IDRIS M. TASIU v. BADAMASI ADAMU
(2014)LCN/7088(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of April, 2014
CA/K/13/2013
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
IDRIS M. TASIU Appellant(s)
AND
BADAMASI ADAMU Respondent(s)
RATIO
THE PURPOSE OF SUMMARY JUDGEMENT PROCEDURE
“In the case of UNIVERSITY OF BENIN v. K.T. ORG. LTD. (2007) 14 NWLR (Pt. 1055) 446 at 464, it was held:
“… The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and ultimately frivolous litigation. In other words, the summary judgment rules are specially made to help the court achieve their preliminary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied.”
At page 476 of the said judgment (above) this court said:
“The purpose of summary judgment under Order 11 is to prevent sham defence from defeating the right of parties by delay thus causing great loss to the plaintiff. A sham defence is an unreal, fake, deceitful defence. No amount of sophistry or technical pyrotechnic can launder a sham defence into a real defence to a Plaintiff’s pleaded facts and verifying evidence”.
See also the case of NNPC RETAIL LTD v. HON. ABDULFATAH MURTALA & ANOR. CA/K/407/2013, an unreported decision of this Court, delivered on 28/2/14, where we held on page 22 that:
“The law allows the trial court unfettered discretion, in a case placed on the undefended list or brought for summary judgment, under Order 11 of the High Court Civil Rules, to determine whether or not, the defendant has disclosed a tangible defence on the merit, or in the parlance of Order 11 Rule 5, “whether the defendant has a good defence and ought to be permitted to defend the action.” PER MBABA, J.C.A.
REQUIREMENTS A DEFENDANT MUST SHOW TO BE ALLOWED TO DEFEND UNDER THE SUMMARY JUDGEMENT PROCEDURE
The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiffs claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay;
iv.In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases Nishizawa v. Jethwani (1984) 12 SC 234, Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283 and Sanusi Brothers (Nigeria) Ltd v. Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt. 679) 566. PER ABIRU, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment of Kaduna State High Court in Suit No. KDH/KAD/426/2012, delivered on 18/12/12 by Hon. Justice Tanimu Zailani, wherein judgment was entered for the plaintiff against the defendant as per his statement of claim, and 10% interest on the amount (N1.9 Million) from the date of the judgment until fully paid.
The Respondent, as Plaintiff, had, as per writ of summons, filed on 25/5/2012, claimed against the Defendant
“a total sum of N1.9 million, being outstanding balance from the money paid to the Defendant by the plaintiff which he has refused to refund, despite repeated demands”
(See pages 3 and 6 of the Records of Appeal)
The Respondent had filed a statement of claim and a motion for summary judgment with affidavits and exhibits, pursuant to the Rules of court. A brief facts of the case at the Lower Court shows that Appellant (who was the defendant at the trial court) had admitted owing a debt of N2 million naira to the Respondent, for which he signed an undertaking (Exhibits B) to pay within one month, by N500,000.00 installment per week. The undertaking (or agreement) was signed on 29/7/11 by the parties in the presence of witnesses (Exhibit B was the English version of Exhibit A written in Hausa) and by Exhibit C and D (Exhibit D being English version), one Umar Mukhtar acknowledged collecting N100,000.00 from the Appellant, for the Respondent as part payment of the N2M naira debt, leaving outstanding balance of N1.9 Million. He said he took the said N100,000.00 to Mallam Abdullahi, on 15/8/2011. Exhibit D was made on 19/5/11. By Exhibit E and F (F being the English version), the Appellant, again, undertook in the presence of his witness, Abdullahi Umar, to pay the remaining N1.9 million to the Respondent, within 6 months by N313,000.00 installment each month. Exhibit F was made on 3/10/2011. At the trial, the Appellant filed a defence and affidavit (statement on oath) to say that he had some business transaction with Respondent relating to sale of consignment which the Respondent later came back to say was a loss to him and so used security men to force him to pay for the losses; that the said security men (in plain clothes) threatened to lock him up if he did not agree to pay for the losses incurred by the Respondent; that he was therefore forced to pay N100,000.00 to Umar, the agent of the Respondent on 19/8/2011, as per Exhibit D; that thereafter, subsequent threats were directed at him which made him to further undertake to pay; and when he remained adamant the Respondent and his agents instigated the Police to arrest and detain him from 25/1/12 to 26/1/12, when a further undertaking to pay was extracted from him. He then filed a suit to enforce his fundamental rights, because of that, in suit No. KDH/KAD/159/202 (sic) which was adjudged in his favour and he was awarded N100,000.00 (Hundred Thousand Naira) in damages, against the Police.
