LEADERS & COMPANY LIMITED v. KERRIE-DEE INDUSTRIES LIMITED & ANOR
(2018)LCN/11120(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2018
CA/L/259M/2012
RATIO
MEANING OF FAIR HEARING
Fair hearing has been defined to mean giving equal opportunity to parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing. Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
JUSTICE
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
LEADERS & COMPANY LIMITEDAppellant(s)
AND
1. KERRIE-DEE INDUSTRIES LIMITED
2. BARYLNEX INTERNATIONAL LIMITEDRespondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)
This appeal is against the judgment of the High Court of Lagos State; coram LAWAL-AKAPO, J., delivered on the 12th of November, 2010 entering judgment in favour of the Respondents under Order 11 Rule 1 & 5(2) of the High Court of Lagos State (Civil Procedure) Rules, 2004 on claims that on a liquidated money demand.
The Appellant being dissatisfied with the decision of the Lower Court filed a Notice of Appeal on eight grounds on the 1st of December, 2010.
The Respondents on the 12th of April, 2010 commenced a suit against the Appellant by filing a writ of summons and statement of claim in line with Order 3 Rule 2, including an application for summary judgment dated 12/04/2010. The Respondents also filed a counter affidavit to the Appellant’s motion for appointment of an independent auditor to conduct an audit/accounts/inquiry into the accounts of the Respondents with Appellant dated 13/7/2010.
The Respondents’ case at the Lower Court is that between 19th July, 2009 and November 2009, at various times upon request, the Respondents supplied newsprints to the Appellant on the basis that the Appellant would be paying for the deliveries not later than six weeks after delivery as stated in the local purchase order (LPO) No.112 dated 7/9/2009. Respondents alleged the indebtedness of the Appellant to the tune of over N120million and the fact that the nonpayment of same adversely affected their business which resulted in a state of indebtedness to its bankers. The Respondents sought the following reliefs in both its claims and the application for summary judgment:
A. The sum of N120,596,840.00 (One Hundred and Twenty Million, Five Hundred and Ninety-six thousand, Eight Hundred and Forty Naira) only being the amount outstanding in favour of the claimants for newsprints supplied to the defendant at various times at its request;
B. Compound interest at the rate of 25% per annum on the sum of N120,596,840 (One Hundred and Twenty Million, Five Hundred and Ninety-six Thousand, Eight Hundred and Forty Naira) only from 1st October, 2009 till date of judgment and thereafter at such rate as this honourable Court may order until the entire judgment debt is fully liquidated;
C. The cost of instituting this action in the sum of 5 million only.
The Appellant filed its brief on 15/4/13 but deemed 4/6/14 and it was settled by Chief Anthony Idigbe, SAN; Okorie Kalu, Esq., and Iheanacho Dike-Udensi (Miss) of Punuka Attorneys & Solicitors. They formulated two issues thus:
1. Whether the Appellant’s right to fair hearing was not breached when the trial Court refused him leave to defend claims (i), (II) & (III) of the Respondents suit and entered Judgment in the sum of N120,596,840.00 (One Hundred and Twenty Million, Five Hundred and Ninety-six Thousand, Eight Hundred and Forty Naira) only with interest at the rate of 25% per annum from 1st October, 2009 till the 12th of November 2010 and thereafter at the rate of 10% per annun till the final liquidation of the entire debt.
2. Whether the decision reached by the trial Court was not against the weight of evidence.
The Respondent on the other hand filed their brief on 9/2/16 and it was settled by Abiodun A. Olatunji, Esq; Opeyemi Ogunleye, Esq., and Nas Ogunsakin, Esq., of Abdullahi Ibratrim & Co., wherein two issues were formulated thus:
1. Whether the trial Court rightfully entered summary Judgment in favour of the Respondents.
2. Whether the learned trial Judge properly evaluated the evidence before him & came to the right decision.
The two issues formulated by parties are the same except that the Appellant’s issues are more specific, therefore I shall adopt the Appellant’s issues in this appeal and resolve the two issues as one.
