EKITI STATE MOJERE PRIMARY SCHOOL TEACHERS CO-OPERATIVE MULTIPURPOSE SOCIETY LIMITED v. GUARANTY TRUST BANK PLC
(2019)LCN/13871(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/EK/50/2017
RATIO
SUMMARY JUDGMENT PROCEEDINGS: NATURE
To argue this issue, it is submitted that Summary Judgment Procedure is a special procedure meant to provide a fast process to recover a debt or liquidated money demand which debt is virtually uncontested. See General Tyres W.A. Ltd. v. Spring Bank Plc. (2010) LPELR ? 9067 (CA). PER PAUL OBI ELECHI, J.C.A.
WHETHER THE REFUSAL OF THE TRIAL COURT TO GRANT LEAVE TO THE APPLICANT TO DEFEND THE SUIT AND CROS EXAMINE ON ALL THE DOCUMENTS IS A BREACH OF THE RIGHT TO FAIR HEARING
The refusal of the trial Court to grant leave to the Applicant to defend the suit and by extension to cross-examine on all the documents front loaded by the Respondent is not a breach of their right of fair hearing: See Chief Sunday Obi v. Anthony Ikechukwu Akubueze & Ors. (2017) LPELR 42750 (CA). PER PAUL OBI ELECHI, J.C.A.
SUMMARY JUDGMENT PROCEDURE: THE REQUIREMENTS FOR THE COURT TO GRANT A SUMMARY JUDGMENT PROCEDURE
In the case of Celistus Obitude v. Onyesom Community Bank Ltd. (2014) ALL FWLR (Pt.739) 1097 @ 1127 ? 1128, the Supreme Court per Kekere Ekun JSC enumerated the conditions to be satisfied for leave to be granted to the defendant to defend the claims of the plaintiff under the summary judgment procedure, wherein it was held that:
A Defendant?s affidavit in summary judgment procedure wherein he is seeking to be let into defend the action must show;
(a) It should condescend upon particulars and as far as possible, deal specifically with the plaintiffs claim and affidavit and state clearly and concisely what the defence is and what facts are relief as supporting it
(b) state whether the defence goes to the whole or part of the claim and in the later case specify the part
(c) where the defence is that the defendant is not indebted to the plaintiff, state the grounds on which the defendant relies on showing that he is not indebted. A general denial that the defendant is not indebted will not suffice
(d) where the affidavit states that the defendant is not indebted to the plaintiff in the amount claimed or part thereof, state why the defendant is not so indebted and to state the real nature of the defence relied on
(e) where the defence relied upon is fraud, state the particulars of the fraud. A mere general allegation of fraud is useless
(f) if a legal objection is raised, state clearly the facts and point of law arising therefrom
(g) in all cases, give sufficient facts and particularly to show that there is a bonafide defence.
(h) Also, matters of hear-say are admissible, provided that the source or grounds of information and beliefs are disclosed.
Edozie JSC in the case of Ataguba & Co. V. Gura Nig. Ltd. (2005) ALL FWLR (PT. 256) 1219 @ 1230 held that a defendant, to be granted leave to defend a claim under the summary judgment procedure, must show good defence to the action. PER PAUL OBI ELECHI, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
1. EKITI STATE MOJERE PRIMARY SCHOOL TEACHERS CO-OPERATIVE MULTIPURPOSE SOCIETY LIMITED
2. ATTORNEY-GENERAL AND COMMISSIONER
FOR JUSTICE, EKITI STATE.
3. EKITI UNIVERSAL BASIC EDUCATION BOARD, EKITI STATE Appellant(s)
AND
GUARANTY TRUST BANK PLC Respondent(s)
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This appeal is against the summary judgment of Ekiti State High Court of Justice sitting in Ado-Ekiti delivered by Hon. Justice E. B. Omotoso on the 6th day of April, 2017, the said judgment is on pages 272 to 291 of the Records of Appeal. Dissatisfied with the said summary judgment, the Appellants herein appealed to this Honourable Court on five grounds contained in their Notice of Appeal dated 19th of April, 2017.
