GUARANTY TRUST BANK PLC v. GINAL INDUSTRIES LTD & ANOR
(2019)LCN/12642(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/PH/348/2017
RATIO
COURT AND PROCEDURE: SUMMARY JUDGEMENT PROCEDURE
“Against this background, it is important to point out that the whole purpose of a summary Judgment procedure is meant to ensure justice to a plaintiff and minimize delay where there is no defence to a claim, and thus prevent the grave injustice that might occur through a protracted and frivolous litigation. The summary Judgment procedure is also intended to do justice to the parties by hearing their cases with dispatch, and like all Judgments on the merit, can only be set aside on account of substantive or procedural defect that renders the Judgment a nullity, e.g. failure of service, lack of jurisdiction etc. etc.; see UNITED BANK FOR AFRICA PLC VS JARGABA (2007) 11, NWLR (Pt. 1045) 247, UNIVERSITY OF BENIN VS KRAUS THOMPSON ORGANISATION LTD (2007) 14 NWLR (Pt.1055) 44 and Order 11 Rule 1 of the Rules of the High Court of Rivers State (Civil Procedure) Rules, 2010 “PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
GUARANTY TRUST BANK PLC Appellant(s)
AND
1. GINAL INDUSTRIES LTD
2. CHIEF NATHAN OBI
(Doing business under the name and style of Pivot continental Agency) Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the Judgment of the High Court of Rivers State, delivered by Honorable Justice Teetito on the 22nd of October, 2013 in suit No PHC/839/2013.
Dissatisfied, the Appellant filed its Notice and the following Grounds of Appeal on the 29th of March, 2017, with Leave of Court pursuant to an Order of this Court granted on the 24th of March, 2017. See page 385 for the Notice and Grounds.
GROUNDS OF APPEAL
The Learned trial Judge erred in law when he entered final Judgment for the Respondents in respect for their claim of Excess Charges without receiving evidence on that claim and by relying solely on the written deposition of 2nd Claimant.
PARTICULARS OF ERROR
1. It is the law that since the Claimants decided to attach and rely on the Report form Dowse Consult Limited in proof of the alleged excess charges by the Appellant they ought to have called the evidence of Nwaogazi Robinson the person who prepared the report from Dowse Consult Limited or any other expert.
2. The mere fact that Exhibit A was attached to the said Affidavit was not ground for the Learned trial Judge to rely on the said Exhibit and use any material that came his way as if they were facts pleaded and evidence adduced in proof of those facts at the trial.
3. That before the opinion expressed in Exhibit A could become part of the evidence which the trial Court act upon and in the absence of the writer as a witness; such opinion must be put to another expert in the same field who is a witness in the case for his confirmation.
4. That the opinion expressed in Exhibit A can only properly become part of the evidence in the case where it is given through an expert and not the 2nd Claimant.
5. That further to paragraph 1-4 above, the trial Judge was in law not entitled to consider the said report and hold that the Defendant had no defense to the claim.
GROUND TWO:
The Learned trial Judge erred in law when he held that the Judgment pursuant to the Application for summary Judgment brought pursuant to Order 11 of the Rivers State High Court (Civil Procedure) Rules 2010 was a final Judgment and could only be set aside by an Appellant Court.
PARTICULARS OF ERROR
1. The summary Judgment was entered by the Learned trial Judge on the Application of the Claimant without the Defendant filing a Statement of defense.
2. That the non filing of the Statement of defense by the Defendant in compliance with Order 11 Rules 4 of the Rivers State High Court (Civil Procedure) Rules 2010 rendered the Judgment entered by the Lower Court a default Judgment.
3. That the said Judgment is not a Judgment on the merit.
4. That in the circumstances of this case, the Judgment on 22nd October, 2013, can best be regarded as a default Judgment given in default of pleadings notwithstanding that it was made pursuant to the Claimant’s application for summary Judgment.
