MICHMERAH INTERNATIONAL AGENCIES LIMITED & ANOR v. FIDELITY BANK PLC (2019)

MICHMERAH INTERNATIONAL AGENCIES LIMITED & ANOR v. FIDELITY BANK PLC

(2019)LCN/13468(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/E/127/2013

RATIO

SUMMARY JUDGMENT: WHEN IT IS TO BE USED
The words used in the above rules of Court are very clear and unambiguous. Summary judgment procedure is to be used where the plaintiff believes that the defendant has no defence to his claim. Judgment is to be entered against a defendant pursuant to an application for summary judgment where it appears that the defendant has no good defence to the claim. In THOR LTD V. FCMB LTD. (2005) LPELR-3242 (SC) AT 12(B-D). The Supreme Court Per EDOZIE, J.S.C held that:
“The summary judgment procedure which is similar to the undefended list procedure, is designed to enable a party obtain judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action: see Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, Macaulay v. NAL Merchant Bank (1990) 4 N.W.L.R. (Pt. 144) 283, 314, Pan Atlantic Shipping and Transport Agencies Ltd. v. Rhein Mass G.M.B.H. (1997) 3 N.W.L.R. (Pt. 493) 248.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RECOVERY OF DEBT: THE CLAIMANT IN A CLAIM FOR RECOVERY OF DEBT MUST PROVE IT’S CASE

In a claim for recovery of debt such as the one under consideration where the claimant fails to show how he arrived at the sum being claimed by him, there is no basis for exercising that discretion in favour of the claimant. The Court must call upon the claimant to prove its case. See MUHAMMAD & ANOR V. MAGLODAN (NIG.) LTD (2017) LPELR-43191 (CA) AT 18-20 (A-E). Summary judgment procedure is mainly for recovery of liquidated damages. In ALIYU & ORS V. ITAUMA & ANOR (2008) LPELR-8455 (CA) AT 27 (D-E), this Court per Owoade JCA referred to The 6th Edition of the Black’s Law Dictionary at page 930 where a liquidated claims explained as:
“Claim, amount of which has been agreed on by parties to action or is fixed by operation of law. A claim which can be determined with exactness from party’s agreement or by arithmetical process or application of definite rules of law, without reliance on opinion or discretion. Claim for debt or damages is “liquidated” in character if amount is thereof fixed, has been agreed upon, or is capable of ascertainment by mathematical computation or operation of law.”
See also ECO BANK PLC. V. UDO (2012) LPELR-13926 (CA). In the instant case where the Court found that the respondent did not attach the statement of account and the appellants seriously disputed the interest charged on the facility granted, the interest of justice will be better served by putting the entire claim on the general cause list to enable the parties contest same.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

1. MICHMERAH INT’L AGENCIES LTD
2. CHIEF MICHEAL EMERAH Appellant(s)

AND

FIDELITY BANK PLC Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): By the writ of summons and statement of claim filed at the High Court of Anambra State on 19/8/2011 the respondent claimed against the appellants:
“(a) The sum of N290,545,165.44 (Two Hundred and Ninety Million, Five Hundred and Forty Five Thousand One Hundred and Sixty Five Naira Forty Four Kobo) being the sum outstanding as at 31st December, 2011 in respect of the lease facility granted to the defendants by the claimant.
(b) Interest on the above stated sum at the rate of 25% per annum until judgment and 7% per annum there after.
(c) Cost of this action.

By a motion on notice filed along with the writ of summons and statement of claim, the respondent applied for summary judgment as per the writ of summons. Parties filed and exchanged affidavits and written addresses which they relied on at the hearing of the motion. In its considered delivered by A.O Okuma, J on 16/1/2013, the Court below entered judgment as follows:
The justice of this case demands that this Court enters judgment to plaintiff in the sum of N45,475,796 and

transfer the balance of the plaintiff/applicant?s claim to the general cause list for proof and I so order. Judgment in the sum of N45,475,796.00 with interest of 25% per annum from 19/8/11 to date and 7% interest from date to date of liquidation of the judgment debt is hereby entered in favour of the plaintiff/applicant against the defendants/respondents. The applicant?s claim for cost of action is hereby refused as there is no evidence led in prove of it in this application. Cost of N50,000.00 is ordered against the defendants/respondents.?

