIGWE representing Oyi/Anyamelum Federal Constituency in Suit No.E246/2012;
MR. FORT DIKE (representing Ihiala Federal Constituency) and fairlead Properties and Estate Development Ltd in Suit No. E/245l2012; and CHIEF AMEKE CHRISCATO (representing Anambra East/West Federal Constituency) and Chrisbond Properties in Suit No.E/247/2012.
24. Hereto delivered and marked Exhibits are the following:-
i. Exhibit 1 – Plaintiff s Certificate of Incorporation
ii. Exhibit 2 – Plaintiffs Form Co2
iii. Exhibit 3 – Plaintiffs form C07
iv. Exhibit 4 – Plaintiffs memorandum and Articles of Association
v. Exhibit 5 – Defendant’s Serialized cheque stub
vi. Exhibit 6 – Defendant’s letter to Plaintiff.
vii. Exhibit 7 – Judgment in Suit between BENJI UDEOZOR & ORS V PDP &ORS.
viii. Exhibit 8 – Letter dated 25th January, 2011 forwarding list of successful aspirants to the National Chairman of PDP. (With list attached).
25. I am not indebted to the plaintiff as alleged or at all and I have a good defence to this suit. Exh A, B, C, D, E, & F, are products of fraud and illegality”.
In this case, the affidavit of the appellant clearly raised the following defences:
“(1) That he signed the documents exhibits A-D on which the respondent relied in support of the alleged loan transaction under duress, intimidation and threat because one Chief Christian Uba who is the alter ego of the respondent and defacto leader of Peoples Democratic Party in Anambra State threatened to withdraw or make him lose his party’s nomination to contest the election into the House of Representative
(2) That he did not enter into any loan transaction with the defendant.
(3) That he did not collect or receive the sum of N200,000,000.00 (Two Hundred Million Naira) or any Sum at all from respondent either in cash, cheque, draft or any other form of payment whatsoever.
(4) That the respondent is in fact not in a financial position to give a loan of N200, 000.000.00 to him or each of the candidates sponsored for election by PDP in Anambra State
(5) That Exhibits A-D are products of illegality.
In an action for repayment of loan, the defences open to the defendant are two:
a) That the Defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid or
b) That he never borrowed the money in the first place, he never applied for the loan, or debt, he never obtained any money and that the purported application for the loan issued by him is a forgery. See OKOLI V MORECAB FINANCE LTD (2007) ALL FWLR (pt.369) 1164.
The appellant herein admitted signing exhibits A, B, C, and D and issuing Exhibits E1-E4. However, he stated that he signed those documents under duress, intimidation and that he did not collect or receive any money from the respondent. By virtue of Section 128 (1) of the Evidence Act, 2011, where a contract has been reduced into a documentary form or series of documents, no evidence may be given of neither the terms of such contract nor the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Section 128 (1) (a), of the Evidence Act, 2011 read:
“(1) When a judgment of a Court or any other judicial or official proceedings, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Provided that any of the following matters may be proved:-
a) Fraud, intimidation, illegality; want of due execution, the fact that it is wrongly dated, existence or want or failure, of consideration, mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract, or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating to it;”.
First the words of Section 128 (1) (a) reproduced above axe very clear. where a parry pleads or alleges fraud, intimidation, fraud and illegality as in this case, oral evidence is admissible to contradict the contents of a document such as a exhibits A, B, C and D in this case. See Anyanwu & ors vs Mr. Aloysius Uzowuaka & ors [2009] 13 NWLR Pt.1159 page 445 at 468(A-B), 469(C-H), Savannah Bank vs. salami [1996] 8 NWLR pt. 465 pages 131. Oloko Vs UBE (2004) 17 NWLR PT.903 page 647, Eneji Vs Inter’l Transport Ltd. (200) 11 NWLR pt. 678 page 225 at 2341 (C-F)
Secondly, the use of the word “May” in relation to oral evidence in respect of a contract reduced into documentary form clearly indicates that the law which includes evidence in respect of a contract reduced into documentary form is not absolute. That is why the same section 128(1) carries a proviso under which some very important exceptions are adumbrated.