ISSUE 1
Appellant’s counsel submitted that a claimant coming under Order 11 of the Lagos Rules provision is not mandated to file a list of witnesses because trial is not envisaged but that the Respondents filed one giving the impression that trial was envisaged. That the law requires bonafide defence and where triable defense is filed the Court cannot hurriedly enter judgment. He relied on the cases of UNIBEN v K.T. ORG LTD (2007) 14 NWLR (PT. 1955) 441 at 462, paras C; ATAGUBA & CO. v. GURA NIG [2005] 8 NWLR (Pt. 927). 429. He contended that having raised triable facts by defence and counter affidavit, these needed to be proved by trial. Counsel contended that the Lower Court held that the traverses by the Appellant in its statement of defence were general and evasive to specific allegations of fact and that there was no defense to the claim. He contended that the Appellant was not given the opportunity or fair hearing to be heard through a full blown trial before judgment was given. He relied on the case of BELOXXI IND. LTD & ANOR v HWA TAI IND BERHARD LTD CA/L/540/2010 submit that summary judgment is not granted when defence raises triable issues.
Turning to the affidavits filed on the basis of the application for summary judgment and the statement on oaths filed alongside the pleadings, Appellant’s counsel contended that the affidavits stated two different versions of facts on oath and that when there are two conflicting affidavits, the true position will be determined by oral evidence. He relied on the cases of BABALE v EZE [2011] 11 NWLR (PT. 1257) 48 at 113 – 114, paras F – A; DR ABDU HO v. MUSTAPHA ABUBAKAR & ORS [2011] 12 NWLR (Pt.1261) 323. Counsel further submitted that in summary procedure, what is important to set a matter down for hearing is a prima facie case. He referred to the cases ofBABALE v EZE (supra); UNIBEN v K.T. ORS LTD (supra); THE CHAIRMAN NPC v. THE CHAIRMAN IKERE L.G. & ORS (2001) 7 SC (PT III) 90; NGIGE v OBI (2006) 14 NWLR (PT. 999) 1 at 142; NNABUDE v CNG (W/A) LTD [2010] NWLR (PT. 3668) 390, paras F – N. He posits that issues of fraud was raised and pleaded in the statement of defence and the Lower Court in the light of this ought not to have entered judgment. He contended that the failure of the Lower Court to set the matter down for trial and hear the Appellant’s defence amounts to a foreclosure of his right to fair hearing. He referred to the cases of TEWOGBADE v. AGBABIAKA [2001] 5 NWLR (PT. 705] 52, para H; FARAJOYE v. HASSAN [2006] 16 NWLR (PT 1006) 463 at 496, paras A – D.
The Respondents’ counsel on the other hand relied on the case of UTC v PAMOTEI [1989] 2 NWLR (PT. 103) 244 to submit that summary judgments are intended to apply only to straight forward cases. He submitted that the Appellant’s statement of defense did not disclose any triable issues or point of law as to warrant the Lower Court to grant leave to defend the action. He referred to PEAT MARWICK, ANI OGUNDE & CO v OKIKI (supra); MACGREGOR v. NMB [1996] 2 NWLR 378 at 388. He distinguished cases cited by Appellant as inapplicable.
Respondent’s counsel contended that the transaction between the Respondents and the Appellant is strictly in supply of newsprint and had nothing to do with the proceeds of sale of newspaper. He referred to YEKINI BALOGUN & ORS v TIJANI SHONBARI & ORS (1997) 3 NWLR (493) 317; J.O. ODUNSI v U.N.M.L.C LTD [1988] 2 NWLR (PT. 56) 95 at 107 to submit that where contents of an affidavit are self-contradictory, the Court will not believe the depositions in such affidavit, hence the reason why the Lower Court did not consider the allegations of fraud in paragraphs 8 – 11 of the Appellant’s statement of defense, as it was a mere technical defence to frustrate summary judgment. Respondents’ counsel stated that contrary to the Appellant’s submission, the five postdated cheques for N25,000,000 each were all returned unpaid upon presentation, and that when the Appellant was invited by the Police in respect of the dud cheque, it paid N18.5m out of N139,096,840.00 which reduced the outstanding balance to N120,596,840 hence the claim in the action. Respondents’ counsel submitted that this was acknowledged in the judgment at page 8 referring to paragraph 7b-c of the defense as admission of indebtedness on the part of the Appellant. That it was therefore misconceived for the Appellant to refer to the six cheques as payment for security. Counsel contended that the allegation of fraud is an afterthought which was not supported by any evidence.