The appellants were dissatisfied with the judgment. They filed a notice of appeal containing five grounds of appeal on 25/2/2013. The grounds of appeal without their particulars are as follows:
GROUND ONE-ERROW IN LAW
The learned trial judge erred in law when he entered judgment to the plaintiff in the sum of N45,475.796 and then transferred the balance of the plaintiff/applicant?s claim to the general cause list for proof.
GROUND TWO-ERROR IN LAW
The learned trial judge erred in law when he based his judgment on N45,475.796:00 instead of N9.17 Million the

defendants admitted as their final indebtedness to the plaintiff/applicant.
GROUND THREE-MISDIRECTION IN LAW
The learned trial judge misdirected himself when he held that:
Examination of facts averred in the defendants? counter affidavit of 28/6/2012 and the facts averred in the further counter affidavit of 11/10/12 were facts that allegedly existed prior to the facts averred in the counter affidavit of 26/6/12 as they occurred in 2005 while that of 11/10/12 occurred in 2002. The facts admitted by the defendants as seen in exhibit A annexed to the counter affidavit of the defendants filed on 28/6/12 with the facts averred in paragraphs 10 (b) to (g) of the said counter affidavit no doubt, reflects a more recent position which superceded the previously alleged position of the year 2002. It is of note to observe that exhibit A dated 17/3/05 annexed to the respondent?s counter affidavit of 28/6/12 evidenced that the sum of #45,475,796:00 was arrived as debt of the defendants to the knowledge of Barrister Chris Ezeh, said to be Receiver Manager appointed by the Federal High Court Enugu on 9/12/02 in suit no.

FHN/EN/CS/260/2002 in which defendant was a party to it.
GROUND FOUR-ERROR IN LAW
The trial Court erred in law when it entered judgment in the sum of #45,475:796:00 with interest of 25% per annum from 19/8/11 to date and 7% interest from date to date of liquidation of the judgment debt.
GROUND FIVE-OMNIBUS GROUND
The judgment is against the weight of evidence.

The appellants brief of argument filed on 27/6/2013 was settled by Dr. G.O Okafor. The respondent?s brief of argument filed on 9/2/2016 was settled by Emeka Okpoko. Appellants? reply brief was filed on 20/5/2016. Counsel to both parties adopted their respective briefs on 2/5/2019.
The appellants? counsel formulated the following five issues for determination:
1.?Whether the trial judge was right when he entered judgment to the plaintiff/respondent in the sum of #45,475,796 and then transferred the balance of the plaintiff/applicant/respondent?s claim to the general cause list for proof. (Ground 1)
2. Whether the learned trial judge was right when he based his judgment on #45,475,796.00 instead of

#9.17 Million, the defendants/appellants admitted as their final indebtedness to the plaintiff/respondent. (Ground 2)
3. Whether the learned trial judge did not misdirect himself and applied a wrong principle of law in the judgment under review when he declared that the events which gave rise to the sum of #45,475,976.00 was more recent and superseded the event which occurred in 2002 without pointing out the basis for the declaration. (Ground 3)
4. Whether the learned trial judge was wrong when he entered judgment in the sum of #45, 475,796.00 with interest of 25% per annum from 19/8/11 the date of filing of the suit to date and 7% interest from the date to date of liquidation of the judgment debit. (Ground 4)
5. Whether the judgment of the trial Court is sustainable having regard to the totality of the copious evidence of the appellants before the Court. (Ground 5)

The respondent?s counsel adopted the issues formulated by the appellants? counsel. I have considered the issues formulated by counsel along with the grounds of appeal. I find issue 1 to be apt for the determination for this appeal.

