INTERCHEMICALS LIMITED & ANOR V. INTERCONTINENTAL BANK PLC
(2011)LCN/4713(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/B/139/2009
RATIO
UNDEFENDED LIST PROCEDURE: WHETHER A DEFENDANT WILLING TO DEFEND A SUIT UNDER THE UNDEFENDED LIST PROCEDURE HAS A DUTY TO SHOW IN HIS AFFIDAVIT A GOOD DEFENCE
There is no doubt that one of the duties placed on a defendant willing to defend a suit is for him to show in his affidavit a good defence. On hearing the argument on the application the Judge where it appears to him that the defendant has no defence may enter judgment for the plaintiff as he has done in this case. The question then in this appeal is whether he had done the right thing having regard to the facts. It is part of the duty of the defendant to show sufficient fact and particulars to show that there is bona fide defence. See: MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR PT. 144 PAGE 283. UTC V. PA MOTEL (1989) 3SC N379. Judgment will also be ordered where assuming all facts relied upon by the defendant are in his favour, they do not amount to a defence in law. See: MACAULAY Supra. PER GEORGE OLADEINDE SHOREMI, J.C.A.
UNDEFENDED LIST PROCEDURE: PURPOSE OF THE UNDEFENDED LIST PROCEDURE
It should not be forgotten that the purpose of this procedure is stated in the case of OKUNBAH LTD V. SULE (1990) 11 SCNJ 1 that “the purpose of the procedure for summary judgment is to enable the plaintiff obtain summary judgment without trial where his case is potently clear and unassailable. It is not designed to shut out the defendant who can show that there is triable issue. PER GEORGE OLADEINDE SHOREMI, J.C.A.
ADMITTED FACTS: WHETHER ADMITTED FACTS NEED FURTHER PROOF
It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof. SEE: SAFA FOODS FACTORY LIMITED V. ALRAINE LTD V. THE EAST ASIATIC CO. LIMITED (2002)10 NSQR 553. PER GEORGE OLADEINDE SHOREMI, J.C.A.
UNDEFENDED LIST PROCEDURE: REQUIREMENTS OF WHAT A DEFENDANT WHO WISHES TO DEFEND A SUMMARY JUDGMENT SHOULD DO
On the requirement of what a defendant who wishes to defend a summary Judgment should do. The Supreme Court in SANUSI BROS (NIG.) LTD V. COTIA C.E.I.S.A (2010)11 NWLR (PART 679) 56 AT 530 held thus: “A defendant must show a bonafide or good defence on the merits under summary judgment procedure and not engage in manipulation and delaying tactics. To show that he has a good defence to the claim on the merits the defendant must disclose facts to satisfy the court usually by affidavit. To achieve this he is required to condescend upon particulars per LORD BLACKBERN IN WALLINGFORD V. MUTUAL SOCIETY (1880) A.C 685 AT 704 and the defence must not be seen as frivolous and particularly moonshine”. To condescend upon particulars implies a true and real disclosure of facts upon which the court can readily discern a good defence. See: also THOR LIMITED V. FIRST CITY MERCHANT BANK 22 NSCQR VOLUMER 22 PART 1 362 AT PAGE 378 – 379. PER GEORGE OLADEINDE SHOREMI, J.C.A.
UNDEFENDED LIST PROCEDURE: WHAT CONSTITUTES A GOOD DEFENCE IN AN ACTION PLACED ON THE UNDEFENDED LIST FOR CLAIMS FOR LOAN REPAYMENT BY THE PLAINTIFF
In this circumstance what can be said to be a good defence.The answer is found in the Supreme Court case of OKOLI V. MORE CAB FINANCE NIG. LIMITED (2007) ALL FWLR PART 369. P. 1164 AT PAGE 1185 PARA G -E. Where it was held that in an action placed on the undefended list where the Plaintiff claims repayment of loan the only defence open to the defendant are two: (1) That the defendant had refunded the entire loan by the production of receipts bank tellers or any other documents showing that the debt was totally repaid or (2) that he never borrowed the money in the first place he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery. PER GEORGE OLADEINDE SHOREMI, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU IHEME Justice of The Court of Appeal of Nigeria
Between
1. INTERCHEMICALS LIMITED
2. MR CHRIS ODIETE Appellant(s)
AND
INTERCONTINENTAL BANK PLC Respondent(s)
GEORGE OLADEINDE SHOREMI, J.C.A. (Delivering the leading Judgment): This is an appeal against the Judgment of the High Court of Justice Delta State sitting at Effurun and delivered on 25th day of June 2008.