Counsel argued that the Appellant was given every opportunity to be heard at the Lower Court but the Appellant failed to present any robust defence. He stated that the principle of summary judgment under Order 11 does not negate the principle of fair hearing, that the Appellant had ample opportunity to defend itself and it filed its statement of defence along with interlocutory applications which was heard and dismissed. Counsel added that none of the 8 grounds of appeal was on fair hearing and that this Court should discountenance all the arguments of the Appellant in this regard. He relied on the cases of EZEIGWE v NWAWALU [2010] 4 NWLR (PT. 1183) 207, paras D -E; SD & CONSTRUCTION CO. LTD v AYOKU [20011] 13 NWLR (PT.1265) 487.
Respondents’ counsel also argued that it is not in all cases where there are conflicts in the affidavits that oral evidence would be called. That the Court does not need oral evidence where the conflicts are immaterial and reconcilable or same involves point of law and that mere denial of indebtedness is not sufficient to warrant same. He relied on the cases of MARK & ANOR v EKE [1997] 11 NWLR (PT. 529) 501 at 525; N.N.S.C. v AGRICOR INCORP [1991] 3 NWLR (Pt.177) 109 at 114. In conclusion, he submitted that the Lower Court exercised its discretion judicially and judiciously rightly in favour of the Respondents.
In reply, Appellant’s counsel emphasized the brief and argued that the grouse is that the Court did not consider the pleadings of the Appellant before judgment was entered despite complying with Order 11. He raised recondite points which could have attracted a trial and he relied on the cases of TABIOWO v DISU [1998] 7 NWLR (PT. 1087) 533 at 539; EZENWAA v K.S.H.S.M.B [2011] 9 NWLR 89 at 95; UBA PLC v G.S. IND. (NIG) LTD [2011] 8 NWLR 590 at 602; ADEWALE v GOVT EKITI STATE [2007] 2 NWLR (PT.1019) 634 at 641; L INT’L INS. CO. LTD v SOLA HOLDINGS LTD [2006] 7 NWLR (PT. 980) 465 at 469 for the point that the Lower Court ought not to have made pronouncement in the substantive case in the ruling.
On the fair hearing, Appellant’s counsel reiterated that the action runs against the Constitution and is a live issue before this Court. He relied on the cases of P.H.C.N v ALABI [2010] 5 NWLR (PT.1180) 65 at 69; OKEKE v ORUH [1993] 2 NWLR (PT.277) 622 at 626; UNILORIN v ADENIRAN [2007] 6 NWLR (PT. 1031) 498.
ISSUE 2
Appellant’s counsel in adopting the previous arguments submitted that it’s the primary responsibility of a trial Court to critically albeit dispassionately, appraise and evaluate evidence adduced by parties before it. He relied on the cases of SALAKO v DOSUNMU (1997) 8 NWLR 9 (PT. 517) 371; UMESIE v ONUAGULUCHI [1995] 9 NWLR (PT. 421) 515; ILOKSUN & CO NIG LTD v UBN PLC [2009] 1 WLR (PT. 1122); EFFIONG v AIS & S LTD (2011) 6 NWLR (PT.1243) 266 CA on principles on evaluation and when an appellate Court may interfere. He further argued that the amount owed was in dispute and there were conflicts in the affidavits and the proper procedure would have been to set the matter down and call witnesses. He cited the cases of AMADU v YANTUMAKI [2001] 9 NWLR (PT.1251) 161CA; AKINFE v UBA PLC [2007] 10 NWLR (PT. 1041) 185 at 180 – 181.
He finally urged the Court to decide this issue in favour of the Appellant.