On that issue, the

appellants counsel submitted that the Court below erred in entering judgment against the appellants in the sum of #45,475:796 because the motion before the Court was for summary judgment and the Courts duty was to determine whether the respondent is entitled to judgment on the face of his processes or whether the appellants raised a triable issue. He argued that the transfer of the purported balance of the respondent?s claim to the general cause list is an indication or substantial proof that the appellants raised a triable issue and the case ought to have been heard on the merit. He submitted that the Court below having found that the appellants had raised a triable issue, the entire case ought to have been transferred to the general cause list for hearing on the merit especially when the defendants admitted owing only #9.17 Million and not #45, 475: 796. He further submitted that a triable issue is disclosed:
(a) Where there are difficult points of law involved in the issue raised,
(b) Where there are disputes as to the facts which ought to be tried,
(c) Where there is a real dispute as to the amount due to the

party making a claim which would necessitate taking an account to determine the amount, or
(d) Where there are reasonable grounds or a fair probability of a bonnafide defence such as a counter claim.

He referred to IVAN V. BILANTE INTL. LTD (1998) 5 NWLR (550) 396 AT 402. GEN. SEC. AND FINANCE COY. LTD V. OBIEKEZIE (1997) 10 NWLR (PT.526) 587-588. ADEBISI MACGREGOR ASS. LTD V. NIG. MERCHANT BANK. LTD. (1996) 2 NWLR (PT.431)378.

He submitted that all the above conditions are present in the instant case in that the appellants? case is that their final indebtedness is #9.17 Million and not #45,475, 796, the respondent?s admission that it continued to charge interest on the facility granted to the appellants not minding the expiration of the tenor of the facility, the appellants raised preliminary objection to the hearing of the suit for charging illegal interest and failure to join the receiver of the 1st appellant.

In response to above submissions, the respondents counsel submitted that the essence of Order 11 Rule 1 of the High Court (Civil Procedure) Rules of Anambra State is to facilitate speedy

dispensation of justice and to ensure that judgment is delivered early where the facts and circumstances of the case permits. Where the claim is for recovery of debt or other liquidated sum, the procedure becomes a veritable tool in facilitating early judgment. He referred to MACAULAY V. NAL MERCHANT BANK (1990) 4 NWLR (PT.44) AT 283. EMUWA V. CONSOLIDATED DISCOUNT (2001) 2 NWLR (PT.687) 424. He further submitted that since the appellants admitted their indebtedness to the respondent in the sum of #45.47M, the respondent is entitled to judgment under the provision of Order 11 Rule 1 of the High Court (Civil Procedure) Rules of Anambra State, 2006. He referred to NISHZAWA LTD. V. JETHWANI (1984) 12 SC 257.

In his reply to the submissions of the respondent?s counsel, the appellants counsel argued that the Court having awarded the sum of #45,475:796:00 which was supposed to be the full and final settlement of the debt owed by the appellants, there was no need for the alleged balance of the total sum claimed by the respondent to be transferred to the general cause list.

RESOLUTION:
Order 11 Rules 1, 4 and 5 of the High Court (Civil Procedure) Rules of Anambra State, 2006

provides for summary judgment as follows:
1. Where a plaintiff 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 address 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 time prescribed for defence, file:
(a) his statement of defence.
(b) depositions of his witnesses.
(c) Exhibits to be used in his defence; and
(d) A written address in reply to the application for summary judgment.
5. (1) Where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim he may be granted leave to defend.
(2) Where it appears to a judge that the defendant has no good defence the Judge may thereupon enter judgment for a plaintiff.
(3) Where it appears to a Judge that the

defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence
The words used in the above rules of Court are very clear and unambiguous. Summary judgment procedure is to be used where the plaintiff believes that the defendant has no defence to his claim. Judgment is to be entered against a defendant pursuant to an application for summary judgment where it appears that the defendant has no good defence to the claim. In THOR LTD V. FCMB LTD. (2005) LPELR-3242 (SC) AT 12(B-D). The Supreme Court Per EDOZIE, J.S.C held that:
“The summary judgment procedure which is similar to the undefended list procedure, is designed to enable a party obtain judgment especially in liquidated demand cases, without the need for a full trial where the other party cannot satisfy the Court that it should be allowed to defend the action: see Nishizawa Ltd. v. Jethwani (1984) 12 SC 234, Macaulay v. NAL Merchant Bank (1990) 4 N.W.L.R. (Pt. 144) 283, 314,

Pan Atlantic Shipping and Transport Agencies Ltd. v. Rhein Mass G.M.B.H. (1997) 3 N.W.L.R. (Pt. 493) 248.

