DR. WILLIAM OKI & ANOR v. FIRST BANK OF NIGERIA PLC
(2019)LCN/13123(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2019
CA/B/106/2016
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. DR. WILLIAM OKI
2. WOKSONS INTERNATIONAL LIMITED Appellant(s)
AND
FIRST BANK OF NIGERIA PLC Respondent(s)
RATIO
WHETHER OR NOT GROUNDS OF APPEAL MUST RELATE TO THE DECISION APPEALED AGAINST
The law is trite that grounds of appeal must relate and flow from the decision appealed against. They must challenge the ratio or rationes of the decision. See SARAKI VS. KOTOYE (1992) 11 ? 12 SCNJ 25; BALONWU VS. GOVERNOR OF ANAMBRA STATE (2008) 16 NWLR (PT. 1113) 236; EGBE VS ALHAJI (1990) 1 NSCC (VOL. 21) 306; NWABUOKEI VS. AFAM-MORDI (2018) LPELR 44162 (CA).
Any ground not found to have emanated or derived from the decision appealed against is incompetent and liable to be struck out. See OREDOYIN VS. AROWOLO (1989) 4 NWLR (PT. 114) 172; OKOLIE VS. MARINHO (2006) 15 NWLR (PT. 1002) 316. PER OSEJI, J.C.A.
HOW TO DETERMINE WHETHER THE GRANT OF AN ADJOURNMENT IS AN OBLIGATION ON THE JUDGE SOLELY BECAUSE A COUNSEL ASKED FOR IT
Now back to the issue of letter of adjournment and the refusal by the trial Court to honour same. In deciding whether the grant of an adjournment is an obligation on the Judge solely because a counsel asked for it. The Supreme Court in the case of SOLANKE VS. AJIBOLA (1968) LPELR 25527 (SC) held per Lewis JSC as follows at page 13 thereof: We must say clearly and firmly that we do not consider that a Judge is obliged to grant an adjournment solely because counsel on each side asked for one. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case on a day fixed for hearing it means further clearly to other litigants who might otherwise have had their cases heard them. We would, moreover, add that it is sometimes, in our view, little less than scandalous that delays to a case are caused by the great number of adjournments that on records to us have occurred in simple straight forward cases.?
A trial Court in exercise of its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the Court to minimize costs of litigation and to see to it that justice is not unnecessary delayed. The Court will refuse an application by either party/or an adjournment of the hearing, if it is of the opinion that the application was made only for purposed of delaying the proceedings, see OMEGA VS. STATE (1964) 1 All NLR 179; OLUKONDO II VS. ADEFILA & ANOR. (2017) LPELR 42353 (CA); RASAQ A. SALU VS. MADAM TAMURO EGEIBON (1994) 6 SCNJ 223.
Where an application for adjournment is meant to delay the hearing of a matter, it behoves that Judge to refuse such an application. See AGBONKPOLOR VS. ADUBOR (2001) FWLR (PT. 66) 244. PER OSEJI, J.C.A.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Delta State sitting in Warri Division and delivered by P.O. Onajite Kuejubola J, on the 18th day of January, 2016 wherein monetary judgment was entered in part in favour of the claimant.
The two Appellants herein were the defendants in the trial Court while the Respondent was the claimant.
The Respondent herein had commenced the action against the defendants via a writ of summons dated 30/12/2013. By an amended statement of claim dated 2/4/2015 the Respondent claimed against the Appellants as follows:
?Whereof the claimant claims against the Defendants jointly and severally:-
(i) An order commanding the Defendants to repay to the claimant forthwith the sum of N247,272,559.89 being the 2nd Defendant?s outstanding indebtedness to claimant as at 31/5/2013 which repayment was guaranteed by 1st Defendant.
(ii) Pre-judgment interest at the rate of 22% per annum on the above sum from 1/6/2013 until the date of judgment.
(iii) Post judgment interest at 20% from the date of judgment
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until the judgment debt is completely liquidated.
(iv) The cost of this suit.?
Upon the conclusion of exchange of pleadings as well as the pre-trial conference, the Respondent as claimant filed a motion on notice on 4/11/2015 seeking the following relief:
?(1) An order entering judgment partly in favour of the claimant/Applicant in the sum of N169,000,000.00 (One hundred and sixty nine million naira) only against the defendant/respondent.”
The ground for the application was that:
?(1) The Defendants/Respondents admitted their indebtedness towards the claimant/applicant and this has made the present application imperative as same, if granted will enhance quick determination of this suit.?
The said motion was supported by an 11 paragraph affidavit deposed to by one Tomilayo Ogundiji.
?The Appellants did not file any counter affidavit even though there is an affidavit of service of the said motion on them by the Respondent?s counsel on 10//11/2015. The Respondent filed a written address in support of the said motion for judgment on 20/11/2015 which was alleged to have also been served on the
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Appellant?s counsel on the same day.
On 18/1/2016 when the matter was adjourned to (off record) but in the presence of counsel for the parties, the Appellant?s counsel wrote a letter for adjournment and this was refused by the learned trial Judge who then invited the Respondent?s counsel to move his motion and adopt his written address. The learned trial Judge in a considered ruling delivered the same day granted the application and entered judgment in part in favour of the Respondent.
The Appellants upon being served with the enrolled order of the Court felt aggrieved with the development and consequently filed a notice of appeal on 26/1/2016. An amended notice of appeal containing seven grounds of appeal was subsequently filed on 20/3/2017.
Pursuant to the relevant rules of this Court, briefs of argument were thereafter filed and served by the parties who adopted and relied on their respective briefs at the hearing of the appeal on 4/2/2019.
In the Appellant?s joint brief of argument filed on 29/3/2016, the following six issues for determination were formulated therefrom:
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?(1)Whether or not the trial Court did not err in law when it failed to consider the respondent?s fraudulent concealment of the sum of N10,000,000 (Ten Million Naira) paid to it by the appellants concerning the loan sum before it entered judgment in part against the appellants in respect of the purported admitted sum of N169,000,000 (One hundred and Sixty-Nine Million Naira) in the appellant?s joint statement of defence. (Distilled from Ground 1).
(2) Whether the trial Court was right to enter judgment in part against the appellants, despite the appellants? letter of adjournment sent to the Court taking into cognizance the fact that the appellants? counsel did not, after an aborted adjournment date, receive any hearing notice that there was a pending application for judgment against the appellants. (Distilled from Ground 3)
(3) Whether the affidavit of service deposed to by counsel in the office of the respondent?s counsel qualifies as a proof of service/hearing notice as against the one by a bailiff of Court taking into cognizance Order 39 Rules 2, 4, 19 and 21 of the High Court of Delta State (Civil Procedure) Rules, 2009 (Distilled from Ground 6).
