MATAB OIL AND GAS LTD & ANOR v. FUNDQUEST FINANCIAL SERV. LTD & ANOR
(2020)LCN/13949(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, February 10, 2020
CA/L/644/2016
Before Our Lordships:
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
1. MATAB OIL AND GAS LIMITED 2. MR. OLADELE MARTINS APPELANT(S)
And
1. FUNDQUEST FINANCIAL SERVICES LTD 2. MR. ABIODUN IDERAWUNMI RESPONDENT(S)
RATIO
A SUMMARY JUDGEMENT PROCEDURE
Summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial. In a summary judgment procedure, pleadings, hearing of witnesses and addresses are usually by-passed. The judgment is usually based on the writ of summons, statement of claim. See: Order 11 of the High Court of Lagos State (Civil Procedure Rules) 2012. The purpose of a summary judgment is to save time and cost where the defendant obviously has no defence to the action. It is for disposing with dispatch virtually uncontested cases. See: SODIPO V. LEMMINKAINEN OY (1985) 2 NWLR (p. 8) 547; (1986) 1 NWLR (pt. 15) 220. The procedure is for plain and straight forward cases, not the devious and crafty. See:MACGREGOR & ASSOCIATES V. NMB (1996) 2 SCNJ 72 at 81. A summary judgment is a judgment on the merits because it is based on the lack of defence to the claim. See: UAC TECHNICAL V. ANGLO CANADIAN CEMENT LTD (1996) NMLR 349. PER TUKUR, J.C.A.
WHETHER OR NOT THE TRIAL COURT CAN ENTER SUMMARY JUDGEMENT IN FAVOR OF A CLAIMANT WHERE THERE IS LACK OF DEFENCE TO A CLAIM
I think the Lower Court was entitled in law to enter summary judgment in favour of a claimant where there is lack of defence to a claim. A summary judgment is a judgment on the merits because it is based on the lack of defence to the claim. See: Order 11 of the High Court of Lagos State (Civil Procedure Rules) 2012; SODIPO V. LEMMINKAINEN OY (1985) 2 NWLR (p. 8) 547; (1986) 1 NWLR (pt. 15) 220; UAC TECHNICAL V. ANGLO CANADIAN CEMENT LTD (1996) NMLR 349 supra. PER TUKUR, J.C.A.
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Lagos State delivered by Honourable Justice O. A. Williams on 19th day of June, 2015 in Suit No. LD/6863/2014 wherein the Lower Court granted the reliefs sought by the 1st Respondent as contained in the Writ of Summons dated 17th September, 2014 for the recovery of loan and interest rate accruable to the 1st Respondent.
The 1st Respondent who was the Claimant at the lower Court had commenced this action against the Appellants and the 2nd Respondent who were the Defendants at the High Court of Lagos State sitting in Igbosere on the 19th day of September, 2014 in Suit N0: LD/6863/2014. Filed alongside the Claimant’s Writ of Summons and Statement of Claim was a Motion for Summary Judgment under Orders 11 and 14, Rule 2 (2) of the High Court of Lagos State (Civil Procedure) Rules, 2012. Upon hearing the said Motion for Summary Judgment, the Lower Court granted same and by a Warrant of Possession, the 1st Respondent, after selling the property, took possession of the property subject matter in February, 2016. The Appellants, being
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aggrieved and dissatisfied with the decision of the Lower Court, have exercised their constitutional right of appeal to ventilate their grievance before this Court by filing a notice of appeal which is dated 18th of September, 2015.
The Appellants’ Notice of Appeal dated 18th day of September, 2015 and filed same date contained four (4) grounds of appeal, which I reproduced hereunder without their particulars:-
GROUNDS:
1. ERROR OF LAW: “The learned trial judge erred in law when he held that the Claimant/Respondent has a right to foreclose Appellants’ equity of redemption and sell the property at Solomade Area of Ikorodu, Lagos registered as 81/81/2009 AD at the Lands Registry, Alausa Ikeja despite the Appellants’ contention that he did not deposit the title documents at any stage of the loan transaction.”
2. ERROR OF LAW: “The learned trial judge erred in law when he held that the Appellants’ defence that the N41, 948, 427.37 claimed by the Claimant includes a penalty regime which is outside parties contemplation and illegal is a sham as the Appellants provides no evidence that the amount includes
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any penalty regime.”