The plaintiff now Respondent sued the Defendant under the undefended list procedure.
Claiming the following reliefs:
1. The sum of N13.559.497.60K (Thirteen Million, Five Hundred and Fifty Nine Thousand, Four Hundred and Ninety-seven Naira, Six kobo) being the outstanding debit balance in the 1st Defendant’s account with the Plaintiff as at May, 2007 which sum is due to the Plaintiff from a credit facility granted to the 1st Defendant at the 1st Dependant’s request and guaranteed by the 2nd Defendant, which sum the Defendants have filed, neglected, omitted and/or refused to pay in spite of repeated demand.
2. 22.5% per annum on the sum of N13,559,497.06 (Thirteen Million, Five Hundred and Fifty Nine Thousand, Four Hundred and Ninety Seven Naira, Six kobo) from June 1, 2007 until Judgment and thereafter 10% per annum on the Judgment sum until same is fully liquidated.
The appellants as defendant filed a motion on notice dated 29/4/2008 praying the court for extension of time to file their notice of intention to defend and an affidavit disclosing a possible defence and deeming the notice of intention to defend with affidavit as properly filed and served. The application was granted on 29/4/2008. The suit was heard under the undefended list on 12/6/2008 and ruling delivered on 25/6/08 entering Judgment as claimed by the Respondent.
The trial Judge in his considered ruling held as follows:
“I have gone through the affidavits and Exhibits as well as listened to the submissions as highlighted above. The Plaintiffs Exhibits INC1, INC2, INC3 all show that there was a loan or Credit Finance Facility which the Defendants enjoyed. Exhibit INC5 above showed that the Defendant were duly reminded of their obligation towards the transaction which began on 1st February 2005 as per Exhibit INC which is the offer letter and same duly acknowledged by the Defendants on same date. Exhibit INC8 is a statement of Account of 1st Defendant in Plaintiffs Bank showing the indebtedness, which in essence means that 1st Defendants drew and utilized the money. The tenor of this transaction as per Exhibit INC1 is 120 days (4 months) beginning from February 1st 2005. There is nothing in the Defendants’ affidavit to show that this amount has been liquidated. Exhibit ADO1 predates Exhibit INC1, there is no receipt for payment of this facility attached, neither is there any acknowledgement whatsoever. The condition in Exhibit INC1 is clear and unambiguous, and it stands or falls on its own. It did not envisage an extension or any other application from the Defendants. The Defendants in their Notice of Intention to defend have not given any plausible defence for neglecting or refusing to pay a debt which would have expired four months after 1st February, 2005 i.e. August 2005, and same remains unpaid up till today.
Defence in matters like this must not be raked up or be a sham defence; it must be a serious one that would warrant some consideration.
On the issue of interest thereon on the amount borrowed Exhibit INC1 states under pricing “Interest rate – 22% per annum which was duly agreed to by the parties.
From the above I hold that Plaintiffs case succeeds and I hereby grant Relief’s 1 and 2 on the Writ of Summons and I award N10,000.00 costs against the Defendants also jointly severally in favour of the Plaintiff.
Dissatisfied by this Ruling the appellant appealed to this court and in his notice of appeal filed four grounds of appeal quoted hereunder without particulars.
GROUNDS OF APPEAL
GROUND 1
The learned trial Judge misdirected himself when he concluded that the Defendants affidavit did not disclose a defence on the merit and proceeded to enter Judgment against them under the undefended list procedure.