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(4) Whether taking into consideration the issue of non-service of a Court process and fair hearing the trial Court is bound by its record of proceedings and record of appeal as they concern the appellants in this case. (Distilled from Ground 7).
(5) Whether the trial Court was right to adopt a summary judgment procedure in this case. (Distilled from Ground 4)
(6) Whether this Court has the power to set aside the judgment of the trial Court and order for a retrial to allow parties to lead evidence in the matter in view of the fact that the appellants pleaded frustration of the contract by the Delta State Government. (Distilled from Ground 2)?
The Respondent?s brief of arguments was filed on 5/12/2016 four issue were distilled for determination as follows:
?4.1.0. Assuming we are overruled in our objection above, it is humbly submitted that the issues which call for determination in this appeal are:
4.1.1. Whether having regard to the Defendants/Appellants admission on their pleadings, was the Learned Trial Judge right in summarily entering judgment in part upon the determination of the
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Claimant/Respondent?s Motion on Notice having satisfied himself that there was proof of service on the motion on notice on the Defendants/Appellants? (Grounds 4 and 5)
4.1.2. Whether the parties various loan agreements/contracts have been legally discharged? And if no, whether the Claimant/Respondent which is not a party to the agreements/contract of project execution made between the Defendant/Appellants and the Delta State Government can be bound by the rights, duties and obligations arising therefrom such as to deny the Claimant/Respondent its entitlements to part Judgment upon the admission of Defendants/Appellants of their indebtedness in part? (Grounds 2 &1)
4.1.3 Whether upon the proper construction of the provisions of Order 39 Rule 5, Claimant/Respondent as applicant is mandatorily required to file and serve its written Address in support of its motion, and if the failure of Defendants/Appellants to reply on points of law breached their right to fair hearing and whether this has occasioned any miscarriage of justice? (Ground 7).
4.1.4. Whether the Learned Trial Judge properly exercise his discretionary powers in refusing
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Defendants/Appellants application for adjournment, and if the refusal denied the Defendants/Appellants their right of fair hearing when judgment was entered in part in the peculiar circumstances of this case? (Ground 3 and 6)?
The Appellants also filed the Appellants? reply brief of argument on 22/12/2016.
However, before the hearing of the appeal, the Respondent drew the attention of the Court to a notice of preliminary objection filed on 13/2/2017. It challenges the competence of grounds 1, 2 and 5 of the notice of appeal as well as issues 4 and 6 which are said to be at variance with Grounds 7 and 2 of the notice of appeal. The grounds for the said objection are:
(1) That grounds 1 and 2 of the notice of appeal do not arise from the decision of the trial Court.
(2) That no issue was formulated from ground 5 of the notice of appeal.
(3) That issues 4 and 5 distilled from grounds 7 and 2 respectively are at variance with the particulars contained in the said grounds.
In arguing the preliminary objection, Respondent?s counsel referred to the arguments in support as embedded in pages 3 and 4 of the Respondent?s
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brief of argument. Therein, it was submitted that no issue was distilled from ground 5 in which case it is deemed abandoned by the Appellants. Reliance was placed on the following cases. OGIDA VS. OLIHA (1986) 1 NWLR (PT. 19) 786; FASORO VS. BEYIOKU (1988) 2 NWLR (PT. 76) 263; AKINBINU VS. OSENI (1992) 1 NWLR (PT. 215) 87.
On issues 4 and 6, purportedly distilled from Grounds 7 and 2 respectively, it was submitted that they are at variance with the complaints and particulars of error, given that in ground 7, Appellant complained about non service of written address and being deprived of their reply on point of law but the argument in support was centered in support of issue 4, which relates on whether or not the motion on notice for judgment was served on the Appellant.
Also, in ground 2 the complaint is about the inability of the Appellants to pay their debts due to the failure of the Delta State Government to pay them the amount owed for projects executed for the state as well as the failure by the trial Judge to note that it constitutes frustration of contract.
But looking at the issue formulated therefrom, it relates to whether or not this
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Court has the power to set aside the judgment of the trial Court and order a retrial. It was therefore contended that grounds 1 and 2 do not arise from the decision of the trial Court and should be struck out. He cited the following cases in support. SARAKI VS. KOTOYE (1992) 9 NWLR (PT. 264) 156 at 184; SHIPCARE NIGERIA LTD (OWNERS OF M/N AFRICAN HYACINTH) VS. THE OWNERS OF THE M/V FORTUNATO & ANOR. supra; IKWEKI VS. EBELE (2005) All FWLR (PT. 257) 1401 at 1420.
It was added that the decision of the trial Court was restricted to the motion on notice dated 4/11/2015 and the Court was not called upon to decide the issues of frustration of contract or concealment of money paid.
It was then urged on this Court to uphold the preliminary objection and strike out the offending grounds and issues.
The Appellants? reply to the preliminary objection spans five unnumbered pages in their Appellants? joint reply brief of argument filed on 22/12/2016. From the onset in the said reply the Appellants conceded that ground 5 of the notice of appeal was deliberately abandoned. In this regard, it is hereby struck out.
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As per the Respondent?s submission that grounds 7 and 2 do not correlate with issues 4 and 6 distilled therefrom and that ground 2 is not derived from the decision of the trial Court, learned counsel for the Appellants submitted that issue 4 flows from ground 7 because it is founded on the premise of non-service of written address on the Appellants at the trial Court. As per issue 6, it was also submitted that it is derived from ground 2 because it deals with the failure by the trial Court to consider frustration of contract as pleaded in the statement of defence.
With regard to ground 2 not derived from the decision of the trial Court, it was submitted that the trial Court is duty bound to look at the entire joint statement of defence to determine whether the purported admission is limited by the fact that the loan payment is contingent upon the Delta State Government paying the Appellants the contract sum owed to them and which failure frustrated the contract. It was further argued that by virtue of Order 19 Rule 6 of the High Court of Delta State (Civil Procedure) Rules 2009, admissions are only made in pleadings and not in affidavits which the trial
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Judge relied on in entering judgment for the Respondent.
Now grounds 7 and 2 of the amended notice of appeal filed on 20/3/2017 reads thus:
Ground 7
?The trial Court erred in law when it disregarded Order 39 Rule 5 of the High Court of Delta State (Civil Procedure) Rules, 2009 on the fact that the Respondent did not serve a written address on the Appellants in view of the motion filed to enter judgment in its favour and moreso whether counsel to the Appellants had the right to oppose the motion for judgment on points of law on the suggested adjournment dates in the Appellants? counsel?s letter despite not giving the Appellants due notice of the hearing of the motion on notice on the 18th day of January, 2016.