The Respondents’ counsel in reply submitted that the evidence adduced by the parties were purely documentary evidence. Counsel submitted that the Lower Court considered the applications and affidavits of both parties and saw no role to be played by the witnesses and that he went ahead to deliver judgment in favour of the Respondents. He cited the cases of USIOBAFIO v USIOBAIFO (2000) 14 WRN 70 at 84; OLUJINLE v ADEAGBO [1988] 2 NWLR (PT. 75) 238; UTB v. AWANZIGANA ENT LTD [1994] 6 NWLR (PT. 316) 81. He submitted that the petition to the Police did not reveal any evidence of fraud by the Respondents’ staff and that till date none of the staffs were invited by the Police in respect of the fraud. He added that the ctc of the newspaper report shows the pictures of the Appellant staff and not that of the Respondents.
Counsel also stated that the Appellant’s petition to the Police and the ctc of the newspaper report is on alleged stealing of the Appellant’s newspaper proceeds while the transaction between the parties was strictly supply of newsprint.
He submitted that same was an afterthought and ill conceived. He cited ODUNUKWE v. OFOMATA [1999] 6 NWLR (PT. 607) 416 AT 425; ONYEMELUKWUE v W.A.C.C [1995] 4 NWLR (PT. 387) 44 at 57 – 58. On the whole, he submits that the appeal is frivolous and ought to be dismissed for lacking in merit.
The Appellant’s counsel submitted on points of law that the cases cited by the Respondents are inapplicable. He relied onEYA v OLOPADE [2011] 11 NWLR (PT. 1259) 501 at 511; ODUMA v. ARUNSI [2012] 7 NWLR (PT. 1298] 55 at 25; ALAO v AKANO [2005] 11 NWLR (PT. 935) 160; KABIRIKIM v EMEFOR [2009] 14 NWLR (PT.1162) 602 at 613 – 614. Counsel concluded by saying that this Court should discountenance the arguments of Respondents and allow the appeal.
RESOLUTION [ISSUES 1 & 2]
The issues are on whether Order 11 was complied with in its application. The provision states that:
1. Where a claimant believes that there is no defence 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 a written brief in respect thereof.
4. Where a party served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit he shall, not later than the tine prescribed for defence, file:
(a) his statement of defence;
(b) depositions of his witnesses;
(c) list and copies of documents to be used in his defence; and
(d) a Counter affidavit and a written brief in reply to the application for summary Judgment.
5(2). Where it appears to a Judge that the defendant has no good defence the Judge may thereupon enter Judgment for a claimant.
The Respondents in its affidavit in support of application for summary judgment in paragraphs 4 – 12, 15 – 24 avers as follows:
4. Between 19th July, 2007 and November 2009, the claimants supplied several hundred, tons of newsprint to the defendant at various times at its request.
5. The terms of the contract for the supply of newsprint included that the defendant would pay for the newsprint not later than six weeks after delivery as stated in the local purchase order (LPO) No. 112 dated 7th September, 2009 issued by the defendant to the claimants being one of the several local purchase orders evidencing the transaction between the parties. Attached herewith and marked Exhibit A1 is the local purchase order dated 7th September, 2009.
6. The defendant is however in the habit of defaulting to make payments when due which is to the detriment of the claimants business. Attached herewith and marked Exhibit A2 is the statement of account of the defendant in the record of the claimants.
7. As at 2nd of November, 2009 the Defendant was indebted to the claimant to the tune of N139,096,840.00 (One Hundred and Thirty-nine Million, Ninety Six Thousand, Eight Hundred and Forty naira).
8. Upon several demands by the claimants to the defendant to pay up the debt accrued over various supplies, the defendant agreed to pay up the debt in five installments and he issued five postdated cheques of N25m each.
9. The claimants paid into their accounts the various cheques as at due dates and they were all returned unpaid. Attached herewith and marked Exhibit A3 are copies of the Access Bank dud cheques dated 4th November, 2009; 11th November, 2009 18th November, 2009; 25th November, 2009 and 2nd December, 2009 respectively.
10. Notwithstanding demands made by and on behalf of the claimants, including a letter from the claimants solicitors to the defendant dated 13th October, 2009, the defendant has failed to pay off the debt or respond to the letters. Attached herewith and marked Exhibit A4 are the letters of demand dated 13th October, 2009; 18th November, 2009 and 6th January, 2010.