Thirdly, the law recognizes the fact that fraud or intimidation may not be and in most cases are not apparent on the documents of contract, hence the putting in place of the proviso. A conclusion as to whether or not a contract is vitiated by fraud will be drawn from the facts and circumstances disclosed by the evidence in each case. I am fortified in this view by the pronouncement of the Supreme Court in Okoli Vs Morecab Finance (Nig) Ltd., (supra) where the Court referred to Earl of Aylesfora Vs Morms (1873) 8 Ch. App (1361- 1893) A. E. R. 300 (reprint) where it was held as follows:-
“Fraud may be presumed from the nature of the bargain, the circumstances and condition of the parties contracting, weakness, on one side, extortion and advantage taken of that weakness on the other. Fraud in such cases does not mean deceit of circumvention; it means an unconscionable use of power arising out of the circumstances and condition of the parties.”
of See also Osifo Vs Okogbo Community Bank (2206) 15 NWLR pt.1002 Page 260 at 275-276 (H-C).
Fourthly, a contract may be ex-facie illegal or the illegality may depend on a combination of facts. where a contract is not ex-facie illegal as in this case, the illegality has to be raised in the pleadings and established by evidence at trial. See A.I.C. Ltd. Vs NNPC (2005) 6 CM page 1 at page 14 where the Supreme Court held as follows:-
“On the hallowed principle encapsulated in the Latin Maxim ex-turpi causal non oritur actio (an action does not arise from a base cause), a Court of law does not generally enforce a contract or transaction tainted with illegality or contrary to public Policy. A contract may be ex-facie illegal or the illegality may depend on a combination of facts. In the former case, the illegality need not be specifically raised in the pleadings but in the latter case the general rule is that it must be raised in the pleadings. This appears to be the outcome of the decision of this Court in the case of Ekwunife Vs Wayne (W.A.) Ltd. to the following effect:-….. Where a contract is not ex-facie illegal and the question illegality depends on a number of facts: – probabilities or possibilities or contingencies- to be hammered out by evidence and forensic logic, the general rule is that illegality must be raised in the pleadings” This view is exemplified by a passage in another decision of this Court in the case of Onwucheka Vs N.D.I.C. to wit, A defendant who rules upon defence of illegality should state facts on which he relies in his pleadings”.
For the above reasons,
I am of the view that the finding of the trial Chief Judge that the exceptions in the proviso to section 128 (l) (a) of the Evidence Act is inapplicable to the instant case is wrong.
The requirement of Order 11 rules 4 and 5 of Enugu State High Court Rules which makes provision for summary judgment is that the defendant must show that he has a good defence or make out a good defence and not necessarily, a valid defence. See Ekulobia Farms & Anor.Vs Union Bank Nig. Plc. 2006 6 SCM 78 at 105. In this case, the appellant raised defences of duress, intimidation, fraud and illegality and lack or want of consideration. All that he is required to do at that stage is to state the particulars of those defences or the circumstances from which the defences can be inferred. See M. O. Kanu, sons & Co. Ltd Vs F.B. N. Plc [2006] 5 SC Pt. 111 page 80. In Alao Vs A. C. B. Ltd (1998) 3 NWLR Pt.342, 339 at page 355 (E-F), The Supreme Court stated what amounts to illegality and the effect of illegality on a contract as follows:-
“The law is very clear on the effect of illegality on a transaction or contract. It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy. An illegal contract is a void contract and it cannot be the foundation of any legal right. In other words when the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced.”
I should state that a contract may or may not be ex-facie illegal. Where a contract is not ex-facie illegal, the facts from which the illegality must be pleaded and then evidence must be led to establish the illegality. That can only be done at trial, not by affidavit evidence. That in my view is the purport of the Supreme Court’s decision in A.I. C. Ltd. Vs NNPC (supra) See also Ajayi Vs Total Nig. Plc [2013] LPELR – 20898 (SC), Osifo Vs Okogbo Community Bank (2006) 15 NWLR Pt.1002 Page 260 at 275-276 (H-C) I am of the firm view that the entire facts deposed to in the appellant’s affidavit clearly show the nature and the particulars of the alleged duress, intimidation, threat, fraud and illegality being raised by the appellant. The respondent’s counsel submitted that the appellant did not prove the allegations of duress, intimidation, fraud and illegality beyond reasonable doubt. Here lies the problem. In my humble view, that is where the learned trial chief judge also erred. First, at that stage, the appellant is not required to prove his defence or demonstrate that his defence will succeed and the trial court should not be concerned with the success of the defence. All that the appellant the appellant could do at that stage was to state the facts of fraud, intimidation, duress, and illegality in his affidavit as he did. It is only when he is granted leave to defend that he can then lead evidence to establish the allegations or assertions.