5. That the said Judgment being a default Judgment could be set aside on application of the applicant by the trial Court.
6. The trial Court was under the misapprehension that the Judgment is a summary Judgment.
GROUND THREE:
The Judgment is against the weight of evidence.
PARTICULARS OF ERROR
1. The Claimants in their Affidavit in support of the Motion for summary Judgment dated the 22nd day of April, 2013, failed to depose of facts stating the grounds for their belief that the Defendant had no defense to its claim.
2. The Claimant merely state in Paragraph 18 of the Affidavit in support of the Motion for summary Judgment that the Defendant has no defense to its claims.
3. The said beliefs of the Claimants are frivolous.
4. That the Claimants having merely stated that the Defendant had no defense to the claim, failed to fulfill a fundamental condition for an application under Order 11 of the High Court (Civil Procedure) Rules 2010 to succeed and the trial Judge ought not to have entered Judgment.
The Respondents raised a Preliminary Objection of sorts at page 9 of the Respondents? brief; the objection was not raised at the beginning of hearing but in the brief, after the sole issue was argued. I find that odd.
The Respondents are indeed at liberty to argue a Preliminary Objection in their brief, because this is now accepted practice, as that procedure obviates the need to file a separate Notice of Preliminary Objection, see OKEREKE V. JAMES (2012) LPELR-9347(SC).
It is now a well established principle of this Court that Preliminary Objection can be brought in one of two ways: by separate
Notice of Preliminary Objection or by raising the Preliminary Objection in the Brief of Argument.
A party is at liberty to adopt either of the two ways, provided the attention of Court is drawn to the said Preliminary Objection and it is argued or moved before the substantive appeal is taken or heard; See OFORKIRE V. MADUIKE (2003) 5 NWLR (PT. 812) 166; (2003) LPELR 2269 and MAGIT V. UNIVERSITY OF AGRIC. MAKURDI (2008) 19 NWLR (PT. 959) 211; (2005) LPELR-1816.
In this case, not only was the objection not brought to the attention of the Court in the beginning, before the appeal was heard, but it was raised as an afterthought, after the appeal had been argued, and submissions on the sole issue concluded, at the end of the brief.
A Preliminary Objection cannot be argued as an addendum to the brief, it ought to be brought to the attention of the Court and argued first and foremost; the procedure in this case is an abuse of process. It is for this reason that it is discountenanced.
A sole issue was formulated from the three grounds of appeal by Tonye Ibisiki Esq., in the Appellant?s brief filed on the 17th of October, 2017, but deemed properly filed on the 25th of September, 2018 as follows:
Whether once a summary Judgment is given pursuant to the provision of Order 11 Rule 1 of the Rivers State High Court (Civil Procedure Rules), 2010, such Judgment can be set aside on the Defendant showing good cause for summary Judgment to be set aside?
Jerry Amadi Esq., of Counsel to the Respondents adopted the sole issue in the Respondents? brief filed on the 16th of April, 2018 but deemed properly filed on the 25th of September, 2018.
It is submitted for the Appellant on the sole issue that because the Defendant was absent when the summary Judgment was considered it is entitled to have it set aside on giving satisfactory explanation for its absence; and that it has a good defense, especially as an Application to set aside a Judgment is by Motion supported by an Affidavit which discloses reasons for the Application; Learned Counsel referred this Court to U.T.C NIG. LTD V CHIEF J.P. PAMOTEI & ORS (1989) 3 SC part 1 page 79.
That the summary Judgment was entered on the Application of the Respondents without the Appellant filing a Statement of defense, because the Motion along with the Statement of defence filed was not heard, much less deemed as heard; thus rendering the Judgment a default Judgment, liable to be struck out and not one on merit.
That also Counsel assigned to file the required processes in defense of the suit fell ill, and was unable to file the required processes in time; the processes were indeed subsequently filed but Appellant’s Counsel was informed that Judgment had been delivered in favour of the Respondents pursuant to a Motion for summary Judgment which the Appellant’s Counsel was not aware of.