11. Sequel to the indebtedness and dud cheques issued by the defendant, the 1st claimant wrote a petition to the Police against the defendant. Attached herewith and marked Exhibit A5 is a copy of the petition dated 19th November, 2009.
12. Upon the claimants petition, the Police invited the defendant; It neither honoured the invitatlon nor was it represented by director or staff.
15. Till date, the defendant has refused to pay up its indebtedness in the sum of One Hundred and Twenty Million, Five Hundred and Ninety Six Thousand, Eight Hundred and Forty Naira only (N120,596,840) being the sum owed to the claimants for the supply of newsprint at various times at the defendants request.
16. The 1st claimant obtained a loan facility from Intercontinental Bank Plc. to finance the supplies of printing papers and, newsprint. Attached herewith and marked Exhibit A7 are copies of the loan facility offer letters dated 24th August, 2006; 23rd November, 2006 and 28th September, 2007 respectively.
17. That on the 6th of August, 2007, the 1st claimant also renewed the overdraft facilities it obtained from the intercontinental Bank Plc. The interest rate applied to claimants said facility varies from time to time but on the average it is about 25% per annum. Attached herewith and marked Exhibit A8 is a copy of the renewal overdraft facility letter dated 6th August, 2007.
18. Intercontinental Bank Plc wrote a letter of demand to the 1st claimant when the 1st claimant could not discharge its financial responsibilities under the loan facility. Attached herewith and marked Exhibit A9 is a copy of the letter of demand dated 27th February, 2008 issued to the claimant to pay up the debt.
19. Similarly, I have been threatened by the United Kingdom Paper Company known as Polar Paper Company, in respect of the papers and newsprint imported by the claimants which were supplied to the defendants. Attached herewith and marked Exhibit A10 is a copy of the email written by Polar Paper Company to the claimants.
20. I had to write a letter on behalf of the 2nd claimant promising to pay up the indebtedness. Attached herewith and marked Exhibit A11 is a copy of my reply to Polar Paper Company dated 21st October, 2009.
21. I state that the claimants had to look for alternative means of financing their business at great a cost as they have been denied access to their funds by the defendant.
22. I state that the action of the defendant has caused the claimants loss of goodwill and business thereby exposing them to financial embarrassment in dealings with their business associates and bankers.
23. I verily believe the defendant has no defence to the claimants claim.
24. The defendant admitted that it is indebted to the claimants, and the defendant made payments in piecemeal at different times in a way difficult for the claimants to make good use of same.
From the depositions, there is clear indebtedness on the part of the defendant/Appellant. At pages 28 – 55 are documents in proof of claim and threats on suppliers from abroad and banks in Nigeria. The Appellant filed a counter affidavit at page 60 and paragraphs 8 – 10, 14 – 20, 23 – 30 are reproduced below:
8.That all through these periods of business relationships, there has never being a time when the defendant/Respondent defaulted in payment.
9. That as a matter of business practice between the claimants/Applicants and defendant/Respondent, the defendant usually issues cheques and those cheques were meant to be withdrawn and replaced with bank draft whenever goods are supplied.
10. That in the course of these transactions, the defendant/Applicant often time pays the claimant/Applicant in excess of supply.
14. That immediately the defendant/Respondent noted that the cheques were presented and were not cleared, it was instantly replaced with a bank draft of the same amounts.
15. That the defendant/Respondent states categorically that the company is not indebted to the claimant/Applicants whatsoever.
16. That the defendant/Respondent states further that the N120,596,840 allegedly claimed by the claimants/Applicants was a product of over-invoicing and non-supply for which some staff of the defendant/Respondent fraudulently colluded with its suppliers, including the claimants/Applicants.
17. That I know as of fact that there are various investigations going on by the Police over some of the fraudulent activities between some staff of the defendant/respondent and some of its suppliers in which the claimants/Applicants is included.
18. That the defendant shall rely on a copy of the petition written to the police and a ctc of the newspaper containing the advert of some of the staff of the defendant/respondent who have already been declared wanted by the defendant/respondent. Both documents are attached and marked Exhibit A & B respectively.