Ground 2
?The trial Court erred in law when it did not consider the fact that all the payments for the Delta State Government projects which the Appellants were executing were from the beginning of the loan contract between respondent and the appellants domiciled in the claimant?s bank, and the inability of the Delta State Government to pay the Appellants the monies meant for the projects (roads
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construction contract for which the loan was obtained from the Respondent was the frustrating factor occasioning the non-payment of the loan by the Appellants.?
On issues 4 and 6 distilled from grounds 7 and 2 respectively, they are hereinbelow set out.
ISSUE 4
?Whether taking into consideration the issue of non-service of a Court process and fair hearing, the trial Court is bound by its record of proceedings and record of appeal as they concern the appellants in this case. (Distilled from Ground 7)
ISSUE 6
?Whether this Court has power to set aside the judgment of the trial Court and order for a retrial to allow parties to lead evidence in the matter in view of the fact that the appellants pleaded frustration of the contract by the Delta State Government. (Distilled from ground 2).
Now dealing with ground 2, I have carefully read through the three page judgment of the trial Court but unfortunately I could not in any way link the decision reached therein with ground 2 of the Appellants? amended notice of appeal. In other words, ground 2 is not in any way derived from any ratio decidendi as per the judgment
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of the trial Court. It is not derived or connected with any part of the decision.
The law is trite that grounds of appeal must relate and flow from the decision appealed against. They must challenge the ratio or rationes of the decision. See SARAKI VS. KOTOYE (1992) 11 ? 12 SCNJ 25; BALONWU VS. GOVERNOR OF ANAMBRA STATE (2008) 16 NWLR (PT. 1113) 236; EGBE VS ALHAJI (1990) 1 NSCC (VOL. 21) 306; NWABUOKEI VS. AFAM-MORDI (2018) LPELR 44162 (CA).
Any ground not found to have emanated or derived from the decision appealed against is incompetent and liable to be struck out. See OREDOYIN VS. AROWOLO (1989) 4 NWLR (PT. 114) 172; OKOLIE VS. MARINHO (2006) 15 NWLR (PT. 1002) 316.
In this regard, ground 2 having been found not to have derived from or connected with any ratio decidendi of the trial Court is hereby struck out and issue 6 having no leg to stand because it is no longer linked to any ground of appeal is accordingly struck out as well. See TRIANA LTD VS. UTB PLC (2009) 12 NWLR (PT. 1155) 313; IKPEAZU VS. ALEX OTTI (2015) LPELR 25646 (CA); MOMODU VS. MOMOH (1991) 2 SC 1.
With regard to ground 7 and issue 4 derived therefrom, while
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agreeing with the Respondent?s counsel that it prima facie show inconsistency with the said issue 4, my understanding of it is a question of poor grammatical arrangement or what might be termed improper couching of issue 4 to reflect the ground it is derived from. However I see it as a forgivable anomaly moreso that the Respondent is not deceived by it and there is no miscarriage of justice. The same goes with ground 1 where there is an error with regard to the actual amount in dispute between the parties. The other two particulars are not infected by the virus and can as such sustain the said ground of appeal as well as issue 4 formulated therefrom.
On the whole, grounds 5 and 2 in the amended notice of appeal are hereby struck out together with issue 6 distilled from ground 2.
SUBSTANTIVE APPEAL
On the substantive appeal, I have earlier in this judgment set out the six issues formulated for determination by the Appellant but with the outcome of the preliminary objection issue 6 has been struck out with the argument in support. That leaves the Appellant with issues 1 to 5 to contend with.
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I will adopt the said five issue in the consideration of this appeal.
ISSUE 1
Dwelling on this issue, learned counsel for the Appellant submitted that in commencing the action, the Respondent fraudulently concealed the fact that the Appellant had paid N10,000,000.00 being part of the debt owed to the Respondent and for which it had acknowledged receipt and this shows that issues have been joined in the pleadings by the parties. He added that the N169,000,000.00 debt purportedly admitted by the Appellants in their joint statement of defence was meant to lay foundation for their defence against the concealment of the N10,000,000.00 paid by the Appellants.
He submitted further that the payment of the N169,000,000.00 debt is subject to the Delta State Government paying the Appellants the contract debt owed to them for the projects executed on its behalf and which facts are to the knowledge of the Respondent because all payments are domiciled in the Appellants? account with the Respondent.
He added that such contract sum being owed by the Delta State Government was the frustrating factor in the repayment of the loan to the Respondent and as such removes the purported admission
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outside the scope of Order 19 Rule 6 of the Delta State High Court Rules and raises the need for evidence to be led at the trial of the case as issues have been joined because Order 19 Rule 6 only applies where an admission is absolute and not where the repayment of the loan is subject to payment of the contract sum to the Appellants by the Delta State Government.
On issue 2, learned counsel submitted that the law requires the issuance of hearing notice on parties where the original date of hearing was aborted as held in INTERNATIONAL BANK PLC. VS. ONWUKA (2009) 8 NWLR (PT. 1144) 462. He noted that when the matter came up on 23/11/2015, the Court did not sit as shown at page 112 of the record, but on the morning of 18/1/2016 the Appellants? law firm got information that the matter was to come up that day but being that the Appellants? counsel already had another criminal matter for that day in another Court, a letter for adjournment was written to the Court, but the Court discountenanced the said letter of adjournment and proceeded to hear the Respondent?s motion for judgment.
?It was submitted that non service of hearing notice on
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the Appellants after the aborted hearing date of 23/11/2015 and having regard to the letter of adjournment violates the Appellants? right to fair hearing moreso that the learned trial Judge did not enquire whether the motion for judgment was served on the Appellant by way of ensuring that there is proof of service of same.
It was urged on this Court to hold that the Appellants were denied fair hearing.
On issue 3, learned counsel referred to Order 39 Rule 2(1) (4), 19, and 21 to submit that except for Rule 21 the others do not apply to the instant case because, in order to rely on the said rules, it must be shown by the Respondent that there was proof of service of hearing notice and the motion for judgment and the Court must ascertain same. He added that going by the records of proceedings on 18/1/2016, it was nowhere shown by affidavit of service that the motion was served on the Appellants moreso that they were not in Court.
It was further posited that the uncertainty of service made the trial Judge to state in the record as follows:
?It is imperative to note that the said motion on notice as evidenced in the Court?s
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record/file was served on the 1st and 2nd defendants sometime in November, 2015.?
This it was submitted, shows that there was no service of the said motion on the Appellants and this robs the Court of jurisdiction to entertain the said motion because the affidavit of service sworn by Respondent?s counsel and dated 18/11/2015 cannot qualify as proof of service given that it was not produced before the Court at the proceedings of 18/1/2016 moreso that it was sworn to 8 days after the purported service on the Appellants.