GROUND 2
The learned Trial Judge misdirected himself when he placed heavy reliance on Exhibit “INC8” attached to the Plaintiffs affidavit in support of application to hold that the Defendants/Appellants were indebted to the Plaintiff in respect of the credit finance facility of N13, 061,134.08 granted to the Defendants and entered Judgment against them.
GROUND 3
The Learned Trial Judge erred in Law when he held in effect that the sum of N13,061,134.08 “loaned” and “utilized” by the defendant, remained unpaid and entered Judgment against them under the undefended list thereby breaching their right to fair hearing as guaranteed by S.36(1) of the 1999 constitution of the Federal Republic of Nigeria.
GROUND 4
The Judgment of the Learned Trial Judge is against the weight of evidence.
In line with the practice of this court briefs of argument were exchanged by parties. When the appeal came up for hearing on 11/5/2011 Mr. Odiete of the learned counsel to the appellant identified his appellant’s brief dated 20/4/2009 filed same day. He adopted the briefs and relied on them as his argument in favour of the appeal and urged this court to allow the appeal.
Mr. Etuwewe learned counsel to the Respondent identified his brief as the Respondent’s brief dated 20/4/2010 filed same day. He adopted same and relied on it as his argument that the appeal be dismissed as lacking in merit.
In his brief the appellant distilled one issue arising from (Grounds 1, 2 & 4) of the Court of Appeal.
ISSUE whether having regard to the Defendant’s/Appellant’s affidavit disclosing a defence vis-a-vis the plaintiffs case, the learned trial Judge was right to have entered Judgment against the defendants under the undefended list procedure. He abandoned Ground 3 of the grounds of appeal. Ground 3 of the grounds of appeal having been abandoned is hereby struck out.
He argued that this procedure (i.e.) the undefended list procedure is not meant to shut out a defendant who can show triable issues vide his notice of intention to defend and affidavit disclosing a defence.
He relied on BAUCHI LOCAL GOVERNMENT COUNCIL V. ABDUL-SALAMI (2003) FWLR P. 151 P. 1868 AT 1884 A-B.
He argued that where a defendant shows triable issues the suit should be transferred to general cause list.
He relied on OFOMATA V. ONWUZULIGBO (2002) FWLR PART. 89 PAGE 1246 AT 1259 F.G. He argued that at that stage it is not necessary for the defendant to prove his defence. He relied on the cases of:
(1) JOB CHARLES NIG. LTD. V. OKONKWO (2002) FWLR PT. 117 P. 1067 AT 1086 A.
(2) TAHIR V. KAPITAL INS. CO. LTD (2007) ALL FWLR Pt.370 AT 1482 AT 1497 G-H.
(3) SWIG NIG. LTD V. OMORUKS NIG., LTD (2003) FWLR PT. 186 P. 584 AT PAGE 596-597 H-E.
He referred to paragraphs 3 & 4 of affidavit in support of claim. He referred to pages 29-48 of the Record that is the purported defence of the appellant. He said in contention the appellant’s attached Exhibit “AD01 i.e. the application for the facility signed by the 2nd Appellant. He said that the defence disclosed by the appellant is irreconcilable conflict with the Respondent affidavit and where there are such conflicts in affidavit oral evidence is required to resolve the conflict hence under the undefended list procedure the suit shall be transferred to the general cause list. He relied on the following cases.
(1) ODU V. AGBOR-HEMESUN (2004) FWLR PT. 188 P. 935 AT 953 F-G.
(2) EBONG V. IKPO (2002) FWLR PT. 135 P. 719 AT 738 A-B.
(3) KABIRU V. IBRAHIM (2005) ALL FWLR PT.240 P.94 AT 114 B-D.
He said having raised the issue of construction of Exhibit “INC1” that it was not a loan facility but an advance payment Guarantee the defence has raised a defence in law as on facts which should require full address by the counsel hence the suit should be transferred to the general cause list.
He relied on UYOETTE V. IBINO IBOM L.G. (2003) FWLR PT. 178 PAGE 1126 at pp. 11242 – 1143 G – A.
