BONTUS NIGERIA LIMITED v. SIFA PROJECTS NIGERIA LIMITED
(2012)LCN/5772(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of December, 2012
CA/E/314/2010
RATIO
EVIDENCE: HOW CAN CONFLICT IN AFFIDAVIT BE RESOLVED
In a plethora of authorities it had been held that it is not only by calling oral evidence that conflict in an affidavit evidence can be resolved. That where the court has enough documentary evidence at its disposal, it can suo motu resolve conflicting affidavit evidence by resort to documentary evidence, reference made to EIMSKIP LTD V. EXQUISTIE IND. LTD (2003) 4 NWLR (PT. 809) 88; DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (PT.965) 544; BAWA V. PHENIAS (2007) 4 NWLR (PT.1024) 251; AGRO MILLERS LTD V. C.M.B. (1997) 10 NWLR (PT.525) 469 at 479 – 480. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
BONTUS NIGERIA LTD Appellant(s)
AND
SIFA PROJECTS NIGERIA LTD Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Enugu State High Court per A. A. Nwobodo, J. delivered on the 2nd day of March, 2010.
The facts leading to this appeal are stated thus:-
The Respondent as Plaintiff obtained Judgment against the Defendant/Appellant under the Summary Judgment Procedure of the High Court of Enugu State for the sum of Seven hundred thousand Naira (N700,000.00) being debt owed the Plaintiff by the Defendant.
The said debt arose out of a contract for the sale of Land wherein the defendant bought a parcel of land from the plaintiff at the price of Fourteen Million Naira (N14,000,000.00). The defendant paid a deposit of Four Million Naira (N4,000,000.00) leaving a balance of ten million naira (N10,000,000.00). Under the terms of the contract which was reduced in writing, the defendant was to pay the balance of N10,000,000.00 in five monthly instalments of N2,000,000.00 per month.
In compliance with the agreed terms of the contract the defendant paid N8,000,000.00 in four installments of N2,000,000.00 each but paid N1,300,000.00 in the last installment thereby leaving a shortfall of N700,000.00. Upon being served with the writ of summons, the defendant filed a notice of intention to defend with supporting affidavit and relevant documents. Both the plaintiff and defendant placed reliance on the Written Pre-contract Agreement signed by both parties.
The defendant in his defence said that he used the N700.000.00 to settle professional fees of one Johnson Okegbe, the Solicitor, who drafted the Pre-contract Agreement for the parties. He said that it was part of the said agreement that he should pay the said solicitor from the plaintiffs money.
The trial judge, after hearing counsel for both parties adopting their written addresses delivered a reserved judgment wherein he entered judgment for the plaintiff.
The Appellant being dissatisfied with the judgment of the trial court appealed to this court vide his Notice of Appeal dated 19th day of March, 2010 containing three grounds of appeal.
The appeal was heard on the 3/10/12. Counsel to the Appellant Mr. C. I. Obika informed the court that the Appellant’s brief of argument is dated 11/5/11 and filed on 13/5/11 counsel adopted the brief of argument and urged the Court to allow the appeal and set-aside the judgment of the lower court.
Mr. C. C. Okoro counsel to the Respondent states that the Respondent’s brief of argument is dated 9/5/11 and filed on 16/5/11, he adopted the brief and urged court to dismiss the appeal and uphold the judgment of the lower court. From the three grounds of appeal the Appellant formulated three issues for determination which are stated thus:-
ISSUE 1
Whether the Honourable trial Court did not err in law when it failed to hear from Mr. Johnson Okegbe Esq. of counsel who indeed prepared the pre-contract agreement and had averred on oath that parties had agreed that the said sum be paid over to him and thereby denied the appellant his constitutional right to fair hearing.
ISSUE No.2
Whether the Honourable Court ought not to have called viva voce evidence in the face of irreconcilable conflict in the affidavits of parties to resolve same.
ISSUE No.3
Whether the Honourable trial court was right in not holding and directing that the matter be put on the general cause list so that pleadings be filed and duly exchanged by parties.
Counsel to the Respondent also formulated three issues for determination which are stated thus –
ISSUE ONE
Whether the failure by the trial judge to call for oral evidence of Mr. Johnson Okegbe whose affidavit evidence was duly considered and found not to have disclosed a defence to the plaintiff’s claim amounts to a denial of fair hearing.
ISSUE TWO
Whether on the peculiar facts of this case wherein both parties placed reliance on a written document (i,e. Pre-Contract Agreement) the trial judge was not justified in resolving the issue in dispute by reference to the said document without calling for oral evidence.