Learned Counsel further submitted that the Appellant’s Counsel did not file any Counter Affidavit to the Motion for summary Judgment because he was not served and therefore unaware; as such the Judgment should be set aside in accordance with Order 30 Rule 4(2) of the High Court of Rivers State Civil Procedure Rules, 2010; he referred the Court to HON ALH MUHAMMADU MAIGARI DINGYADI & ANOR V INEC & 2 ORS (2010) 4-7 part 1 page 76.
That there was miscarriage of justice because the material issues and facts relating to the case were not evaluated at all, Learned Counsel referred the Court to WILSON V OSHIN (2000) 6 SCNJ page 371 and PAUL CARDOSO V JOHN BANKOLE DANIEL & ORS (1986) 2 NWLR part 20 page 1.
That also even though Learned Counsel filed a Motion to set aside the summary Judgment he withdrew same on the advice of the trial Court that only the Court of Appeal has jurisdiction to set aside a summary Judgment.
In response, it is submitted for the Respondents that Judgment obtained under the summary procedure is a final Judgment on the merit and cannot be set aside, except on account of substantive or procedural defect that renders it a nullity; Learned Counsel referred this Court to Order 11 Rule 1 of the Rules of Court; Learned Counsel referred the Court to UBA PLC V JM & CO NIG LTD (2016) 5 NWLR part 1504 page 171.
Learned Counsel submits that the Appellant did not deny it is a summary Judgment, its excuse is that it did not file a defense as required by Order 11 Rule 4 of the rules of Court; a fact which does not change the nomenclature of a Judgment. He further contended that the decision in U.T.C NIG LTD V PAMOTEI supra does not apply to this case because the application in that case was at least filed timely; Learned Counsel referred this Court to IRON PRODUCTS LTD V S.A.C LTD (1992) 4 NWLR part 238 page 734 and THOR LTD V F.C.M.B LTD (2005) 14 NWLR part 946 page 696.
RESOLUTION:
From the Record of Appeal Respondents took out the writ in suit No PHC/839/2013 against the Appellant on the 22nd of April. 2013; see pages 1 to 6. The originating processes along with the Motion for summary Judgment was served on the Appellant on the 22nd of May, 2013, at No 47 Trans Amadi Industrial layout, Port Harcourt by a bailiff who deposed to an Affidavit of service, to the satisfaction of the trial court; see pages 380 lines 25-26 and 381 lines 13 -16 of the record of appeal.
The suit was slated for mention on the 27th of June, 2013, but adjourned to the 13th of August, 2013 for the hearing of the Motion for summary Judgment, when it was heard in the absence of the Appellant who was served with all the processes, including the Motion for summary Judgment, but chose not to appear.
The Appellant filed a memorandum of appearance on the 3rd of September, 2013 and did no more, until the 30th of December when it filed a Statement of defense, see pages 279 to 315 of the Record; the Respondents filed a Motion to correct the Appellant’s name, dated 5th September, 2013, which was also served on the Appellant; see pages 31 to 323 of the record of appeal.
The Appellant’s Motion to set aside the Judgment also dated 5th September, 2013 was adjourned to the 21st and later to the 22nd of October, 2013, for Judgment, see pages 324 to 392 of the Record of Appeal.
When the Motion filed on the 30th October 2013 by the Appellant was slated for hearing on the 12th of May, 2014 it was withdrawn and a Motion for stay of execution of the 16th of November, 2015 was dismissed; these facts suggest that the Appellant was aware of the proceedings; so the claim that they were unaware of service of the Motion for summary Judgment is to say the least doubtful; because once a bailiff who affected service avers to the fact of service, the service is good and valid for the purposes of hearing the processes; seeFIRST BANK OF NIG. PLC V T.S.A. IND. LTD (2007) ALL FWLR part 352 page 1719.