He referred to the facts contained in the appellants affidavit and submitted that the facts discharged a good defence on the merit. He argued that the defence on the merit is a defence which if proved will exonerate the defendant from the plaintiffs claim. He relied on MOHAMMED V. SOCIETE GENERAL BANK LIMITED (2006) AFWLR Pt 340 P 1182 at 1199 D – E. In addition to his argument he said the appellant also contended in Page 7 (g) of his affidavit disclosing a defence that it was necessary to disclose the exchange rate at which it bidded N53,000 pounds in order to determine whether infact the plaintiff is not in debted to the defendant. He argued that failure to reply to a business letter should not be taken as an admission of the content of such letters. The courts are enjoined to look at each circumstance. He said the non response to Exhibit INC5 and INC6 by the appellant did not constitute an admission of the content thereof. He argued that the present trend in judicial authorities is to do substantial justice and eschew technicalities. ASSIM NIG. LTD V. L.B.R.B.D.A (2002) FWLR Pt 84 P. 101 AND 111 PARA. C – D. IYANG V. EBONG (2002) FWLR PT. 125 P.703 At 754 G – H He argued that from the facts of the case the truth can only be unearthed by pleadings and evidence of the parties’ achievable through examination and cross-examination during trial. He said leave to defend an action would be granted to the defendant where the facts alleged by the plaintiff are of such a nature as to entitle the defendant interrogate the plaintiff or his witnesses on the accompanying affidavit. RAMA DAN NIG. LTD V. AFRIBANK PLC (2005) ALL FWLR Pt 285 P. 482 G-H. HAIDO V. USMAN (2003) FWLR PT. 166 P.640 AT 653 G. He submitted that the appellants have a defence on the merit warranting a transfer of the suit to the general cause list. He therefore urged the court to allow the appeal.
The Respondent in his brief also distilled one issue similar to the appellant’s issue as to whether the Learned trial Judge was right to have entered judgment in favour of the Plaintiff (Respondent) herein as against the defendant (now appellant) under the undefended list procedure. In support of this he argued that the procedure is used to quickly and expediently dispose of straight forward debt or liquidated money demand matters in which there is no defence to the claim.
See: THOR LTD V. FIRST CITY MERCHANT BANK LTD (2005) AU FWLR Pt 274,217.
OKOLI V. MORECAT FINENE LTD (2007) AU FWLR PT 369, 1164 AT 1155 G – 6.
He further submitted that where Plaintiff claims non payment of a loan the defence open to a defendant under the undefended list are:
(1) That the defendant had repaid the loan by production of receipts, Bank Teller or any other document showing that the debt was totally repaid or
(2) That he never borrowed the money in the first place.
Refer to OKOLI supra:
He said the appellants in their affidavit in support admitted executing Exhibit INC1, INC2 and INC3 which was the offer letter to the appellant the appellant application to the Respondent and the personal guarantee of the 2nd appellant respectively Para 3 of affidavit in support.
He argued that Exhibit INC1, INC2 and INC3 show that the appellants was availed a loan facility by the Respondent to enable the appellant execute the contract for the installation of golf putting given by Shell Club. He argued that the learned trial judge was right in his decision. He argued further that it is not the duty of this court to determine whether or not an appellant has made out a defence on its merit on his affidavit. It is that of the trial court.
Refer to CROWN FLOUR MILLS LTD V. OWODUNNI (2005) AU FWLR 1553 At 1570 A- C.
He said the lower court did not act wrongly taking into consideration the fact depose to in the affidavit. He said there was no conflict in the affidavit as to require evidence that will entitle the case to be transferred to general cause list. He said there are enough documents to resolve the issue at hand.
Refer to PDP V. MOHAMMED (2005) AU FWLR PT 298 AT 1322 At 1343 E.
He submitted that Exhibit INC2 (application for loan, Exhibit INC3 personal guarantee of the 2nd Appellant. All documents were executed by the 2nd Appellant as Managing Director and alter ego of the 1st Appellant. The documents were never alleged to be forgery.