Secondly where a contract is not ex-facie illegal as in this case, the facts or combination of facts from which the Court can come to a conclusion as to whether or not the contract is illegal has to be established by evidence and that in my view can only be properly done at trial not by affidavit evidence under summary judgment procedure. Thirdly, all that the Court should be concerned with is whether the appellant has raised triable issues which call for explanation by the respondent. See U.B.A. & Anor Vs. Jargaba [2007] 11 NWLR Pt.1045 page 247 at 273 where the Supreme Court stated when a defendant’s affidavit in support of notice of intention to defend raises a triable issue as follows:
“A defendant’s affidavit in support of notice of intention to defend raises a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiffs claim. See United Bank for Africa Plc vs. Mode Nigeria Limited (2001) 13 NWLR (Pt.730) 335. The decision as to whether or not a defence under the undefended list procedure raises a triable issue does not depend so much on the discretion of the Court.
Rather, it involves the evaluation of the affidavit evidence before the Court for it to determine whether or not a triable issue has been made out by the defence. See General Securities and Finance Company Limited Vs Obiekezie (1997) 10 NWLR (Pt.526) 577.”
See also I. H. Ltd Vs Soneb Ent. Ltd (2010) 4 NWLR Pt. 1185 page 561 at 577 (C – H) Where the Supreme Court stated the purpose of summary judgment procedure follows:
The purpose for the filing of the affidavit by the parties is not to take the place pleadings as thought by the counsel for the appellants but intended simply for the Court to decide whether the defendant has any defence to the action of the plaintiff in relation to the debt or liquidated money demand. The trial Court is not to decide whether the defence put forward by the defendant in the affidavit succeeds or will ultimately succeed at that stage of the proceeding. See Nihizawa Ltd. Vs Jethwani (1984) 12 SC 234. The facts to be
stated in the affidavit of the defendant must be such that will require the plaintiff to offer explanation for matters involved in his case or seriously question or challenge the claim of the plaintiff. Where such a situation arises, we say that the defendant has disclosed a defence on the merit to the claim of the plaintiff and the trial Court is by the rules duty bound to allow or admit the defendant to defend the action by granting him leave to do so and consequently transfer the case from the undefended list to the general cause list to be dealt with by the filing of pleadings or the Court may even order that the affidavits filed should serve as pleading for the trial of the matter. The rule does not authorize the Court, at that stage, to go into the merit of the case by making findings of facts to arrive at any conclusion, as the appellants appeared to be arguing.
In the instant case, the appellant stated that he never collected or received the sum of N200, 000,000.00 or any sum of money as a friendly loan from the respondent either in cheque, cash, draft or any other form of payment and that he signed the document on which the appellant is relying as evidence of receipt under threat, intimidation and duress and proceeded to state the particulars of threat and intimidation and the circumstances which made him to succumb to the threat and intimidation. The trial chief Judge clearly erred when he held that there was no direct denial of Exhibits A, B, C, and D. It is my humble view that when a court is faced with a categorical denial of the receipt of the consideration for an agreement, the Court as a court of both law and equity must request the party claiming on the agreement to show that in fact, consideration actually passed. In the instant case, the alleged friendly loan is a Sum of N200,000,000.00 (Two Hundred Million Naira). My humble view is that the court ought not to enter judgment in favour of the respondent without proof of how the appellant received the money. It is also worthy of mention that the loan was allegedly granted to execute “a contract” secured by the appellant. What contract one may ask? The appellant denied ever having any contract to execute to warrant borrowing such an amount of money. He stated that he had to sign the documents because the alter ego of the respondent who was the de facto leader of P.D.P, his political party threatened to terminate his candidacy. He produced exhibits 1-4 to show the link between the respondent and the said Chief Christian Ubah. He asserted that the respondent did not in fact have such money and has not earn any income since 2005. There is evidence before the court that the respondent claim to have advanced similar loans to other candidates sponsored by PDP in Anambra State for the House of Representatives, for “a contract.” The respondent has instituted similar Suits against those members of the House of Representatives and all the defendants in those cases are raising similar defences as the appellant in his case. The learned trial chief Judge was aware of those cases. My humble view is that those facts and allegations require some explanations from the respondent. It is my further view that those issues cannot be fairly decided by the court without giving both parties an opportunity to adduce further evidence which can only be done at trial.