The respondent filed an eight paragraphs affidavit in support of the application for summary judgment. In paragraphs 3(v)- 6 of the affidavit, it is settled that:
3(V). That in May 2000 and upon application by defendant, the claimant granted a lease facility in the sum of #97,000,000.00 (Ninety Seven Million Naira) to the defendant for the purchase of Five (5) Volvo buses. Shown to me, attached herein and marked Exhibit ?A? are the claimant?s offer letter dated 9th May 2000, the 1st defendant?s acceptance letter dated May 2000, the 1st defendant’s Board Resolution and other relevant documents in respect of the said facility.
VI. That the above stated facility was secured inter alia with the legal ownership of the buses, and the personal guarantee of the 2nd defendant. Shown to me, attached herein and marked Exhibit ?B? is the personal guarantee of the 2nd defendant in respect thereof.
VII. That the said facility was also supposed to be secured by a Legal Mortgage on a property situate at No. 30 Omu Road,

G.R.A Onitsha but the title documents to the said property were never released and or handed over to the claimant despite the undertaking by the defendants to do so. Shown to me, attached herein and marked Exhibit C is the copy of the undertaking dated 10th May 2000.
VIII. That the defendants have failed to liquidate the said facility till date.
IX. That the defendants have refused to repay the said facility despite repeated demands made by claimant.
X. That subsequent attempts made by the claimant to repay the lease facility proved abortive as the buses which were the main security for the facility has totally lost its value.
XI. That the total amount outstanding in respect of the facility at 31st December 2010 is #290,545,165.44 (Two Hundred and Ninety Million Five Hundred and Forty Five Thousand One Hundred and Sixty Five Naira Forty Four Kobo).
XII. That the claimant further instructed its solicitors, the law firm of Straddle partner to write to the defendant in respect of the above, which they did. Shown to me, attached herein and marked Exhibit ?D? is the claimant?s solicitor letter

dated 21st January 2011.
XIII. That despite these various efforts and demands on the defendants for the repayment of the facility, the defendants had persistently refused, failed and/or neglected to settle its indebtedness to the claimant.
4. That it is obvious that the defendant/respondent is not willing to pay the indebted sum.
5. That I verily believe him that the defendant/respondent has no defence to this suit which is predicated on the unpaid balance in respect of various supplies of the claimant/applicant?s products which the defendant/respondent received.
6. That pursuant to the facts of this case, the claimant/applicant?s claim is for liquidated sum.

The above depositions are the same as paragraphs 5-13 of the statement of claim. In compliance with the rules of Court, the appellants filed their statement of defence and counter claim and a seventeen paragraph counter affidavit. In paragraphs 10-15 of the counter affidavit it is stated that:
10.That my principal in chambers informed me and I verily believe him that:
(a) The lease granted to the 1st defendant is #97M in May

2000.
(b) That there was an agreed interest rate between the two parties while the tenor of the lease lasted.
(c) That rather than to keep the interest rate with the tenor of the facility, the bank continued to charge the interest rate after the tenor of the lease has elapsed in utter disregard of the banking laws.
(d) That on 17th March 2005, the 2nd defendant and the claimant held a meeting in the 2nd defendant?s Head Office in Onitsha.
(e) That pursuant to the meeting both parties agreed that the defendants should pay the claimant the sum of #45.47M (Forty Five Million, Four Hundred and Seventy Thousand Naira) only as final payment of the indebtedness.
(f) That through a letter dated 17th March 2005, the defendants requested for interest waiver and restructuring of their indebtedness. Attached herein and marked Exhibit A is the letter.
(g) That through a reply dated 26th April 2005, the bank accepted the request and settled for #45,475,796 as final payment of the total indebtedness to the bank. Attached herein is also the letter marked Exhibit B.
11. That paragraph 4 is false. The defendant/respondents had earlier