Of course, the trial Court was not impressed by the story of the Appellant and so in its short of Ruling on page 41 of the Records of Appeal said:
“… I have considered the averments and arguments 1 (sic) support of the motion as against the averments in the statement of defence. I have also considered the provisions of Court Order 11 of the Rulers of Court, 2007. And I am of the considered view and finding that there is merit in the motion. The exhibits attached to the motion established the defendant’s liability in this case. They are acknowledgements of the liability, in the Defendant’s hand writing, other defence offered by the defendant are not in any way meritorious. They are simple after thought. In fact the defendant has not disclaimed the exhibits of the motion…”
Appellant’s notice of Appeal was filed on 27/12/12 where-in he disclosed 2 grounds of appeal. See pages 42 to 44 of the Records of Appeal, Appellant filed his brief of argument on 7/3/13 and distilled two issues for determination, as follow:
“1. Whether on the overwhelming evidence before the trial court, the motion on Notice brought under Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007 has merit at all.
2. Whether the exhibits attached (the undertaking) to the motion on Notice for summary judgment extracted from the Appellant under duress without more does establish the Appellant’s liability to the Respondent to entitle him to judgment as held by the trial court.”
The Respondent filed his Brief on 8/4/13 and distilled a sole issue for determination, namely:
“Whether on the evidence before the trial court, the application brought under Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007 has merit, to warrant judgment in favour of the Plaintiff (now Respondent)”
Apparently, arguing the two issues together, Appellant’s Counsel, Abubakar Garga Gunda Esq., submitted that the Appellant had, timeously, complied with the requirements of Order 11 Rule 4 of the High Court (Civil Procedure) Rules 2007, by filing all that was required (to oppose the claim of the Respondent) within the time stipulated by the Rules: that the Appellant filed and served his defence within time but the trial court failed to consider the Appellant’s defences; that it is trite that the aim of the courts is to do substantial justice between the parties and, in doing so, Rules of court must be interpreted in such a manner as to prevent undue technicalities. He relied on the case of PANOCHE COMMUNICATIONS LTD. v. AIKHOMU (1994) 2 NWLR (Pt. 327) 420 at 441 and EKANEM v. AKPAN (1991) 8 NWLR (Pt. 211) 616.
Counsel also argued that the court has to settle dispute between the parties as presented by them and not to take side and make a case for any of the parities. He relied on the case of ADEBAYO v. BROWN (1990) 3 NWLR (Pt. 141) 661.
Counsel urged us to hold that the defendant had a defence on the merit in the case; that the undertakings relied upon were extracted from the Appellant under duress as such, cannot establish liability against the Appellant. He urged us to allow the appeal.
Counsel for the Respondent, Muritala Abdul-Rasheed Esq., reproduced the provisions of Order 11 Rules 1 and 4, and 5 (3) of the High Court (Civil Procedure) Rules, 2007 and submitted that the Respondent complied with the rules for summary judgment and that on the basis of the application of the Respondent and the affidavit and documentary exhibits, which were not controverted, the court entered judgment for the Respondent; that Appellant had admitted the indebtedness, as per Exhibits attached to the motion; that the allegation of being forced to make the undertakings was baseless, as there was nothing to support it; that by law he that asserts must prove, and Appellant has failed to do so. He relied on section 133 of the Evidence Act, 2011, and on the case of ABANG v. UNIVERSITY OF CALABAR (2008) ALL FWLR (Pt. 403) 1365 at 1380; ARCHIBONG v. IYA (2004) ALL FWLR (Pt. 197) 930.
Counsel further relied on the case of PATIGI L.G. v. ELESHIW – NLA (2008) ALL FWLR (Pt. 421) 854 at 875 to show circumstances where leave to defend a suit in a summary judgment application can be granted, namely:
a. that difficult point of law as been raised in the defendant’s affidavit
b. that there is dispute as to facts raised by defendant
c. that there is dispute as to the correct amount owed
d. that there is a probability of a bona fide defence e.g. Counter-claim.