It was then urged on this Court to hold that there was no affidavit of service because the only affidavit of service recognised when service is in issue is the one sworn to by the bailiff of the Court.
ISSUE 4
Herein learned counsel submitted that any issue of non-service of a Court process is very fundamental and robs a Court of jurisdiction to hear the matter. Moreso where in the instant case, it was nowhere recorded that there was proof of service of the said motion for judgment on the Appellants. Therefore the entire proceedings of 18/1/2016 violates the Appellants? right to fair hearing and should be
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held as such. Vide OGBUESHI JOSEPH ACHUZIA VS. WILSON FIDELIS OGBOMAH (supra); OGIDI VS. STATE (2005) 5 NWLR (PT. 918) 186; and ZABOLEY INT?L VS. OMOGBEHIN (2005) 17 NWLR (PT. 953) 200.
ISSUE 5
Dwelling on this issue, learned counsel submitted that the learned trial Judge wrongly adopted a summary of judgment procedure in entering judgment against the Appellants and in doing so erroneously applied Order 11 Rule 5(3) of the High Court of Delta State (Civil Procedure) Rules 2009 as if it is same with Order 19 Rule 6 of the same Rules.
He added that the Appellants pleaded in their joint statement of defence by way of laying foundation that the Respondent was not entitled to the amount claimed. Having concealed the payment of N10,000,000.00 earlier made by the Appellants into its account domiciled with the Respondent.
?Furthermore, that the Appellant having pleaded that failure of the Delta State Government to pay the Appellant for the jobs done for it was the frustrating factor in the payment of the loan, it would have been necessary for the matter to go into full hearing because Order 19 Rule 6 should not apply, given that issues have
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been joined in that regard.
He also referred to paragraph 6 of the joint statement of defence to submit that when read together with the issue of frustration of contract by the act of the Delta State Government it will show that issues were joined in the pleadings that will necessitate the calling of witnesses as provided for in Order 15 Rule 8(2)(a) and 3 and 4 of the Delta State High Court Rules 2009 and particularly Rule 4 which provides that a joinder of issues operates as denial of every allegation of fact in the pleading on which there is an implied or express joinder of issues.
He added that the fact that the Respondent filed an amended statement of claim and coupled with the joint statement of defence shows that there is an implied joinder of issues which operates as the Appellants? denial of every allegation of fact made in the amended statement of claim. Therefore, the parties have joined issues with regard to the facts that led to the judgment entered in the said sum of N169,000,000.00 by the trial Court on 18/1/2016. That is the issue of frustration of contract.
It was therefore urged on this Court to hold that the trial Court
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wrongly adopted the summary judgment procedure when it entered judgment against the Appellants based on the Respondent?s motion for judgment filed on 4/11/2015.
The Respondent?s reply are as per the four issues formulated for determination in her brief of argument and they are hereinbelow summarised seriatim.
Replying on their own issue No. 1 that is ?whether having regard to the Appellants? admission in their pleadings, was the learned trial Judge right in summarily entering judgment in part based on the motion on notice for judgment after being satisfied that there was proof of service on the Appellants.?
Learned counsel herein submitted that the trial Judge rightly appraised and entered judgment in part upon the Respondent?s motion on notice dated 4/11/2015 together with the supporting affidavit which were served on the Appellants on 10/11/2015 and which facts contained in the said affidavit were not challenged by way of counter affidavit by the Appellants and as such are deemed admitted as held in AJOMALE VS. YADUAT (1991) 5 SCNJ 178; and OLATEJU VS. C.L & H KWARA STATE (2011) All FWLR 1400.<br< p=””
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Replying on Order 19 Rule 4 and 6(1) of the Delta State High Court Rules and the case of MOSHESHE GENERAL MERCHANTS LTD VS. NIGERIA STEEL PRODUCTS LTD. (1987) 1 NWLR 110. It was submitted that the Appellants pleaded facts showing that they admitted their indebtedness to the tune of N169,000,000.00 which repayment was frustrated by failure of the Delta State Government to pay them for the projects they executed in Delta State.
He added that by Order 19 Rules 4 and 6 of the Rules, once the trial Court is satisfied that there is an admission by the defendant, it has no choice than to enter judgment on the part of the amount admitted, therefore the question of waiting to lead evidence at plenary as alluded to by the Appellants? counsel does not arise. The following cases were cited in support.MOSHESHE GENERAL MERCHANT LTD. VS. NIGERIA STEEL PRODUCTS LTD supra; ASABA ILE MILLS PLC VS. BONA ILE LTD (2007) All FWLR (PT. 364); IBRAHIM VS. FBN (2013) All FWLR (PT. 694) 135; ALI VS. NDIC (2015) All FWLR (PT. 780) 1209 at 1228.
It was also submitted that the procedure under Order 19 Rules 4 and 6 are significantly different from the
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summary judgment procedure under Order 11 of the said rules and one should not be confused with the other.
Referring to the Appellants? issue 5, and the arguments therein, it was urged on this Court to discountenance same because it is based on facts not borne out of the records. He added that the trial Court heard and determined the Respondent?s motion on notice for judgment which was supported by an affidavit to which the Appellant did not challenge by way of counter affidavit despite being served with the said motion more than two months before the hearing of same even though the rules provides for only 7 days for a Respondent to react to any affidavit.
On the issue of the affidavit of service learned counsel submitted that the learned trial Judge was right to have relied on the affidavit of service filed by Respondent?s counsel in proof of the service of the motion for judgment and which affidavit of service was sworn to on 18/11/2015 and this was done after the learned trial Judge was satisfied that the said motion was duly served as shown at page 115 of the record of appeal and there is nothing to show that the motion
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was heard before the expiration of the period allowed by the Rules for the Respondent to react to such an application.
On the genuineness of the affidavit of service sworn to by the Respondent, learned counsel referred to the additional records compiled at the instance of the Respondent and which shows the acknowledgement page of the said affidavit of service.
On issue 2 which deals with whether the Respondent who is not a party to the contract between the Delta State Government and the Appellants can be bound by the rights, obligations and duties arising therefrom as to be denied its entitlements to the part judgment upon admission by the Appellants of their indebtedness to the tune of N169,000,000.00.
?Herein learned counsel for the Respondent submitted that there is no privity of contract between the Respondent and the Delta State Government with regard to projects executed for it by the Appellants and for which they are being owed. In other words, the Respondent is not a party to those contracts, neither does the loan agreement between the Respondent and the Appellants have any nexus with the Delta State Government. He added that in the
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circumstance, the issue of frustration of contract as alluded to by the Appellants? counsel does not come into play in the whole transaction moreso that non-payment of debt owed by a party does not come within the ambit of the factors that determine frustration of contract.