19. That the defendant/respondent invited the claimants/applicants to a meeting to iron out the issues relating to the fraudulent activities of its officers in collusion with the staff members of the defendant.
20. That instead of attending the said meeting, the claimants/applicants rushed to Court to make a malicious allegation of non-payment of debts.
23. That presently there is an audit being conducted by the defendants to reconcile and determine the actual/accurate sums allegedly claimed by the claimant herein to determine the indebtedness if any.
24. That the alleged indebtedness is a ruse as the defendant discovered a large scale fraud perpetrated by the claimant and subcontractors if the defendants.
25. That I know as a fact that the defendants/respondent has a good defence on its merit as it does not owe the claimants the alleged sums at all.
26. That the defendants/respondent vehemently states that all the facts in the affidavit in support of the claimants/applicants motion are fraudulent and a mere fabrication of the claimants/Applicants.
27. That the claimants/applicants only claim a non-existent debt and sums, supporting same with fraudulently fabricated documents.
28. That I am informed by Miss Jumoke Sawyerr, a legal practitioner in the firm of Awokoya, Awokoya & Co. that the entire claims are not justiciable and/or cognizable under Order 11 of the High Court of Lagos (Civil Procedure) Rules, 2004.
29. That I am further informed by Miss Jumoke Sawyerr that this has been fraudulently and maliciously brought under summary judgment provisions and as such should be transferred to the general cause list.
30. That I know as a fact that it would be just and equitable to allow the defendants ventilate its position in this matter.
The Appellant’s case is hinged on paragraphs 15 – 20, 23, 24 & 25 of the counter affidavit. The Appellant deposed to collusion between his staff and that of the Respondents over invoicing and non-supply and fraudulent collusion of staff of defendants and with suppliers including the claimant. The statement of defense was the same as the counter affidavit. The Appellant had entered a conditional appearance at page 78 of the records. The Appellant on 9th July, 2010 filed an application:
“For appointment of an audit/accounts/inquiry into accounts of the claimant with the defendant for the purposes of determining the liability and/or indebtedness of either parties in this action as at 12th April, 2010 when this action was filed.
Also filed in addition is the notice of preliminary objection on the same date, for an order striking out and/dismissing the claims of the claimants/application for summary judgment dated 12th of April, 2010 on the grounds that:
“A. The entire claim is not Justiciable and/or cognizable under Order 11, consequently, the Court lacks Jurisdiction to entertain the application.
B. The claimants’ application for summary Judgment is frivolous, vexatious, scandalous and constitutes a gross abuse of the Courts Judicial process.”
The main contention is that the facts cannot be heard by way of summary judgment but by trial. The Respondents filed a counter affidavit together with a written address in opposition.
The preliminary objection was filed on the date fixed for hearing on fast-track list was adjourned to 12/7/2010 for hearing and further adjourned to 19/10/2010 and judgment was on 19/11/2010.
I have carefully set out events from the date of filing the action in the Lower Court due to some salient issues needed to be cleared in this appeal. It is pertinent that the Appellant stated that the preliminary objection was not heard, I have noted two applications filed before the summary judgment was argued and there are no proceedings in the record to show what happened except that in the notice of appeal, I find that at page 133 of the record in ground 5, particulars c, d wherein it refers to the application to appoint an independent auditor to conduct an audit/accounts/inquiry into the accounts of the Respondents with the Appellant and in ground 6, it is stated that the learned trial judge erred in law in dismissing the Appellant’s application dated 8/7/2010. An inclusion of the proceedings leading to the hearing/disposal would have sufficed. Therefore having not formulated any issues thereon the issues are clearly deemed abandoned.