Against this background, it is important to point out that the whole purpose of a summary Judgment procedure is meant to ensure justice to a plaintiff and minimize delay where there is no defence to a claim, and thus prevent the grave injustice that might occur through a protracted and frivolous litigation.
The summary Judgment procedure is also intended to do justice to the parties by hearing their cases with dispatch, and like all Judgments on the merit, can only be set aside on account of substantive or procedural defect that renders the Judgment a nullity, e.g. failure of service, lack of jurisdiction etc. etc.; see UNITED BANK FOR AFRICA PLC VS JARGABA (2007) 11, NWLR (Pt. 1045) 247, UNIVERSITY OF BENIN VS KRAUS THOMPSON ORGANISATION LTD (2007) 14 NWLR (Pt.1055) 44 and Order 11 Rule 1 of the Rules of the High Court of Rivers State (Civil Procedure) Rules, 2010 which provides:
‘where a Claimant believes that there is no defense to his claim, he shall file with his originating process the statement of claim, the exhibits, the depositions of his witnesses and an application for summary Judgment which application shall be supported by an affidavit stating the grounds for his belief and written brief in respect thereof.’
Consequently, where it appears to a Judge that the Defendant has no good defense the Judge may enter Judgment for the Claimant, as per Order 11 Rule 5(2).
It is clear from the record that the Respondents properly served the Appellant with the originating processes timely, but the Appellant’s response to the summary Judgment, if any, was inadequate. The Appellant’s memorandum of appearance on page 278 of the Record of Appeal along with the Affidavit in support of the Motion of 30th October, 2013 at pages 325 to 326 are clear testaments to service of the originating process, in spite of which the Appellant failed to file a defense until after the trial Court had entered Judgment. It is for these reasons that the trial Court rightly arrived at the conclusion at page 380 that:
‘there is proof of service of all processes in this suit including the instant motion on the defendant.’
and also at page 381 that:
‘the defendant was served the application and the originating process in this case but did not file its statement of defense, deposition of its witnesses, exhibits to be used in defense and written brief in reply to the application as contemplated under Rule 4 of Order 11′. I agree with applicants that defendant has no good defense to the suit. This may be the reason the defendant failed to respond to the suit’
The submission therefore, on behalf of the Appellant that the Judgment is a default Judgment, liable to be struck out, merely because it was entered without its defense, falls flat on its face in the circumstances, especially in view of the fact that it is in accordance with Order 11 Rules 1 and 5(2) of the High Court of Rivers State Civil Procedure Rules 2010; the fact that the Appellant chose not to file a defense in itself does not make it a default Judgment, not least because the decision whether or not to file a defense is a matter of choice, and as rightly pointed out, it does not change the nomenclature of the Judgment as contended.
While Order 11 provides for summary Judgment and the undefended list procedure, Order 10 on the other hand deals with default Judgment, and for avoidance of doubt it reads as follows:
‘Where Judgment is entered pursuant to any of the preceding rules of this order, a Judge may set aside or vary such Judgment on such terms upon an application by the Defendant. The Application shall be made within 7 days, showing a good defense to the claim and a just cause for the default.’
In N.B.N. LTD V. SAVOL W.A.LTD. (1994) 3 NWLR (Pt. 333) 435 this Court on the purpose of summary Judgment procedure where the Defendant apparently has no defence said at page 452 amongst others that:
” … The Defendant ought not to be allowed to stop him (the plaintiff) in those circumstances from obtaining Judgment the way he seeks unless he shows by affidavit evidence that he has a real defence, not a sham defence to the action
It is important not to lose sight of the fact that the materials upon which a summary Judgment is based are the Writ of Summons, the Statement of Claim, and also the Plaintiff’s Application for Judgment by way of a Motion supported by an Affidavit, a Statement of defence could also at times be accommodated as an Additional material, as well as a Counter affidavit by the Defendant; the procedure thus precludes frivolous defenses for purpose of mere delay; see the cases ofSODIPO V. LEMNINKAINEN (1986) 1 NWLR 220, and MACGREGOR ASSOCIATES V. N.M.B. (1996) 2 SCNJ 72 AT 81.