3. ERROR OF LAW: “The learned trial judge erred in law when he held that the Defendants/Appellants shall pay to the Claimant the sum of N41, 948, 427.37 being the principal sum and the interest on the loan facility granted to the Defendants/Appellant.”
4. ERROR OF LAW: “The learned trial judge erred in law when he held that as a sham the Appellants’ defence that Respondents procurement and possession of his certificate of occupancy is a forgery, as the attached certificate of occupancy is not his own.”
In accordance with the practice in this Court, parties filed and exchanged their respective briefs of argument. In the Appellant’s Brief of Argument which is dated 13th October, 2016 and filed the same date, the following issues were formulated for the determination of this appeal to wit:-
1. “Whether there was consensus ad idem between parties vis a vis compliance by the Appellants with the terms of the agreement in the Loan Contract?”
2. “Whether the 1st Respondent furnished the Trial Court with cogent evidence and proof of interest rate to arrive at 30%
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per annum?”
3. “Whether from the totality of oral and documentary evidence tendered at the trial Court, the certificate of occupancy tendered at the trial Court, the certificate of occupancy registered as 81/81/2009AA formed part of the 1st Respondent’s condition as security for the loan?
The first issue is said to arise from the 1st ground of appeal. The second issue is said to arise from the 2nd and 3rd grounds of appeal, while the 3rd issue is said to arise from the 4th ground of appeal.
Whereas, the 1st Respondent’s Brief of Argument is dated 20th February, 2017 and filed same date wherein the 1st Respondent raised a Preliminary Objection and contended that issues 1 and 2 formulated by the Appellants are incompetent as the issues were not distilled from any of the Grounds of Appeal contained in the Notice of Appeal. With respect to the appeal, learned Counsel for the 1st Respondent formulated the following issues:-
1. “Whether from the facts and circumstances of this case, the trial judge was right in entering Summary Judgment for the 1st Respondent?.
2. Whether the learned trial judge was right in
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granting the 1st Respondent leave to sell the 2nd Appellant’s property registered as 81/81/2009AA at the Lands Registry, Ikeja, and also granting order of foreclosure and possession of the said property?”
The 2nd Respondent did not file a Brief, while the Appellants’ Reply Brief is dated 5th day of August, 2019 but filed on the 6th day of August, 2019.
PRELIMINARY OBJECTION
At pages 3 to 4 of the said brief, the 1st Respondent raised a preliminary objection in the following terms:-
“Issues 1 and 2 formulated by the Appellants are incompetent as the issues were not distilled from any of the Grounds of Appeal contained in the Notice of Appeal.”
Arguing the preliminary objection, learned counsel for the 1st Respondent submitted that issues one and two formulated by the Appellants in the Appellants briefs of argument do not flow from any of the grounds of appeal and are therefore incompetent and same should be struck out. Learned counsel cited the case of Akere V. Governor of Oyo State 2012 12 NWLR Pt. 1314 page 240 at page 267 paragraph G.
Responding to the preliminary objection, learned counsel for the
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Appellants submitted that the arguments of the 1st Respondent is misconceived as the said issues emanate from the grounds of appeal. Learned counsel further contended that the arguments of the Appellants was not solely based on ground 1. The same argument was made by learned counsel with respect to issue two and ground 2 and 3.
Learned counsel finally contended that the main purpose of distilling issues for determination is to enable the parties get focused on the real question in controversy in the grounds of appeal.
Learned counsel cited Oniah V. Onyia (1989) 2 SC (Pt.1) 69; Nzekwe V. Nzekwe (1989) 3 SC (Pt.11) 76. Learned counsel urge us to discountenance the preliminary objection, dismiss same as lacking in merit.
Before I venture into the consideration of the instant appeal, I consider it paramount to deal with the preliminary objection raised by the 1st Respondent first. This is so, as the law is settled that where a Notice of preliminary objection is filed and moved before a Court of Law, the Court is duty bound to consider the preliminary objection before venturing into the main or cross-appeal. Thus, the aim of a preliminary objection
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is to terminate a case in limine, without dissipating unnecessary energy in considering unworthy or fruitless matter in the Courts proceedings. See: YARO V. AREWA CONSTRUCTION LTD (2007) 17 NWLR (pt. 1063) 333; ONYEKWULUJE V. ANIMASHAUN (1996) 3 NWLR (pt. 439) 637; EFET V. INEC (2011) 17 NWLR (PT. 1247) 423.