He said at best what the appellant tried to do at the lower court is to take up a defence or moonshine that there was no loan by an advance payment guarantee and that oral evidence ought to have been called to resolve the issue. He submitted that failure of the Appellant’s to reply to Exhibit INC5 and INC6 amount to admission.
Refer to:
TRADE BANK PLC V. CHEMI (2004) AU FWLR PART 235 PAGES 118 AT 160.
He further submitted that a defence to an undefended list matter must be a defence on the merit and not just a defence at large.See: MOHAMMED Supra. He said the appellant by their affidavit reveal that what they are doing is to buy time. He said the argument that the respondent did not disclose the exchange rate amounts to raising another issue a cause of action which is against the intendment of Order 23 of the Civil Procedure Rule of Bendel State applicable to Delta State.
He said leave of court was not obtained therefore this cannot be smuggled into the appeal and that such should be ignored. He said in the alternative Exhibit INC1 speaks for itself therefore no Oral evidence is required. Refer to S. 132 of the Evidence Act.
He concluded that the trial Judge was right in his decision and he urged this court to dismiss the appeal.
In his reply brief the appellant contended that the length and breath of the appellant defence is that it was the understanding between the parties that Shell Petroleum Development Company would pay the sum in dispute in advance to the Respondent and in fact did so hence it was not a loan. He said the argument of the Respondents supports that of the Appellant.
The above are the arguments against and in favour of the appeal.
To have a good appraisal of the situation in this appeal let me state as briefly as I can the bone of contention as contained in their affidavit evidence.
In the affidavit sworn to by one Erikowa, Credit Officer of the Plaintiff (Respondent). He deposed as follows:- I quote Paragraphs 2
2. “That I know as a fact that the First Defendant is a customer of the Plaintiff/Applicant and operates current account No. 1171400004087 at the Plaintiff Effurun/Warri Branch formerly known as Gateway Bank Plc.
3. That I know as a fact that further to the Banker/Customer relationship existing between the parties, The 1st Defendant under the hands and signature of the 2nd Defendant applied for and was granted a contract finance facility of N13, 061,134.08 (Thirteen Million, Sixty One Thousand, One Hundred and Thirty-four Naira, Eighty kobo) to enable the 1st Defendant finance the execution of its contract with the Shell Club Ogunu through a letter of credit in favour of Sovereign incorporation for GB43,198.00. Attached herewith and marked Exhibit INC1 is a copy of the letter of the offer dated February 1, 2005 duly accepted and executed by the 2nd Defendant on behalf of the 1st Defendant, while the document now shown to me and marked Exhibit INC2 is a copy of the Board resolution of the 1st Defendant accepting the said facility.
4. That I know as a fact that the facility referred to in paragraph 3 above was personally guaranteed by the 2nd Defendant. Attached herewith and marked Exhibit INC3 is a copy of the guarantee duly executed by the 2nd Defendant.
5. That the facility had a tenor of (120) days which has since expired to the knowledge of the Defendants.
That I know as a fact as a further security for the facility granted to the 1st Defendant, the 1st Defendant domiciled all payments due it from Shell Petroleum Development Company of Nig, Limited (SPDC) to the Plaintiff, but the 1st Defendant thereafter diverted the said payment to other sources. Attached herewith and marked Exhibit INC4 is a copy of the irrevocable letter of domiciliation in favour of the Plaintiff.
6. That I know as a fact that as at May 2007 the 1st Defendant was indebted to the Plaintiff to the tune of N13,559,497.06 (Thirteen Million, Five Hundred and Fifty Nine Thousand, Four Hundred and Ninety Seven Naira, Sixty Kobo) which sum continued to attract the agreed interest rate.
7. The document now shown to me and marked Exhibit INC5 is a copy of the letter of demand addressed to the defendants and acknowledged thereof, but the defendants failed to settle their indebtedness to the plaintiff.