FACTS OF THE CASE
By a Writ of Summons taken out on 17th June, 2016 under the Summary Judgment Procedure Rules of the High Court of Justice, Ekiti State, the Respondent claim against the Appellants jointly and severally as follows:
(i) The sum of N187,120,917.40 (One hundred and eighty-seven million, one hundred and twenty thousand, nine hundred and seventeen naira, forty kobo) being the total sum due from and payable by the members of the 1st Defendant to the Claimant at the close of business on 29th January, 2016 being balance of the term loan facility granted to the members of the 1st Defendant on/about August, 2011 and guaranteed by the Ekiti State Universal Basis Education Board, Ado-Ekiti (the 3rd Defendant herein) but which sum the Defendants have failed and or refused to pay despite repeated demands.
(ii) Interest on the said sum of N187,120,917.40 (One hundred and eighty-seven million, one hundred and twenty thousand, nine hundred and seventeen naira, forty kobo) at the rate of 21% per annum from 30th January, 2016 up to the date of judgment until the whole debt is finally liquidated.
The application for summary judgment was moved on 19th January, 2017 and judgment delivered on 6th April, 2017. On 6th April, 2017, the lower Court entered judgment in favour of the Respondent for the sum of N187,120,917.40 being the indebtedness of the Appellants as at 29th January 2016 as well as 21% pre judgment interest from the date of judgment until final liquidation of the debt.
The Appellants, in response to the judgment of the lower Court, filed their Notice of Appeal in the registry of the lower Court on 19th April, 2017.
ISSUES FOR DETERMINATION
The Appellants formulated the following issues for the determination of this Appeal.
1. Whether on the face of paragraphs 6, 11, 12 and 19 of the Appellants Statement of Defence before the Lower Court, the Appellants have not shown good Defence to warrant the Lower Court allowing the Appellants to call evidence in support of their Defence ? (grounds 1 & 2).
2. Whether or not there are no triable issues in the Appellants? Statement of Defence particularly paragraphs 5, 6, 7, 8, 10, 11, 12 and 19 of the Appellants? Statement of Defence to warrant this case to go for full trial (ground 1 & 2).
3. Whether the failure of the Lower Court to Allow full trial of this case to enable the Appellants cross-examine on the exhibits attached to motion for summary judgment did not amount to denial of fair trial and fair hearing and thereby occasioned a miscarriage of justice ? (ground 3)
ARGUMENT OF ISSUES
1. Whether on the face of paragraphs 6, 11, 12 and 19 of the Appellants? Statement of Defence before the Lower Court, the Appellants have not shown good Defence to warrant the Lower Court allowing the Appellants to call evidence in support of their Defence ? (grounds 1 & 2).
2. Whether or not there are no triable issues in the Appellants? Statement of Defence particularly paragraphs 5, 6, 7, 8, 10, 11, 12 and 19 of the Appellants? Statement of Defence to warrant this case to go for full trial (ground 1 & 2).
It is submitted that paragraphs 3, 5, 6, 7, 8, 10, 11, 12 and 19 of the Appellants? Statement of defence show clearly that the Appellants have shown a good defence to the Respondent?s action and the fact that issues raised and averments in those paragraphs constitute triable issues.
The appellants? statement of defence itemised above, clearly show that there are triable issues to be determined between the appellants and the respondent on those issues raised. Once there are triable issues in the Statement of Defence as in this case, the case ought to go for full trial. See DELTA HOLDINGS (NIG) LTD. V. OBORO (2014) 12 NWLR (PT. 1439) 590 AT 610, KEYSTONE BANK LTD. V. J.O.A.&S, NIG. LTD. (2015) NWLR (PT.1439) 98 where it was held that where a plaintiff files further and better affidavit, it shows there are serious issues to go to trial. The issues raised in appellants? statement of Defence are controversial, germane and triable to warrant the lower Court to have ordered full trial.