The Supreme Court had stated the purpose of preliminary objections inS.P.D.C.N. LTD V. AMADI (2011) 14 NWLR (pt. 1266) 157 at 183 paras. D-E in the following words:-
“Order 2, Rule 9 of the Supreme Court Rules provide for the filing of preliminary objections. Preliminary objections are filed against the hearing of an appeal and so once it succeeds, the appeal no longer exists. All too often, we see preliminary objections filed against one or more grounds of appeal. Since there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead, a notice of motion to strike out the defective grounds of appeal should be filed.”
A preliminary objection is the procedure to be adopted where a respondent objects to the hearing of an appeal. The purpose of preliminary objection is to terminate the appeal
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in limine. It is therefore a procedure adopted only against the hearing of an appeal and not for any other purpose. See: ADELEKAN V. ECU-LINE NV (2006) 12 NWLR (pt. 993) 33; AUTO IMPORT AND EXPORT V. ADEBAYO (2002) 18 NWLR (pt. 799) 554; AMADI V. NNPC (2000) 10 NWLR (pt. 674) 76. For the reasons I have set out herein above, the preliminary objection is not a suitable method of challenging the competence of a ground of appeal, which when upheld cannot terminate the appeal. The preliminary objection is therefore incompetent and it is struck out. I shall now proceed to the main appeal.
Learned counsel for the Appellants submitted on issue one that a contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. He cited BILANTE INTERNATIONAL LTD V. N.D.I.C (2011) 15 NWLR (pt.1270) 407 at 411 p. 423. Counsel thus, submitted that an offer must be accepted in order to crystallize into a contract. He also cited NNEJI V. ZAKHEM CONST. NIG. LTD (2006) 12 NWLR (pt. 994) 297; MAJEKODUNMI V. NATIONAL BANK OF NIGERIA (1978) 3 SC 119; OMEGA BANK NIG. PLC V. O.B.C LTD (2005) 8 NWLR (pt. 928) 547.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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It is equally the submission of the learned counsel that the required mode of acceptance as requested by an offer or must be complied with by the offeree and that 1st Respondent in the instant case has failed to establish a binding contract between it and the Appellants with respect to the certificate of occupancy registered as 81/81/2009AA upon which execution was levied. He cited AFOLABI V. POLYMERA INDUSTRIES LIMITED (1967) SCNLR 256. Learned counsel thus, further submitted that it is not the function of Court to make contracts between parties but the duty of Court is to construe surrounding circumstances including written and oral statements so as to determine the intention of the parties. It is the submission of counsel that there must be unmistaken and precise offer and acceptance of the terms mutually agreed upon by the parties to a contract or agreement before the contract or agreement can be said to have come into existence in law. He cited ODUTOLA V. PAPERSACK NIG. LTD (2006) 18 NWLR (Pt.1012) 470 among other cases.
It is also the submission of learned counsel that in the instant case, there can be no breach of a non-existent contract and the
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judge’s Ruling was in error as there was no consensus ad idem between the parties with respect to the offer letter dated 10th June, 2013 and the Appellants’ letter dated 25th June, 2013 as the Appellants did not comply with the terms of the offer letter to make it a binding contract on both parties. He urged this Court to so hold.
On issue 2, learned counsel submitted that there must be proof of damages and costs claimed by a party to warrant any award of such. It is his submission that a person seeking to enforce his right under a contractual agreement must show that he has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him.
Learned counsel also submitted that in law and practice of banking, the relationship between a bank and its customer is contractual and in the law of contract, a written contract agreement entered into by parties is binding on them. It is also the submission of counsel that the relevant facts upon which a claim for pre-judgment interest is based must be pleaded because facts not pleaded ground to no issue. Counsel further submitted that by
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virtue of the facts of this case and the authorities supra, the 1st Respondent woefully failed to lead cogent and credible evidence before the Trial Court to prove the interest rate of 30% per annum against the Appellants and accordingly urge this Court to so hold.