on paid #27.20M (Twenty-Seven Million, Two Hundred Thousand Naira) only as interest illegally charged on the facility notwithstanding the expiration of the tenor of facility. The payment of the interest is indication that the respondents are willing to pay the agreed sum of #45.47M.
12. That while the respondents were genuinely trying to sort out the debt, the Bank Assigned the unimaginable debt to ASSET MANAGEMENT CORPORATION OF NIGERIA, through a Notice of Assignment dated June 01, 2011. The Notice is attached as EXHIBIT C.
13. That paragraph 5 is false. That while the claimant is claiming the over bloated and imaginary sum of #290,545,165.44 (Two Hundred and Sixty-Five Naira, Forty-Four Kobo) only, the respondents unequivocally assert that the actual debt agreed by both parties as evidenced in Exhibit A above is #45,47M.
14.That from the foregoing facts, the defendants/respondents have a very good and solid defence.
15. That paragraph 6 is false. That the claimant/applicant cannot be claiming for a liquidate sum in view of unascertained, fictitious and manipulated interest rates used in determining the so called debt at different

stages in loan.

The respondent filed a twelve paragraph reply to counter affidavit. In paragraph 4-11 of the reply, it is stated that:
4. That the facts deposed to in the paragraphs 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the defendants counter-affidavit are false.
5. That the claimant?s agreement with the defendants was conveyed to the defendants in writing vide letter of the claimant dated 26/04/05. In the said letter the defendant had a specific period not exceeding 26 month with which to pay the #45,475,796 or at least #2 million monthly installment with effect from May 2005.
6. That the letter specifically stated that any breach of the conditions of the letter revert the parties to status quo which was the situation before the waiver of part of the loan.
7. That the defendants did not take advantage of the waiver as specified in the claimant?s letter of 26/04/05 and did not pay off the agreed sum within the agreed time which was June 2007.
8. That the defendants? order dated 9/12/02 has nothing to do with the claimant who was not a party to the order therein made.

9. That the order dated 9/12/02 specifically referred to some properties which are different from mortgage property in this case, No. 30 Omu Road, G.R.A. Onitsha.
10. That the claimant is charging the defendants the lawful interest and there was no fictitious or manipulated interest.
11. That the defendants know quite well they are owing the claimant.

The respondents filed a fourteen paragraph further affidavit wherein, it is stated in paragraph 5-13 that:
5. That paragraph 4 is completely false.
6. That parahraph 5 is not the true position rather it has been overtaken by events. That the true position is that the 1st defendant, Micmerah Int. Agency Ltd, was pursuant to an order of the Federal High Court Enugu made on 9th December 2002 placed under Receivership. Intercontinental Bank Plc appointed Barr. C. C Ikem as the manager of the Receivership. That the said Order of Receivership has not been vacated till date. The Order is hereby annexed as EXHIBIT A.
7. That the Order was published in Daily Champion Newspaper. The publication is hereby annexed as EXHIBIT B.
8. That my principal in

chambers DR G.O OKAFOR, ESQ. on the 10th day of October 2012 at about 12noon during a conference in respect of this case, informed me and I verily believe that:
(a) From the date or day the Receivership Order was made, the company or the 1st defendant corporate existence changed and lost its status. The Receiver Manager appointed by the International Bank acquired all the company?s assets and liability.
(b) The lease facility granted to the company in the year 2000 by the claimant was #97 Million.
(c) On 31/02/2002 the defendant paid or lodged the sum of #64,742,200.00 into the account domiciled to the claimant/applicant.
(d) The balance of the principal sum as at 09/12/2002, the date of Receiver Order was #32,275,796.00.
(e) The defendants paid a whooping sum of #12,000,000.00 (Twelve Million Naira) as insurance premium for insurance covering all the vehicle including their luxury bases that burnt within that period.
(f) Pursuant to paragraph 10 of the conditions in the offer letter and based on the agreement, and having paid the sum as premium, the insurance had to pay the claimant the sum of #23.1 Million.
(g) When