On the Respondent?s issue 3 which deals with whether by Order 39 Rule 5 the Respondent is mandatorily required to file and serve written address in support of a motion and whether Appellants failure to file a reply on points of law caused a miscarriage of justice.
Herein learned counsel for the Respondent referred to the provisions of Order 39 Rule 5 to submit that it is clear and unambiguous to the effect that it is after a Respondent has filed a counter affidavit that an applicant will be required to file a written address and since the Appellants did not file any counter affidavit, they have lost their right to complain about not filing a reply to the written address.
?It was further contended that the Appellants were served with the written address on 20/11/2015 by the Respondent?s counsel who inadvertently did not swear to an affidavit of service.
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He added however that the Appellants are not by such development deprived of fair hearing neither is there a miscarriage of justice. Vide IMAH VS. OKOGBE (1993) 9 NWLR (PT. 316) 159AT 178 and AKPUNONU VS. BEKAERT OVERSEAS (1995) 5 NWLR (PT. 393) 42.
It was thus urged on this Court to resolve the issue in favour of the Respondent.
On issue 4 which deals with whether the learned trial Judge properly exercised his discretionary powers in refusing the Appellants? letter for adjournment.
It was submitted by the Respondent?s counsel that the learned trial Judge aptly considered the application for adjournment and rightly rejected same upon objection by the Respondent?s counsel.
On the principle of law that adjournment is not granted as a matter of course and dependent on the discretion of the Court, counsel cited the following cases: OKEKE VS. ORUH (1999) 6 NWLR (PT. 606) 175; JOEL OKURINBOYE VS. SKYE BANK PLC (2009) 2 SCNJ 341; MFA VS. INONGHA (2014) All FWLR (PT. 727) 628; UDOJI NWADIOGBU & ORS. VS. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY & ANOR. (2010) 19 NWLR (PT 1226) 364.
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On the Appellants? contention that hearing notice ought to be served on the parties after the proceedings of 23/11/2015 was aborted by the non-sitting of the Court, learned counsel submitted that on the said 23/11/2015, counsel for both parties were present in Court and upon being informed that the Court will not sit, they were both given date for the 18/1/2016 in which case there would be no need to hearing notice since both counsel are aware of the next adjourned date. On this point he relied on the cases of S & D CONSTRUCTION LTD VS. CHIEF AYOKU (2011) All FWLR (PT. 604) 1 at 13; JONASON TRIANGLES LTD VS. CHARLES MOH & PARTNERS LTD (2002) FWLR PT. 129) 1441; ONAH VS. OKOM (2012) All FWLR (PT. 647) 303.
Learned counsel therefore urged this Court to discountenance the case of Achuzia and Onwuka cited supra by the Appellants because the facts of the two cases are clearly distinguishable from the facts of the instant case where counsel for both parties were present in Court when the Court registrar adjourned the case to 18/1/2016.
?It was therefore contended that the learned trial Judge was right to have appropriately considered the letter of adjournment and the
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reasons proferred therein which he rejected as being a delay tactics and which exercise of discretion this Court will not lightly interfere with.
This Court was then urged to resolve the issues against the Appellants and dismiss the appeal.
The Appellants filed a reply to the Respondent?s brief on 22/12/2016 and the submissions therein though substantially constituting a re-argument shall be referred to as the need arises.
I had earlier indicated in this judgment that I shall adopt the five issues raised by the Appellants in the determination of this appeal. I shall also take issues 2, 3 and 4 together as they bear on non service of processes on the Appellants. To wit, motion on notice filed on 4/11/2015; Respondent?s written address, and hearing notice for the proceedings of 18/1/2016. It also includes the effect of the trial Court?s rejection of Appellants? letter of adjournment. This is so, given that lack of service of process on a party constitutes breach of the right to fair hearing and renders any proceedings therefrom a nullity because it touches on the jurisdiction of the Court to entertain the suit in the absence
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of proof of service on the adverse party.
Now the first point to be addressed as per issue 2 relates to the Appellants? complaint that the trial Court ought not to have proceeded to hear the Respondents? motion for judgment and to grant same despite the fact that the Appellants? counsel sent a letter for adjournment to the Court.
In this regard it will be germane to reproduce the proceedings of the trial Court on the relevant dates for a proper appreciation of what transpired and whether the decision of the learned trial Judge was correct. The said proceedings as contained in pages 112 to 113 of the record reads thus:
?SUIT NO: W/570/2013
2/11/2015
Parties absent.
Jim Okodaso with him is V. Ogunyeji for Claimant.
T.O. Idiebeta for Defendant.
Both counsel ask for date.
Adjourned to 23/11/2015 for hearing.
Sgd: JUDGE
2/11/2015
23/11/2015:
Court did not sit due to Judge?s conference.
Adjourned to 18/1/2016.
18/1/2016
Parties all absent.
Jim Okodaso for the Claimant.
?COURT: The letter of adjournment brought to my attention this morning dated
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this morning 18/1/2016 by counsel representing the defendants herein cannot in any way portray seriousness diligence on the part the defendant having been served with the pending motion on notice filed by claimant/applicant served 4/11/2016. For this reason, I disregard the said letter seeking for adjournment and counsel representing claimant is to move his pending motion.
(signed) JUDGE
This is an application dated and filed 4//11/2015. There is an 11-paragraph affidavit, we rely on it. We are praying Court to enter judgment against the total sum claimed.
The defendant admitted owing N169,000,000 (million) as a debt he owed claimant.
Order 19 R4 and 6 HIC Civil Procedure, Rule 2009.
We filed a written address of our arguments dated 20/1/1/2015. We urge Court to enter judgment.
Adjourned to 23/2/2016 for hearing. Part judgment delivered.
(signed) JUDGE.?
Now from the above set out proceedings which actually speaks for itself, counsel for both parties were in Court on 2/11/2015 and the matter was adjourned to 23/11/2015 at their request. On the said 23/11/2015 the Court did not sit as the trial Judge attended the
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judge?s conference. The matter was then further adjourned to 18/1/2016 and according to the Respondent?s counsel the Appellants? counsel was also there with him when the date of 18/1/2016 was given. This was not denied by the Appellants? counsel.
Meanwhile the motion on notice for part judgment which was filed on 4/11/2015 as endorsed at the back of a copy of the said motion which was transmitted to this Court on 22//4/2016 but deemed properly transmitted on 7/2/2017.
An affidavit of service of the said motion on the Appellants? counsel through one Clara Idornigie, a law clerk in the Appellant?s counsel law firm is at page 98 of the main record of appeal, and it was deposed to on 18/11/2015 by one Tomilayo Ogundiji, a legal practitioner at the law firm of the Respondent?s counsel.