On issue 3, learned counsel referred to Section 58 of the Registration of Titles Law, CAP R4 Laws of Lagos State, 2003 and argued that conveyance is the branch of law concerned with moving property from one owner to another and in the instant case, the certificate of occupancy registered as 81/81/2009AA was supposed to be used to secure the loan vide the Appellant’s letter dated 25th June, 2013 but however, the purported letter was a counter-offer which was consummated by both parties as the Appellants never tendered nor deposited the certificate of occupancy to the 1st Respondent, thereby repudiating the contract by the Appellants’ action and/or conduct.
Counsel cited Section 15 (1) of the Mortgage & Property Law CAP M5, Laws of Lagos State, 2015 and further submitted that a legal mortgage arises when the owner surrenders his legal title of property to a lender or
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creditor to secure payment of owner’s debt. It is his further submission that counsel to the 1st Respondent woefully failed to prove and establish that there was consensus ad idem between the parties so much so the fact that the Appellants did not deposit their title documents to ground the order sought by the 1st Respondent. Counsel equally submitted that the Ruling of the learned trial judge must fail for failure of the 1st Respondent to prove his case. Counsel thus, urged this Court to so hold.
SUBMISSIONS OF 1ST RESPONDENT’S COUNSEL
With regard to issue 1, learned counsel submitted that the learned trial judge was right in entering summary judgment in favour of the 1st Respondent. It is his submission that once a Defendant admits the receipt of the loan and acknowledges a debt, such a Defendant need not state the exact amount owed and the fact that he did not acknowledge the exact figure claimed, does not stop the Court from entering judgment against the Defendant. Counsel relied on MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR pt. 144 page 283, at page 308, Paragraph E and THADANI V. NATIONAL BANK LTD (1972) 1, SC 105. Learned
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counsel also submitted that the burden of establishing that the amount claimed by the 1st Respondent was above what the Appellants were owing is also on the Appellants. He relied on AFRIBANK V. MCSL & ANOR (2011) LPELR 3636 CA. He further submitted that the position of law is that summary judgment procedure is designed for expeditious disposal of claims which are virtually incontestable in the sense that the Defendant has no valid defence to the claims. He cited ILOMUANYA V. LOBI BANK OF NIGERIA LTD (1997) 12 NWLR pt. 531 page 139 at 148.
It is the submission of counsel that the contention of the Appellants that the loan agreement did not mention the 2nd Appellant’s property and that there is no memorandum of deposit are of no consequence and that deposit of title document need not be in writing. He cited YARO V. AREWA CONSTRUCTION LIMITED (2007) 17 NWLR pt. 1063 page 333 at 369 para. E-F ratio 3. Counsel also submitted that the 1st Respondent pleaded that the original document was submitted and exhibited a copy of the 2nd Defendant’s certificate of occupancy given to the 1st Respondent by the 2nd Appellant.
On issue 2, learned
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counsel submitted that the Court was right in granting leave to sell, foreclosure and possession of the property used as security for the loan to enable the 1st Respondent dispose of same and apply the proceeds to the liquidation of the judgment debt. He relied on Order 51, Rule 1 (a) – (d) of the High Court of Lagos State (Civil Procedure) Rules, 2012 and AFRIBANK NIGERIA PLC V. ALADE (200) 13 NWLR pt. 685 p. 591 at 594, ratio 2.
Learned counsel further submitted that evidence of 30% interest rate for the facilities were furnished to the Court and oral evidence of interest rate was not necessary in the consideration of an application for summary judgment. He further submitted that the Appellants’ argument is misconceived and should be discountenanced by this Court and that parties clearly agreed on the interest rate for the facilities which was clearly stated in the offer letters for the facilities.
It is the further submission of learned counsel that all that is needed to create a charge on the property is the handing over of original certificate of occupancy to the 1st Respondent. He equally submitted that the mere general traverse
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by the Appellants to the specific and direct averment by the 1st Respondent that the original title was deposited with the 1st Respondent by the 2nd Appellant does not constitute good defence in law.
REPLY OF APPELLANTS’ COUNSEL.
On his part, counsel for the Appellants in his Reply Brief submitted that the learned trial Court was in error in granting the 1st Respondent’s application for summary judgment dated 17th September, 2014 without permitting the Appellants to defend their case and more particularly to ascertain the actual amount of money owed by the Appellants to the 1st Respondent which was in issue.