the sum of #23.1 Million is deducted from #32.27 Million, the remainder would be #9.17 Million only. This is the balance of the principal sum as at 09/12/2002.
(h) The entire principal sum would have been fully paid before the end 2005 save for the Receivership order and the unlawful interest charged by the applicant within this period.
(i) In a recent tripartite meeting held with the 2nd defendant, Asset Management Corporation of Nigeria and the claimant, the above facts were brought to the knowledge of the Asset Management of Nigeria who denied knowledge of the above facts.
(j) The Asset Management Corporation was jolted with the revelations and adjourned the meeting sine die.
9. That paragraphs 6 and 7 are not correct.
10. That Paragraph 8 is false.
11. Paragraph 9 is false. The Order covers all the properties of the company.
12. Paragraph 10 is false. The interest being charged when there was already existing Receivership Order cannot be comprehended.
13. Paragraph 11 is only true to the extent that the defendants are owing the claimant #9.17 Million before the claimant frustrated the entire agreement. The rest of

the averments are false.

The Court below considered the above depositions and held at page 135-136 of the record of appeal that:
Examination of the fact averred in the defendants counter affidavit of 28/6/2012 and the facts averred in the further counter affidavit of 11/10/12 shows that facts averred in the further counter affidavit of 11/10/12 were facts that allegedly existed prior to the facts averred in the counter affidavit of 26/6/2012 as they occurred in 2005 while that of 11/10/12 occurred in 2012.
The fact admitted by the defendants as seen in exhibit A annexed to the counter affidavit of the defendant filed 28/6/2012 with the facts averred in paragraphs 10(b) to (g) of the said counter affidavit, no doubt, reflects a more recent position which superseded the previously alleged position of the year 2002.
It is of note to observe that exhibit A dated 17/3/05 annexed to the respondent?s counter affidavit of 28/6/12 evidenced that the sum of #45,475,796.00 was arrived as debt of the defendants to the knowledge of Barrister Chris Ezen, said to be Receiver Manager appointed by the Federal High Court

Enugu on 9/12/2002 in suit No. FHR/EN/CS/260/2002 in which the 1st defendant was not a party but the 2nd defendant was a party to it.
Having admitted indebtedness to the sum of #45,475,796 as at the date of exhibit A annexed to the said counter affidavit of 28/6/2012, it is then a burden on the defendants to present evidence of payment of some or all of it from the 17/3/2005 when the said exhibit A was made. The defendants claimed that they have made appreciable payments without evidence of such payments and without even stating the amounts paid and possibly dates of payment and without exhibiting tellers or documents showing same cannot be said to be satisfactory. There is therefore no evidence of liquidation of part or all of the said sum admitted by the defendants.
In view of the foregoing, it is the view of this Court that the defendants are liable to the sum of #45.475.796.00 and found to be without the triable issue raised in respect thereof.

Though, the provisions Order 11 Rule 5 (3) of the High Court (Civil Procedure) Rules, 2006 of Anambra State empower the Court to enter judgment in respect of a part of a claim to which

there is no defence. However, on the entire facts deposed to in the affidavits of both parties, it cannot be said that the appellants have no defence to any part of the respondent?s claim so as to entitle the respondent to judgment in the sum of #45,475,796. This is because, the appellants categorically, stated in paragraph 8 of their further counter affidavit that they are owing the respondent only a sum of #9.17 Million and they stated how they arrived at that figure. Though the reasons given and the basis of their calculation occurred in 2002 whereas the agreement for the payment of the sum of #45,475,796 was made in 2005, it is clear from the affidavits of the respondent that the sum of #45,475, 796 is no longer acceptable to the respondent. The respondent contends that the agreement is no longer binding as the appellants failed to comply with the terms and conditions stipulated therein. The Court below was clearly in error in holding that ?the defendants are liable to (sic) the sum of #45,475,796:00 admitted and found to be without triable issue raised in respect thereof. By the agreement, the sum of #45,475,796:00 was to be