I shall then concentrate strictly on the issues before the Court. In MACAULAY v NAL MERCHANT BANK LTD (1990) LPELR -1801 (SC) per AGBAJE, JSC held that:
It is said in Jacobs v Booth’s-Distillery Company (supra) that Judgment should only be ordered in application for summary Judgment where assuming all the facts in favour of the defendants, they do not amount to a defence in law. By the same token where in an application for summary Judgment and the only point involved is the construction of a document which document is capable of more than one meaning, then one tries and fathoms all the meanings capable of being given to the document, and if any of them gives the defendant a defence in law to the action, then there is a fair dispute as to the meaning of the document which will entitle the defendant to defend the action. If, on the other hand, none of the meanings which the document is capable of bearing can give a defendant a defence to the action then there can be no fair dispute as to the meaning of the document. In which case the defendant has not shown that the case raises a triable issue and summary Judgment will be entered against him.
In OBASANJO FARMS NIG LTD v. MUHAMMAD (2016) LPELR – 40199 (CA); MOSHOOD v AKUBI (2014) LPELR – 24005 (CA) the purpose of summary judgment was stated as a procedure where it is obvious that the defendant has no defence on merit, a Court will not allow the defendant dribble the plaintiff whose case is unassailable. The essence of the procedure is to alleviate undue delay and loss of time and resources.
See LEWIS v. UBA (2006) 1 NWLR (PT. 962) 566 at 565; THOR LTD V. FCMB LTD (2005) 14 NWLR (PT. 946) 696 AT 710 711.
Against this backdrop, I have considered the defence and counter affidavit filed as reproduced above, the Appellant denies debt in one breath and in another hand he states categorically that the mode is to issue cheques and replace same with drafts. In paragraph 12 of the counter affidavit he stated that he issued N150m for transactions which were not to be presented but to be replaced with bank draft of equivalent amount and that upon dishonouring they were replaced with bank draft of the same amount but omitted to exhibit the bank draft or particulars thereto. Furthermore in paragraphs 15, 16 – 19 thereof he introduced a strange issue of fraud which he failed to link to this debt or that which was paid. He also exhibited documents which further compounds the defence as they referred to his staff and not the Respondents also the Police report does not mention the Respondents at all. These show that there are conflicts in the counter affidavit.
Under the summary judgment procedure, the burden is on the defendant to satisfy the Court that he has a good defense or to disclose other facts titling him to defend, otherwise judgment would be entered for the plaintiff. This Court has stated what a defendant must show to be letting him to defend in ISIAKA MOHAMMED & ANOR v PAUL OKAFOR & ANOR (2015) LPELR 25909 (CA) per ABIRU, JCA at pages 21 – 25, paras A – D:
The defence must condescend upon particulars and as far as possible deal with the plaintiffs claim and should also deal specifically with the plaintiffs claim and should also should state clearly and concisely what the defense is; A mere denial by the defendant of being indebted to the plaintiff is not enough, the defense should state why the defendant is not indebted in full or in part and then state the true position? iii. It is 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 bonafide defence; v. Only defenses on merit are allowed; the defendant cannot rely on sham defense; vi where the defendant raises a legal objection, the fact 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 (144) 283 AND SANUSI BROTHERS (NIG) LTD v. COTIA COMMMMERCIO EXPORTACAO E IMPORTACAO SA [2000] 11 NWLR (PT. 679) 566.
The Appellant contended that the Court ought to call evidence to resolve conflict in the affidavit and the counter affidavit. I have stated that the counter affidavit in itself contradicts itself. Even though he also submits that trial ought to be ordered the recent holdings of the Court are to the effect that it is not in every case of conflicts of affidavits that trial/evidence is ordered. See the case of JEV & ANOR v IYORTYOM & ORS (2012) LPELR – 9291 (CA) where this court held that:
Where two different affidavits are directed at two distinct set of facts they cannot be said to be irreconcilably conflicting…When facts are deposed in an affidavit the purpose of a counter is to contradict those facts and not to set up a distinct fact by way of defence.”
Furthermore where the conflict is not on the key issue before the Court, oral evidence will not be necessary. This was the holding in CITIZENS INT BANK v SCOA (NIG) LTD (2006) ALL FWLR 1680 at 1695.
In applying the above to the instant case, the defence and counter affidavit are the same, it in one breath admits and in the other says it has paid the sum and later it raises fraud. Therefore there is no need for oral evidence if is highly unreliable and does not meet the standard required of a good defense, besides when documents are available that can resolve same the need for oral evidence is dispensed with. See DAHIRU v AHMED & ORS (2013) LPELR – 22843 (CA); HUSSAINI ISA ZAKIRAI v SALISU DAN AZUMI MUHAMMAD & ORS (2015) LPELR – 40387 (CA).