ISSUE THREE
Whether the trial judge having been satisfied that the defendant has no defence to the plaintiff’s claim ought to have transferred the suit to the General Cause List.
Both the issues as formulated by the Appellant and Respondent are the same in con, therefore the issues as formulated by the appellant would be considered in the determination of this appeal.
On Issue No. 1 Counsel to the appellant submits that the crux of the Appellant’s argument is that the trial Court ought not to have placed the matter under the undefended list and judgment ordered. That Mr. Johnson Okegbe Esq. of counsel had averred on oath in a affidavit filed before the trial court that he was the only one that acted for both parties in the transaction. That being a Minister in the temple of justice by virtue of our laws, the trial court ought to have in the least given him the benefit of the doubt and an opportunity in the witness box to clarify issues and be cross-examined on the veracity of his assertion, having insisted that both parties were at consensus ad idem that the said N700,000.00 be paid over to him as the Solicitor who mid-wived the transaction in question. He further asserts that the Respondent collected the last instilment of N1,3000,000.00 knowing that the N700,000.00 (that would have made it N2 million had been paid over to him otherwise it ought to have rejected same out rightly.
Counsel contends that judgment should be ordered in a suit on the undefended list only where assuming all the facts in favour of the defendant do not amount to a defence in law. Counsel referred to DYERIS v. MOBIL OIL (NIG) PLC (2010) 1 NWLR (PT.1175) 317; FEDERAL MILITARY GOVERNMENT OF NIGERIA V. SANI (1990) 4 NWLR (PT. 147) 688.
Counsel to the Appellant submits the facts as already set out if assumed in favour of the defendant, to wit, that the money was agreed by the parties to be paid over to the solicitor and consequently, paid to him amounts to a defence in law and no sum is being owed to the Respondent to that extent, the trial court erred in law by entering judgment under the undefended list against the Appellant reference made FEDERAL MILITARY GOVERNMENT OF NIGERIA v. SANI (supra) at page 692.
Counsel referred to paragraphs 6 – 14 of affidavit setting out grounds of defence of the Appellant and contend that there is obviously a “fair probability of defence” or a triable issue or question and for other reasons there ought to be a trial. Further counsel submits that it is not the duty of the court at the stage of considering whether a defendant has a defence under the undefended list procedure to consider whether the defence will ultimately succeed. All that is needed at the stage is to determine whether a good defence has been disclosed in the defendant’s affidavit in support of his notice of intention to defend the suit, reference made to EBONG V. IKPE (2002) 17 NWLR (PT 797) 504; KNIGHTSBRIDGE LTD V. ATAMAKO (2000) 2 NWLR (PT. 645) 385; DYERIS V. MOBIL OIL (NIG) PLC (supra) 314.
Counsel to the Appellant argues that in this appeal it cannot be said that the Respondent’s case is unassailable and that the Appellant “did not show defence that will lead to a trial of the case on its merit”. That a complete defence need not to be shown by the defendant seeking to be heard under an undefended list procedure. It will suffice if the defence set up shows that there is a triable issue or question to be tried.
Learned counsel to the Appellant contends that the Appellant asserts that the Solicitor who had acted for both parties by swearing on oath in an affidavit has sufficiently satisfied the trial court that there are circumstances which ought to be investigated and consequently, ought to be given leave to defend the action. Having failed to so act, the trial court has denied the Appellant its constitutional guaranteed right to fair hearing as contained in the 1999 Constitution of Nigeria.
In response to the submissions of counsel to the Appellant learned counsel to the Respondent’s submits that it is trite that matters brought under the summary judgment procedure of the High Court of Enugu State are determined solely on affidavit evidence and documents placed before the court. The procedure does not accommodate oral evidence, counsel referred to the provisions of Order 11 Rule 7 of the High Court Rules of Enugu State, 2006 which provides:-
“Where upon going through the documents filed by or on behalf of the parties under preceding 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.”
Counsel to the Respondent argued that the phrase “Further evidence” as contained in the said rule does not contemplate or include oral evidence, that the judge is by the provisions of the above stated rule prohibited from calling evidence in determining the suit as long as the available affidavit evidence and documents placed before him by the defendant to not disclose a good defence to the claim. Counsel submits that the decision whether or not a triable issue has been raised is not an exercise of discretionary power by the judge which he can exercise one way or the other according to his whims and caprises. That such conclusion must be a result of proper examination and evaluation of the documents filed by the parties reference made to GENERAL SECURITIES AND FINANCE CO. LTD V. OBIKEZIE (1997) 10 NWLR (PT.526) 577 AT 587 – 588.