It follows therefore that from every indication and as borne out by the record of the Court, there is an affidavit of service of the motion on notice filed on 4/11/2015 on the Appellants? counsel on 10/11/2015.
Appellants? counsel had sought to challenge the efficacy or genuineness of the said affidavit of
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service to the extent of regarding it as an ?after thought?.
The law is trite that an affidavit of service is prima facie proof of service in relation to how and where service was effected. Therefore, absence of affidavit of service implies none service. See BESTWESTERN COMPNAY LTD VS. UDOMISOR (2002) FWLR (PT 97) 744, A.G ANAMBRA STATE VS. OKEKE (2002) FWLR (PT. 112) 175 at 197; JIKANTORO VS. DANTORO (2004) All FWLR (PT. 216) 390; BELLO VS. NBN LTD (1992) 6 NWLR (PT. 246) 206.
Going by the affidavit of service of the said motion on notice as contained in page 98 of the record of this Court and which record is binding on the parties and the Court, there is prima facie evidence that the Appellants? counsel was served with the said motion on 10/11/2015. What is more, and contrary to the assertion by Appellants counsel that only an affidavit of service by a Court bailiff that is acceptable, Order 39 Rule 11(4) of the High Court of Delta State (Civil Procedure) Rules 2009 provides that:
?Notice of motion may without leave of the Court be served by a solicitor on the opposing solicitor and such service shall be good
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service. Where the above procedure is used an affidavit of service sworn to by the person who effected the service exhibiting the endorsement of the service copy shall be sufficient proof of service.?
Rule 18 further provides thus:
(18)Service of motion:
?Notice of motion may without leave of the Court, be served by any person, notwithstanding that such person is not an officer of the Court.?
From the Rules of Court above set out it becomes clear that the Respondent?s counsel did not only comply with Rule 11(4) but did so within the ambit of Rule 18 as shown by the endorsed service copy as well as the affidavit of service sworn to on 18/11/15 showing that service of the motion on notice for judgment was effected on the Appellants? counsel on 10/11/2015.
Now back to the issue of letter of adjournment and the refusal by the trial Court to honour same. In deciding whether the grant of an adjournment is an obligation on the Judge solely because a counsel asked for it. The Supreme Court in the case of SOLANKE VS. AJIBOLA (1968) LPELR 25527 (SC) held per Lewis JSC as follows at page 13 thereof:
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?We must say clearly and firmly that we do not consider that a Judge is obliged to grant an adjournment solely because counsel on each side asked for one. That is a factor certainly to be taken into consideration but a Judge must also bear in mind the necessity for ensuring speedy justice to the contesting litigants and he must also bear in mind that by adjourning a case on a day fixed for hearing it means further clearly to other litigants who might otherwise have had their cases heard them. We would, moreover, add that it is sometimes, in our view, little less than scandalous that delays to a case are caused by the great number of adjournments that on records to us have occurred in simple straight forward cases.?
A trial Court in exercise of its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the Court to minimize costs of litigation and to see to it that justice is not unnecessary delayed. The Court will refuse an application by either party/or an adjournment of the hearing, if it is of the opinion that the application was made only for purposed of delaying the proceedings, see OMEGA VS. STATE (1964) 1 All
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NLR 179; OLUKONDO II VS. ADEFILA & ANOR. (2017) LPELR 42353 (CA); RASAQ A. SALU VS. MADAM TAMURO EGEIBON (1994) 6 SCNJ 223.
Where an application for adjournment is meant to delay the hearing of a matter, it behoves that Judge to refuse such an application. See AGBONKPOLOR VS. ADUBOR (2001) FWLR (PT. 66) 244.
In the instant case, it is beyond doubt that the Appellants? counsel was fully aware of the date of adjournment from 23/11/2015 to 18/1/2016 as is clearly evident in the letter for adjournment dated 18/1/2016. The said letter commenced with the following sentence:
?We are solicitors to the defendants in the above mentioned suit coming up for hearing today.?
Worse still, the ground for seeking adjournment is because the counsel who handles the matter is engaged in an armed robbery matter in another Court and other counsel in the law firm are also engaged elsewhere.
If for anything, I see this as an affront to the authority and power of the trial Court who rightly termed the said letter for adjournment as portraying lack of seriousness and diligence on the part of the Appellants? counsel after noting that
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the motion on notice was duly served on the Appellants? counsel.
What is more, the law firm representing the Appellants consists of many lawyers and worse still, the counsel that signed the letter of adjournment on the ground that one S.M. Dunkwu who was to handle the matter was engaged in an armed robbery matter in another Court of co-ordinate jurisdiction is from the records the counsel that had appeared in the instant case before the last adjourned date.
To my mind therefore and considering the circumstances surrounding the letter for adjournment, the learned trial Judge properly exercised his discretion in refusing the application for adjournment. In the case of ODUSOTE VS. ODUSOTE (1971) NMLR 228 (SC) the Supreme Court strongly held that a Court is not bound to grant an adjournment. The question of an adjournment is a matter in the discretion of the Court concerned and must depend on the facts and circumstances of each case.
The circumstances of this case no doubt justifies the decision of the learned trial Judge to refuse the application for adjournment.
?Further on the issue of the motion on notice filed on 4/11/2015 and served
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on 10/11/2015, learned counsel for the Appellant had referred to the finding of the learned trial Judge in the judgment wherein it was stated thus:
?It is imperative to note that the said motion on notice as evidenced in the Court?s record/file was served on the 1st and 2nd defendants sometime in November, 2015.?
He had argued that ?sometime in November, 2015? is not a definite date and as such there is no service of the said motion on notice on the Appellants which robs the lower Court of the jurisdiction to hear the motion.
In my humble view, the answer to argument lies in the earlier holding of this Court and supported with a number of authorities to the effect that an affidavit of service is prima facie proof of service in relation to how and where service was effected. Vide BEST WESTERN CO. LTD VS. UDOMISOR (supra) and BELLO VS. NBN LTD (1992) 6 NWLR (PT. 246) 206.
In the circumstance, the reference to the said affidavit of service as contained in the Court?s record/file that there was proof of service of the motion on notice on the Appellants? suffices, notwithstanding the use of the phrase
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?sometime in November, 2015?. This does not alter the documentary evidence on record that there was service on the Appellant on 10/11/2015. The suggestion that the learned trial Judge was not sure when service of the motion was effected does not arise.
