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MR. ABIODUN ADIGUN v. IRETI AYO 1 CO-OPERATIVE INV. AND CREDIT SOCIETY, IWO (2019)

MR. ABIODUN ADIGUN v. IRETI AYO 1 CO-OPERATIVE INV. AND CREDIT SOCIETY, IWO

(2019)LCN/13631(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of July, 2019

CA/AK/1/2010

JUSTICES:

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

MR. ABIODUN ADIGUN – Appellant(s)

AND

IRETI AYO 1 CO-OPERATIVE INV. AND CREDIT SOCIETY, IWO – Respondent(s)

RATIO

DEFINITION OF A “SUMMARY JUDGEMENT”

A summary judgment is a procedure for disposing cases which are virtually uncontested. It is for the plain and straight forward cases. See UBA & ANOR. V. JARGABA (2007) LPELR 3399 (SC). Under summary procedure where it is obvious that a Defendant does not have a defence on the merit, a Court of law will not allow such a Defendant to dribble the Plaintiffs case because the intend of the procedure is to alleviate delay and loss of time and resources. In the case of THOR LTD VS FIRST CITY MERCHANT LTD (2005) 14 NWLR (PT. 946) 695, Supreme Court held thus 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 also OBARO V. HUSSAN (2013) LPELR 20089 (SC) AND UNION BANK OF NIG. V. AWMAR PROPERTIES LTD (2018) LPELR 44376 (SC). PER ABDULLAHI, J.C.A.

RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Osun State holden at Iwo Judicial Division delivered by Hon. Justice R. O. Shiyanbola on the 6th day of July, 2009.

The facts of the case is simple as can be seen from the printed Record of Appeal.

The Defendant/Appellant case is that a member of the Plaintiff/Respondent Association, he was informed that the Plaintiff/Respondent wanted to sale Truck. He had no money as at that time to get the vehicle. The Plaintiff/Respondent through his officers assured him that the vehicle was in good condition, precisely told him that he would not need any mechanical work on the vehicle for the next one year.

Based on the assurances, the Plaintiff who has been a very reliable, active, and credit worthy member of the Plaintiff/Respondent applied for the loan of the Sum of One Million and Fifty Thousand Naira only from the Plaintiff. The loan was granted to the Defendant/Appellant. Some officers of the Plaintiff collected the sum of One Hundred Thousand Naira only from the Appellant which they later refunded to the

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Association.

Contrary to the assurance given to the Appellant the vehicle turned out to be very bad. It developed engine problem in the first week after the purchase thereby creating a very heavy financial burden for the Defendant/Appellant. The contract for the delivery of goods entered into between the Appellant/Defendant and UAC Nigeria, was frustrated due to the incessant break down of the vehicle.

During the few days in which the vehicle was working the Defendant/Counter Claimant/Appellant was able to pay back the sum of N195, 000 to the Plaintiff.

The Appellant father who was also a member of the Plaintiff spent all his employment and retirement benefits in repair of the vehicle. In all the money spent in vehicle repairs, ran into over a million naira. The Defendant informed the Plaintiff of this development and requested for some additional assistance to enable him restore the vehicle; this was unjustly refused by the Plaintiff. This was contrary to existing practice. Thus the Appellant and his father were forced into further debt so as to get the vehicle working again. While the Appellant was sourcing for funds to repair the vehicle, the

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Plaintiff/Respondent came to their house at Hospital Road, Iwo where the vehicle was parked, and took same away forcefully and has put same to their economic benefit, since the month of December 2006 till date.

After the said seizure, the Appellant counsel wrote the Plaintiff demanding for the immediate release of the vehicle. The Plaintiff in response sent a record which showed that the amount the Defendant owed them has been settled through various deductions.

Subsequent to this, the Plaintiff resorted to Arbitration. The Defendant appealed against the award to the Osun State Director of Cooperatives. While the appeal was pending the Defendant was purportedly invited to another arbitration which he (Appellant) declined, on the grounds that his appeal before the Director of Cooperation was still pending. Though the panel sat and made an award, the Defendant did not yield to its jurisdiction. Subsequently the Plaintiff brought an action at the Osun State High Court of Justice sitting at Iwo, for the recovery of the sum of One Million, Two Hundred and Fifty Eight Thousand Naira Only (N1,258, 000) under the summary trial procedure.

The Court on

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the 6th day of July, 2009, gave judgment in Plaintiffs favour, hence this Appeal.

In a considered judgment delivered on 6th July, 2009, seen at pages 94-97 of the record, the lower Court found for the Plaintiff/Respondent. The Appellant being dissatisfied with the decision, hence on 25th September, 2009 lodged a 3 ground Notice of Appeal, seen at pages 98-101 of the record. Thereafter only the Appellant filed his brief of argument in line with the rules regulating the hearing of civil appeals in this Court.

The appeal was heard on 9th April, 2019. During the hearing of the appeal on the Appellants brief only as the Respondent did not file any process; learned counsel for the Appellant, F. N. Ukaegbu Esq., adopted the Appellants brief of argument, filed on 8th December, 2010 and deemed properly filed on 13th March, 2014 as representing his arguments for the appeal. He urged the Court to allow it.

In the Appellants brief of argument, the Appellant distilled three issues for determination to wit:
1. Whether the learned trial Judge was not wrong when he held that the Defendant had no defence to the suit even though

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the Defendant had stated in his defence that the Plaintiff had resorted to self help by seizing his property namely his vehicle in recovery of the said debt.
2. Whether the learned trial Judge was not wrong when he awarded an interest of 2.5% interest to the Plaintiff which was far above that provided by the High Court Civil procedure Rules of Osun State.
3. Whether the learned trial Judge was not wrong when he held that the Defendant had no defence to the Suit even though the Defendant had a counter claim against the Plaintiff.