It is submitted for the Respondent that in the instant case even though the defendant in his affidavit asserted that he was not owing the plaintiff N700,000.00 as claimed, having used the money to pay the Solicitor his professional fee as allegedly agreed by the parties, the judge could not be faulted for resorting to the Pre-Contract Agreement filed and relied upon by both parties, to come to the inevitable conclusion that the defendant has no defence to the plaintiffs claim since there was no such clause in the document.
That the story of using the plaintiff’s money to settle the Solicitor’s fee was an after thought concocted to frustrate the plaintiff from obtaining judgment against the defendant reference made to AGRO MILLERS LTD V. C.M.B. (1997) 10 NWLR (PT.525) 469 at 477 – 478.
On the submission of counsel to the Appellant on Fair hearing and conflicts in the affidavit evidence, counsel to the Respondent submits that it is not every conflict in affidavit that requires oral evidence for resolution. Where there is authentic documentary evidence which supports one of the affidavits in conflict the court is entitled to rely on the document.
In a plethora of authorities it had been held that it is not only by calling oral evidence that conflict in an affidavit evidence can be resolved. That where the court has enough documentary evidence at its disposal, it can suo motu resolve conflicting affidavit evidence by resort to documentary evidence, reference made to EIMSKIP LTD V. EXQUISTIE IND. LTD (2003) 4 NWLR (PT. 809) 88; DANA IMPEX LTD V. AWUKAM (2006) 3 NWLR (PT.965) 544; BAWA V. PHENIAS (2007) 4 NWLR (PT.1024) 251; AGRO MILLERS LTD V. C.M.B. (1997) 10 NWLR (PT.525) 469 at 479 – 480.
Counsel urged us to hold that the trial judge did not deny the appellant fair hearing as alleged by the appellant nor commit any error of law by not calling for oral evidence to resolve the apparent conflicts in affidavit evidence as there were sufficient documentary evidence before him to assist him in resolving the said conflicts. Counsel therefore urged the court to resolve issues 1 and 2 against the appellant and in favour of the respondent.
In the instant appeal the complaints of the appellant are that his affidavit in support of his Notice of Intention to Defend Pursuant to Order 11 Rule 4 of the High Court (Civil Procedure) Rules of Enugu State 2006 has disclosed a good defence or a triable issue or question and that there were conflicts in the affidavit evidence which only oral evidence could resolve. He contended that failure to be given leave to defend the action has denied the Appellant its constitutionally guaranteed right to fair hearing as contained in the 1999 Constitution of Nigeria.
For the appellant to succeed in invoking the provisions of fair hearing guaranteed in the 1999 Constitution of Nigeria he has to establish that his affidavit has disclosed a good defence or a triable issue or question.
Now the question is has the affidavit in support of the Notice of Intention to defend, disclose a good defence or a triable issue or question. The case of the Respondent is that the claim of N7000,000.00 arose out of a contract for sale of land wherein the defendant bought a parcel of land from the plaintiff at the price of Fourteen Million Naira (14,000,000.00). The defendant paid a deposit of Four Million Naira (M,000,000.00) leaving a balance of Ten Million Naira (N10,000,000.00). Under the terms of the contract which was reduced in writing, the defendant was to pay the balance of N10,000,000.00 in five monthly instalments of N2,000,000.00 per month.
In compliance with the agreed terms of the contract the defendant paid N8,000,000.00 in four instalments of N2,000,000.00 each but paid N1,300,000.00 in the last instalment thereby leaving of N700,000.00.
The case of the Appellant is that the Appellant bought a piece of land for the sum of N14,000,000.00 (Fourteen Million) Naira from the Respondent on the agreement of both parties that the sum of N700,000.00 (Seven hundred thousand) Naira will be paid as professional fees from the agreed sum of N14,000,000.00 to Barr. Johnson Okegbe the solicitor who acted for both parties in the transaction. The contract sum was paid to the respondent deducting the sum of N700,000.00 (Seven hundred thousand) Naira which was paid to the Solicitor as agreed by the parties. The said Solicitor not only confirms this but has sworn and averred same in an affidavit filed in the lower court in the Appellant’s (Defendant’) Notice of Intention to Defend as being the state of affairs.
From the above stated facts of this appeal, the Appellant’s defence is that it was agreed by the parties that the Respondent (Plaintiff) would pay the sum of N700,000.00 to the Solicitor engaged by the parties. And the said sum was indeed deducted from the last instalment to pay the Solicitor.