Issues have been joined between the parties as person, the respondent?s Statement of Claim or depositions in the affidavit in support of motion for summary judgment viz-a-viz the Statement of Defence of the Appellants.
The Appellants? contention in paragraphs 6 and 11 of their Statement of Defence is that the entire loan facility granted the 1st Appellant had been fully repaid together with the accrued interest, and that the 1st Appellant has overpaid the loan facility with the sum of N173,529,672.01, while the Respondent is still claiming that the 1st Appellant is still indebted to her in the sum of N187,120,917.40.
These are serious conflicting facts which could only be resolved through full trial as issues had been joined as regards whether the 1st Appellant is still indebted to the Respondent or not. This Court in ABUJA TRANS-NATIONAL MARKET V. ABDU (2007) ALL FWLR (pt. 376) @ 657 particularly pg. 682 ? 683 Paras. G-B, laid down criteria when leave to defend would be granted in suit brought under the undefended list which is impari-material with suit brought under Order 11 Ekiti State High Court Rules as in this case.
The Appellants? statement of defence before the lower Court satisfies the criteria stated above. Several allegations were raised in the Statement of Defence of the Appellants apart from the allegation that the entire facility had been fully repaid which was not contradicted since the lower Court did not allow the matter to go to full trial.
The Appellants by paragraph 2 of their Statement of Defence also contended that after the facility had been fully repaid, interest inclusive, the Respondent continued to charge default/penal charges on the loan granted, all to the detriment of the 1st Appellant. Also, by paragraph 10 of the Appellants? Statement of Defence, it is also contended that the Respondent unilaterally increased the interest rate without the consent of the 1st Appellant thereby increasing the tenure of the facility and the amount repayable. From the Offer Letter which is Exhibit 44 attached to the Motion for Summary Judgment, the interest rate agreed upon is 18% per annum. There was no time the Respondent subsequently informed the 1st Appellant of any increment on the interest rate during the duration of the loan facility. The Respondent kept on increasing the interest rate without the consent of the 1st Appellant throughout the duration of this particular loan facility of N600,000,000.00. The Respondent eventually charged 23% interest throughout the duration of the facility all to the detriment of the 1st Appellant. This issue should have been put to full trial and the Respondent subjected to cross-examination even if there is such evidence of consent to increase interest rate at one time or the other.
The Appellants also contended in paragraph 3 of their Statement of Defence before the lower Court that so many unauthorized charges were made by the Claimant in the main Account of the 1st Appellant thereby unnecessarily putting pressure on the said loan account of the 1st Appellant thereby increasing the expected repayment. The allegation of unauthorized charges on the account of the 1st appellant as raised in the appellants statement of defence borders on fraud on the part of the Respondent. From all these allegations and contentions, it is submitted that the lower Court should have allowed a full trial of this matter. See ABUJA TRANS-NATIONAL MARKET V. ABDU (2007) ALL FWLR (Pt. 376) 657 @ 682, ENEJI V. INTERNATIONAL TRANSACTIONS LTD (2000) 11 NWLR (Pt.678) 225, CO-OPERATIVE & COMMERCIAL BANK (NIG) PLC. V. SAMED INVEST. CO LTD.(2000) 4 NWLR (pt.651) 19 @ 35.
In paragraph 3 of the Appellants statement of defence before the lower Court, the appellants had contended that many unauthorized charges were made by the Respondent on the main account of the 1st Appellant thereby unnecessarily putting pressure on the said account. To orchestrate this illegal charges which are fraudulent, the respondent deliberately decided and continued to ensure that repayment made in respect of the facility are paid into the Appellants? disbursement account (main current account) instead of the Appellants? repayment loan account, which in the language of the Respondent called sub-current account, thereby putting pressure of the loan repayment