8. That in spite of the fact that the Defendants are aware of their indebtedness to the Plaintiff and upon the expiration of the tenor period granted the 1st Dependant by the Plaintiff the defendant failed to liquidate and/or settle the outstanding debt in it account, hence the Plaintiff was compelled in the circumstance to contact Messrs Ama Etuwewe & Co. for the purpose of recovering the outstanding sum together with the accrued interest thereon; and I am aware that the said firm of solicitors wrote a letter of demand doted October 22nd 200(sic) to the Defendants.
9. Attached herewith and marked Exhibit INC6 is a copy of the demand notice served on the Defendants by Messrs Ama Etuwewe & Co. attached also and marked as Exhibit INC7 is a copy of the proof of delivery.
10. That in spite of the patience and restraint exercised by the Plaintiff upon the receipt of Exhibit INC6 the Defendants have continuously failed, refused and/or neglected to pay the said sum, and has rendered themselves incommunicado.
11. That I know as a fact that the Plaintiff in accordance with Banking custom and practice and as agreed by both parties continued to charge interest at the prevailing interest rate on the facility and in accordance with Exhibit INC1.
12. That I know as a fact that it was agreed upon between the parties that interest at 22.5% per annum subject to change depending on the prevailing market situation would charged from time to time by the Plaintiff on any outstanding monies due it from the Defendant.
13. That I know as a fact that the Defendants are aware of the position of their account with the Plaintiff Bank the statement of account having been sent/delivered to the Defendant on a monthly basis.
14. That I know as a fact that as at May, 2007 the 1st Defendant indebtedness to the Plaintiff Stood at N13, 559,497.06 Thirteen Million, Five Hundred and Fifty Nine Thousand, Four Hundred and Ninety Seven Naira, Six Kobo) which sum the defendants have refused and neglected to pay in spite of repeated demand and their various unfulfilled promises to liquidate their indebtedness to the Plaintiff.
15. That I know as a fact that the present Bank prime lending rate is 21% per annum together with the floating rate of 1.5% grossing 22.5% per annum which interest rate the Applicant is entitled to charge on the outstanding sum of N13, 559,497,06 (Thirteen Million, Five Hundred and Fifty Nine Thousand, Four Hundred and Ninety Seven Naira, Six Kobo) due the Plaintiff/Applicant from the Defendants.
16. That I know and I verily believed that the Defendants have no defence to this action.
The motion for extension of time within which the Defendants now appellants may file their notice of intention to defend and deeming the notice as properly filed and served dated and filed on 29/4/2008 was granted. The affidavit contained the following averment of which the relevant part are hereby quoted as follows:
“3. That paragraphs 1, 2, 3, 4, 5 of the supporting affidavit of the Plaintiff are admitted by the defendants.
4. That paragraphs 6, 7, 11, 13, 14, 15, 16, 18, 19, 20 & 22 of the affidavit are false and hereby denied.
5. That paragraphs 8, 9 & 10 are denied to the extent that the defendants are indebted to the plaintiff as contained in Exhibits INC5 and INC6.
6. That paragraph 17, is denied to the extent that the defendants were not given any notice of exhibit INC8 and in response, the defendants state that it is not indebted to the defendant as contained therein.
7. That in response to the denied paragraphs I state as follows:
a) That the 2nd Defendant on behalf of the 1st defendant Vide a letter dated 18/01/05 applied for an Advance Payment Guarantee (APG) in respect of the execution of contracts with the Shell Petroleum Development Company (SPDC) attached, as Exhibit A.D.O.I is the said letter.
b) That in compliance with the said contracts S.P.D.C made an advance payment of the of N13, 061,13,4.08 (Thirteen Million, Sixty one Thousand, One Hundred and Thirty Four Naira, Eight Kobo) representing 80% of the contracts value which sum was paid to the plaintiff through its Head of Business Development Unit Mr. Jonathan Ososuakpor who was also the Defendants’ accounts officer. Attached as Exhibit A.D.O. 2(a) & (b) ore copies of the relevant SPDC contracts.