Both parties relied on exhibit “A” the Pre-contract Agreement exhibited. The Pre-contract agreement does not support the claim of the appellant, and in very clear terms it stated how the contract sum of N14,000,000.00 is to be paid to the Respondent, and it very glaringly shows that the Respondent defaulted in the last instalment when he paid N1,300,000.00 instead of N2,000,000.00 agreed in paragraph 2 of the agreement in the Pre-Contract Agreement, and immediately the Respondent received Exhibit “D” dated 12/1/09 the Diamond Bank of N1,300,000.00 it protested through Exhibit “E” dated 1411/09 complaining that there was a shortfall of N700,000.00.
The transaction of the parties is documented as evidenced by Exhibit “A” and the Appellant has not exhibited any document to support the averment of Johnson Okegbe in the affidavit setting out grounds of defence that both parties agreed that the sum of N700,000.00 (Seven hundred thousand Naira) will be paid as professional fees from the agreed sum of N14,000,000.00 (Fourteen Million) Naira to Barr. Johnson Okegbe the Solicitor who acted for the parties in the transaction. Mere averment in an affidavit cannot suffice, it has to be supported by some documentary evidence to give effect to the contention being made.
Order 11 Rule 7 of the High Court Rules of Enugu State envisaged that it is the documents filed on behalf of the parties that the judge will go through in arriving at the conclusion as to whether or not defendant has a good defence.
The order reads:-
“Where upon going through the documents filed by or on behalf of the parties under the preceding rules of this order, it appears to a judge 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.”
In the instant appeal there is nothing before the trial court to show that there was an agreement by the parties that the N700,000.00 alleged to be the Solicitor’s fee was to be paid from the agreed sum of N14,000,000.00, on the other hand the Respondent had made out an iron-cast case that what was due to him was N14,000,000.00 and this is supported by Exhibit “A” the Pre-contract Agreement, therefore by this the Respondent is entitled to judgment under the provisions of Order 11 Rule 7 of the High Court Rules of Enugu State 2006. The issue of denial of fair hearing as contended by the Appellant does not therefore arise since by the evidence before the court the Appellant has not disclosed a good defence or a triable issue or question.
On the issue of conflict of evidence as contended by counsel to the Appellant, I cannot see any conflict in the affidavit evidence before the court. The Respondent claimed that he is entitled to N14,000,000 and supported his claim with Exhibit “A” the Pre-Contract Agreement.
The Appellant claimed that it was agreed by the parties that N700,000.00 (Seven hundred thousand) naira will be paid as professional fees from the agreement sum of N14,000,000.00 (Fourteen Million) Naira to Barr. Johnson Okegbe the Solicitor who acted for the parties in the transaction. There was nothing to support the claim of the Respondent. The mere averment of Barr. Johnson Okegbe in Paragraph 8 of the affidavit setting grounds for defence without supporting documents for the agreement does not constitute evidence before the court since the trial is basically on documentary evidence as envisaged by Order 11 Rule 7 of the High Court Rules Enugu State 2006. I therefore find no conflicts in the affidavit before the court to warrant calling for oral evidence to resolve.
Issues 1 and 2 are therefore resolved against the Appellant in favour of the Respondent.
Issue No. 3
With the resolution of issues 1 and 2 against the appellant which is to the effect that the Respondent has no defence to the Appellant’s claim and the issue of conflicts of evidence found to non-existence issue No.3 ought to be resolve against the Appellant. It is accordingly resolved against the Appellant in favour of the Respondent.
Having resolved all the three issues in this appeal against the Appellant the appeal lacks merit and it is hereby dismissed. The judgment of Nwobodo, J. sitting at the High Court of Enugu State, Enugu Judicial Division in Suit No.E/209/2009 delivered on the 2nd day of March, 2010 is hereby affirmed.
I award N30,000.00 costs against the appellant in favour of the Respondent.
JOHN INYANG OKORO, J.C.A.: I read before now the lead judgment of my learned brother, Abubakar Jega Abdulkadir, J.C.A. just delivered and I fully agree with him that this appeal lacks merit and should be dismissed. I adopt both his reasoning and conclusion as mine. I also dismiss this appeal with N30,000.00 costs in favour of the respondent.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the draft of the judgment of my learned brother, ABUBAKAR JEGA ABDUL-KADIR JCA just delivered. I adopt the reasoning of his lordship and I agree that the appeal is lacking in merit. The appeal is dismissed with bI30,000.00 costs in favour of the respondent.
Appearances
Mr. C. I. ObikaFor Appellant
AND
Mr. C. C. Okoro with Mr. C.N. OkoroFor Respondent