In Reply to 1st Respondent’s submissions, learned counsel submitted that foreclosure and not sale, is the proper remedy of an equitable mortgagee and where mortgage is by way of charge and not by conveyance, the mortgagee takes no estate whatsoever in the land or in the property but he has generally only an equitable interest to be enforced by sale upon order of Court. He cited JAMES V. JAMES (1873) L.R I6 E. 153; MARSHALL V. SHREWSBURY (1875) 10 Ch. App. 250 at 254; OGUNDIANI V. ARABA (1978) 6-7 SC. 42 pp. 21-22, paras G-A.
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RESOLUTION
Summary judgment procedure is a procedure whereby the Court gives judgment in favour of a party without a full trial. In a summary judgment procedure, pleadings, hearing of witnesses and addresses are usually by-passed. The judgment is usually based on the writ of summons, statement of claim. See: Order 11 of the High Court of Lagos State (Civil Procedure Rules) 2012. The purpose of a summary judgment is to save time and cost where the defendant obviously has no defence to the action. It is for disposing with dispatch virtually uncontested cases. See: SODIPO V. LEMMINKAINEN OY (1985) 2 NWLR (p. 8) 547; (1986) 1 NWLR (pt. 15) 220. The procedure is for plain and straight forward cases, not the devious and crafty. See:MACGREGOR & ASSOCIATES V. NMB (1996) 2 SCNJ 72 at 81. A summary judgment is a judgment on the merits because it is based on the lack of defence to the claim. See: UAC TECHNICAL V. ANGLO CANADIAN CEMENT LTD (1996) NMLR 349.
I have carefully and painstakingly read through the record of this appeal alongside the parties’ briefs of arguments and I found that the 1st Respondent commenced this action by way of writ
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of summons and a statement of claim, being the mode of commencement required by Order 11 of the High Court of Lagos State (Civil Procedure) Rules, 2012. I have equally taken cognizance of the fact that a Motion for summary judgment, affidavit and a written brief were filed alongside the said originating processes. See: pages 1 to 15 and 44 to 88 of the record, respectively.
In response to the said originating processes above, the Appellants filed their statement of defence, list of witnesses, witness statement on oath, counter-affidavit and written address. See pages 103 to 120 of the record. Now, in the statement of defence, nowhere did the Appellants deny taking the loan facility of the sum of ₦20,000,000.00 from the 1st Respondent. Neither is there anywhere in the said Appellants’ statement of defence wherein the Appellants denied accepting all the terms and conditions of the offer letters attached to the affidavit in support of the motion for summary judgment as EXHIBITS 1C and 2C. See pages 13 to 15 and 19 to 21 of the record of this appeal, respectively. The Appellants did not also exhibit any document to counter the 1st Respondent’s
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evidence/exhibits. The question now is whether from the facts and circumstances of this case the trial judge was right in entering summary judgment for the 1st Respondent. The answer is, in my view, in the affirmative. I think the Lower Court was entitled in law to enter summary judgment in favour of a claimant where there is lack of defence to a claim. A summary judgment is a judgment on the merits because it is based on the lack of defence to the claim. See: Order 11 of the High Court of Lagos State (Civil Procedure Rules) 2012; SODIPO V. LEMMINKAINEN OY (1985) 2 NWLR (p. 8) 547; (1986) 1 NWLR (pt. 15) 220; UAC TECHNICAL V. ANGLO CANADIAN CEMENT LTD (1996) NMLR 349 supra. I find nothing wrong with the decision of the lower Court. The first issue for determination of this appeal is therefore resolved against the Appellant and in favour of the 1st Respondent.
With regard to issue two, the attitude of this Court is that it will not interfere with the finding of facts by the Lower Court unless there exists special and exceptional circumstances that will allow such question of fact to be reopened. Clearly, the 30% interest rate is the interest rate charge on the
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loan facilities per annum. (See pages 50 to 58 of the record). I am of the firm view that the 1st Respondent is entitled to the repayment of its loan facility advanced to the Appellants with the interest in accordance with the loan contract between the parties as the 1st Respondent has made out its case on balance of probability. Accordingly, the second issue is resolved in favour of the 1st Respondent and against the Appellants.