On the complaint that the Appellants were not served with the written address filed by the Respondent in support of the said motion. As earlier stated, an affidavit of service is prima facie proof that a process of Court was served on a party. The Respondent?s counsel did assert that the said written address was served on the Appellants? counsel but conceded that no affidavit of service was sworn as evidence of such service. It is therefore taken as correct that the Respondent?s written address was not served on the Appellants. Albeit, given the circumstances of the time of service of the motion on notice and when it was moved by the Respondent, the conclusion that can only be reached is that, though desirable, but failure to effect the service did not engender any miscarriage of justice. This is premised on the fact that notwithstanding the service of the said motion on notice
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on 10/11/2015, the Appellants did not file any counter affidavit or react to the motion in any way for a period of more than two months before the 18/1/2016 when the motion was heard by the Court. This is despite the provisions of Order 39 Rule 2(2) which requires a respondent to a motion to file counter affidavit within 7 days of the service on him of such motion if necessary.
To my mind, having not filed any counter affidavit or indicate any opposition to the said motion, it becomes an uncontested motion on notice which grant or refusal depends on the Court?s discretion based on the facts deposed to in the applicant?s affidavit in support and as such makes such written address of little or no value in the circumstance. Consequently, it did not affect or encroach on the Appellants? right to fair hearing. What is more, Order 39 Rule 5 of the Delta State High Court Rules 2009 provides that a motion may be heard at any time while the Court is sitting, but if before such hearing a Respondent files and serves a counter affidavit, the Applicant shall then file a written address within 5 days after the service on him of the counter affidavit
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together with a further affidavit if necessary. Thereafter the Respondent has 7 days to file and serve his own written address.
Going by the above mentioned rule, an applicant can only file a written address upon being served with a counter affidavit showing opposition to the application and he may also wish to file a further affidavit in response to the counter affidavit. Therefore the absence of any counter affidavit by the Appellant herein makes the issue of written address superfluous and of no moment and the complaint about not having the opportunity to reply on points of law cannot hold water and even at that it behoves a party that did not respond to any motion by way of counter affidavit to attend the Court on the day fixed for hearing of the matter and apply to the Court to reply on points of law if the need arises.
On the whole, the three issues are accordingly resolved against the Appellants.
On issue 1, that is whether or not the trial Court did not err in law when it failed to consider the Respondent?s fraudulent concealment of the sum of N10,000,000.00 paid to it by the Appellants concerning the loan sum before it entered
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judgment in part against the Appellants in respect of the purportedly admitted sum of N169,000,000.00 in the Appellants? joint statement of defence.
Now the Appellants? motion for judgment was filed pursuant to Order 19 Rule 4 and 6(1) of the High Court of Delta State (Civil Procedure) Rules 2009 which provides thus:
Order 19 Rule 4.
?The Judge may on application at a pre-trial conference or at any other stage of the proceedings where admissions of facts have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to without waiting for the determination of any other question between the parties.?
Rule 6(1)
?Where admissions of fact are made by a party, either by this pleadings or otherwise, any other party may apply to the Court for such judgments or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment or make such order on the application as it thinks just.?
?In the affidavit in support of the said
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motion on notice for judgment to be entered in part reference was made to paragraph 4, 5 and 6 of the Appellants? joint statement of defence where they admitted being indebted to the Respondent in the sum of N169,000,000.00.
The said paragraphs 4, 5 and 6 of the joint statement of defence reads thus:
?4. The Defendants aver that the claim by the claimants of the sum of N179,000,000.00 (One Hundred and Seventy Nine Million Naira) as debt owed it by the 2nd Defendant is false after all. They aver that what the debt stand at is N169,000,000.00 (One Hundred and Sixty Nine Million Naira), that is after the 2nd Defendant had paid N10,000,000.00 (Ten Million Naira).
5. The Defendant also aver that the content of paragraph 7 of the statement of claims not true. They posit that it is not true that after restructuring as to how to spread the repayment of the loan, the 2nd Defendant did not pay. The Defendants state that the payment of the N10,000,000.00 (Ten Million Naira) is a step taken in repayment of the loan and/or overdraft.
6. In response to paragraphs 8, 9, 10 11 and 12, the Defendants aver that the construction work for which the
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overdraft of N100,000,000.00 (One Hundred Million Naira) was sought and obtained are still on. They state that the construction works are in Otu-Jeremi in Ughelli South Local Government Area of Delta State, Umueje Main Road, Ibusa in Oshimili South Local Government Area of Delta State and rehabilitation Ogor/Edjekota/Ewu Road, Ughelli in Ughelli South Local Government Area of Delta State. The Defendants state that those jobs are Delta State Government projects which payments are domiciled into the Claimant?s bank. It is their averment that the State Government has not paid the 2nd Defendant for those projects. And when the State Government pays certainly it must pass through the Claimant?s bank wherein it will be deduced at source. The Defendants shall contend during trial of this case that the failure of the State Government to pay for the construction works in Otu-Jeremi and Umueje is the frustrating factor in the repayment of the overdraft and loan. The Defendant shall also contend during trial that what the Claimant called concession was the correction of excessive interest to fairly reasonable interest. They shall also contend that the
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Claimant is not entitled to the sum of N179,083,375.11 (One Hundred and Seventy Nine Million, Eighty Three Thousand, Three Hundred and Seventy Five Naira, Eleven Kobo), so far as it is on record that the 2nd Defendant had paid the sum of N10,000,000.00 (Ten Million Naira) to the Claimant.? (underlining mine)
From the above set out paragraphs, particularly paragraph 4, it is glaring that the Appellants wholesomely admitted that the outstanding debt being owed to the Respondent is N169,000,000.00. The inherent disagreement which has nothing to do with the said admission relates to the Respondent?s initial claim for the sum of N179,000,000.00 to which the Appellants averred that they have paid in the sum of N10,000,000.00, therefore leaving the balance of N169,000,000.00. The fact of this admission by the Appellants is further fortified as per the letter written by the 1st Appellant to the Respondent?s counsel reaffirming the payment of N10,000,000.00 and leaving a balance of N169,000.000.00 as debt owed on the loan granted. The said letter which is dated 28/11/2013 and forms part of the record of this Court at page 24 to 25 and which this
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Court is entitled by law to look into states specifically in paragraphs 3 thereof as follows:
?3.That out of this amount stated above, your client?s customer paid a sum of ten million naira only (N10m) to the bank on the 17th July, 2013 vide cheque No. 00000 828 outstanding balance at one hundred and sixty nine million, eighty-three thousand, three hundred and seventy five naira, eleven kobo only, (N169,083,375.11).?