A close look at the three issues above shows that they are identical in substance. For this reason, I think the following lone issue will meet the Justice of the case.

LONE ISSUE
Whether the learned trial Judge was right when he held that the Defendant had no defence to the suit despite the Defendant counter-claim.

Learned counsel for the Appellant submitted that summary judgment is for a liquidated money demand. That in the instant case, there is a dispute as to the outstanding amount claimed by the Plaintiff. Counsel contended that the two criterias for summary judgment was absent in the instant case. He

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referred to the case of OSIFO V. OKOGBO COMMUNITY BANK LTD (2007) ALL FWLR (PT. 372) 1803 for the criteria. That the Defendant in his statement of defence raised the defence that the Plaintiff had seized his property for more than three years before coming to Court. That such defence raises a triable issue.

Counsel submitted that summary judgment is granted where the Defendant has no defence or the defence raises no triable issue. That the Plaintiff/Respondents case was not a proper case to be brought under the summary trial procedure. That the rule of Court is to guide the Court. He cited DR. OLATUNJI ABAYOMI & ANR. V. ATTORNEY GENERAL ONDO STATE (2007) ALL FWLR (PT. 391) 1683 for the point.

That in response to the Respondents claim, the Appellant also filed a counter-claim and claimed therein that the Respondent was liable for trespass for seizing his truck DAF in which he asked the Court to set down the entire suit for trial under the general cause list. He argued that the Respondent did not file any defence to the counter claim and therefore admitted the claims of the Appellant as contained in the counter claim. He cited the

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case ofAKHIGBE V. PAULOSA (NIG) LTD. (2008) ALL FWLR (PT. 423) 1412 for the meaning of counter claim. He contended that the trial Court was wrong in law when he held that his action lie, in damages in a separate act and not a defence in the Plaintiff action. That the learned trial Court failure to hear and decide the Defendants counter-claim has occasioned a miscarriage of justice.

Learned counsel submitted that the award of interest should not be for the purposes of punishing the Defendant. That by awarding a 2.5% interest per month on the judgment sum, the trial Court had unwillingly foisted a very hapless condition to the Appellant. He urged the Court to resolve the issue in favour of the Appellant.

RESOLUTION
A summary judgment is a procedure for disposing cases which are virtually uncontested. It is for the plain and straight forward cases. See UBA & ANOR. V. JARGABA (2007) LPELR 3399 (SC). Under summary procedure where it is obvious that a Defendant does not have a defence on the merit, a Court of law will not allow such a Defendant to dribble the Plaintiffs case because the intend of the procedure is to alleviate delay

7

and loss of time and resources. In the case of THOR LTD VS FIRST CITY MERCHANT LTD (2005) 14 NWLR (PT. 946) 695, Supreme Court held thus 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 also OBARO V. HUSSAN (2013) LPELR 20089 (SC) AND UNION BANK OF NIG. V. AWMAR PROPERTIES LTD (2018) LPELR 44376 (SC).
In the instant case, the Respondent claimed against the Appellant for the recovery of the sum of one Million Two Hundred and Forty Eight Thousand Naira Only (N1, 248, 000 .00) among other claim against the Defendant/Appellant, the Defendant/Appellant by paragraphs three and six of his statement of defence and counter claim admitted the Plaintiffs claim but only to the tune of Eight Hundred and Fifty Five Thousand Naira (N855, 000.00) having paid N195, 000.00 (One Hundred and Ninety Five Thousand Naira Only) granted as a loan to him by the Plaintiff.
The learned trial Judge after going

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through the evidence before the Court, he entered judgment in favour of the Plaintiff. The defence of the Defendant/Appellant was that, the Respondent had seized his truck DAF and kept it in his custody up till now in recovery of the said loan. On this shady defence which does not disclose any defence on merit, can the Appellant be allowed to waste the precious time of the Court to argue on an empty defence, certainly no. It is only where the Defendant files an affidavit which discloses defence on the merit that he would be granted leave to defend and if there are material conflicts in the affidavit of both parties, the suit will be transferred to the general cause list. See UBN V. AWMAR (SUPRA).

Lend on the above, it is my firm views that the learned trial Judge was right when he held that the Defendant had no defence to the suit and I so hold.

The only issue reformulated is resolve against the Appellant.
Having resolved the lone issue against the Appellant, the appeal lacks merit and it is hereby dismissed. The judgment of the lower Court delivered on 6th July, 2009 by R. O. Shiyanbola J. in Suit No: HIW/28/2008 is hereby affirmed.

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MOHAMMED AMBI-USI DANJUMA, J.C.A.: I concur that the Appellant had no defence on the merit disclosed. The suit on the undefended cause list against him was rightly determined against him.

The Appeal against same is dismissed and the trial judgment is affirmed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA just delivered.

I agree with his reasoning and conclusion on the lone issue formulated for resolution in this appeal that the appeal is devoid of merit and should be dismissed. I accordingly dismiss it. I affirm the decision of the learned trial judge.

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Appearances:

F.N. Ukaegbu with him, H. C. Okereke, Esq. For Appellant(s)

Respondent not in court and not represented For Respondent(s)

 

Appearances

F.N. Ukaegbu with him, H. C. Okereke, Esq. For Appellant

 

AND

Respondent not in court and not represented For Respondent