With regard to issue three and in resolving same, I shall herein have consideration for APPENDIXES D8, D9 and the Appellants’ letter dated 25th November, 2013 contained on pages 17, 19 and 36 of the record of appeal, respectively. By APPENDIX D8, the Appellants undertook to secure the loan facility by Certificate of Occupancy of the property situate at No. 12, Obiteru Street, Solomade, Ikorodu, Lagos. (See page 17 of the record). By APPENDIX D9, the letter of approval of credit facility dated June 26, 2013 by the 1st Respondent and signed by both parties contained an interest rate of 30% per annum. (See page 19 of record). By a letter of apology dated 25th November, 2013 the Appellants pledged additional collateral, the
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same certificate of occupancy belonging to the M.D of Matab Oil & Gas. (See page 36 of record). I do not see anything contrary to the fact that the said certificate of occupancy is the 1st Respondent’s condition as security for the loans. The Appellants have failed to establish that the certificate of occupancy registered as 81/81/2009AA is not the security for the loan obtained from the 1st Respondent. Thus, the third issue is resolved in favour of the 1st Respondent and against the Appellants. The appeal lacks merit and is dismissed. I wish to observe in passing that a party cannot be heard to complain and turn round from his contractual undertakings and obligations in a bid to obviate his liabilities haven taken the benefits of the contract. The Ruling of the lower Court delivered on 19th March, 2015 in Suit NO: LD/6863/2014 is affirmed. Parties to bear their respective costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I read the judgment of my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree entirely with his reasoning and conclusion.
I also hold that the appeal is dismissed; the decision of the High Court of Lagos State delivered on
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the 19th of March, 2015 by Honourable Justice O. A. Williams is hereby affirmed.
I also abide by all consequential orders.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in its draft form, the leading judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA wherein the appeal was dismissed as its lacks merit.
While I agree with the decision of my learned brother on the 1st Respondent’s Preliminary Objection which was dismissed, I have reached the same decision based on my understanding that the objection did not relate to the issue of competency of the grounds of appeal filed by the Appellants, but on the fact that issues one and two which the Appellants have distilled for determination, did not arise from any of the grounds of appeal. It is my view, that in the assessment or evaluation of issues donated by the parties for determination, the Court is not pedantic and will not require that issues set down for determination be a didactic rendition as if they must be words for words with the grounds of appeal filed. It is never so. Once the issues set down for determination are strictly speaking, not
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strange bed fellows” with the grounds of appeal filed, it is the duty of this court to consider them liberally without being needlessly pedantic as its primary focus based on its duty, is to determine appeals on their merit. I am of the view, that against this proposition, the issues set down by the Appellants are accommodable by a liberal reading of the grounds of appeal vis-a-vis the issues set down for determination. The 1st Respondent’s Preliminary Objection is for these reasons, not well founded and was rightly dismissed by my learned brother.
Secondly, by way of emphasis, the procedure for summary judgment under the High Court of Lagos State (Civil Procedure) Rules, 2012 is such that the Court is empowered, in the exercise of its discretionary powers, and based on documentary exhibits that are placed before it by both parties, to enter judgment in favour of the Applicant. The procedure hardly envisages the need to call witnesses to give oral evidence in such ascertained monetary claims. This is because, once an application for summary judgment cannot be determined on the basis of documentary exhibits produced by both parties and the 1st
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Respondent in particular as in this instance, then the suit may have lost its entitlement to be accommodated and heard under the provisions of the High Court’s Rules for summary judgment procedure, but must be heard as ordinary action in which viva voce evidence will be called by the parties. This is because, the primary goal of the provisions for summary judgment procedure, is to avoid delay and ensure expedited disposal of such cases. See: UBA PLC V. JARGABA (2007) 11 NWLR (pt. 1047) 247 and GRAND SYSTEMS PETROLEUM LTD V. ACCESS BANK PLC (2015) 3 NWLR (pt. 1446) 317.
Save for these remarks, I agree with the decision reached in the lead judgment just delivered by my learned brother, Jamilu Yammana Tukur, JCA that the instant appeal lacks merit and it is hereby dismissed.
I abide with the consequential orders made as to costs.
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Appearances:
Kingsley Izimah. For Appellant(s)
Nick Omeye, with him, Felix Okezie for 1st Respondent. For Respondent(s)