Counsel submitted that the defence filed by the Appellant did not satisfy any of the above conditions. He also relied on the case of FEDERAL MILITARY GOVT. v. ABACHA MALLAM SANI (1990) 4 NWLR (Pt. 147) 688 at 699, where the Supreme Court said
“What is required is simply to look at the facts deposed to in the Counter Affidavit or indeed the facts averred in the statement of defence where applicable and see if they can, prima facie, afford a defence to the action.”
Counsel urged us to hold that the trial court was right and to dismiss the appeal.
RESOLUTION OF THE ISSUE
Though Appellant distilled 2 Issues for the determination of this appeal, Counsel’s brief argument did not identify which of the two issues the arguments related and he did not state that he was arguing the two issues together. However, because the two issues are actually related, as they all question the adoption of summary judgment procedure to give judgment to Respondent, despite the allegation that Appellant’s undertakings to pay the debt were extracted under duress, I shall consider them together, and assume that Appellant was arguing them jointly.
Was the trial court right in holding that the motion for summary judgment was meritorious and that Appellant had acknowledged the debt and liability?
Order 11 Rules 1 and 4 of the Kaduna State High Court (Civil Procedure) 2007 state as follows:
1. “Where a plaintiff believes that there is no defence to the claim, the plaintiff shall file with the originating process the statement of claim, the exhibits, the depositions of the plaintiff’s witnesses, and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the plaintiffs belief and a written address…
4. Where any defendant served with the processes and document referred to in Rule 1 of this Order intends to defend the suit, such defendant shall, not later than the time prescribed by these Rules for filing a defence file:
a. a statement of defence
b. deposition of witnesses
c. the exhibits to be used in the defence,
and
d. a written address in reply to the application or summary judgment.”
Order 11 Rule 5(1) says:
“Where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, the Judge may grant the defendant leave to defend the claim”.
Order 11 5(2):
“Where any defendant fails or neglects to comply… or it appears to the Judge that the defendant has no good defence to the claim, the judge may enter judgment for the plaintiff”
By Order 11 Rule 5(3)
“Where it appears to the Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may there upon enter judgment for the part of the claim to which there is no defence and grant leave to defend the apart to which there is a defence”
The Respondent had complied with the Rules for summary judgment, as per the above provisions and had deposed to a supporting affidavit, with exhibits, including the undertakings or agreements by Appellant, admitting the debt of N1.9 Million and promising to pay the same by installments. He also disclosed that the debt was N2 Million but Appellant paid N100,000.00 remaining the balance of N1.9 million.
The Appellant did not comply fully with the Provisions of Order 11 Rule 4 of the Rules of Court, as he failed to file any address/reply to the application for summary judgment. He did not file any counter-affidavit to deny any of the averments in support of the application for summary judgment.
We recently considered a similar situation in the case of CHANCHANGI AIRLINES v. AFRICAN PETROLEUM: CA/K/14/2012 delivered on 23/1/2014, where we said:
“In this case (at hand) Appellant did not even file any counter-affidavit to contest the averments of the Respondent in support of the application for summary judgment. He merely filed statement of defence, deposition of witnesses, exhibits and written address… that means as far as the motion for summary judgment was concerned, which was founded on the supporting affidavit, Appellant did not contest the application, as he deposed to no affidavit to deny, controvert or debunk the claims of the Respondent.”
See also the case of UNIVERSITY OF BENIN v. K.T. ORG. LTD (2007) 14 NWLR (Pt. 1055) 446 at 464, where it was held:
“… The failure of the defendant to file an affidavit disclosing a good defence would automatically place his case in an intolerably weak position to satisfy the Court that it has a good defence. Hence, filing only a statement of defence may not be a conclusive way of showing cause under the special provision, and procedure …the appellant, having been served with a specially endorsed writ of summons accompanied by a statement of claim, it was expected of it to show it has a good defence to the respondents’ claim by disclosing sufficient facts, thus entitling it to defend the action. Such disclosure must be shown in the counter affidavit. Failure of the appellant to upgrade its statement of defence filing a counter affidavit, disclosing good defence has placed its case in a weak position.”
Appellant, even when he filed no counter affidavit to dispute the summary judgment application, accused the trial court of not considering its defences in the statement of defence, and of making out a case for the Respondent by relying on the motion for summary judgment.