paid within a period not exceeding 25 months from the date of the letter evidencing the agreement which is 26/4/2005. The suit at the Court below was filed on 19/8/2011. The issue obviously thrown up for determination is whether that agreement is still binding on the respondent. The claim of the respondent is for the sum of #290,545,165. The Court below held that:
Considering that the plaintiff?s claim is for the sum of #290,545,165.441 it is pertinent to now ask what then is the position with respect to the balance outstanding based on the above claim?
It is noted that this Court is bound to restrict itself to the evidence adduced by the plaintiff/applicant in prove of its entitlement to the prayers sought. An examination of the plaintiff/applicant?s application shows that apart from asserting in paragraph 3 (XI) of the affidavit in support of the application that the total amount outstanding in respect of the facility as at 31/12/2010 is #290,545,165.44 (Two Hundred and Ninety Million Five Hundred and Forty Thousand One Hundred and Sixty Five Naira, Forty Four Kobo) the applicant failed to show how the debt rose from

#97,000,000.00 to #290,545165.44.
The onus is on the applicant to prove how the debt rose from #97,000,000.00 in 2000 to #290,545,165.44 in 2010. It is not enough to assert that the balance as at 31/12/2010 is #290,545,165.44 without going further to lead evidence of how it came to that amount, this Court cannot in the face of none admission of same and averment that the plaintiff?s claim is over bloated and imaginary proceed to enter summary judgment on the sum claimed without exhibit of the statement of account of the 1st defendant showing how the sum claimed accumulated.

Apart from the fact that the appellants raised triable issues in respect of the sum of #45,457,796:00, the Court below having rightly found that the respondent failed to show how the sum being claimed was arrived at, there was no basis at all for entering judgment on any part of the claim and transferring the purported balance to the general cause list. An application for summary judgment is not automatic or granted as a matter of cause. The decision to grant an application for summary judgment is an exercise of discretion. In a claim for recovery of debt such

as the one under consideration where the claimant fails to show how he arrived at the sum being claimed by him, there is no basis for exercising that discretion in favour of the claimant. The Court must call upon the claimant to prove its case. See MUHAMMAD & ANOR V. MAGLODAN (NIG.) LTD (2017) LPELR-43191 (CA) AT 18-20 (A-E). Summary judgment procedure is mainly for recovery of liquidated damages. In ALIYU & ORS V. ITAUMA & ANOR (2008) LPELR-8455 (CA) AT 27 (D-E), this Court per Owoade JCA referred to The 6th Edition of the Black’s Law Dictionary at page 930 where a liquidated claims explained as:
“Claim, amount of which has been agreed on by parties to action or is fixed by operation of law. A claim which can be determined with exactness from party’s agreement or by arithmetical process or application of definite rules of law, without reliance on opinion or discretion. Claim for debt or damages is “liquidated” in character if amount is thereof fixed, has been agreed upon, or is capable of ascertainment by mathematical computation or operation of law.”
See also ECO BANK PLC. V. UDO (2012) LPELR-13926 (CA). In the instant case where the

Court found that the respondent did not attach the statement of account and the appellants seriously disputed the interest charged on the facility granted, the interest of justice will be better served by putting the entire claim on the general cause list to enable the parties contest same.

The conclusion is that this appeal has merit. It is hereby allowed. The ruling of the High Court of Anambra State delivered in suit no. O/145/2011 on 16/1/2013 is hereby set aside. The suit is hereby remitted to High Court for hearing of the entire claim on the general cause list before another judge. Parties shall bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I totally agree with the Judgment of my Learned Brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA on all the issues raised and determined. I have nothing to add than to abide by the order allowing the Appeal and remitting the Suit to the Honourable the Chief Judge of Anambra State for re-assignment for hearing before another Judge. I also make no order as to costs.

?JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead

judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
?
For the more detailed reasoning in the lead judgment, I shall equally allow this appeal and I also adopt the consequential orders in the lead judgment as mine.

Appearances:

C.E. Obiezie with him, R.C. OzonsiFor Appellant(s)

I.H. OkoyeFor Respondent(s)

Appearances

C.E. Obiezie with him, R.C. OzonsiFor Appellant

AND

I.H. OkoyeFor Respondent