The statement of defence and counter affidavit does not contradict the facts in the affidavit but sets up a different distinct fact as evidence. The exhibits at pages 15 – 17 shows that 6 postdated cheques were issued, pages 12-14 and 28 are for local purchase order, pages 8-21 are demand letters which were received but ignored, page 21 is in respect of dud cheque, and there was no denial of these there are acknowledgement stamp on each letter. There is a breakdown of outstanding sums owed and history of transactions of the Appellant’s statement of account at page 29 of the record; page 39 is the credit facility to import printing papers and newsprint together with letters from bank on indebtedness and this has not been denied. The document of the defendant is a letter to the Police, it does not mention any of Respondents staff nor the supplied newsprint, it lists names of its staff and seeks police assistant to arrest them. The second document is a newspaper which captioned wanted persons who are staff of Thisday the Appellant herein. There is no link with the Respondents, in fact it does not put particulars of fraud in its defence.
In addition, I have examined the notice of appeal and find that there is no ground for this fact nor does fair hearing stand out. Therefore the defence in my view is a time waster and an afterthought.
I agree with the Lower Court that no point of law was raised by the defense that warranted attention and the facts remain uncontested. The Appellant was given ample opportunity to defend himself and did but fell short of discharging the onus put on him.
Fair hearing has been defined to mean giving equal opportunity to parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of fair hearing. See INEC v MUSA (2003) LPELR – 1515 (SC).
On whether the Court evaluated the evidence, the Court reviewed from pages 124 129 of the record especially paragraphs 7 – 15 & 23 of the Respondents’ affidavit and paragraphs 4 – 7 of the Appellant’s statement of defence which were reproduced therein the judgment. The Lower Court also reviewed the 5 cheques in paragraph 9 of the Respondents’ affidavit which all added up to the sum of N125m bounced upon presentation. The Court also noted that Respondents went further in paragraphs 13 – 15 of its affidavit to state that the issuance of dud cheques were reported to the Police and that with the Police intervention the Appellant paid part of the debt which then reduced the outstanding balance to the sum of N120,596,840.00 which is the sum being claimed in the suit. The Court also reviewed paragraphs 7a – c of the statement of defence which admitted the issuance of 5 dishonoured Cheques, that the Appellant never averred that the sum stated on the cheques were redeemed at a later date.
The learned trial judge then held that it is a deliberate omission and that same amounted to admission of indebtedness on the part of the Appellant.
Therefore Lower Court took into consideration the principles set out in the earlier part of this judgment and applied it correctly and cannot be faulted.
The Appellate Court does not interfere with evaluation of evidence made by a trial Court. See MODDIBO v ABULMALIK (2016) LPELR – 41614 (CA); ONOVO V. MBA [2014] 14 NWLR (PT. 1427) 397 at 424, para F, per OGUNBIYI, JSC.
In this regard, I resolve the two issues in favour of the Respondents. The appeal lacks merit and is hereby dismissed. The judgment of the High Court of Lagos State; coram LAWAL-AKAPO, J., delivered in suit No: LD/716/2010 on the 12th November, 2010 is hereby affirmed. Costs of N200,000 (Two Hundred Thousand) is awarded in favour of the Respondents.
TIJJANI ABUBAKAR, J.C.A.: I had a preview of the lead Judgment prepared and rendered in this appeal by my Lord and Learned Brother OBASEKI-ADEJUMO JCA,
The reasoning and conclusion reached by my learned Brother is in accord with the settled position of the law, the lead Judgment has fully and efficiently covered the field, I have nothing extra to add except to state that I adopt the Judgment as mine and join in holding that Appellant’s appeal is devoid of merit and same is also dismissed by me. I abide by all consequential orders including the order on costs.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my Lord ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances
C. J. OnuzulikeFor Appellant
AND
A. A. Olatunji with him, N. Ogunsakin and J.A. OyeyipoFor Respondent