c) That in view of the above, the contracts finance facility as contained in Exhibit INC attached to plaintiff affidavit was an Advance Payment Guarantee for the said amount paid by S.P.D.C to ensure the performance of the contract, through a letter of credit in favour of sovereign incorporation, and the Plaintiff DID NOT GIVE A LOAN of the said amount to the defendants for the execution of the contract.
d) That as a result of delays in the purchase and delivery of the items overseas, the period for which the said facility was granted (120) days elapsed and the Defendants applied for an extension from the Plaintiff to enable them complete the execution of the contract but the plaintiff refused. Attached, as Exhibit A.D.O. 2 is a copy of the said letter acknowledged by the plaintiff.
e) That as a result of the refusal of the plaintiff to extend the tenor, the Defendants had to source for another Advance Payment Bond/Guarantee from Guarantee Trust insurance Company Ltd in order to execute the said contract, which was in jeopardy. Attached hereto as Exhibits A.D.O. (a) & (b) are the said advance payment Bonds.
f) That it is as a result of the above that the payments for the said contract were re-routed from the Defendants’ account with the plaintiff.
g) That the Plaintiff bidded for the equipment for $53,000.00 which was to come through the said letter of credit but despite repeated demands by the 2nd Defendant, it was not disclosed the exchange rate at which it bidded, to determine whether infact the Plaintiff is not indebted to the Defendants, in view of the advance payment made by S.P.D.C.
h) That I am informed by the 2nd Defendant whom I verily believe that upon receipt of Exhibits INC5 and INC6, he contacted the aforesaid accounts officer und even the plaintiff s counsel Ama Etewewe Esq. by phone protesting the said charges and it was agreed that both parties would meet and reconcile records only for the plaintiff to institute this action.
i) That the defendants are not indebted to the Plaintiff as the said sum of N13, 061,134,08 was paid to the plaintiff in advance by S.P.D.C and their obligations under Exhibit INC1 ceased with the aspiration of the tenor thereon which they refused to renew.
Before I embark on the consideration of the appeal let me reiterate the decision of this court in CROWN FLOWER MILLS LTD V. OWODUNNI (2005) ALL FWLR PAGE 1553 AT PAGE 1570 A – C where it was held that
“it is clearly the duty of the trial court which has the original jurisdiction to take the proceedings, definitely not this court being a court of appeal to decide whether an affidavit evidence of the respondent has not made a defence on the merit but that of the lower court. This court can only act on the issue if the lower court has acted wrongly or came to a wrong conclusion”.
There is no doubt that one of the duties placed on a defendant willing to defend a suit is for him to show in his affidavit a good defence.
On hearing the argument on the application the Judge where it appears to him that the defendant has no defence may enter judgment for the plaintiff as he has done in this case. The question then in this appeal is whether he had done the right thing having regard to the facts. It is part of the duty of the defendant to show sufficient fact and particulars to show that there is bona fide defence.
See: MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR PT. 144 PAGE 283. UTC V. PA MOTEL (1989) 3SC N379. Judgment will also be ordered where assuming all facts relied upon by the defendant are in his favour, they do not amount to a defence in law. See: MACAULAY Supra..
It should not be forgotten that the purpose of this procedure is stated in the case of OKUNBAH LTD V. SULE (1990) 11 SCNJ 1 that
“the purpose of the procedure for summary judgment is to enable the plaintiff obtain summary judgment without trial where his case is potently clear and unassailable.
It is not designed to shut out the defendant who can show that there is triable issue”.
The claim of the Respondent as stated above is very clear. The Respondent deposed to affidavit and supported his case with exhibit INC1 – INC6. The Appellant on his part to deposed to affidavit which in the opinion of the trial judge did not show a defence as to warrant his transferring the case to the general cause list. The reasons were given by the trial Judge in his Ruling. The appellants in their supported affidavit admitted Paragraphs 3 of the supporting affidavit of the respondent. When letters of demand INC5 & INC6 were sent to the appellants they kept quiet.
The court in TRADE BANK PLC V. CHAMI (2004) ALL FWLR PART 235 PAGE 118 AT 166 held per SALAMI JCA as he then was at 166 C-E.