I think Appellant’s Counsel had a poor understanding of the law on summary judgment application and that made him to be very uncharitable to the learned trial judge, who, despite the failure to file counter affidavit to contest the motion for judgment, still considered the defence put forward by the Appellant in his statement of defence and affidavit (statement on oath) of witnesses. That was how the learned trial court came to the conclusion that the defence of the Appellant, that he was forced to make the undertakings (Exhibits A&B and D&F) admitting the debt of N1.9M, was an after thought!
I think the learned trial court had even unduly indulged the Appellant by still looking at his statement of defence and statement on oath and considering the defence put forward by the Appellant, which could not and did not deny his liability, as documented in the exhibits relied upon.
In the case of CHANCHANGI AIRLINES v. AFRICAN PETROLEUM (Supra): we clearly stated the intention of the law under Order 11 of the High Court (Civil Procedure) Rules and the right/power of the trial court to exercise its discretion as follows: (pages 14-17)
“In the case of UNIVERSITY OF BENIN v. K.T. ORG. LTD. (2007) 14 NWLR (Pt. 1055) 446 at 464, it was held:
“… The whole purpose of the summary judgment procedure is to ensure justice to a plaintiff and minimize delay where there is obviously no defence to his claim and thus prevent the grave injustice that might occur through a protracted and ultimately frivolous litigation. In other words, the summary judgment rules are specially made to help the court achieve their preliminary objective, i.e. to do justice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied.”
At page 476 of the said judgment (above) this court said:
“The purpose of summary judgment under Order 11 is to prevent sham defence from defeating the right of parties by delay thus causing great loss to the plaintiff. A sham defence is an unreal, fake, deceitful defence. No amount of sophistry or technical pyrotechnic can launder a sham defence into a real defence to a Plaintiff’s pleaded facts and verifying evidence”.
See also the case of NNPC RETAIL LTD v. HON. ABDULFATAH MURTALA & ANOR. CA/K/407/2013, an unreported decision of this Court, delivered on 28/2/14, where we held on page 22 that:
“The law allows the trial court unfettered discretion, in a case placed on the undefended list or brought for summary judgment, under Order 11 of the High Court Civil Rules, to determine whether or not, the defendant has disclosed a tangible defence on the merit, or in the parlance of Order 11 Rule 5, “whether the defendant has a good defence and ought to be permitted to defend the action.”
Having, therefore, admitted the debt, I see it as an after thought, just as the trial court did, for Appellant to seek to riggle out by claiming he wrote the undertakings, all of them in his language and hand writing and translated into English language, by duress! All the Exhibits were written in the presence of witnesses, one of whom he once gave N100,000.00 (part payment of debt) to pay to the Respondent! The denial sounds ridiculous.
I resolve the issue against, the Appellant, as I see no merit in the appeal. It is accordingly dismissed as I affirm the judgment of the trial court, delivered on 18/12/12 in the suit KHD/KAD/426/2012.
Appellant shall pay the cost of this Appeal, assessed at Thirty Thousand Naira Only (N30,000.00) to Respondent.
ABDU ABOKI, J.C.A.: I have had the advantage of reading the lead judgment delivered by my learned brother Ita George Mbaba, JCA. I agree with his reasons and conclusion reached therein that the appeal has no merit. It is accordingly dismissed by me. I abide by the consequential orders as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the opportunity of reading in draft before now the lead judgment just delivered by my learned brother, Mbaba, JCA. I agree with the reasoning and conclusions reached therein and I only desire to make some comments.
The Respondent, as plaintiff, commenced an action against the Appellant, as defendant, for a liquidated money demand of N1.9 Million and the Respondent filed a motion for summary judgment under the provisions of Order 11 of the High Court of Kaduna (Civil Procedure) Rules along with the originating processes in the matter. The motion was supported by an affidavit to which were attached written documents made on different days wherein the Appellant acknowledged his indebtedness to the Respondent and made proposals for repayment and which proposals were never met. The Appellant reacted to the originating processes of the Appellant by filing a statement of defence with the attendant accompanying processes and the Appellant admitted making the different undertakings, but stated that they were made under duress when he was being tortured by Law Enforcement Agents to preserve his life. The Appellant did not file a counter affidavit to the motion for summary judgment.