The failure or refusal to file a defense as earlier pointed out does not by itself make a Judgment one of default, if it were so, a Judgment under the undefended list or a Judgment obtained after trial in which the Defendant did not file a defense can be said to be a default Judgment.
It is important to appreciate that a default Judgment is not the same in this sense with a summary Judgment; in its simplest sense a default Judgment is a Judgment rendered in consequence of the non-appearance of the Defendant; it is entered on the failure of a party to appear or plead at the required time.
A Judgment can be set aside by virtue of Order 10 Rule 11 of the rules of the trial Court, which states that:
any Judgment obtained where one party does not appear at the trial may be set aside by the Court upon such terms as may seem just, upon an application made within seven days after the trial
or by Order 20 Rule 12, which also provides that:
‘any Judgment by default, whether under this order or under any order’ shall be final and remain valid and may only be set aside upon application to the Judge on grounds of fraud, non service or lack of jurisdiction
None of these provisions avails the Appellant in the circumstances, because in the first instance the Application ought to have been filed within 7 days but was not; because the Motion to set aside the Judgment which ought to have been filed on the 29th of October, 2013 to meet the 7 day requirement in view of the fact that the Judgment was delivered on the 22nd of October, 2013 was filed on the 30th of October, 2013, and even at that, it was withdrawn, by the Appellant’s own admission; see pages 324 to 350 of the Record of Appeal.
The Appellant’s excuse for failure to respond to the Motion for Judgment in time is not only unsatisfactory by any stretch of imagination but unserious; and it was compounded by withdrawal of the Motion to set aside the Judgment, the blame for which the Appellant tried to shift to the trial Court.
This Court cannot help but agree with Learned Counsel for the Respondents, in view of these, that this case is clearly distinguishable from the case of U.T.C. NIG. LTD V PAMOTEI supra relied upon.
As regards Order 20 Rule 12 of the Rules of Court, the requirement is for the Appellant to establish fraud, non service or lack of jurisdiction, none of which the Appellant established in this case.
It is important to note that by Order 20 Rule 12 the Judgment appealed is final. It is on the merits. Not least because it is based on lack of defence to the claim, and same cannot generally be set aside by the Court that granted it except as provided, by the applicable Rules or Statues. Consequently, it is deemed a final Judgment and the only option available to an aggrieved litigant is to proceed on appeal if he wishes to have it set aside; see ADEBOYE V BAJE (2016) LPELR-40578-CA.
It is for these reasons that I now resolve the sole issue for determination in favour of the Respondents, against the Appellant.
Having resolved the sole issue for determination in favour of the Respondents, against the Appellant, the Appeal fails for lack of merit. It is accordingly dismissed.
The Judgment of the trial High Court of Rivers State in suit No PHC/839/2013 presided by Honorable Justice E. Teetito is hereby affirmed.
Cost of N50, 000 is awarded in favour of the Respondents, against the Appellant.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Mustapha, JCA. I fully agree with his reasoning and conclusions. For want of better words, I adopt them as mine to also dismiss this appeal for being devoid of any merit. I also abide by all the consequential orders in the lead judgment including the order for costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading a draft of the judgment just delivered by my learned brother MOHAMMED MUSTAPHA JCA. I agree with my learned brother in the lead judgment that this appeal lacks merit for the reasons adduced in the said lead judgment and I join my brother in dismissing the appeal. I also affirm the decision by the lower Court in its judgment delivered on 22nd October, 2013 and abide by the order as to cost.
Appearances:
O. S. Aigbedion with him, S. J. WaribokoFor Appellant(s)
I. E. FelixFor Respondent(s)