In the light of the above clear-cut admission of indebtedness by the Appellants to the Respondent and given that the whole claim by the Respondent as per paragraph 13 of the amended statement of claim which is deemed to date back to the day the original statement of claim was filed is N247,272,559.89. the Respondent is entitled to invoke Order 19 Rules 6(1) of the High Court of Delta State (Civil Procedure) Rules 2009 to apply to the Court for judgment in terms of the admitted sum of N169,000,000.00 and the Court cannot be said to have erred by granting such application. The law is long settled that what is admitted needs no further proof. See NDUKWE VS. LPDC & ANOR. (2007) 1 ? 2 SC 253;
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EHINLANWO VS. OKE & ORS. (2008) 16 NWLR (PT. 1113) 357; SKYE BANK PLC & ANOR. VS. AKINPELU (2010) 9 NWLR (PT. 1198) 179.
This issue is hereby resolved against the Appellants.
On issue 5 which is, whether the trial Court was right to adopt a summary judgment procedure in this case.
The Appellants? contention as per their brief of argument is that the trial Court wrongly adopted a summary judgment procedure in entering judgment against the Appellants by erroneously applying Order 11 Rule 5(3) as if it is the same with Order 19 Rule 6.
For the Respondent, it was contended that such an assertion by the Appellants are not borne out of facts as contained in the record of appeal and as such should be discountenanced.
From a careful perusal of the record of appeal and with particular attention to the Respondent?s motion on notice and the judgment as entered by the trial Court, I cannot but wonder askance at the basis for such submission by the Appellants? counsel. The High Court of Delta State (Civil Procedure) Rules 2009 clearly made a distinction between summary judgment under Order 11 Rule 5(3) and judgment on admission of facts under Order 19 Rule 6(1).
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Order 11 is premised on a situation where the claimant believes there is no defence to his claim. In this regard, he is required to file with his originating process, the statement of claim, the exhibits, the deposition of witnesses and an application for summary judgment supported by an affidavit stating the grounds for his belief and a written brief in respect thereof. Where a defendant intends to defend the suit after service of the claimant?s process on him, he shall also file his statement of defence and other relevant processes including a written reply brief to the application for summary judgment. Thereafter, upon the application being heard, the Judge is left to decide whether the defendant has a good defence to the whole or part of the claim and enter judgment accordingly.
?Under Order 19 Rule 6, the procedure therein is based on admission of fact as disclosed in the party?s pleadings in which case upon application by the claimant, showing in the supporting affidavit, the part of the claim upon which admission was made and without waiting for the determination of other issues joined between the parties. The
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Court has the discretion exercisable judiciously and judicially to give such judgment or make such order in part as it thinks just.
In the instant case, the Respondent complied with the relevant Rules of Court in making the application and showing by the supporting affidavit that by paragraphs 4, 5 and 6 of their joint statement of defence, the Appellants admitted clearly that they are indebted to the Respondent to the tune of N169,000,000.00 out of the sum of N247,272,559.89 claimed in the amended statement of claim.
The learned trial Judge after due consideration of the said application held at page 116 of the record as follows:
?The law is settled that once a debt is admitted, it should be given effect to irrespective of other considerations that may crop up. Asaba ile Mill Plc. Vs. Bona iles Ltd (2007) All FWLR Part 364, 336. That there is merit in this application need not be overemphasised. Consequently therefore, I hereby enter judgment in part in the sum of N169,000,000.00 in favour of the Claimant/applicant against the defendants/respondents herein. An enrolment of this order be issued and served accordingly.?
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I endorse the above set out holding of the learned trial Judge having found same to be inconsonance with Order 19 Rule 6(1) of the Delta State High Court Rules 2009.
The Appellants have also complained that the learned trial Judge failed to consider the facts as averred in the joint statement of defence showing that the inability of the Appellants to pay the debt owed was because the Delta State Government refused or is yet to pay them the cost of the projects they executed for the state and which situation constitutes frustration of contract.
?I have gone through the record of appeal including the parties pleadings and documents filed. There is nothing to show any nexus between the parties in the instant suit and the Delta State Government. Whatever contracts executed by the Appellants was between them and the Delta State Government. The Respondent is not a party to any of those contracts. The loan agreement which is the subject of this suit was entered into between the Appellants and the Respondent and had nothing to do with the Delta State Government. Put in a nutshell, there is no privity of contract between the Respondent and the Delta State
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Government with respect to the loan agreement and subsequent debt owed by the Appellant to the Respondent.
What is more, it is not stated anywhere either in the pleadings or document that non payment of project debt by the Delta State Government to the Appellant shall frustrate the loan agreement between them and the Respondent.
In the absence of such express agreement, I am of the strong view that failure of one debtor to discharge his liability to his creditor who is a third party does not fall within one of the conditions that will constituted frustration of contract as to deny the third party the right to recover the debt owed.
The issue is hereby resolved against the Appellant.
On the whole, this appeal is found to be lacking in merit and it is hereby dismissed.
The judgment of the High Court of Delta State delivered on the 18th day of January, 2016 is hereby affirmed.
N50,000.00 costs is awarded against the Appellants.
?HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the judgment just delivered by HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI JCA, I am in complete agreement with his Lordship’s
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erudite reasoning and conclusion that the appeal has no iota of merit. In this case, at trial, the Appellants’ Counsel was served with a very contentious motion and with hearing notice of the date of hearing.
The law firm of the Appellants’ Counsel consists of many Lawyers, anyone of whom could have handled the matter. To make matters worse, the Counsel who wrote the letter of adjournment was the Counsel who represented the Appellants at the last date of adjournment. Counsel had the audacity to write a letter to the effect that one other Counsel named S. M. Dunku who was supposed to handle the matter was absent due to other Court engagements. The attitude of Counsel in chambers shows a cavalier attitude to the case of their Client. The chambers having been served with the motion and hearing notice (evidenced by affidavit of service) should have sent a Counsel to represent the Appellants. The affidavit of service by the Court Bailiff is sufficient and good proof of service unless there is a counter affidavit. The Appellants’ Counsel cannot counter an affidavit of service by an ipsi dixit in Court or by arguments in a brief. Suffice it to say the trial
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Court was in my view right to have exercised its discretion against the Appellants by refusing the application for adjournment. On the merit of the application for judgment on the admitted sum of indebtedness of the Appellants to the Respondent, I agree with the reasoning and conclusion of my Learned Brother that the Learned Trial Judge was right to have granted the application. The orders of the Learned Trial Judge are hereby affirmed. I abide by the order as to costs. Appeal Dismissed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
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Appearances:
Chief A.K. Osawota with him, G.E. Bivbere, Teddy Idiabeta and J. Amrorhe
For Appellant(s)
Jim Okodaso with him, A. AdedejiFor Respondent(s)
Appearances
Chief A.K. Osawota with him, G.E. Bivbere, Teddy Idiabeta and J. AmrorheFor Appellant
AND
Jim Okodaso with him, A. AdedejiFor Respondent