In Okoli’s case, where the appellant denied the loan, the respondent did not only produce the application for loan, the agreement drawn and executed by the parties, the respondent produced the voucher and the Ledger Cards showing how the appellant operated the account.
The respondent herein in the face of the challenge to Exhibit D has to show how the appellant received the money. The learned trial Chief Judge was in serious error when he held that the appellant benefited from the alleged loan contract without giving him the opportunity to lead evidence in support of the defences raised by him.
In my humble view, where a defendant has clearly and unequivocally denied the receipt of a loan, raised allegation of signing the documents on which the plaintiffs rely under threat, intimidation duress, fraud and lack or want of consideration and stated the circumstances upon which he is raising those defences and backed it up with some documents as the appellant has done in this case, it is a proper case for a grant of leave to the defendant to defend the Suit. The refusal to transfer the case to the general cause list in the circumstances and facts disclosed in the affidavit of the appellant herein, with due respect amount to shutting the door against him without a fair hearing and that certainly is not the purpose of summary judgment.
See N. M. C. C. B (Nig.) Ltd Vs Obi [2010] 14 NWLR pt.1213 page 169 at l9lwhere the Supreme Court held as follows:
“It must be borne in mind always and this is also settled that the purpose of the procedure under the Undefended List, is to enable the plaintiff obtain summary judgment without trial, where his case, is patently clear and unassailable. See the cases of Cow. V. Casey (1949) I K. 8.374 AND Sodipo V Lemminkainen & OY. (1986) 1 NWLR Pt.15 220. It is not however, designed to shut out a defendant who can show that there is triable issue. See the case of Nishizawa V Jerthwani (19984) 12 SC 234. Thus, in determining whether a defendant has a good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend. It is not necessary for the trial Judge to decide at that stage, whether the defence has been established. What is required is simply, to look at the facts deposed to in the affidavit or counter affidavit or statement of defence where applicable and see if they can prima facie afford a defence to the action.”
See also Hon Justice Sotonye Denton -West Vs Chief (Ichie) Chucks Muoma, SAN [2009] L.P.E.L.R. 8371(CA) Where this Court per Abdullah JCA stated the instances where the Court will grant the defendant leave to defend an action under the undefended list procedure as follows:
“The law is now settled that where an action is placed on the undefended list, the Court ought to grant the defendant leave to defend such action where:
a) The defendant raises substantial question of fact or law which ought to be tried, or
b) Where the defendant alleges misrepresentation or fraud by the plaintiff.
c) Where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff s witnesses on accompanying affidavit:
See (1) Ogbonda Vs. Ukaegbu [2005] 17 NWLR Pt.954 page 432 at 445
(2) U.N.N. Vs Ors Zulike Trading Co. [1989] 5 NWLR Pt.119 page 1911 for the foregoing reasons.”
It is my humble view that the appellant’s affidavit has disclosed a good defence as required by order 11 Rules 4 and 5 of the Enugu State High court Rules to entitle him to the grant of leave to defend the Suit. The finding of the learned trial chief Judge that the appellant has not raised any genuine issue which would preclude the court from entering summary judgment against him is clearly wrong. This appeal succeeds. The summary judgment entered by the court below in favour of the respondent in Suit No. E/249/12 is hereby set aside. The appellant is granted leave to defend the suit in accordance with the provisions of Order 11 Rules 9 and 10 of the High court Rules. The case is remitted to the High Court Enugu for trial by another judge.
There shall be N50,000.00 costs in favour of the appellant.
Appearances
Dr. Onyechi Ikpeazu SAN with O. Anumonye Esq., E. N. Nzegwu Esq., AND C. B. Anyigbo Esq.For Appellant
AND
Ahmed Raji SAN with Chuks Okoye Esq., Zekeri Garuba Esq. AND Osinachi Nwoye Esq.For Respondent