The lower Court took arguments on the motion for summary judgment and it granted the motion and entered judgment in favour of the Respondent. The lower Court stated thus:
“This is a motion dated 25/05/12 for summary judgment against the Defendant. I have considered the averments and arguments in support of the motion against the averments in the Statement of Defence. I have also considered the provisions of our Order 11 of the Rules of Court, 2007. And I am of the considered view and finding that there is merit in the motion. The exhibits attached to the motion established the defendant’s liability in this case. They are acknowledgements of the liability in the Defendant’s handwriting. Other defences offered by the defendant are not any way meritorious. They are simple after thought. In fact the defendant has not disclaimed the exhibits of the motion. In that view, I do grant the motion in the terms prayed and do enter judgment for the plaintiff and against the defendant as per his statement of claim…” (see page 41 of the records)
Counsel to the Appellant argued in this appeal that the lower Court did not consider the defences of the Appellant as envisaged by the provisions of the Rules. It is clear from the above reproduced portion of the judgment of the lower Court that this assertion is incorrect. The only response of the Appellant to the three different undertakings made on different days, 29th of July, 2011, 19th of August, 2011, and on 3rd October, 2011 in his handwriting wherein he acknowledged owing the Respondent and made promises to pay, was that the undertaking were obtained under duress when he was being tortured by Law Enforcement Agents. The Appellant did not give particulars of when and where he was tortured and by which Law Enforcement Agency and whether he was tortured on the three different occasions he made the different undertakings and the nature of the torture that was meted to him. Each of the undertakings was signed by witnesses and he did not say if the witnesses too were made to sign under duress.
Order 11 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules states that where a plaintiff reasonably believes that the defendant has no defence to his claim, he shall file with the originating process, the statement of claim, the exhibits, the depositions of witnesses and an application for summary judgment and the said application shall be supported by an affidavit stating the grounds and a written brief in respect thereof. Order 11 Rule 4 provides that a defendant who is served with all the processes referred to in rule 1 shall not later than the time prescribed for defence file: (i) his statement of defence; (ii) deposition of witnesses; (iii) exhibits to be used in his defence; and (iv) a written brief in reply to the plaintiffs application for summary judgment. Order 11 Rule 5 (1) stipulates that where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, he may be granted leave to defence. Order 11 Rule 5(2) states that where it appears to a Judge that the defendant has no good defence, the Judge may thereupon enter judgment for a claim.
What these provisions do is that where a plaintiff applies for judgment under the summary judgment procedure and the case of the plaintiff is suited for the procedure, the burden is put on a defendant to satisfy a trial court that he has a good defence, or to disclose other facts entitling him to defend, otherwise judgment would be entered for the plaintiff.
The Supreme Court has stated and restated what a defendant must show to be let in to defend under the summary judgment procedure and these are that:
i. The defence of the defendant must condescend upon particulars and as far as possible deal specifically with the plaintiffs claim and should also clearly and concisely state what the defence is;
ii. A mere denial by the defendant of being indebted to the plaintiff is not enough, the defence should state why the defendant is not indebted in full or in part, and then state the true position;
iii. It is also not enough for the defendant to show a case of hardship, nor a mere inability to pay;
iv.In all cases the defendant must provide sufficient particulars to show that there is a bona fide defence;
v. Only defences on the merit are allowed; the defendant cannot rely on sham defence;
vi. Where the defendant raises legal objection, the fact and the point of law arising therefrom must be clearly and adequately stated.
See the cases Nishizawa v. Jethwani (1984) 12 SC 234, Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt. 144) 283 and Sanusi Brothers (Nigeria) Ltd v. Cotia Commercio Exportacao E Importacao SA (2000) 11 NWLR (Pt. 679) 566.
It is obvious that the averments of the Appellant in the statement of defence did not meet the requirements laid down in the above cited cases and did not disclose any defence to the claim of the Respondent to inhibit the lower Court from entering judgment on the motion for summary judgment. The lower Court was thus on very firm ground when it entered judgment in favour of the Respondent.
I too find no merit in this appeal and I dismiss same. I hereby affirm the judgment of the High Court of Kaduna State in Suit No. KDH/KAD/426/2012 delivered by Honorable Justice Tanimu Zailani on the 18th of December, 2012. I abide the order on costs in the lead judgment.
Appearances
Abubakar Garga GundaFor Appellant
AND
Murtala Abdul-Rasheed Esq.For Respondent