“That the respondent did not answer the letter and he neglects the answer such a letter in the circumstance tantamount to an admission of the assertion in it. There is no evidence before the trial judge that the debt referred to in Exhibit 2 & 3 had been discharged. Exhibits dated 20th July 1999 is another letter of letter of demand written by the appellant solicitor it was also ignored like its fore-mums of 30th November 1988 Exhibit 2&3 are not social but business letters, while social correspondence may be ignored business letters deserved to be answered”.
The learned trial Judge in this case is therefore right to have treated the refusal of the appellant to answer Exhibits INC5-INC6 as an admission. The appellant also unequivocally admitted the debt in its paragraph 3 of his affidavit in support of their notice of intention to defend. The assertion is that the Respondent were paid by SPDC is not supported. It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof.
SEE: SAFA FOODS FACTORY LIMITED V. ALRAINE LTD V. THE EAST ASIATIC CO. LIMITED (2002)10 NSQR 553.
On the requirement of what a defendant who wishes to defend a summary Judgment should do. The Supreme Court in SANUSI BROS (NIG.) LTD V. COTIA C.E.I.S.A (2010)11 NWLR (PART 679) 56 AT 530 held thus:
“A defendant must show a bonafide or good defence on the merits under summary judgment procedure and not engage in manipulation and delaying tactics. To show that he has a good defence to the claim on the merits the defendant must disclose facts to satisfy the court usually by affidavit. To achieve this he is required to condescend upon particulars per LORD BLACKBERN IN WALLINGFORD V. MUTUAL SOCIETY (1880) A.C 685 AT 704 and the defence must not be seen as frivolous and particularly moonshine”.
To condescend upon particulars implies a true and real disclosure of facts upon which the court can readily discern a good defence. See: also THOR LIMITED V. FIRST CITY MERCHANT BANK 22 NSCQR VOLUMER 22 PART 1 362 AT PAGE 378 – 379.
In this circumstance what can be said to be a good defence.
The answer is found in the Supreme Court case of OKOLI V. MORE CAB FINANCE NIG. LIMITED (2007) AFWLR PART 369. P. 1164 AT PAGE 1185 PARA G -E.
Where it was held that in an action placed on the undefended list where the Plaintiff claims repayment of loan the only defence open to the defendant are two:
(1) That the defendant had refunded the entire loan by the production of receipts bank tellers or any other documents showing that the debt was totally repaid or
(2) that he never borrowed the money in the first place he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery.
Let me say here that the submission of learned counsel to the appellant in his brief as to non disclosure of the rate of exchange as regards the conversion of Naira to Pounds is of no moment as it is an attempt to smuggle in an issue firstly raised on appeal without leave and ought to be discountenanced and it is hereby discountenanced. In the case under contention the defence put up by the appellant do not show any triable issue. They did not show on merit that they have a good case. I am not in the circumstance disturbing the Ruling of the learned trial Judge delivered on 25/6/08 at Effurun High Court by Justice Gbemre and it is hereby affirmed. The appeal is dismissed with N30.000.00 costs to the Respondent.
AMIRU SANUSI, J.C.A.: I had the advantage of reading the draft of the judgment just rendered by my learned brother Shoremi, JCA. His reasons and conclusion are at one with mine that the appeal is devoid of any merit. It deserves to be and is accordingly dismissed by me. I endorse the order on costs made in the leading judgment.
CHIOMA EGONDU NWOSU-IHEME, (Ph. D) J.C.A.: I have had the advantage of reading before now the Judgment just delivered by my learned brother, GEORGE SHOREMI JCA.
I agree that the defence of the Appellant at the lower court do not show any triable issue. There is therefore no justification to disturb the Ruling of the trial Judge delivered on the 25/6/08 at the Effurun High Court. The appeal which I adjudge unmeritorious is accordingly dismissed. I also award N30,000.00 costs to the Respondent.
Appearances
For Appellant
AND
For Respondent
